35 Mass. 355 | Mass. | 1836
afterwards drew up the opinion of the Court. There being no evidence of a hiring by the defendant Graves, we think it was competent for him, in an action charging him as a wrong-doer, jointly with the defendant Clapp, to explain his apparent connexion with the latter, by proving that he was a passenger only. Besides, in the event, this fact became immaterial, there being a verdict in favor of both defendants.
The Court are also of opinion, that the deposition was rightly admitted. By the Rule of Court, (old Rules, 11, in Metcalf’s Dig. 306 ; new Rules, 6,) where a deposition is taken under a commission directed to any justice, &c. the certificate of execution on the return of such commission, by a person professing to act as such magistrate, shall be prima facie evidence of his official character, and the burden of proof shall lie on the party objecting. The argument in support of the objection in the present case is, that this rule applies only to cases where the commission is addressed to some particular justice of the peace or other officer by name. This we think is not a sound construction of the rule. Where the commission is directed to a person by name, it is immaterial whether he has any official character or not; he would have sufficient authority to take the deposition from the commission itself. Such it is believed has been the practice under these rules, both here, and in Maine. Clement v. Durgin, 5 Greenl. 9.
Exceptions overruled, and judgment of the Court of Com - mon Pleas affirmed
