Kelton Co. v. Montaut

2 R.I. 151

• Court: Supreme Court of Rhode Island
• Decided: March 6, 1852
• Status: Published

Opinion

The Court held that whatever might be the rule as to persons who were not magistrates, the objection did not apply to the present commissioner; for, although the commission was not directed to him as a justice of the peace, yet it appeared he was such and acted as such. The citation and the return were signed by him as a justice of the peace. As a justice of the peace he had power to take the deposition, provided the Court gave an order to that effect.

The defendant’s counsel further objected, that subsequent to the issuing of the commission, and prior to the taking of the deposition, the Court granted the continuance of the cause upon condition of the plaintiffs paying costs ; and that at the time the deposition was taken the costs were not paid, and that consequently the plaintiffs were non suited. But the Court held that upon the neglect of the plaintiffs to pay the costs the defendant was atliberty to move that the plaintiffs should be non suited, and the Court would order a non suit, unless the conditions of the continuance were complied with, but without such order the case remained in Court.