#### Jeter v. Taliaferro, Stuart, & Co.

Friday, March 12th, 1813.

1. Depositions — Opening for Cross Examination.*— The magistrates or commissioners, who have taken a deposition, should, within the hours appointed by the notice, open it again, at the instance of any party, who was not present when it was taken, and wishes to cross-examine the witness.

2. Same — Objection in Appellate Court as to Notice. — If, in a trial at law, a special objection be made to a deposition, without saying anything of want of notice; amere, whether advantage can betaken in the appellate Court of the circumstance that it does not appear from the record, whether notice was proved or not?

See Marshall v. Frisbie, 1 Munf. 247; shewing that sundry circumstances may be presumed in favour of reading a deposition. For the rule in Chancery, concerning objections for want of notice, see 1 H. & M. p. vi. rule 11; and White’s Executors v. Johnson, &c. 2 Munf. 285.

Taliaferro, Stuart, & Co. brought their action of assumpsit upon an account for goods, &c. sold and delivered to Henry Jeter. At the trial of the cause on the plea of non assumpsit, the plaintiffs offered to read the deposition of Humphrey Stuart, “taken in the town of Bynchburg, at the house of Seth Ward, on the 9th day of September, 1809, between the hours of sunrise and sunset of the same day ; — to which the defendant objected, and for the grounds of his objection, *proved to the Court that, on the 9th day of September, 1809, he was at Bynchburg between the hours of twelve and two o’clock, and informed Rhoderick Taliaferro, the agent and partner of the plaintiffs, that he was then ready to attend to the taking the desposition, when Mr. Taliaferro informed him the business was done. The defendant then claimed the right of cross-examination : he was informed he might do as he pleased : — he then applied to the magistrates, who had taken and closed the examination, and left the house of Seth Ward, and they declined to open it again, though, at that time it was not past two o’clock, P. M. *40For these reasons, the defendant urged that the deposition “ought not to be readbut the Court overruled the objection ; to which opinion he excepted.

A general verdict was found for the plaintiffs, and judgment was entered accordingly by the County Court; which judgment being affirmed by the Superior Court of law, the defendant obtained a writ of supersedeas from this Court. ■

Call, for the appellant made two points :

1. That notice of the time and place of taking the deposition, not appearing in the record, the Judgment was erroneous.(1) , (a) 2. That the magistrates ought to have opened the deposition, and permitted the defendant to cross-examine the witness.

Wirt, contra,

admitted that if there had been merely a general objection to reading the deposition, the party offering it would have been found to prove it regularly taken in all respects : — but where a special objection is made, it is only necessary to repel that objection. In Collins v. Lowry, & Co. the objection was a general one. Here it was specific, and nothing is said about want of notice.

In Rose v. King, (in which case the objection of want of notice was made in the Court below,) it was proper to regard *such objection in this Court.(2) But, where no such objection has been made before the appeal taken, it would be unreasonable to receive it herein the first instance. Such a practice would produce surprise and injustice: for the notice is not generally copied into the record. Mr. Call might as well hold us to prove, in this Court, that the witness was unable to attend at the trial.(3)

The manner of taking the objection to the deposition strongly implies that the defendant had notice. I hold myself warranted to take the fact for granted. Could he then insist, after the magistrates had closed the deposition, upon having a re-examination of a witness ? He had time enough to take the deposition over again, and neglected to do so, reserving his objection to the moment of trial. He was therefore one of those sleepers of whom the law takes no care ; according to the maxim, “vigilantibus, et non dormientibus, leges subserviunt.”

Call, in reply.

It appears from the record of Collins v. Lowry, & Co. that in that case the objection was special :(4) Yet this Court reversed .the judgment, because proof of the notice did not appear.

Nothing is more important than to correct the loose practice which prevails in the taking of depositions. The defendant in this case could not have obtained a commission. The witness was not one in his favour. He could not have made affidavit that his testimony was material.

Wirt. The defendant might have made a motion to the 'x'Court to set aside the return ; whereupon they would have granted a new commission. The plaintiff was not to blame. He ought not to lose the benefit of his deposition by the refusal of the magistrates.

Call. Mr. Wirt has surrendered the argument, by admitting that the Court would have set aside the return on the ground that the magistrates had done wrong. If so, this Court ought now .to reverse the judgment.

*

See monographic *note,*on “Depositions” appended to Field v. Brown, 21 Gratt. 74.

(1)

 Note. The Bill of Exceptions in this case aid not, as in Collins v. Lowry & Co. state all the evidence in the cause. Notice might therefore have been proved to the jury, though not inserted in the transcript of the record. — Note in Original Edition.

(a)

 Collins v. Lowry & Co. 2 Wash. 75.

(2)

 See White’s Executors v. Johnson and others, 2 Munf. 285, pl. 3.

(3)

 Note. The deposition in this case appeared (though not regularly) to have been taken de bene esse, upon an affidavit that the witness was material, and might, through indiposition, be prevented from attending in person: but whether he was' able to attend at the trial did not appear. — Note in Original Edition.

(4)

 Note. The case of Collins v. Lowry, & Co. is correctly reported in2Wash., conformably with the record. Mr. Call therefore appears to be mistaken.— Note in Original Edition.

Wednesday, December 1st, 1813, the president pronounced the Court’s opinion, that the judgment of the County Court was erroneous in this, that the deposition of Humphrey Stuart was allowed to go in evidence to the jury, when the defendant, now plaintiff, who attended at Lynchburg the day the same was taken, was not allowed to cross-examine the'said witness.

Both judgments reversed, and the cause remanded to the said Superior Court of Law, and from thence to the County Court for a new trial to be had therein, on which trial the deposition aforesaid is not to be read in evidence to the jury.