Talbott v. Bradford

Court of Appeals of Kentucky

Talbott v. Bradford

5 Ky. 316

DecidedJuly 1, 1811

StatusPublished

This text of 5 Ky. 316 (Talbott v. Bradford) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Talbott v. Bradford, 5 Ky. 316 (Ky. Ct. App. 1811).

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Opinion

OPINION of the Court, by

Judge JE°g.an.

— In thi? ar* order of court was grade» by consent of the parties, for taking the depositions of such persons as either party might deem material, giving the other np-dee of the time and place of taking them,

Under this order the defendants took depasitiqgs,; which, upon the * motion of the counsel for the plaintiffs,; dse court excluded from the jury on the trial of the? cause ; because, as appears from a bill of exceptions ta* [317]*317ken to the opinion o,F the court, the clerk of the com t liad not certified that Henry Garrard was a justice of the peace, he having acted as one in taking the dcpo-sittons ; and because Ambioce Barbour, who had given the copy of the notice for taking the depositions to one of the plaintiff*, did not sign the certificate of the ma-gisfrute, testifying his oath of the delivery of the notice,

If a party is prefenc at the taking of a de-poikion,hisob-jedion to the notice for ta-kin| the. dt?po-frion is thereby rendered inam^ tea ¡ah

We know of t,o law which requires tVie certificate of a clerk to prove that a person acting in the character of a justice of the peace, is su h. And upon the same general principle that the o:i, u-1 certificate of the clerk of a court is received as evid' n r C what by law he is autho-rised to certify, is that oí a ,u rgistrate also to be received throughout the commons Ah. By law depositions may be taken before two ju fices of the peace. They are officers presumed in I i\v tr lie known, and what they certify as officers, of which they have jurisdiction, ought to be regarded without farther evidence.

With respect to the certificate of the magistrate in regard to the oath of the person who delivered the notice, or that the affidavit of the notice as given ought to have been signed by the person giving it, it. need only be observed that the presence of the party, who seems to have had the benefit of interrogating the witnesses, has rendered unimportant an investigation of this objection.

Judgment reversed, and cause remanded for a new trial, &c.

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OPINION of the Court, by

Judge JE°g.an.

— In thi? ar* order of court was grade» by consent of the parties, for taking the depositions of such persons as either party might deem material, giving the other np-dee of the time and place of taking them,

Under this order the defendants took depasitiqgs,; which, upon the * motion of the counsel for the plaintiffs,; dse court excluded from the jury on the trial of the? cause ; because, as appears from a bill of exceptions ta* [317]*317ken to the opinion o,F the court, the clerk of the com t liad not certified that Henry Garrard was a justice of the peace, he having acted as one in taking the dcpo-sittons ; and because Ambioce Barbour, who had given the copy of the notice for taking the depositions to one of the plaintiff*, did not sign the certificate of the ma-gisfrute, testifying his oath of the delivery of the notice,

If a party is prefenc at the taking of a de-poikion,hisob-jedion to the notice for ta-kin| the. dt?po-frion is thereby rendered inam^ tea ¡ah

We know of t,o law which requires tVie certificate of a clerk to prove that a person acting in the character of a justice of the peace, is su h. And upon the same general principle that the o:i, u-1 certificate of the clerk of a court is received as evid' n r C what by law he is autho-rised to certify, is that oí a ,u rgistrate also to be received throughout the commons Ah. By law depositions may be taken before two ju fices of the peace. They are officers presumed in I i\v tr lie known, and what they certify as officers, of which they have jurisdiction, ought to be regarded without farther evidence.

With respect to the certificate of the magistrate in regard to the oath of the person who delivered the notice, or that the affidavit of the notice as given ought to have been signed by the person giving it, it. need only be observed that the presence of the party, who seems to have had the benefit of interrogating the witnesses, has rendered unimportant an investigation of this objection.

Judgment reversed, and cause remanded for a new trial, &c.

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Bluebook (online)

5 Ky. 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talbott-v-bradford-kyctapp-1811.