Davis v. Allen

31 Mass. 313

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1833
• Status: Published

Opinion

Shaw C. J.

delivered the opinion of the Court. The only question in the present case is, whether the deposition, taken in the manner and under the circumstances stated in the report, was admissible ; and the Court are of opinion that it was not.

It is not admissible as a deposition taken under the general law. After a commission has issued', with interrogatories filed on both sides, it is, to say the least, doubtful whether a party is at liberty to go and take the deposition without reference to the commission. But if allowable at all, it should be held to the strictest rules. of law. The party must not only show that he has elected to suppress the commission, and take the deposition in the mode provided by statute, and given notice thereof to the other party, but he should be held to prove that the person taking it was a magistrate duly qualified to take depositions, and that the adverse party had actual and full no' tice of the time and place of taking.

As i, deposition taken under the commission, it is not admissible, because though returned under the same envelope with the commission, it does not appear that the interrogatories annexed to the commission were propounded. It should appear affirmatively, and under the certificate of the commissioner, that it was taken in pursuance of the commission. It is not sufficient, that the Court may conjecture from the contents of the deposition, that the interrogatories were put to the witness ; being upon the same general subject of inquiry, there might naturally be a resemblance, in the subject matter, although the interrogatories of the commission were never put to the deponent.

New trial ordered.