William Strong

“ 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 taking 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 provision, either of a contract or of a statute, intended for his benefit. ”

“ There is at least equal reason for presuming the consent of the defendant, that the deposition of Underwood should be taken before the magistrate who took it, and in the manner in which it was taken. In York Company v. Central Railroad Company, [2] it was said that when a deposition has been taken under a commission the general rule is, that all objections of a formal character, and such as might have been urged on the examination of the witness, must be raised at such examination, or upon motion to suppress the deposition. ”

“ At that time the deed to Hoffman had not been made, nor had the survey of the land been made and reported. This appears from the deed itself. It is plain, therefore, that there was no authority for the survey and report, or for the deed. Without the statute in existence when they were made, they could have no efficacy. As transmissions of title they were wholly void. The deed was therefore properly rejected.
There remains one more exception to be considered. It is to the charge of the court in answer to the request of the jury for instructions. ”