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Weber county, Utah, to be used as evidence, as provided in
the statute, and subject to all the objections, except the form
of interrogatories, which might be made were the witness
present in court to testify.” The notary who took the depo-
sition at Chicago certified that the deposition “was by me
carefully read to the witness, and corrected by him, and then
subscribed by him in my presence.” The officer who took
the deposition in Nebraska, with respect to this point, cer-
tified that the deposition "was subscribed by the witness in
my presence, and was taken at the time and place as in the
attached stipulation specified.”

The statute above referred to simply requires that the cer-
tificate of the notary public shall substantially show the facts
above quoted. It seems to us that, in view of the stipulations
of the attorneys, and the facts certified to, there was a sub-
stantial compliance with the statute, except that in the
Omaha deposition it did not appear that the deposition was
either read by or to the witness, and that an opportunity was
given him to make corrections. But we think that the read-
ing of the deposition to or by the witness was substantially
waived by the stipulation. If the reading by or to him was
waived, the making of corrections was also waived, as an in-
cident of waiving the reading. The statutory provision above
referred to is not to be construed so as to prohibit a party
from, waiving any of the matters therein required. But in
any event the objection to the depositions was not made un-
til the trial had begun and was in progress. The objection, if
it had been timely made, and if fatal, could have been ob-
viated by the retaking of the deposition. Nor was the ob-
jection aimed at the competency of either the witness or the
testimony, but was directed at a matter of authentication
merely. The usual rule in this respect is that an objection
of this character comes too late if not taken before trial.
Such an objection should be made by motion to suppress the
deposition. This court has so held in the case of American
Publishing Co. v. Mayne Co., 9 Utah 318, 34 Pac. 247. This
holding is in accordance with the general rule upon the sub-
ject. (Doane v. Glenn, 21 Wall. [U. S.] 33, 22 L. Ed. 476;

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Ency. Pl. & Pr. 591, 593.) The statute above quoted from neither modifies nor obviates this general rule. This objection, therefore, cannot be sustained.

Another objection is that the court erred in admitting the evidence relating to the effect the excessive shrinkage had upon the mutton for food, and the effect thereof upon

the market price of the sheep. This objection is based upon the contention that no such issue was presented by the complaint. The allegations of the complaint in this regard are that the sheep “shrunk in flesh and lost weight to the damage of these plaintiffs, etc. That the sheep did unduly shrink in flesh and lost in weight as we have shown, was not controverted, but it is insisted that the evidence with regard to the effect the shrinkage had upon the mutton for food, introduced an element into the case not pleaded. We think otherwise. The upon the mutton,

if

any, was a mere incident or result of the shrinkage. If this shrinkage affected the value of the mutton, and consequently the price that could be obtained for the sheep in the market, it was a loss directly attributable to the excessive shrinkage which was caused by the delay and want of care of the sheep in transporting them to market. We think the allegations of the complaint were sufficient to admit the evidence, and further that the evidence upon this

effect

question was proper.

It is next urged that the court erred in admitting the evidence with regard to the scarcity of food, and the character thereof, that was obtainable, and the condition of the feedyards and country surrounding them along the way. As to the first, it is said that it was not the duty of appellant to either provide food or water, or to feed the sheep, but that it was the duty of the plaintiffs to provide the one and do the other. In this regard we are not informed what the terms of the shipping contract were, if any was entered into. The action, however, is one for a tort

, and not for a breach When the appellant accepted the sheep at Granger, Wyoming, for transportation for such a long distance, it became its duty to stop at reasonable intervals, and

of contract.

.

34 Utah—11

to provide reasonable facilities for resting,' feeding, and watering the sheep. To say that it discharged this duty if it stopped at any place or places along the route where there were no such facilities or where neither food nor water was obtainable, because it was incumbent upon the plaintiffs to pay for such food and to feed and water such sheep, is tantamount to saying that the duty imposed is merely a matter of form. If it was the duty of appellant to stop at reasonable intervals to rest, feed, and water the sheep, this duty was not discharged, unless appellant stopped at places where food and water were obtainable. It would be needless to impose such a duty if it were not for the purpose of feeding and watering the sheep that are being transported. They could not be fed nor watered without reasonable facilities to do so, nor unless food and water was obtainable. The appellant had it entirely within its power to arrange for stopping places, and to make them at points where both food and water were to be had. Moreover, this was an interstate shipment for which a federal statute imposed the duty upon appellant to stop at reasonable intervals to rest, feed, and water, the sheep; and, although plaintiffs may have agreed to provide food and water at their own expense, and to feed and water the sheep, yet if, notwithstanding such an agreement, plaintiffs failed to provide food and water, and to feed and water the sheep, it was appellant's duty to do so.

