Where depositions are taken under the statute in the absence of the adverse party, it is competent for the adverse party to put in proof of contradictory statements made by the witness without previously interrogating him as to such statements.
Per Curiam. (GREENE, C.J., and BRAYTON, J.)
It is undoubtedly the general rule, that the sworn testimony of a witness cannot be discredited by proof of contradictory statements, unless his attention has first been directed to them and opportunity given him to explain them. But the question is whether this is an inflexible rule. In this case the defendant was not present at the taking of the deposition, and had no notice of it. He could not cross-examine the witness, and was deprived of this advantage without any fault on his part. If he has no right to show that the witness has contradicted himself, he loses an important right without any fault of his, and to establish such a rule would hold out inducements to parties to take advantage of the absence of the adverse parties to take their testimony. We do not think the rule of law referred to is so inflexible as to require this.
HAILE, J., dissentiente.