Murray v. Larabie

Citations

• 8 Mont. 208

Syllabus

<p>Depositions — Defective certificate — Waiver of same. — In the case at bar, a deposition of a non-residenb witness was taken out of the Territory under section 682, division 1, Compiled Statutes. The notary before whom it was taken prefixed to it a recital of the proceedings before him, but appended after the interrogations and answers, and the signature of the witness, only a simple statement, under his hand and seal, that the deposition had been subscribed and sworn to before him. The deposition was filed in court on February 27th, and no objection was made to it until May 23d following, during the trial of the case. Held, that the recital of the proceedings had before the notary contained all that section 683, division 1, Compiled Statutes, requires in that particular, and that it is immaterial whether a certificate is at the beginning or end of a deposition ; but that said deposition failed wholly to comply with the requirements of said section 683 as to a certificate. Held, however, that by reason of the delay aforesaid, the defect in the certificate had been waived.</p> <p>Contbact— Wager. — In an action for the possession of a horse, alleged to have been sold by the defendant to the plaintiff, the answer set forth that in addition to the price paid for the horse, it was agreed in the contract of sale, that the defendant was to be paid a certain sum, if the horse won a certain race in the following year. The defendant had possession of the horse at the time of the race, and the animal did not run. It was objected that even if there had been such an agreement, it was void as a wager and contrary to public policy. Held, that as in no event under the agreement the defendant was to be paid tha additional consideration, unless the horse won the race — the time for which had elapsed — it was unnecessary to pass upon the legality of such a contract, oven if the facts alleged constituted a contract, which was very doubtful.</p>