Medcalf v. Seccomb , 36 Me. 71 ( 1853 )

Howard, J. —

It has been determined that the certificate of a magistrate, of facts required to be stated in the caption of a deposition taken before him, is conclusive. Cooper v. Bakeman, 33 Maine, 376. There was, therefore, conclusive evidence of notice to Hodgkins, one of the defendants when the deposition was taken; and that, by statute, is to be deemed sufficient as to all. R. S. c. 133, §. 8. Neither the supposed notification, nor the officer’s return upon it, form any part of the caption, (in which no reference is made to either,) or control the certificate of the magistrate. Norris v. Vinal, 33 Maine, 581, appendix.

No objection appears to have been made, that the caption was deficient in not stating fully the cause of taking the deposition, and the presiding justice did not rule upon that point, nor do the exceptions embrace it. Such an objection is not presented by these exceptions, and caunot be considered.

The discontinuance against Hodgkins cannot be regarded as an abandonment of prior lawful proceedings in the suit, nor are they invalidated by his ceasing to be a party, in a manner provided by law, upon any reasonable construction of the statute. The design of the eleventh section of the R. S., c. 115, appears to have been to enable a plaintiff to avoid some of the disabilities at common law, in reference to the joinder of parties, and to allow him to amend his writ, by striking out the names of one or more of several defendants, and to maintain his proceedings in the action against the others. Statutes of amendments and jeofail are intended for relief against technical difficulties presented in the course of legal proceedings, and in that view should receive judicial construction. Exceptions overruled.

Rice, Appleton and Cutting, J. J., concurred.