
    Samuel R. Steele versus David Carson.
    Sept.20».
    
      Sept 21st
    A deposition taken under a commission which was issued while the action was pending in the Court of Common Pleas, but was executed after the action was appealed from that Court, and before the entry of the appeal, is admissible upon the trial in this Court.
    Upon the trial of this action, before Dewey J., the deposition of Charles Griffin was offered in evidence by the plaintiff; but the defendant objected to its admission, on the ground, that it was taken under a commission issued while the action was pending in the Court of Common Pleas, but executed and opened in August, 1839, after the action was appealed from that court, and before the appeal was entered in this Court. The deposition was admitted, and a verdict was rendered for the plaintiff.
    If the deposition was improperly admitted, a new trial was to be ordered ; otherwise judgment was to be rendered upon the verdict.
    
      Bishop and Hubbard, for the defendant, cited Howe’s Pr. 447 ; Campbell v. Howard, 5 Mass. R. 376.
    Porter, Briggs and Lanckton, for the plaintiff, cited Revised Stat. c. 94, § 32, 33.
   Wilde J.

delivered the opinion of the Court. The defendant’s counsel contend, that by the appeal the commission to take the deposition in question was vacated, and the execution of it, irregular. This is a new objection, and it is believed that depositions taken under like circumstances as the one objected to, have been admitted without objection. But however this may be, no good reason has been suggested, nor can we imagine any, in support of the objection now made. If it should prevail, the only consequence would seem to be, to subject the parties to unnecessary expense and delay. By the 5th Rule of this Court, all depositions are to be opened by the clerk when presented, either in term time or vacation. As this Court and the Court of Common Pleas have the same clerk, the deposition was regularly opened and afterwards filed by the clerk. After such filing either party had a right, by the same Rule, to read it in evidence at the trial. But as no trial could be had in the Court of Common Pleas, there can be no reasonable objection to the use of it on the trial in this Court. The deposition was taken in the cause, and to be used on the trial, either in the Court of Common Pleas or in this Court. And if the plaintiff had discontinued this suit or become non-suit, and had afterwards commenced another suit for the same cause of action, between the same parties or their legal representatives, he would have a right by the Revised Stat. c. 94, § 27, 30, to use the deposition in the same manner and subject to the same conditions and objections as if originally taken for the second suit. By these provisions the legislature intended to prevent unnecessary expense and delay, and in establishing rules of practice, the Court ought always to be governed by a like intention.

Judgment on the verdict.  