Ails v. Sublit

Court of Appeals of Kentucky

Ails v. Sublit

6 Ky. 204, 3 Bibb 204, 1813 Ky. LEXIS 90

DecidedOctober 20, 1813

StatusPublished

This text of 6 Ky. 204 (Ails v. Sublit) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ails v. Sublit, 6 Ky. 204, 3 Bibb 204, 1813 Ky. LEXIS 90 (Ky. Ct. App. 1813).

Pincite

Opinion

OPINIONof the Court,by

Judge Owsley

-During die progress of this cause in the court below, Siiblir, who was plaintiff in that court, obtained an order to take deposition of George Cardwell de bene esse. The deposition was accordingly táken, and on the trial offered in evidence to the jury. Ails objected to its admission; to obviate the objection Subiit proved that; .Cardwell was about 64 years old when his deposition was taken, and that tie appeared then infirm; and also a letter written by Sublit to his attorney was produced, giving intelligence that he had a few days before been informed Cardwell was dead. The objection to the deposition being used as evidence was overruled, and deposition admitted. The ques.ion is, should the deposition jiave been rejected? To authorise the admission of the deposition as evidence, it evidently devolved on Sublit to prove, by 'competent proof, the death of Cardwell, or his inability to attend the trial. We think, however, that neither of those facts were established. It is clear the letter written by Sublit to his attorney, was not admissible evidence to prove Card-well’s death ; and it is equally obvious the proof made as to the infirmity of the witness some time before the trial, was not sufficient to prove his inability to attend on the trial of the cause. We think, therefore, that the court erred in permitting the deposition to be used as evidence.

The judgment must be reversed with costs, and the cause remanded for a new trial to be had in that court.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINIONof the Court,by

Judge Owsley

-During die progress of this cause in the court below, Siiblir, who was plaintiff in that court, obtained an order to take deposition of George Cardwell de bene esse. The deposition was accordingly táken, and on the trial offered in evidence to the jury. Ails objected to its admission; to obviate the objection Subiit proved that; .Cardwell was about 64 years old when his deposition was taken, and that tie appeared then infirm; and also a letter written by Sublit to his attorney was produced, giving intelligence that he had a few days before been informed Cardwell was dead. The objection to the deposition being used as evidence was overruled, and deposition admitted. The ques.ion is, should the deposition jiave been rejected? To authorise the admission of the deposition as evidence, it evidently devolved on Sublit to prove, by 'competent proof, the death of Cardwell, or his inability to attend the trial. We think, however, that neither of those facts were established. It is clear the letter written by Sublit to his attorney, was not admissible evidence to prove Card-well’s death ; and it is equally obvious the proof made as to the infirmity of the witness some time before the trial, was not sufficient to prove his inability to attend on the trial of the cause. We think, therefore, that the court erred in permitting the deposition to be used as evidence.

The judgment must be reversed with costs, and the cause remanded for a new trial to be had in that court.

Cite This Page — Counsel Stack

Bluebook (online)

6 Ky. 204, 3 Bibb 204, 1813 Ky. LEXIS 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ails-v-sublit-kyctapp-1813.