
    Nichols v. Hillyer.
    IN this case, tie deposition of Hezekiah Tbomson, Esq, was, by tbe defendant, offered in evidence. — Tbe deponent lived more than twenty miles distant from tbe place of trial, but within seventeen miles of the adverse party. The deposition was taken one week before tbe time of trial, at Litchfield, more than twenty miles distant from the adverse party, who was neither notified or present: The deponent being an attorney of Litchfield county, was there attending court when his deposition was taken.
    It was objected, that this deposition was not admissible within the statute for taking affidavits out of court; which is, that, “ Forasmuch as it is necessary that witnesses in civil causes be sworn out of court, when by reason of their going to sea, living more than twenty miles distant from the place where the cause is to be tried, age, sickness, or bodily infirmity, they are rendered incapable of travel, and of appearing at court. To the intent thereof, that all witnesses may impartially and indifferently testify their certain knowledge, and the whole truth in the cause they are to speak unto; be it enacted, that for either of the reasons aforesaid, and not otherwise, every assistant or justice of the peace may take affidavits out of court, so as notification, with reasonable time, be first made out and delivered to the adverse party (if within twenty miles of the place, or left at the place of his dwelling or usual abode) to be present at the time of taking such affidavit, if he think fit.”
    But the objection was overruled. — For,
   By the Court.

The deposition appears to have been fairly taken, and no fraud practiced by the party who took it. Although the taking might have been omitted until the deponent returned home from court, when the adverse party must have been notified, and would have had the benefit of cross-examination; yet it appears, that by such delay the defendant would have been in danger of losing this testimony; — it is therefore within the reason of the statute, and may be read.  