Opinion of the Court by
This was an action of assumpsit brought by the defendant in error against Lepper, .to recover damages for the breach of a special contract between the parties. The bill of exceptions presents the following state of facts. .The de
Verdict and judgment was for the plaintiff Chilton, and motion for a new trial made and overruled
On the trial, the plaintiff offered in evidence several depositions, to the reading of which depositions defendant objected on the ground that it did not appear but that the witnesses whose depositions were taken, were within the reach of the process of the court. Pending this motion to exclude the depositions, the court allowed the plaintiff to prove that fact, and thereupon overruled the defendant’s motion.
To reverse the judgment below, the plaintiff in error relies on the following points:
1st. The plaintiff in error objects to the sufficiency of the notice given of the time and place of taking depositions, said notice having been served on defendant’s' counsel.
2d. The plaintiff in error objects to the action of the court, allowing plaintiff to supply proof of the residence of the deponents, pending the motion to exclude the depositions.
3d. The depositions themselves contain hearsay testimony.
4. The verdict was unsupported by the testimony.
The first and third points relied on, are not available to
As it does not appear from the bill of exceptions, that the^e^en<^arit ma£le any objections to the depositions until they were offered in evidence, and then for the first time objected! their being read, because there was no proof that the witnesses were not within the process of the court, the court very properly allowed the plaintiff to remove that objection, iutroducing witnesses for that purpose,
The details of the testimony in this case 1 deem it unne-cessary to state, as the court are of opinion that every material allegation in the declaration was well found for the plaintiff. Judgment affirmed.
Judge Scott not sitting.