McKinney v. Wilson

133 Mass. 131, 1882 Mass. LEXIS 176

Opinion

Field, J.

The plaintiffs declare in tort as well as in contract, but the exceptions relate only to the two counts in contract. Under these counts, the plaintiffs must show a delivery of, or an offer to deliver, the horses to the defendant on payment of the sum of money agreed to be paid. The horses were not sent to the defendant, but to one McKinley. The plaintiffs must therefore show either that McKinley'was the agent of the defendant to receive for him the horses, or that some delivery or offer to deliver was made to the defendant by McKinley or some one else in behalf of the plaintiffs.

The instructions given were correct, applicable to the case and sufficient, and the instructions asked for, so far as they differed from those given, were rightly refused.

The letter sent McKinley by the president of the bank, enclosing the bill of lading of the horses, was properly admitted. It was a part of the transaction, and tended to show under what claim or by what right McKinley received the horses, and whether he had any knowledge that they had been sent him for the defendant; and there was evidence that sending such a letter was within the authority given by the plaintiffs to the president of the bank.

The only remaining exceptions relate to the admission in evidence of the deposition of McKinley. The preliminary fact, that the deposition was taken in Glasgow, and not in Suffolk county in Massachusetts, was within the authority of the court to find, and was found on competent evidence. We think that this deposition was within the sixth rule of the Superior Court, which was made pursuant to the Gen. Sts. c. 131, §§ 31, 34;

* and that the burden of proving that the officer was not legally empowered to take depositions was on the party objecting; and that the deposition was rightly admitted. See Adams v. Graves, 18 Pick. 355. Exceptions overruled.

The Gen. Sts. c. 131, § 31, provide that “the courts may from time to time make proper and convenient rules as to the time and manner of opening, filing and safe keeping of depositions, and other regulations concerning the taking and using thereof, which are not inconsistent with the provisions of law.”

Section 34 provides that “ the deposition of a witness without this State may be taken under a commission issued to one or more competent persons in any other State or country, by the court in which the cause is pending; or it may be taken before a commissioner appointed by the Governor for that purpose in any part of the United States or in any foreign country; and in either case the deposition may be used in the same manner and subject to the same conditions and objections as if it had been taken in this State.”

The sixth rule of the Superior Court provides that the commission to take the deposition of a witness without the State “shall be directed to any commissioner appointed by the Governor of this State to take depositions in any other of the United States, or to any justice of the peace, notary public, or other officer, legally empowered to take depositions or affidavits in the State or country where the deposition is to be taken, unless the parties shall agree upon the commissioners; ” and that “when a deposition shall be taken and certified by any person, as a justice of the peace, or other officer as aforesaid, by force of such commission, if it shall be objected that the person so taking and certifying the same was not such officer, the burden of proof shall be on the party so objecting.”