Anonymous

Decided March 15, 1825

Massachusetts Supreme Judicial Court · decided 1825-03-15

<p>In the case of a libel for a divorce, J. T. Austin, on the part of the libellant, offered in evidence a deposition in perpetuam, taken'in the State of Maine before the libel was pending and without notice to the libellee.</p> <p>Austin urged that it was admissible as a deposition in perpetuam, taken pursuant to St. 1797, c. 35, § 8 ; or that at least the Court might, within their discretionary power, admit it as a foreign deposition ; or that it might be viewed as a judidicial proceeding pursuant to the statute of Maine, which is similar to our own, and so it would be entitled to full faith anc credit here by the constitution and laws of the United States . and that if a deposition in perpetuam could not, under our statute, be taken in another State, a party would have no means of perpetuating the testimony of a witness living in such State.</p>

Decided 1825-03-15

But per Curiam.

¶1A deposition taken in another State has no force here as a deposition in perpetuam. Our statute ap plies only to such as are taken within this State. As this deposition was taken before the libel was pending, we are doubtful whether it is within the discretionary power of the Court to admit it as a foreign deposition. But in a case like this we ought to have some evidence that the adverse party would not be prejudiced if the deposition were admitted. We do not know that he was not within reach of notice.1 The deposi tion cannot be received in evidence.

¶2 See Welles v. Fish, post, 74.