Williams v. Fitch

1 Root 316

• Court: Supreme Court of Connecticut
• Decided: September 15, 1791
• Status: Published

Opinion

Fitch offered depositions taken at New Haven, without notice to the plaintiff, who lived at Pomfret, eighty miles distant, or to D. Dagget, Esq. the plaintiff’s known agent and attorney, who then was dwelling and residing at New Haven, within twenty miles of the place of caption: 'Which were objected to for that reason; and by the court, adjudged not admissible; an opportunity to cross-examine a witness is very important to a party, and he may not be deprived of it, but by absolute necessity, or some positive law.

The statute is, that for certain reasons which are enumerated in the preamble, depositions .may be taken out of court, “ So as a notification, with reasonable time, be first made out and delivered to the adverse party (if within twenty miles of the place) or left at the place of his dwelling, etc. to' be present at the time of taking such affidavit, if he thinks fit.” Now it is clearly within the reason and equity of the statute, that where the party lives more than twenty miles from the place of caption and has a known agent or attorney living within twenty miles, that such agent or attorney should be notified; and this has long been the established construction, with respect to depositions taken out of this state. Kirby’s Reports, 1, Whiting, etc. v. Jewel, etc.