Henry v. Huntley , 37 Vt. 316 ( 1864 )

Aldis, J.

The evidence was clearly admissible. It was of facts which, when connected with the other evidence as to the amount and price of the bark and when and where sold, tended to show that Blush bought the bark. The declarations of Atherton were not admitted.

The-statute, (G-. S. 324, § 6,) directs, that the citation to the adverse party to attend the taking of a deposition shall state “ the time and place of taking hut is silent ás to whether the name of the magistrate by whom the deposition is to be taken shall be inserted in it. The form of the citation, (G-. S. p. 753,) supposes that the magistrate who is to take the deposition issues the notice, and says “ to appear before me.” The general practice in the state has been, we think, to insert the name of the magistrate in the notice; but it has not been the universal and uniform practice. We do not decide whether it is or is not necessary to insert the name. But we all agree, that when it is inserted as it is claimed to be in this case, the party taking the deposition is not at liberty to go to another magistrate to take the deposition. Such a practice would give great opportunity for unfairness and fraud. The adverse party knowing the character and ability of the magistrate might omit to attend and send interrogatories for him to put to the witness ; and thus, if the deposition were taken before another, lose the opportunity of cross-examination.

Judgment reversed and ease remanded.