Gilbert v. Toby , 21 Vt. 306 ( 1849 )

The opinion of the court was delivered by

Kellogg, J.

This is an action of book account; and the exceptions taken arise upon the auditor’s report.' The auditor, at the hearing, upon the application of the plaintiff, admitted the deposition of the defendant Stone; although objected to by the defendant Toby.

That the depositions of the parties, in actions on book account, are inadmissible as such, though by statute the parties are made competent witnesses, was settled by the case of Pike v. Blake, 8 Vt. 400. The statute, authorizing the parties in book account actions to testify to their respective accounts, contemplates a personal examination before the auditor, in case their testimony is offered. Their depositions, as such, are therefore not admissible. If, however, the deposition was admissible for any purpose, then there was no error in the decision of the auditor admitting it. Was not the deposition admissible, as containing an admission of the party in relation to the subject matter of the suit ? We are clearly of opinion that it was.

If the defendant Stone had made verbally the same statements, that are contained in his deposition, it would not be questioned, we apprehend, that the plaintiff might have proved those statements by any competent witness, who heard them made; and are those statements, when reduced to writing and signed by the party, inadmissible, or entitled to less credit, than his statements proved by a witness upon the stand 1 Or does the fact, that the written statement of the party is sworn to, render it inadmissible ? We are well satisfied it does not. The fact, that it was sworn to, was of no importance. It was only admissible as a simple admission of the party.

It is farther objected, that there was no evidence before the auditor, that the deposition was signed by Stone. It is a sufficient answer to this objection, that no such question was made before the auditor, and consequently it cannot be raised here.

It is farther said, that the auditor admitted it as a deposition. It is true, that the auditor calls it a deposition, and it has all the forms of a deposition; but it does not appear, that the auditor gave to it any other weight and effect, than that of an admission of the party ; and, as such, it was clearly admissible. And if the defendant Toby were apprehensive, that the auditor would give to the paper an importance, as evidence, to which it was not entitled, he might have insisted upon its legal character and effect, and have compelled the auditor to decide the question and present it in his report. This the defendant did not do, but insisted upon the exclusion of the paper, which was clearly admissible. And the court are not, for the purpose of overturning the report, to presume, that the auditor gave to the deposition a character and effect, to which it is not entitled.

The result is, that the judgment of the court below must be affirmed,.