Lockwood v. Cobb

5 Vt. 422

Opinion

The opinion of the Court was pronounced by

Hutchinson, C. J.

One question only is presented in this case; and it is presumed, that the practical importance oí the principle embraced in this question, occasioned its coming to this Court, rather than the magnitude of the sum in controversy. The question really is this:— whether the sum of thirty-four cents, fixed as a compensation to a justice of the peace for taking a deposition, including caption and certificate, is all that he can safely take, even when he writes the deposition. The statute, which was in fo'rce prior to November, 1821, used this phrase :— “ Taking deposition out of Court, thirty-four cents.” There was also a broad sweeping section, relating to matters not particularly named, and giving seven cents for each 100 Words, and seventeen cents for a copy of the whole case. Reports were circulated in and about the Legislature, that some magistrates had adopted a practice rather of speculation, in taking depositions. — That some took thirty-four cents for the certificate of the oath and caption, and seventeen cents for the certificate of its being taken and sealed up by him. Others took all this, and added what the writing of the caption which follows the oath would amount to at seven cents for each 100 words. This was the evil to be remedied by the new statute. It is the business of the witness, to write his own deposition, or procure it done. The official business of the justice commences after the deposition is written and signed. He then examines and cautions the deponent relative to the truth of the deposition, and administers the oath, and makes out the certificates and caption. All this is a uniform business, and deserves a uniform compensation; while the writing of the deposition could have no reasonable sum fixed, till its length becomes known. The writing of the deposition is no part of the official duty of the Magistrate. Any other indifferent person may do it as well as the magistrate, even if the deponent is unable to do it himself. If the magistrate does write the deposition, it is as reasonable that he should receive pay for it, as that any other person should receive it.

There is nothing in this case, that shows how long this deposition was; but as only sixteen cents were claimed as received for writing it, wo presume that a reasonable sum. Indeed, the decision of the County Court embraces no con-' troversy upon that point.

The judgement of the County Court was in favor of the defendant, that the facts proved did not render him liable to the penalty sued for; and that judgement is affirmed..