Bayard’s Notebook, 70
Court of Common Pleas of Delaware, New Castle County.
May, 1794.
The plaintiff had a rule to take the deposition of John Harrison before any justice of the peace of Talbot County in the State of Maryland. Nothing was said in the rule about notice. Upon the trial, Harrison’s deposition was produced, which had been taken before a justice of peace in Talbot ex parte and without notice. The reading of it was objected to on the ground that no notice had been given. It was answered that the rule did not require notice.
The bar being consulted, Johns and Levy said they conceived that notice should have been given, though not required by the rule.
[PER] CURIAM.
Nothing less than an express agreement to waive notice can dispense with it. In every step of adversary proceedings, justice requires that notice should be given where the transaction is open to dispute. It struck us at first that notice should have been given, though we wished to know from the bar if the practice had been different.
Deposition rejected.
Bedford for plaintiff. Bayard [for] defendant.
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