
    Jonathan Hovey versus Elijah Hovey.
    A deposition of a party to an action on trial, taken at the request of the other party, which was intended to be used, and was filed by such other party, in another suit, cannot be read as evidence against the party at whose request it was taken.
    Assumpsit by the payee against the maker of a promissory note. At the trial of the action upon the general issue, which was had April term, 1811, before Sedgwick, J., the plaintiff’s counsel offered in evidence to the jury a deposition of the plaintiff, which had been taken at the request of the defendant, and filed by him in an action then pending in this Court, wherein one Jonathan Hovey, Jun., was plaintiff and the said Elijah Hovey was defendant; the said action having been settled out of Court, and the said,deposition having been left on file ; from whence it had been taken by the plaintiff’s counsel.
    
      To the admission of which deposition the counsel for the defendant objected. The judge overruled the objection, and admitted the deposition to be read to the jury. To this decision of the judge, the defendant’s counsel filed exceptions, which were allowed; and he now moves the Court for a new trial for the above cause.
    * Bliss,
    
    for the defendant, was stopped by the Court.
    
      Dwight, for the plaintiff,
    contended that the defendant’s procuring the deposition to be taken, and his placing it on file in his action, amounted to an admission of the truth of the facts stated in it. The case was stronger than the common one of admitting evidence of a story told in presence of a party, and not contradicted by him.
   But the Court

said they knew no principle of law, which authorized the admission of this kind of evidence. It cannot be inferred from the defendant’s procuring the deposition, that he is bound to admit the statement contained in it. Besides, consequences of the most mischievous kind might be apprehended from allowing such a precedent to be established.

New trial ordered  