#### Wellborn v. Younger.

~) t From Wilkes. j

A deposition shall not be rejected, because it is certified simply that the witness was sworn to the truth of the deposition, without stating that he was sworn to testify the truth, the whole truth, and nothing but (he truth.

A new trial will sometimes be granted on the ground of surprise is matter of law.

This was an action on the ease, in which the plaintiff declared for a deceit in the exchange of horses, and. was tried below before Badger, Judge.

After the plaintiff had closed his case, the defendant^ counsel offered to read in evidence the deposition of osie Eli Miller, Due notice of the time and place of taking the deposition had been given; hut the evidence was oh* jected to, and rejected by the Court, on the ground that the witness not appearing to have been sworn to depose the truth, the whole truth, and nothing hut the truth, ¡bilí simply having been sworn to the truth of the facts stated, in the deposition, and the plaintiff not having attended to cross examine; it was a mere affidavit ex parte. The defendant’s counsel then stated, that he had seen and ex* *206amined the deposition, before the trial, with the view of ascertaining whether it was regularly taken, and could be read; that he had not discovered, or had any idea of sucjj an objection, nor had he supposed that it would be either taken or allowed; that the deposition was considered hy him as all important in his defence, and expressed a hope that the Court would grant him a new trial on the ground of surprise, unless the opposite counsel would consent to a mis-trial. The opposite counsel refused to consent; and the judge declined expressing any opinion, at that time, whether a new trial would be awarded on the ground of surprise.

The defendant’s counsel then proceeded, to examine several witnesses to -make out his defence, and the case was argued to the jury, and a verdict insisted,on for the defendant on the evidence offered; The jury found for the plaintiff; and defendant moved for a new trial, first, because the Court had improperly rejected the deposition; and secondly, on the matter of surprise before mentioned. As to the first, the presiding judge retained the opinion expressed ■ at the trial; and as to the second, it was held that defendant could not have a new trial; because, first, the deposition having been seen and examined, and the objection being apparent on its face, it was a surprise as to matter of laAv, and not matter of fact; and second, because he did not submit to a Arerdict on discovering that his deposition could not be read, but Avent on, examined witnesses, argued his case to the jury, and insisted on a verdict on the proof he had offered; and he ought not thus to take two chances, hut should be bound by the election he had made to try his case before the jury, rather than depend on the ground of surprise.

Judgment was rendered for plaintiff, and defendant appealed.

Taylor, Chief-Justice.

The common form of administering an oath is so familiarly knoAVn to all persons in *207any degree conversant with the trial of causes, that it is •a very reasonable presumption, 'that magistrates, who are in the daily practice of transacting such business, are conusant of it; and when they certify, on a deposition taken under the authority of a commission, that a witness was sworn, a presumption arises, prima facie, that he was duly sworn according to the forms and ceremonies of law. In the act concerning oaths, passed for the very purpose of prescribing the mode of administering them, the legislature has presumed that the practice and detailed form was known to every person, competent to administer them; or, at least, has not thought it necessary to recite it in the act, but leaves it to be gathered from common law and common usage. 1 JVbw Eero. eh. 069. The certificate to this deposition states, that the witness was sworn on the Holy Evangelists; hut I should have, thought it quite sufficient, if it had simply stated, that the witness was sworn; inasmuch as every witness is legally sworn who takes an oath according to the ceremonies of his peculiar religion, as a Jew on the Pentateuch, and a Gentoo and all others according to the belief in which they are educated. So the affirmation of a Quaker, and of the other sects enumerated in the act of 1777, are equally valid with an oath, however solemn. However the forms may differ, the substance and meaning are the same in all, viz. calling God to witness what we say, and imprecating his vengeance, if we assert a falsehood. When a person is prosecuted for perjury, committed in an answer of Chancery, it is according to the regular practice, and rendered necessary by the coui’se of business, to prove that the defendant took the oath, by the production of the jurat, attested by the person before whom it was taken. Such proof is sufficient, at least, to put the party upon showing, or raising a reasonable presumption that he was personated; otherwise it has been thought almost impossible to convict a person of a perjury so committed. (0 Bac. 1189.) If the certificate were de-. *208fective on principle, which I do not think it is, the generality of the usage of so making them, with very few exceptions of a more formal statement, was enough to surprise a counsel, who examined a deposition with a view to ascertain whether it was regularly, taken. My opinion consequently is, that there ought to be a new-trial, on the ground of the rejection of legal evidence, and on the ground of surprise, which, although it might bo in matter of law, is not therefore an insufficient reason; for in enumerating the reasons for a new trial, Mr. Justice Blackstone states as one, “that either party may be puzzled by a legal doubt, which a little recollec, fion would have solved.” (3 Bl. 390.)

Ham and Henderson, Judges, concurred in granting . a new trial,