Fuller v. Rice

70 Mass. 343

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1855
• Status: Published

Opinion

Shaw, C. J.

The deposition was rightly admitted under the circumstances. No general rule can be laid down in respect to unfinished testimony. If substantially complete, and the witness is prevented by sickness or death from finishing Ms testimony, whether viva voce or by deposition, it ought not to be rejected, but submitted to the jury with such observations as the particular circumstances may require. But if not so advanced as to be substantially complete, it must be rejected.

The possibility of being liable in scire facias on the judgment in the trustee process would have warranted the defendant in moving for a continuance of the present case; but the two years after the rendition of the judgment, within which the scire facias must, by St. 1846,- c. 40, be served upon him, having now elapsed, the opinion of the court is that judgment be entered on the verdict for the plaintiff.

Exceptions overruled