Carver v. Mallet

Decided January 15, 1817

Supreme Court of North Carolina · decided 1817-01-15

THIS case was sent to this Court from the Equity side of Cumberland Superior Court, to obtain an opinion on the question, Whether the deposition of Rooert Rowan, taken as evidence in the cause, ought to be read. The _ ° . facts were, that it was taken before a single person, but had been read many years ago in the hearing of the Court, at time the witness was dead. If the deposi.ion is disallowed, the evidence must be lost.

Decided 1817-01-15

Daniel, J.

¶1I am of opinion, that the deposition, hav-» ing once been read on the trial of this cause, it is now too late to enquire whether it was taken regularly or not. It is presumed to have been properly taken, or it would not have been made use of on the former trial. I think there are some instances where a deposition, taken by one commissioner, may be read; as by the consent of parties, the special order of the Chancellor, &c. It does not follow, that the one now before the Court may not be of that .description ; and as the party may otherwise lose the testimony, we think it ought to be read.