Bedell v. President of the State Bank, 12 N.C. 483, 1 Dev. 483 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 483, 1 Dev. 483

Mott Bedell v. The President & Directors of the State Bank,

From Wake.

Notice to take a deposition on a particular day of every week for three successive months,' is insufficient.

Assumpsit, and upon the trial, the Plaintiff offered to read Ihe deposition of one Richard Bedell. The notice to the Defendant was, that the deposition would be taken “ on the Saturday of every week in July, August & September, at, &e. in the city of New-York.” His honor Judge Daniel rejected the deposition, thinking the notice too vague, although the Plaintiff proved that the witness was a seafaring man, and that it was impossible to give notice, with any certainty, of a particular day when he would be in New-York, or in any other seaport.

The Plaintiff was nonsuited, and appealed.

Devereux, for the Plaintiff.

Badger, contra.

Taylor, Chief-Justice.

it is impossible to consider a notice of this kind sufficient, without opening á door to abuses of the most mischievous tendency. Testimony by depositions, is at best, inferior to that by witnesses, and ought to be so guarded, that the Court may have every reasonable assurance of its truth. Under a vague notice of this kind, a man might be kept three months from home, if tfce witness did not appear tili the last Saturday in September. The utmost extent which has vet been allowed, is one week, where the deposition was to he taken at a great distance from the residence of the parties.

Pl5K CüKIAM.--Judgment affirmed.