
    GENERAL COURT,
    OCTOBER TERM, 1786.
    Robert Thomas and wife against Joseph White Clagett.
    THIS was an action of trover. At the trial of the cause, a bill of exceptions was taken, by which it appears, that the plaintiffs, to prove the issues in the cause, produced to the Court, and offered to read in evidence to the Jury, the deposition of John Evans, to which the defendant, by his counsel, objected, because it did not appear that proof of notice to the defendant was lodged with the clerk of the county," where the said deposition was taken to be recorded, nor did it appear that any notice of taking the deposition was recorded by the clerk of the said county. That the plaintiffs proved to the Court, that notice was given by them to the defendant, of the day and place of taking the deposition, twenty days before it was taken, and that it was taken on the day and at the place of which notice had been given, and that the defendant attended when the deposition was taken, and examined the said Evans, and that the said Evans was, long before, and at the time of taking the deposition, and ever since hath been, and still is, an inhabitant and resident of the state of Virginia, and could not be had, by process from this Court, to attend the trial of this cause.
   The Court

were of opinion, that the deposition could not be read in evidence to the Jury, because it did not appear, that proof of notice to the defendant was lodged with the clerk of the county, where the said deposition Vas taken, to be recorded, nor did it appear, that any notice- of taking the said deposition was recorded by the clerk of the county.

Stone, for plaintiff.

Chase and Jenings, for defendant.

The plaintiff appealed to the Court of Appeals, where she judgment was affirmed, at May term, 1788.

See the act of July, 1779, c. 8. entitled “ an act establishing a mode to perpetuate testimony.”  