#### WOMACK v. GROSS.

(Filed May 11, 1904).

1. DEPOSITIONS — Exceptions and Objections — Waiver—The Code, sees. 1860, 1361.

The failure to insert the name of the commissioner in the commission to take the deposition is waived by the objecting party appearing at the taking of the deposition and making no objection thereto until after the trial was begun.

2. DEPOSITIONS — Admissions—The Code, see. 1S58.

Where a deposition is rejected in limme for the reason that the name of the commissioner was not in the commission, it is not incumbent on the party offering the deposition to show why it should be admitted.

3. APPEAL — Depositions—Admissions.

An agreement by an appellee that a deposition should not be sent up in the case on appeal because not material to the decision, is an admission that a failure to send it up should not be prejudicial to the appellant, and in effect that the rejected evidence was material if wrongly rejected.

ActioN by Q. L. Womack against J. C. Gross, beard by Judge E. B. Jones, at January (Special) Term, 1904, of the Superior Court of Rutheefoed County. Erom a judgment for the plaintiff, the defendant appealed.

McBrayer & Justice, for the plaintiff.

Eaves & Mucker, for the defendant.

Clark, C. J.

On objection by the plaintiff the Court refused to permit the deposition of Susan Gross to be read in evidence, on the ground that the name of the commissioner was not inserted in the commission. The defendant excepted. The commission was properly signed, sealed and issued, and *379tbe plaintiff accepted service of tbe notice, Avbicb stated tbe time and place at wbicb tbe deposition would be taken and tbe name of tbe commissioner. Before said commissioner tbe plaintiff appeared without exception and cross-examined tbe witness. Tbe deposition was taken November 21, 1903, and tbe trial took place January 25, 1904. There Avas no exception to tbe deposition till after tbe trial began.

Tbe Code, section 1361, provides how and when an objection on account of irregularity may be made. Section 1360 provides that no deposition shall be quashed for irregularity after a trial begins, where tbe deposition has been filed sufficiently long before tbe trial to permit objection to be made sooner. Tbe irregularity in failing to fill in tbe name of tbe commissioner to whom tbe commission was issued, and Avbo duly took and. returned tbe deposition, Avas waived by tbe plaintiff appearing before him by counsel without exception and cross-examining the witness, and by not making any exception till after tbe trial was begun. Willeford v. Bailey, 132 N. C., 403, Avhere tbe commissioner Avas not named in the notice; Davison v. Land Co., 118 N. C., 369, where the commission was neither signed nor sealed; Carroll v. Hodges, 98 N. C., 419; Woodley v. Hassell, 94 N. C., 159; Barnhardt v. Smith, 86 N. C., 480; Kerchner v. Reilly, 72 N. C., 173.

Tbe deposition having been rejected in limine for tbe reason given, it Avas not incumbent upon tbe defendant to put in evidence grounds under section 1358 for its admission, for that Avould have been a vain thing to do after tbe deposition bad bpen already rejected as invalid. It is also true that Avben evidence is rejected, tbe party offering it should state its purport or send it up if written (as a deposition), that tbe Court may see that it was competent and relevant and that its rejection Avas injurious and not merely harmless error. Straus v. Beardsley, 79 N. C., 59. But the agree*380ment of tbe appellee that the deposition should not be sent up “because not material to the decision,” is an admission that failure to send it up should not be prejudicial to the appellant, and in effect that the rejected evidence was material if wrongly rejected.

Eor the error in rejecting the deposition, there must be a

New Trial.

Douglas, J.,

concurring. I concur in the opinion of the Court upon the ground therein stated that “There was no exception to the deposition till after the trial began.” I am very much influenced in this view by the reasoning of the Court in Shutte v. Thompson, 82 U. S., 151, Avhere the deposition was taken before an officer not authorized by law. The Court said, on page 159: “It is to be observed that the objections made- are all formal rather than substantial. Still they are quite sufficient to require the rejection of the deposition if there is nothing in the case to countervail their effect. But it is obvious that all the provisions made in the statute respecting notice to the adverse party, the oath of the witness, the reasons for making the deposition, and the rank or character of the magistrate authorized to take it, were introduced for the protection of the party against whom the testimony of the witness is intended to be used. It is not to be doubted that he may waive them. A party may waive any proAdsion, either of a contract or of a statute, intended for his benefit. If therefore it appears that the plaintiff in error did Avaive his right under the act of Congress, if he did practically consent that the deposition should be taken and returned to the Court as it Avas, and if by his waiver he has misled his antagonist, if he refrained from making objections known to him at a time when they might have been removed, and until after the possibility of such removal had ceased, he ought not to be *381permitted to raise the objections at all. If he may, he is allowed to avail himself of what is substantially a fraud. Parties to suits at law may assert their rights to the fullest extent, but neither a plaintiff nor a defendant is at liberty to deceive, either actively or passively, his adversary, and a court whose province it is to administer justice will take care that on the trial of every cause neither party shall reap any advantage from his own fraud.”

In the case at bar it appears that the deposition was taken on the 21st day of November and that the trial took place on the 25th day of the following January. This apparently gave the plaintiff ample opportunity to examine the deposition and object to any irregularity of form or substance. I do not mean to say that a failure to object in proper time would validate a blank commission. Merely formal irregularities may be cured and substantial rights may be waived, but it is impossible to validate that which has no legal existence. The plaintiff’s conduct does not have the legal effect of creating a commissioner, but is construed by the Court, in the furtherance of substantial justice, into a consent to the taking of the deposition under the circumstances under which it was taken. By withholding all objection when he knew the facts or by reasonable diligence might have known them, until it was too late to remedy defects which might otherwise have been remedied, he is deemed to have acquiesced. A void commission is essentially different from a defect in notice. The only object in the latter is to give the opposite party a reasonable opportunity of attending. If he actually attends and proceeds with the examination the object of the notice is attained. This is not so with other irregularities, which he generally has no means of knowing until after he does attend. Hence his attendance is not necessarily a waiver as to them, but even then he should assert his right *382of objection in good faitb and in due time. This seems to be the essential principle aimed at by section 1360 and 1361 of The Code.