Gallup v. Spencer

19 Vt. 327

Opinion

The opinion of the court was delivered by

Redfield, J.

In this case we think the deposition of Norman W. Wallace was correctly rejected. The cause of taking had ceased to exist, and this was known to the party taking the deposition, if we correctly understand the case. In such case we think the deposition cannot be used as evidence; Patapsco Ins. Co. v. Southgate et al., 5 Pet. 615. If the deponent had not come to reside within the thirty miles, so as to remove the cause of taking the deposition, but was only temporarily within that distance, the deposition would still continue to be testimony, and might be used, unless the opposite party will be at the trouble to procure the attendance of the witness in court; — such, at least, has been the practice.

In regard to the deposition of Lewis F. Gallup, we do not see how it can be treated as defectively taken. It is true, there is a repugnance in the caption, in stating the term of court at which it was taken to be used. Being taken upon the first day of May, it is said that it is taken to be used at the term “ next to be holden, &.C., on the first Tuesday.of May next.” One of these words “next” must be rejected; and rejecting either the deposition is well taken, as it seems to us. We know of no law requiring a deposition to be taken to be used at the very next term of the court. We think, however, the more correct construction of this caption is, to treat it as we do writs so expressed, — that is, reject the latter word “ next” and let it stand as of the May Term next after the taking, which was no doubt the intention.

Judgment reversed and cause remanded.