Fuller v. Damon

Morton, C. J. The statutes provide that depositions of witnesses within the State may be taken by either party in a civil case, where the witness lives more than thirty miles from the place of trial, or is about to go out of the State and not to return in time for the trial, or is sick, infirm or aged, upon giving due [587] notice to the other party. Gen. Sts. c. 131, §§ 17 & seq. Pub. Sts. c. 169, §§ & 23 seq. It is also provided that the courts may make proper and convenient rules and regulations concerning the taking and using depositions, not inconsistent with the provisions of law. Gen. Sts. c. 131, § 31. Pub. Sts. c. 169, § 37. Rules of the Supreme Judicial Court, of the Court of Common Pleas, and of the Superior Court, have existed from an early period of our history, providing, in substance, that depositions of witnesses within the Commonwealth, but out of the town in which the court is, holden, cannot be taken in term time, unless by special order of the court. General Rules of the Supreme Judicial Court, of 1820, Rule 12; 16 Mass. 374. Rules of 1836, Rule 8; 24 Pick. 386. Rules of 1860, Rule 8; 14 Gray, 342. Rules of 1870, Rule 19; 104 Mass. 562. These rules have regulated the practice of this court for many years, and have never been regarded as unreasonable or invalid. The ninth rule of the Superior Court, by necessary implication, prohibits the taking of the deposition of a witness within the Commonwealth, and out of the town in which the court is holden, in term time, unless by special order of the court. This construction gives meaning to the rule, which upon any other construction would be without force, and is the one which has always been adopted in practice. It follows that, as the deposition offered by the defendant was taken in violation of the rule, it was properly rejected by the presiding justice of the Superior Court. Exceptions overruled.