If there was such an agreement, or without it, appellant no doubt, would have had a claim upon the sheep for any reasonable amount expended for food and care.

It was also the duty of appellant to transport the sheep with reasonable dispatch, and not to unavoidably delay them in transportation. If an unavoidable delay was caused by something beyond the control of appellant, it nevertheless was its duty to make reasonable efforts to carry the sheep to some point where reasonable facilities to feed and where food and water were obtainable. The evidence in this case is to the effect that the delay was unusual and unreasonable; that the stops were made during the first 8 or 9 days, at places where the facilities to feed and water the sheep were inadequate,

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and the food obtainable was insufficient, and at times unfit for them to eat. The appellant offered no explanation with regard to these things, and the only defense offered is that it was not the duty of appellant either to provide food or water, or to feed or water the sheep. This defense is one not admissible under the law, as the following cases clearly demonstrate: Lowenstein & Thomas v. Wabash Ry. Co., 63 Mo. App. 68; Ft. Worth & D. C. Ry. Co. r. Daggett, 87 Tex. 322, 28 S. W. 525; Gulf, C. & S. F. Ry. Co. v. Gann, 8 Tex. Civ. App. 620, 28 S. W. 349; Smith v. Railroad Co., 100 Mich. 148, 58 N. W. 651, 43 Am. St. Rep. 440; Wabash, St. L. & P. Ry. Co. v. Pratt, 15 Ill. App. 177; Toledo W. & W. Ry. Co. v. Hamilton, 76 III. 393; Toledo W. & W. Ry.. Co. v. Thompson, 71 I11. 434; Brockway v. American Express Co., 168 Mass. 257, 47 N. E. 87; Atchison, T. & S. F. Ry.

Allen, 75 Kan. 190, 88 Pac. 966, 10 L. R. A. (N. S.) 576. Moreover, the court, in substance, instructed the jury that it was not the duty of the appellant to provide food for the sheep, nor to feed and water them, but that it was the duty of the plaintiffs to do this, but that it was the duty of appellant to provide reasonable facilities to feed and water, and to stop at such points as would afford plaintiffs a reasonable opportunity to obtain food and water for and to feed the sheep. While counsel took proper exceptions to these instructions, they did not assail them in their argument in this court, nor have they cited any authorities that such is

Co. v.

not the law.

The contention that it was error to allow the item of $204 for extra food is likewise untenable. This extra food was required, for the sole reason that the transportation was unusually and avoidably delayed by the appellant. If this be so (and it was in no manner controverted nor explained by appellant), why should not plaintiffs recover back what they were required to expend because of the negligent delay in transportation ? Nothing was allowed for feed for the time in which the trip was usually made. Allowance was made for the overtime merely. We are of the opinion that there

was no error committed in allowing for food required for the sheep during the excessive time.

The further contention is made that the court erred in directing the jury to find for the Oregon Short Line Railway Company. There is no claim that the cars provided by that company were not proper, nor any evidence that any delay or injury occurred while the sheep were in its charge. There was no evidence of negligence therefore, upon which a finding or judgment against that company could be based. Moreover, as we have pointed out, this is an action for tort. The plaintiffs, therefore, could sue any one or more of the joint tort-feasors, if there were, in fact, more than one. The plaintiffs could likewise, at any time before judgment, have dismissed the action as to one, and have proceeded against the other alone. The court could also dismiss the action, with the consent of the plaintiffs, as to one tort-feasor, and we know of no reason why the other can complain. Where any other rule is invoked, it applies only after judgment. A plaintiff need not prosecute all joint tort-feasors; and, as a general rule, so long as he does not release or discharge any one without the consent of the other, neither can complain.

Anotheralleged error assigned, and which arose during the progress of the trial, is as follows: The second cause of action is based upon an assigned claim, which was owned by one H. C. Gorton.

The assignment of the claim was in writing, and, both the defendants having denied the assignment, the plaintiffs offered the writing in evidence at the trial. The writing contains certain statements with respect to the value of the sheep, the amount of the loss, and, further, that the assignor considered the claim “true and just." These statements were not proper to go before the jury as evidence. Appellant's counsel objected to the introduction of the whole writing, upon the ground that the statements above referred to were improper. The court suggested that the writing be admitted simply as proof of the assignment, and that it need not be read to the jury. Counsel for appellant did not consent to this suggestion, and the court then admitted the whole writing in evidence, with the exception of

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