Collins v. Lowry & Co.

The President. If the deposition were taken de bene esse, the evidence offered to excuse the absence of the witness was defective ; if it were taken in chief, no proof upon the subject was necessary. But in either case, notice of the taking of it ought to have been given to the defendant; and as none is stated in the record, the judgment is, for that reason, erroneous, and must be reversed, unless the appellee’s counsel supposes he can shew that notice was given, and that the deposition was taken in chief, and prays a certiorari for the purpose, which, if asked for, will be ^granted. , The appellee’s counsel declined taking a certiorari, and the judgment was reversed. Note. — After the President had delivered the opinion of the Court, Washington moved to dismiss the appeal, no appearance having been entered for the appellant. By the Court.-t-You might have dismissed the appeal before the record was opened, but it is now too late.(1) Footnotes [1] (1) Peter v. Taliaferro, Stuart & Co. 4 Munf. 80.