#### Saxby et al. v. Neal.

1. Evidence — deposition.—'Where process is sued out against two, but is served on only one, and the other does not appear or plead, the deposition of the party not served cannot be taken and read on the trial against his co-defendant, at least not without notice given under the statute relating to *the*swearing or taking the depositions of parlies.

(2 *GTicmd.*53.)

ERROR to the Circuit Court for *JRocTc*County.

This was an action of assumpsit, brought against the plaintiffs in error, by the defendant in error, by summons, but the summons was served upon only one of them. The party summoned appeared and pleaded issuably, but the other defendant did not appear.

On the trial the defendant in error offered in evidence the deposition of *Curtis,*the other plaintiff in error, assumed to have been taken under the provisions of the statutes of 1841. Objection was made to the reading of the deposition by *Saxby,*but the court ruled it admissible, and it was read. To the ruling of the court the counsel of *Saxby*excepted. A recovery was had in favor of the defendant in error, and the cause came into this court by a writ of error based on the exception so taken.

*David JSToggle,*for plaintiff in error,

contended that the deposition of a party not served with process and not appearing in the action, could not be received as evidence, nor the party himself examined as a witness, under the provisions of the statute, unless he had been served with process; unless his co-party in the action should have been notified that he also was to be examined on the trial. And to this point was cited 4 Eng. Com. Law, 48; 19 Wend. 353 ; 3 Scam. 463 ; 1 Gilm. 358-360 ; 1 Greenl. Ev. 421, § 353.

*J. M. Keep,*for defendant in error,

contended that the examination of *Curtiss*was independent of the statute of Wis-*400cousin, and was therefore admissible; and that under tbe statute tbe examination was admissible as taken. He also claimed that no notice was required or necessary to have been given to *Saxby*of tbe examination of *Curtiss.*

WhitoN, J.

Tbe error assigned in this case is, that tbe circuit judge, before whom tbe cause was tried, permitted the deposition of *Curtiss,*one of tbe plaintiffs in error, to be read in evidence to tbe jury. It appears that *Neal*sued *Saxby*and *Curtiss*in tbe late district court of tbe territory. Tbe summons was served on *Saxby*alone, who appeared and pleaded to tbe action. *Curtiss*did not appear. A trial was bad in tbe circuit court for Rock county, at which tbe defendant in error offered to read tbe deposition of *Curtiss,*taken in pursuance of a statute of tbe territory (Laws of 1841, p. 26). By tbe statute referred to, either party might give notice to tbe adverse party that be wished to have him sworn as a witness in tbe cause; and if tbe party notified did not appear and testify, or did not take and produce bis deposition (as in certain cases provided for by tbe statute be might do), then tbe party giving tbe notice might himself be sworn as a witness.

Tbe bill of exceptions shows that *Saxby,*by Ms attorney, objected to tbe introduction of tbe deposition of *Curtiss,*above alluded to, on various grounds, but tbe objection was overruled, and tbe deposition was read in evidence to tbe jury.

That tbe ruling of tbe court in permitting tbe deposition to go to tbe jury as evidence, when objected to by *Saxby,*was erroneous there can be no doubt. It is not necessary to decide whether tbe defendant in error should have been permitted to testify, upon tbe failure of *Saxby*to produce tbe deposition of *Curtiss,*had be offered Mmself as a witness; but it is clear that as *Saxby*alone was served with tbe process, and alone appeared to defend the suit, tbe deposition should not have been read to tbe jury if be objected.

*401The plaintiff should have called upon the attorney who defended the suit, to produce *Curtiss,*or his deposition, pursuant to the notice which had been served; and upon the failure of *Curtiss*to appear, or to produce his deposition, taken in conformity with the statute, should have offered himself as a witness. That would havé brought before the court the question, whether, under the circumstances of the case, *Curtiss*was properly a party to whom notice to testily could be given under the statute.

Judgment reversed.