Brown v. Ford , 52 Me. 479 ( 1864 )

The opinion of the Court was drawn by

Appleton, C. J.

The defendants read in evidence, subject to the plaintiffs’ objection, the depositions of John Williams and others, all taken at Boston at the same time on notice to C. P. Curtis, jr., an attorney of that city, who was not then and never had been an attorney of record for the plaintiffs, but who, it appeared by other depositions in this case, had been employed to appear for them in the taking of sundry depositions in Boston, and in one or' more instances had signed an agreement that a deposition or depositions taken in this might be used in another cause in which the plaintiffs were the same.

By R. S., c. 107, § 7, in giving notice to take depositions, it is provided that no person shall be considered an attorney " unless his name is indorsed upon the writ, or the summons left with the defendant, or he has appeared for his principal in the cause, or given notice in writing that he is the attorney of such adverse party.” Within this section Curtis cannot be regarded as the plaintiffs’ attorney.

It is urged that by § 20 "the Court may admit or reject depositions taken out of the State by a justice, notary or other person lawfully empowered to take them.”

But by § 8, it is provided that, "when a deposition is taken out of the State, and not under a commission, the adverse party, or his attorney, shall have due notice thereof.” By the 24th Rule of Court, no deposition taken out of the State without a commission shall be admitted in evidence, " unless the adverse party was present, or was duly and seasonably notified but unreasonably neglected to attend.”

The depositions objected to were equally inadmissible under the statute or the Rules of Court.

Exceptions sustained.

Davis, Kent, Walton, Dickerson and Danfortii, JJ., concurred.