Wood v. Cole

30 Mass. 279

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1832
• Status: Published

Opinion

Per Curiam.

It is stated explicitly by Mr. Stevens, that when he appeared at the trial before the magistrate, he had not been retained generally in the cause, that he merely appeared for that occasion only, in behalf of another gentleman, who was detained by ill health, and that he was not again employed, and did not consider himself as counsel or attorney in the cause, until long after the deposition was taken, in .the following summer, when he was applied -to and retained by the plaintiff. He appears in the mean time to have been so entirely disconnected with the cause and with the plaintiff, that he might with out impropriety have taken a retainer on the other side. It appears to us therefore, that at the time of taking this deposition he was not incompetent to take it, within that clause of the statute, which requires depositions to be taken before a justice of the peace, not being of counsel or attorney to either party, ór interested in the event of the cause. St. 1797, c. 35, § I

It is undoubtedly very proper to watch over depositions narrowly, in order to prevent their being taken by persons who are prejudiced in the case ; but when not within the statute, that is a question addressed to the discretion of the court. In the case before us there was no legal ground to object to the deposition, and under the circumstances, we think it was rightly admitted.

Exceptions overruled.