
    
      Kincaid vs. Kincaid.
    
    .Case 33.
    Error to the Bath Circuit; Silas W. Robbins, Judge.
    
      Notice. Depositions. Surprise. New irial.
    
    February 6.
    Notice to take depositions insufficient.
    To reject without notice, depositions which had been read without objection on a former trial, is such surprise as justifies a new trial.
   Judge Robertson

delivered the opinion of the Court.

. A notice, executed on the 4th of December, to take a deposition, on the ' 14th of the same month, at a place 290 miles distant, from the residence of the person notified, is not a reasonable notice.

The bill of sale was sufficiently proved, to be suffered to be read to. the jury. The judge, in effect, did no more than decide, that it was “sufficiently proved” to go to the jury. Therefore, there is no error in the opinion, on these points. But the court erred in not granting a new trial; To reject for another reason, without notice of objection, depositions which had been read on a former trial of the same suit, without objection, (as the affidavit discloses' to hay© been the fact in this case) is such a surprise- -as. teyentitle the party surprised, to a new trial.

Haggin, for plaintiff; Triplett, for defendant.

Judgment reversed, and cause remanded.  