Beidell & Co. v. Cook & Co.

1 Handy 94

Opinion

Gholson, J.

In cases of this description, we must either act on the presumption, that the officer has discharged his duty, and therefore require nothing more than a general certificate that the deposition has been taken, or the certificate must show a compliance with the particulars specified in the law. On this point the authorities are clear, that something more than a presumption must be required. There must be “ direct proof that the requisitions of the statute have been fully complied with.” If the certificate may be perfectly true, and yet, the deposition may not have been subscribed in the presence of the officer, I have no right to presume that it was so subscribed. Bell vs. Morrison, I Peters, 351 — 356.

In this view, I feel compelled to allow the exception.