N the trial of this cause at the last term, some of the plaintiff’s witnesses being absent, and his cause being ruled to trial, lie resorted to depositions lodged in the office by the defendant, and he was allowed to read them against the defendant without proof of notice. A juror was then withdrawn. The cause now came on to be tried again, and the defendant, after the plaintiff’s evidence was gone through, offered his depositions without attempting to prove that notice was given of the taking of them, and insisted lie was entitled to read them, because they had been read, and by the plaintiff in the former trial.
JJ contra
It was contended, that the reaten of reading a deposition without proof of notice upon the ground of its having been read before either in this court or the county court, was *401because the party for whose benefit it was taken had there either obtained the admission or made proof in the presence of his adversary that the deposition had been regularly taken — but if tlia party against whom it is taken uses it when pressed, because his adversary has lodged it in the office against him, and thereby decía» c-J its regularity, it is read because the party taking it is estopped to speak against it % but there is not proof except against the party estopped of its regularity; it remains good against the taker, if his adversary would use it, but not good against the adversary unless proof be made of its regularity.
Taylor, Judge.
The reading, by the plaintiff, of a deposition •' alcen by the defendant, is an intimation to the defendant that its regularity will not be questioned; and it would be unjust in the highest degree to take advantage of his inability to make proof of its regularity, when he has been induced by the plaintiff’s intimation to leave them at home:
The deposition was read without proof of notice of the taking.