Collins v. Lowry & Co.
Court of Appeals of Virginia
This was an action on the case brought by the appellees against the appellant, in the District Court of Northumberland, and at the trial of the issue, the deposition of a witness was read by the plaintiff, to which the defendant objected, and being over-ruled by the Court, he filed a bill of exceptions, stating, that a witness proved that he had shortly previous to the Term, seen a gentleman from Alexandria, (at which place the deposition was taken,) who informed him, that…
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This was an action on the case brought by the appellees against the appellant, in the District Court of Northumberland, and at the trial of the issue, the deposition of a witness was read by the plaintiff, to which the defendant objected, and being over-ruled by the Court, he filed a bill of exceptions, stating, that a witness proved that he had shortly previous to the Term, seen a gentleman from Alexandria, (at which place the deposition was taken,) who informed him, that the deponent had not long before that sailed For and had not returned, and that this was all the evidence in the cause.…
1Opinion of the Court
The President.
If the deposition were taken de bene esse, the evidence offered to excuse the absence of the witness was defective ; if it were taken in chief, no proof upon the subject was necessary. But in either case, notice of the taking of it ought to have been given to the defendant; and as none is stated in the record, the judgment is, for that reason, erroneous, and must be reversed, unless the appellee’s counsel supposes he can shew that notice was given, and that the deposition was taken in chief, and prays a certiorari for the purpose, which, if asked for, will be ^granted., The…
2Cases cited1 opinion
- Jeter v. Taliaferro, Stuart, & Co.Supreme Court of Virginia · 1813