The opinion of the court was delivered by
Williams, Ch. J.The deposition of B. Lothrop, one of those offered, appears to have been material, tending directly to disprove the title of the plaintiff, and to prove the title of the defendant. 'The materiality of the depositions, as evidence on the issue, was not de*112cided by the county court. They were rejected on other grounds, as stated in the bill of exceptions.
I know of no law which requires a party to show depositions to the adverse party, or to submit them to his inspection. The adverse party has an opportunity of knowing their contents, if they were taken with notice, or to inspect them when on file, if taken without notice. The party taking depositions, with or without notice to the other, is not obliged, to use them in evidence, nor to permit the other side to use them, who, if the evidence was important, might have taken the testimony of the same deponents. There is no more ground for a party to complain of being surprised by the introduction of a deposition to which he has not had access, than by the production of a witness unexpectedly. Nor is there any substantial reason for requiring the exhibition of a deposition before trial, which would not equally require the disclosing the name of a witness to be produced, and the facts expected to be substantiated by such witness. An ex parte deposition must be filed, to enable the other to take the testimony of the deponent as on a cross examination ; and, unless it is filed, it cannot be received as testimony. All depositions must be opened in court to guard against any alterations or interlineations being incorporated after the depositions were sworn to.
In this case there may have been a,want of courtesy, in not exhibiting the deposition to the opposite counsel; or the course may have been pursued from a regard which the counsel owed to his client, not to exhibit to the opposing counsel the weakness or the strength of his client’s case, so as the better to enable the adversary to meet it; but this cannot enter into our consideration. In England a party to a suit in chancery is not obliged to permit the adverse party to inspect papers which have been proved as exhibits. Clark v. Field, 10 Vt. 321. The reasons for rejecting the depositions were insufficient, and the court was not' warranted in rejecting them, if legally taken and certified, because the party did not think proper to submit them to the inspection of the opposing counsel. The judgment of the county court is therefore reversed.