Palmer v. Fogg , 35 Me. 368 ( 1853 )

Hathaway, J.

— By the terms of the contract, Fogg was to haul the logs into “ Pine stream.”

The Judge instructed the jury, that “ under the contract Fogg had the legal right to land the logs in Pine stream without regard to the question whether they could not be run, as the stream then was, he not being required to inform himself from what points in the stream timber could not be run.”

There was no stipulation in the contract as to any particular place in Pine stream, where the logs should be landed, and of course, landing them in the stream was a literal fulfillment of it. The instruction was right.

The defendant objected to the admission of certain depositions purporting to have been taken before a commissioner, in Wisconsin, appointed by the Governor of this State. —

First, because it did not appear, that the deponents were sworn before the depositions were given. Second, because the signature and qualifications of the person taking them were not shown, and Third, because they were not filed at the term of the Court for which they were taken.”

The captions of the depositions state expressly, that the deponents were first sworn. They appear to have been taken, on notice given to the adverse party, and the counsel for the defendant claims under the thirtieth rule of this Court, that it was incumbent on the plaintiffs to prove, that they were taken and certified by a person legally empowered, &c. But by the R. S. c. 134, such commissioners and their official acts, are placed upon the same footing with justices of the peace, and their official acts within this State. Hence, authentication aliunde is not required. Bullen v. Arnold, 31 Maine, 583.

The depositions were returnable to the term of the Court to be holden in June ; they were opened and filed at the term held in October next ensuing. The statute of 1852, c. 246, abolished the June term, and transferred all its business to the term to be holden in October, at which term the depositions were properly filed and opened.

Hiram Corson’s testimony as to Palmer’s conversation with Fogg was properly excluded. The conversation was reduced to writing and signed by Palmer. The witness stated, that <! the paper written and signed by Palmer embodied the substance of the conversation and admissions of Palmer and the agreement which took place, and stated verbally by the parties as he (the witness) understood it.”

The writing signed by Palmer was introduced, and was, of course, better evidence than Corson’s recollections. The construction given by the Judge to that writing of Nov. 2, 1842, signed by Palmer, was clearly correct, and his instructions concerning the use which might be made of it as evidence, were sufficiently favorable to the defendant.

Exceptions overruled.

Judgment on the verdict.

Siiepley, C. J., Wells, Howard and Rice, J. J., concurred.