Johnston v. Beckham , 3 Grant 267 ( 1859 )

The opinion of the court was delivered

by Thompson, • J.

The first assignment of error is to the ad-' mission by the court below of the deposition of William B. Eoss, taken on a commission issued by the District Court, directed to commissioners named by the respective parties to the suit, and executed at Warrenton,. Fauquier County, Vir-ginia.

The first objection to the deposition was,'that there were many erasures and interlineations in it not noted by the com-missioners. But to this it is answered, and very conclusively, that the deposition shows that both parties were present at the taking of the testimony&emdash;that by agreement they waived sepa-rate answers to many of the interrogatories, and agreed upon the times of adjournments and -meetings. And the commis-sioners certify, in closing the testimony, that the parties were personally before them, and “ severally gave their consent to what was done and the manner in which it was done.”

Commissioners are the officers of the court in taking testi-mony ; and although it might be satisfactory to note interlinea-tions and erasures in material matters,'yet it is seldom done in practice; and as the presumption is that all has-been done fairly and honestly, a deposition will not be excluded on ac-count of such an objection, unless there arises some ground to suppose that it has been unfairly tampered with. Nothing of that kind was alleged here;' and if we were to sustain the ob-jection on the ground simply of erasures and interlineations, it would be difficult to find a case -in which testimony so taken could be read. This error is not sustained.

Judgment affirmed.