Note. — Vide the preceding case of Murphey v. Work.
Rutherford v. Nelson, 2 N.C. 122, 1 Hayw. 122 (1794)
Sept. 1794
·
North Carolina Superior Court
2 N.C. 122, 1 Hayw. 122
Rutherford v. Nelson.
l't is usual to read depositions, where it appears that they have been read in the Court below, unless it can be shown that there is an irregularity in them ; and the want of deponent’s signature is not sufficient to reject them.
The Defendant offered to read'the deposition of one Fishburne, which bad been before read in the County Court upon the trial of this cause there; bur Fishburne had not signed the deposition: it was opposed by the Counsel for the Plaintiff as being irregular — he said he had understood it had been usual to read depositions in the Superior Court, upon the mere circumstance of its appearing the same had been read in the Court below ; but be iiad also understood that this rule was not an universal one, and that such depositions had most generally been read in the Superior Court by consent of parties, and it certainly could not be universally proper, for it miffbt be that the very cause of the appeal was the improper admission of depositions in the Court below— here there was an irregularity, the deponent not having signed his name; which he took to be necessary, inasmuch as without i! he could not be. well prosecuted for perjury, in case of falsity. Rut per curiam, Judge Ashe and Judge Williams, it has been usual to read depositions where, it appeal's they have been read in the Court below ', though perhaps this rule might not be a proper one, in case the party opposing the reading could shew an irregularity to the Court here. But, he does not shew it in the present instance — he only alleges the deposition was not signed by the deponent. But we. have already. decided it this term, that the want of the depo-Rent’s signature, is not sufficient to prevent the reading his deposition, if it be certified by the Justice or Com *123missiotier to have been sworn to : for we most give ere-dit.to this certificate, so far as to believe that the party was sworn. So the deposition was read.