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The opinion of the Court was delivered by

Paddock, J.

Whetherthe depositions of Wm. Slade, jr. and. Augustus E. Conant ought to have been admitted in evidence by the county court, or rejected, is the only question submitted ? and although many reasons have been urged by counsel for and against their admission, yet it is not necessary for the Court to consider them all, as one of the objections urged by the plaintiff to their being admitted is, in the opinion of the Court, insuperable.

Depositions afford a species of testimony not sanctioned by the usages of common !aw;but are made so by our statute,by which in many instances parties arc enabled to avail themselves of the testi— *72mony of persons by taking their depositions, when their attendance in court could not be had. The statute,as it authorizes their use, so likewise it does the manner and form of taking, and instances in which they may be used. (p. 81, 2.) And in the third section of the judiciary act (p: 59ja further provision is made, “ that when depositions are taken to be used before the county court, and an appeal is had to the Supreme Court, that it shall be the duty of the clerk to certify up the depositions with the other papers in the case to the Supreme Court.” And a further provision was made by the statute of 1818, (p. 110,) providing for perpetuating of testimony by depositions. These are the only instances where the statutes authorize the use of depositions before a tribunal in which they were not originally taken to be used ; and in the case of depositions certified to the Supreme Court, they must have been actually improved in the county court, otherwise they would not be read on the appeal.

The use of depositions is not to be encouraged beyond the letter of the law, for every day’s experience teaches us that they are not to be relied upon with that confidence that the testimony of a witness may, when produced on the stand, where he may undergo a cross examination.

It has been contended by the defendant that the exhibiting the claim before the commissioners, the subsequent appeal, and prosecution before the county court, ought to be considered asa continuation of the original action before the county court. The statute (p. 343) directs “ that every action pending against any person at the time of his or her decease, and shall be pending when his or her estate shall be represented insolvent, shall be discontinued, and the property attached thereon, shall be no longer holdenby reason of such attachment; and the commissioners in allowing or disallowing the claims embraced in such action, shall allow the party recovering, the cost of such action to the time of such discontinuance.” It must be apparent that the framers of the act contemplated a termination of the suit : no judgement could have been rendered in the case, and, in short, the statute is peremptory on the court to dismiss it; and if the claim be prosecuted again, proceedings are all de novo. The adjudication of the claim is not by the act transferred to the probate court, but it 'is left to the plaintiff to resort diere or not: but in caso he does, the statute directs the court to tax costs of the action to the time of the discontinuance, for the parly recovering. If these depositions could have been legally used..before the county court to *73wh&h the appeal was taken, they might with the same propriety haye been used before the commissioners; and by the same rule, Repositions taken to be used before the probate court, might be Certified upon an appeal to the county court; and finally,unshackle the use of depositions from the restrictions of the statute, and the same facts, when once imbodied in a deposition, might very conveniently be used in different suits, and between different parties.

Starr & Everest, for plaintiff.S. S. Phelps, for defendants.

The Court being satisfied that the depositions ought not to have been admitted, the judgement of the county court must be reversed, and a judgement entered according to the rule entered into by.the parties in the court below.

Judgement reversed.

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