The only question presented in this ease is, whether the deposition of Mayes was admissible. The decision of the circuit court on the matter of fact is not a subject of. review. This deposition was taken in a case where the present plaintiff was defendant, and the plaintiff was one from whom the present defendant claims his title. If the deposition was reliable, there was an end of the case. It was taken in a case where the plaintiff undoubtedly had an opportunity of cross-examination. It is true that in Samuel v. Withers, 16 Mo. 532, it was said that the deposition should be filed in the case where it was proposed to use it, or notice should be given of its intended use, but in Cabanne v. Walker, 31 Mo. 285, this rule was not considered indispensable, and was thought to be merely, intended to guard against surprise. That there was no surprise in the present ease is obvious from the fact that five or six witnesses were introduced to prove the bad character of the deponent for truth. The ease of Parsons v. Parsons, 45 Mo. 265, seems to be conclusive on the point in this case, and if the deposition was credited, the title of the defendant was clear, and of this the judge below was the sole judge, no jury being asked for. Judgment affirmed.
Affirmed.