Opinion
(January Term, 1817.)
In equity, the deposition of a witness who is dead, which has been once read upon the hearing of a suit, may be read again, though taken before a single person.
THIS case was sent to this Court from the equity side of CUMBERLAND Superior Court, to obtain an opinion on the question whether the deposition of Robert Rowan, taken as evidence in the cause, ought to be read. The facts were that it was taken before a single person, but had been read many years ago in the hearing of the court, at which time the witness was dead. If the deposition is allowed, the evidence must be lost. (563)
I am of opinion that the deposition having once been read on the trial of this cause, it is now too late to inquire whether it was taken regularly or not. It is presumed to have been properly taken, or it would not have been made use of on the former trial. I think there are some instances where a deposition taken by one commissioner may be read, as by the consent of parties, the special order of the chancellor, etc. It does not follow that the one now before the Court may not be of that description; and as the party may otherwise lose the testimony, we think it ought to be read.
NOTE. — See Knight v. Kennedy, 1 N.C. 37; Rutherford v. Nelson, 2 N.C. 105; Collier v. Jeffreys, 3 N.C. 400.