Opinion
(September Term, 1794.)
It 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 had been before read in the county court upon the trial of this cause there; but 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 he had 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 might 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 it he could not be well prosecuted for perjury, in case of falsity.
It has been usual to read depositions where it appears 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 show an irregularity to the Court here. But he does not show it in the present instance; he only alleges the deposition was not signed by the deponent. But we have already decided ( Murphy v. (106) Work, ante, 105) that the want of the deponent's signature is not sufficient to prevent the reading his deposition, if it be certified by the justice or commissioner to have been sworn to; for we must give credit to this certificate so far as to believe that the party was sworn. So the deposition was read.
Cited: Boggs v. Mining Co., 162 N.C. 394.