delivered the opinion of the court:
The depositions offered in evidence purport to have been taken-under section 72 of the practice act of February 18, 1824, 22 Ohio L. 65. At least they were taken while that act was in force, and at the time there was no other law in the state, authorizing the taking of depositions under a notice merely. This section provides-that, under the circumstances ^therein specified, the depositions of certain persons “may be taken, before an j justice or judge ot any of the courts oí the United States, or before any chancellory
Of the latter class are a “ chancellor,” “ master commissioner in ■ chancery," “justice or judge of any supreme or superior court,” or of any “county court or court of common pleas,” “mayor or chief magistrate of a city,” or “justice of the peace of any of the United .States or of this state." In some of the states the judicial officers of the higher judicial tribunals are styled justices, in others, judges. In our own state they are known by the latter appellative. Ail these officers derive their offices from the state authority, and before ..any of them, might depositions be taken under our statute of 1824.
Alexandria, however, is not a town of any one of the states of this Union. It is not located in any one of the states, but in the District of Columbia, a territory of the United States. Its “ chief • magistrate," then, as such, had no power to take these depositions, because the power is delegated only to a “ mayor or chief magistrate ” of a city, in one of the United States or of “ this state.” It •.is said that the mayor of Alexandria is, ex officio, a justice of the peace, and as such may exercise this power. But the statute refers to justices of the *peace of “ any of the United States, or of this state." The objection is not that this officer has not power to administer oaths, but that he is not an officer specified ,-in the statute, and empowered to discharge the duty of taking depositions.
It has been urged, in argument, that the mayor of Alexandria .being, ex officio, a justice of the peace, and that town being within
Nor is this the first time the question has been before the court. True, it is the first time the question has been before the court in bank, but not upon the circuit. And upon the circuit it has been repeatedly decided, and such depositions rejected. It may bethought that this is giving a strict construction to the statute. But it' must be remembered that depositions are not unfrequently ex parte. And where there is a statute authorizing the taking of them, that statute should be strictly pursued.
In the present case it has been urged, that, inasmuch as the proceedings are in chancery, a different rule should be adopted. The statute itself makes no difference whether the proceedings are at law or in chancery. In either case depositions may be taken. And in either ease the party has his election to take them under a commission or dedimus potestatem, or under the statute by giving notice. The complainants might have pursued the former course, and their depositions would have been well taken; but having-elected to pursue the latter, they must be bound by it. They *have attempted to pursue the statute and failed. Their depositions must, therefore, be excluded.
It is objected, however, that this question has been already decided in the present case, and that, therefore, it is too late to take-the exception. The fact appears to be this: At the September-term of the court, 1830, in Pickaway county, this case came before the court, and these same depositions were offered in evidence and objected to for the same reason as at the present time. The two judges who held the court divided in opinion as to the propriety of their reception. According to .the ordinary px'aetice
The whole-case having been reserved, the counsel for the defendants again raise the objection, and insist that the decision in Pickaway can have no binding force upon this court. And such is the unanimous opinion of the court. In fact, that was no de- • cisión; owing to a difference of opinion it was impossible to de- ■ cide. To hold otherwise would result in this absurdity: that a • court, consisting of four members, would be compelled to decide .a case upon evidence which three of them believed to be incompetent or improperly taken.
It may be well to observe that under the present existing law the same difficulty does not exist. The “ act to provide for the taking of depositions,” passed March 3, 1831, 29 Ohio L. 123, in •section 1, has a provision authorizing justices of the peace, of the territories as well as of the states, to take depositions.
*These depositions being excluded on account of having been improperly taken, the case may be continued to give the complainants an opportunity to retake them.