1. The point taken by the appellant, in regard to the admission of the deposition of Parkinson and Wood is, in the opinion of this court, not tenable. The deposition of Wood was suppressed before, because the certificate of the justice was not in accordance with the statute law. It was withdrawn, and the justice before whom it was taken, identifies it in his own deposition, properly taken and certified, stating the death of the deponent, Wood. It may be considered as a part of Parkinson’s deposition; it was taken between the parties, properly, but it lacked the certificate. Now being a'deposition of a witness in the same cause, between the same parties, good, so far as the facts are stated, good, so far as the witness himself is concerned, only lacking the formal certificate of a third person, we conceive the court below properly admitted it, after proof of the death of the witness. The cases cited from Yeates, do not bear out the views of the counsel. The board of property *531was no court — had no power to administer the oath to a witness. In the case in the note, from all that appears, the deposition of the deceased witness, taken before the referees, may have been rejected upon the same ground. , The referees, under the order, may not have had power to swear witnesses. See 2 Yeates, 232.
2. In regard to the instructions, in the opinion of this court, the court below erred in the third instruction. That instruction informs the jury that the answer of the defendant admits the value of the malt to be eight hundred and five dollars. This is obviously given under the new code of practice. In our opinion, the allegation, to be taken as admitted, must be a material one, and it must be so stated in the petition, as t'o bring to the mind of the defendant the importance of it in the trial of the cause; then, if the defendant fails to deny it in his answer, it may be taken as confessed; but here, the sum of eight hundred and five dollars, as the worth of the malt, was not a material matter to the action ; the action could have been as well supported if the malt had been worth but four hundred dollars, or any other sum. Some value must be set forth, but that'particular value, as set forth, need not be proved; a less or a greater value will, on proof, support the petition. The court, then, erred in this instruction.
3. The first instruction given by the court, of its own motion, marked number four on the record, is also erroneous ; it is repugnant on its face. This instruction has two clauses. It is as follows : “The dray ticket, marked “A,” in question, is not conclusive evidence that the rate of freight therein named was the stipulated rate agreed upon. But if the defendant has shown that it did not express the actual contract made, it does not bind the defendant; it is open to explanation. But if said dray ticket was signed by the authorized agent of the defendant, then the price of freight therein named is the contract price, and the defendant is bound thereby.” It needs but to be carefully read, to see its repugnancy ; the two clauses ex*532pressing different and inconsistent views o£ the same matter. This instruction should not have been given. Its tendency was anything else than to instruct or assist the jury in forming a proper conclusion in the premises. The judgment of the court below will he reversed, and the cause remanded,
