Whitcomb v. Stewart

1 Smith & H. 135

Opinion

Held,

(Judge Perkins

delivering the opinion of the Court) that the deposition was improperly permitted to be used. That under the provisions of the statute authorising depositions taken in a former suit to be used upon a second trial, it should have been proved that the deposition “ had been duly filed in the Court where the previous cause was pending ” and that it had there “ remained on file from the time such suit was discontinued, until the time ” when it was taken to be used on the trial of this suit. R. S. pp. 723 — 724.

Whether the certificate of the clerk, had it been sufficiently full, would have been evidence of the facts stated in it, querré 1

Judgment reversed, &c.