Lewis v. Soper , 44 Me. 72 ( 1857 )

Appleton, J.

By R. S., ch. 66, s. 5, “ surveyors of shingles, clapboards, staves and hoops,” are to be appointed, and by other sections of the same statute hoops are to be surveyed in certain cases. But hoop poles are the materials out of which hoops are to be manufactured, and are not required to be surveyed.

The depositions of Rowell and Martin were properly admitted. The certificate of the magistrate in each case was that “ the aforesaid deponent was first sworn according to law, and then gave the foregoing deposition.” This is in accordance with the form of caption prescribed by R. S., ch. 133, s. 17, in which it is required that it should be stated, u that the deponent was sworn according to law, and when.” In Atkinson v. St. Croix Manufacturing Company, 24 Maine R., 174, the depositions were held to be inadmissible, because it nowhere appeared from the certificate of the magistrate, before whom they were taken, that the deponent had been “ first sworn,” as is required by s. 15. In Parsons v. Huff, 38 Maine R., 137, the magistrate undertook unnecessarily to set forth in the caption the oath by him administered to the deponent. This was found to be defective, because the magistrate, by Ms own showing, omitted the words “ relating to the cause or matter for which the deposition is to be taken,” which by s. 15 áre part of the oath to be taken by the deponent. In the case of Atkinson v. St. Croix Manufacturing Company, the oath did not appear to have been taken at the right time. In Parsons v. Muff the oath administered by the magistrate was specially set forth in the caption, and was seen to be variant from that which the statute requires to be administered. In the depositions now under consideration, the oath was rightly administered as to time, being before the deposition was given, and correct as to form, being certified to be “ according to law,” and nothing appearing, as in Parsons v. Muff, to show it variant from the statute.

The instructions to the jury are not perceived to be adverse to the defendant. If in any respect erroneous, it is that they are too favorable to him, and to this he certainly cannot except.

When this case came on for argument in the order of the docket,.'the counsel for the defendant being absent, it was submitted by the counsel for the plaintiff on his brief — he insisting on his legal right to have the case then argued, and that his client should not suffer for the neglect of the defendant’s counsel. The counsel for the defendant was advised of this, but he neglected to submit any argument, and near the close of the term suggested the death of the defendant. Under the circumstances, we perceive no ground for delay in the final disposition of the cause.

The death of the defendant has been suggested during the present law term. It seems well settled, that in such case judgment may be entered up as of a preceding term. In Goddard v. Bolster, 6 Greenl. R., 427, the plaintiff in trespass guare clausum fregit died after verdict in his favor, and before judgment, and the court ordered judgment to be entered as of the term in which the verdict was retuned. In Corwin v. Lowell, 16 Pick. R., 170, the plaintiff deceased after a verdict had been rendered in his favor, and the court, at a subsequent term, advised judgment to be entered up as of a day when he was in full life. Putnam, J., in delivering the opinion of the court, fully affirmed the law as stated in Tidd’s Practice, (1 Am. ed.,) 846, that, “ if either party after verdict had died in vacation, judgment might have been entered that vacation as of the preceding term, and it would have been a good judgment at common law as of the preceding term.”

This action was tried April term. Judgment must be entered up as of that term.

Exceptions overruled, and judgment as of the April term, 1857,