Savage v. Balch , 8 Me. 27 ( 1831 )

Mellen C. J.

delivered the opinion of the Court.

It is contended on the part of the defendant that the deposition of Anderson was improperly admitted, because, having been taken at St. Stephens, in the province of New Brunswick, not under a commission from court, there was no proof that the person before whom it was taken was a magistrate. Our rule requires such proof, where a deposition is taken out of the State, and not under a commission. But the question is whether the circumstances of this caso do not justify the admission of the deposition, according to the spirit of the rule, which was made to prevent management and imposition, and to furnish the court with reasonable satisfaction that the transaction was correct and fair. Now it appears that this deposition was taken near Calais, where Reding the deputy resides; and the fact is notorious that Si. Stephens is opposite to Calais. Besides, Reding attended at the caption, and enjoyed the opportunity for cross examination. This circumstance, in connexion with the local situation of Reding, raises a violent presumption that he was acquainted with the person before whom the deposition was taken, and also with his official character. Other proof on that head seems unnecessary, as it does not appear that any objection was made by Reding, who is the real defendant iti the present action.

As to the objection to the ruling of the Judge excluding the depositions of Hamilton and Edgely, the answer is obvious. It appeared to the court, from the declaration of Reding, that they had engaged to indemnify him against all damages by reason of his seizing and selling, on their execution against Flanders, the very oxen for the conversion of which the present action is brought. Of course they wore directly interested to disprove the plaintiff’s title, so as to protect themselves from liability to Reding, on their engagement to indemnify him.

Judgment on ihe verdict.