Tbe error assigned in this case is, that tbe circuit judge, before whom tbe cause was tried, permitted the deposition of Curtiss, one of tbe plaintiffs in error, to be read in evidence to tbe jury. It appears that Neal sued Saxby and Curtiss in tbe late district court of tbe territory. Tbe summons was served on Saxby alone, who appeared and pleaded to tbe action. Curtiss did not appear. A trial was bad in tbe circuit court for Rock county, at which tbe defendant in error offered to read tbe deposition of Curtiss, taken in pursuance of a statute of tbe territory (Laws of 1841, p. 26). By tbe statute referred to, either party might give notice to tbe adverse party that be wished to have him sworn as a witness in tbe cause; and if tbe party notified did not appear and testify, or did not take and produce bis deposition (as in certain cases provided for by tbe statute be might do), then tbe party giving tbe notice might himself be sworn as a witness.

Tbe bill of exceptions shows that Saxby, by Ms attorney, objected to tbe introduction of tbe deposition of Curtiss, above alluded to, on various grounds, but tbe objection was overruled, and tbe deposition was read in evidence to tbe jury.

That tbe ruling of tbe court in permitting tbe deposition to go to tbe jury as evidence, when objected to by Saxby, was erroneous there can be no doubt. It is not necessary to decide whether tbe defendant in error should have been permitted to testify, upon tbe failure of Saxby to produce tbe deposition of Curtiss, had be offered Mmself as a witness; but it is clear that as Saxby alone was served with tbe process, and alone appeared to defend the suit, tbe deposition should not have been read to tbe jury if be objected.

*401The plaintiff should have called upon the attorney who defended the suit, to produce Curtiss, or his deposition, pursuant to the notice which had been served; and upon the failure of Curtiss to appear, or to produce his deposition, taken in conformity with the statute, should have offered himself as a witness. That would havé brought before the court the question, whether, under the circumstances of the case, Curtiss was properly a party to whom notice to testily could be given under the statute.

Judgment reversed.