Steele v. Stone

12 N.H. 90 | Superior Court of New Hampshire | 1841

Ufham, J.^*

In the case. Shepard vs. Thompson, 4 N. H. Rep. 213, a deposition was offered in evidence which was taken in the state of New-York, under the rule of this court, which is now in force, providing “ that the clerk of the court may issue a commission to any justice of the peace, notary public, or other officer legally empowered to take depositions or affidavits in the state or county where the deposition is taken.”

Exception was taken to the deposition, that it did not appear that the individual selected had any authority to take depositions, or that he was a justice of the peace, or notary public ; and the court held the objection to be well founded.

Mr. Chief Justice Richardson remarks, that it has always been the uniform practice of the court to require evidence that the person who takes a deposition is duly qualified. “ Slight evidence,” he says, “ has often been deemed sufficient ; but no deposition, taken abroad, has ever been received without some evidence on this point, unless by consent of the opposite party.”

In this case, evidence is offered that the individual appointed to take the deposition was an acting justice of the peace in the province of Lower Canada. This we hold sufficient prima facie evidence that the depositions were taken before a magistrate duly qualified for this purpose.

A justice of the peace, or notary public, is presumed, under the rule of court, to be authorized to take depositions; and this power need not be affirmatively shown; but if a commission issued to any other officer, to whom the presumption would not attach, the authority to take depositions must appear. The commission “ must be directed to a justice of the peace, notary public, or other officer [who is] legally empowered to take depositions.”

Under this construction of the rule, it is only necessary to show that the person appointed commissioner is an acting magistrate ; and his power to take depositions is implied until the contrary appears.

In Maine, where a commission issues to a judge, or magistrate of another state, to take depositions in a cause pending in their courts, the official certificate of the judge, or magistrate, is received as prima facie evidence of his authority. 5 Greenl. 9, Clement vs. Durgin.

Verdict set aside and new trial granted.

* Woods, J., having been of counsel, did not sit.