
    WHITING AND FRISBIE v. JEWEL.
    (County of Litchfield,
    Feb. Term, 1786.)
    When depositions are taken out of this state, notice should be given to the adverse party, or to his known agent or attorney, if within twenty miles of the caption, and if the party himself lives out of this state, and have a known attorney or agent in the state, he shall be notified.
    In this case depositions were offered by the defendant, which were taken in the commonwealth of Massachusetts, more than twenty miles distant from the plaintiff’s residence, bnt within ten miles of their known agent and- attorney, neither of them being notified or present at the caption.
    It was objected, that these depositions were not so taken -as to come within the spirit of the statute allowing affidavits to be made 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 wkere the canse is to be tried, age, sickness or bodily infirmity,, they are rendered incapable of travel, and of appearing at court. To the intent, therefore, that all witnesses may impartially and indifferently testify their certain knowledge, and the whole truth in the cause they are to speak to; therefore,
    “ Be it enacted, etc., 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 a 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.”
   By the Court.

In taking depositions within this state, the statute requires notice to the adverse party, if within twenty miles: As to those taken out,of the state, which the statute in strictness does not extend to, and which can only be admitted on the ground of their being so taken as to come fully within the equity of the statute; there ought to be notice to the adverse party or to his known agent or attorney, if either are within twenty miles of the place of caption; which not having been given in this case the deposition is not admissible.

SheeMAN, J.,

dissenting. The adverse party in this

case lived more than twenty miles from the place of caption, and the statute does not in any case require notice to be given to an agent or attorney.-  