Broughton v. Crosby

DuPONT, C. J., delivered the opinion of the Court. The only error assigned in this case is that “ the Court erred in not ordering the plaintiff below to read the depositions taken by him, on the trial.” We think it very clear that the Court would have no more right to order a plaintiff to read on the trial depositions taken by him, though crossed by defendant and on file and opened by plaintiff, than it would have to order him to examine a witness whom he had brought into court by subpoena. The defendant would have the right to read such a deposition as testimony on his own behalf, or to examine such a witness as his own, but certainly he would have no right to compel the plaintiff: to read the one or to introduce and examine the other. Counsel for appellee moves for damages as in case of a fidvolous appeal, but as it has not been made to “ appear to ns that this appeal has been taken merely for delay,” (Thompson’s Dig., 449,) damages are refused. Let the judgment of the. Court, below be affirmed with-costs.