The opinion of the court was delivered by

— On the 22d of March, 1826, Justice Loughiiead gave judgment for Stewart against Harlan, the defendant below. On the 29th of March, the defendant appealed to the Common Pleas, and gave bail according to law, but did not file the appeal in the Common Pleas until 30th May, 1826, being the first day of the term next after the appeal.

On the 19th of April, the plaintiff carried a certified copy of the judgment of the justice, and of the appeal taken, into the Court of *334Common Pleas, and an affidavit stating' that a material witness was about to leave'the state. . A special rule to take depositions was granted: notice of taking the depositions was duly given, and the ' deposition regularly taken.

At the trial of the cause, the witness had returned to this country, and had been duly summoned to attend the trial,' but, on proof that he was confined to bed by sickness, the deposition was offered, and received by the court.

Among the eárliest of our reports, 1 Dali, 164, we find, under-similar circumstances, a rule granted to take the deposition of a witness before the return of the writ. And again, in<the same book, p: 251, this is recognised. If such were not the practice in a'seaport, intolerable hardship and loss would be the consequence. By the fourth section of the act of 20th March, 1810, appeals are to be, in court, subject to the same rules as other actions. There is no good ’ reason why we should disturb a practice of, So long standing in .that court. There is no error in the admission of this deposition , on the facts stated.

Judgment, affirmed..