The only question in this case, is in regard to the admissibility of the deposition of William K. Upham. It having been decided by this court, (Brigham v. Abbott, 21 Vt. 455,) that ex parte depositions taken to be used before auditors, are not required to be filed thirty days before the hearing, as in the case of trials in the county, and supreme court, it only remains to inquire, whether this deposition is properly taken, to be used before the auditor. The case is described, as “to he tried by the county court, at the term next to be holden,” &c. It has never been deemed important, that the deposition should be taken for the very term, at which it was to be used. If the case is described, as to be tried at the next term, and is not, in fact, tried, or, by the rules of court, not triable, at that term, the deposition is, nevertheless, properly taken, and may be used at any future term, when the case happens to be tried. And if this were not so, it would be attended with very great inconvenience in many cases, where depositions were taken at a distance, or of witnesses going out of the state, and long before the case was in such a state of forwardness, that the time of trial could be calculated with certainty. It seems to have been the intention of the legislature, to enable the parties to take depositions in all cases, where suits are pending, by correctly describing them, as pending in court.
*500All this applies, with great force, in favor of allowing depositions in hook actions, to be taken in the mode this was. It certainly describes the suit correctly, and the time and place of trial, as correctly as in cases tried by the jury, when the time of trial is not yet certainly known. If this mode of describing the trial of book actions was not allowed, as the time is not usually fixed very long before the trial, it would be difficult, if not impossible, in cases where witnesses reside at a distance, to take their depositions at all, certainly not without .unnecessary embarrassment There is no doubt the caption of a deposition, in a case like the present, may describe the case, as to be tried before the auditor, on a day certain, but we think it may also be taken in the mode this is.
. The filing of the deposition in this case, seems to us a reasonable compliance with the statute, even if. it were required to be filed, thirty days with the clerk, which, we have said, is not the construction the statute has received. . Judgment affirmed. • -