Haley v. Godfrey , 16 Me. 305 ( 1839 )

The opinion of the Court was drawn up by

Shepley J.

The first exception taken, relates to the admission of the deposition of James Godfrey. The Courts are author-ised by stat. c. 85, sec. 7, to issue a dedimus to take depositions within or without the State, on such terms as they may prescribe. And the nineteenth rule of the Court of Common Pleas, prescribes the terms upon which a commission may issue from that Court. The sixth section of the statute provides, that depositions taken out of the State by any person legally empowered, may be admitted or rejected at the discretion of the Court. The deposition of Godfrey appears to have been taken out of the State by a dedimus, and upon interrogatories filed and annexed, which were answered by the witness, and the answers were annexed, and the whole returned by the person authorized, stating that the witness personally appeared and made oath to the truth of the answers. The objections are, that it does appear, that he did not follow the instructions of tbe commission, and that the proper form of the oath was not administered; and that it does not appear that the answers wero reduced to writing in the presence of the magistrate. There was an informality and want of accuracy in the return of the magistrate, which should be avoided. When nothing appears to the contrary, it may be presumed, that when the witness subscribes and makes oath to the truth of the answers before the magistrate, that they were reduced to writing in his presence. No particular form of oath is prescribed in such cases, and it appearing, that the testimony was under the sanction of an oath, the great object in that respect was accomplished.

This deposition was within that class over which the judge had by law a discretionary power, and having exercised it, not in violation of any law or rule of Court, his judgment in such case is not to be revised by this Court.

The sufficiency of the release given to the witness, Leach, is objected to, because it does not appear, that those signing had authority to act for the plaintiffs, who were associated under the name of the Stillwater Iron Foundery Company, and because only four out of the nine plaintiffs executed it.

If it did not bind the whole of the plaintiffs for want of authority, it bound those of the plaintiffs who signed it; and if part of several joint promisees release the promise, it will be a good discharge.

Exceptions overruled.