Court of Errors and Appeals, Charlotte.
March Term 1818.
A variance, in the description of the suit, between the caption of a deposition, and the commission for taking it, will not he fatal, if enough appears to enable the court to presume that the suit is. in fact, the same. (Depositions may now be taken without commission Code, 3847.
Appeal from the Circuit Court for the County of Montgomery. — In Ejectment. — One point was, that a deposition of Prince was
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obtained upon production of a notice proved in open court before the clerk, and by him indorsed with the probate. The alleged cause for the objection is that it was ex parte.
Haywood, J. —
That is the common practice. The objection ought not to prevail.
Another objection is, that the caption states it to have been taken in a suit between Dixon and these defendants. But not said to be an action of ejectment, nor between the lessee of Dixon and the defendants; and therefore there was nothing to show that the evidence was taken in his ejectment suit. And it might be in another suit. The action is rightly named in the dedimus, as between Dixon’s lessee and the defendants. It is stated that pursuant to a dedimus, they have taken the deposition, not pursuant to the annexed dedimus.
Haywood, J. —
To presume a dedimus, not annexed, to have been that very one by force of which the deposition is taken, is to presume strongly at least. But it is stated to have been on a suit depending in Montgomery Circuit Court, and it is not shown that at any time any other suit answering this description was then depending in that court between Dixon and the defendants, it may, together with the actual annexation of the dedimus to the deposition appearing with the latter, enable the Court to presume that the suit in the deposition and in the commission is the same.
Therefore the deposition was properly received and read in the Circuit Court.
Affirm the judgment.