
    GRAFTON.
    DECEMBER, 1885.
    Lowd v. Bowers.
    A caption of depositions may be adjourned by the magistrate to a place other than that named in the notice, when the sickness of the witness renders such a course necessary in order to obtain the deposition.
    A caption of depositions by the plaintiff was notified for April 2, 1885, at the office of Burleigh & Adams. On that day the witness, who was the plaintiff herself, was unable by reason of sickness to attend at the place named, and the magistrate adjourned the caption to her residence a short distance away, and her deposition was there taken. The defendant did not appear either at the office of Burleigh & Adams, or at the plaintiff’s house. The deposition was admitted at the trial, and the defendant excepted.
    
      Burleigh & Adams, for the plaintiff.
    
      Page & Story, for the defendant.
   Allen, J.

The defendant was duly notified of the time and place for taking the deposition, and did not attend, and was not present at the time of adjournment, nor at the caption. The inability of the witness to attend at the place named in the notice was an exigency which made an adjournment necessary to save the caption. If the defendant had appeared at the time and place notified he would have had notice of the adjournment, and opportunity to attend at the place of caption. The defendant not appearing according to the notice, and having opportunity to attend at the place to which the caption was adjourned for an unforeseen exigency, was not harmed by the admission of the deposition, and cannot now object.

Exception overruled.

Smith, J., did not sit: the others concurred.  