Livesey v. Bennett

80 Mass. 130

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1859
• Status: Published

Opinion

Shaw, C. J.

The deposition was rightly admitted. When a deposition is taken with a view to a future trial, it is always subject to contingencies. All future events are contingent. The substance of the certificate in the caption is this; that the party taking the deposition fears, apprehends, believes that the witness is going to be absent, and this appears to the magistrate to be reasonable. The security against the abuse of this power is that, if the party is not right in his apprehension, he cannot use the deposition; the witness must be produced if the anticipated cause, or some sufficient cause, does not exist at the time of the trial. Here the event showed the party was right. The witness himself being a young man, without family or business to bind him here, made his going out of the state dependent on a contingency not within his knowledge or power. West Boylston v. Sterling, 17 Pick. 128. Exceptions overruled.