Hall v. Houghton , 37 Me. 411 ( 1854 )

Howard J.

— The motion of the defendant, if not abandoned, requires no consideration, in the view of the case now taken.

The deposition of Dean was admissible in proof of an assault and battery, and it was competent for the plaintiff to prove that they were the same for which this suit is brought, although stated by the deponent to have been committed at a different time. A party calling a witness is not precluded from showing that he mistook and misstated a particular fact; and he may prove the truth of the fact by other competent evidence in contradiction to the testimony of the witness, whether his misstatement was innocent or willful. And there is no reason why a party should not be permitted to correct his witness as to a date, although he may have led the witness into a mistake of it, by his own interrogatory.

Depositions can be used of right, only when taken for the causes, and in the manner provided by statute; and no deposition taken as mentioned, and in cases referred to in the Revised Statutes, c. 133, § § 1, 2, of which class the case at bar is one, “■ shall be used in the trial of any such cause, except by consent of parties, unless the notice hereinafter mentioned shall have been duly given to the adverse party.” § 3. It is required (§ 17,) that the magistrate, before whom the deposition is taken, shall certify, “ whether the adverse party was notified to attend;” and “ whether he attended or not.”

In the caption to the deposition of Robinson, there is no certificate of the magistrate respecting notice to the adverse party, but it is certified that he was present, and did not object to the taking. As there is no evidence that he was notified, he might have been present for other purposes, and in the transaction of business inconsistent with taking the deposition; or he might not have been in a condition to know the fact of the taking, and may have been wholly ignorant of it; or, if then apprised of it, he may have been unable to attend to the taking personally, or by counsel. His presence, merely, is not evidence of the notice required, or proof of a waiver of notice; and there is no evidence of a consent of parties that the deposition should be used at the trial; it was therefore inadmissible against the objection. Eor this cause the exceptions must be sustained.

The ’ magistrate’s certificate, it may be remarked, is evidence of those facts only, which he is required to state in the caption. He cannot extend his certificate to other facts to make them evidence, or to affect the case. The statement, then, by the magistrate, in the certificate, that the adverse party “ did not object to the taking of said deposition,” was extra-official and unauthorized, and cannot be received in evidence. 1 Phil. Ev. 382, 391; Cowen and Hill’s Notes, 702, 741; 1. Greenl. Ev. § 498.

Exceptions sustained.

Shepley, C. J., and Rice, Hathaway and Cutting, J. J., concurred.