Ex parte Mallinkrodt

20 Mo. 493

• Court: Supreme Court of Missouri
• Decided: March 15, 1855
• Status: Published

Opinion

Scott, Judge.

The act of 18th February, 1847, empowered notaries to take depositions under the act concerning “ Depositions, ” approved January 17, 1845. The fifteenth section of the act referred to authorized the officer empowered to take depositions, to compel the attendance of witnesses, in the same manner and under the like penalties as any court of record of this state.

The eighth section of the act concerning witnesses provides that any person summoned as a witness and attending, who shall refuse to give evidence, which may lawfully be required to he given by such person, may be committed to prison by the person authorized to take his deposition.

The power of notaries, in taking depositions, is strictly statutory. They can do nothing not expressly authorized and under the circumstances which authorize it. There is no power given to an officer taking depositions to commit a witness for refusing to produce books. Powers in derogation of the liberty of the citizen must be strictly construed.

Let the prisoner be discharged, the other judges concurring.