The deportment of a witness on a personal examination conduces greatly to the development of the truth. His manner of answering questions, frequently shews his indifference or bias towards the parties. Hence it is, that the common law prefers viva voce testimony to depositions. The 45th rule regulating the practice of the Circuit Court is general in its terms, and extends to depositions taken on a cross examination, as well as those ex parte. They are not to be admitted, if the witnesses qre resident "within the state, and within 40 miles of *521the place of trial, unless duly subpoenaed, or it appears they cannot be found, after reasonable pains taken for that purpose.
We must judge from the face of the rule, as entered on the record of the Circuit Court; and it does not appear from thence, that any of the usual requisites were dispensed with. No such terms appear to have been imposed on the defendant, as the condition of postponing the trial. On the contrary, the docket shews, that the rule for taking of the deposition was entered on the ist November as has been stated; and that afterwards on the 7th November, the action was continued on account of the absence of the defendant’s witnesses, and that he was then ruled to pay the costs of the term.
Judgment reversed, and a new trial awarded.