Oatman v. Andrew

The opinion of the court was delivered by Ross, J. The first question arising on the exceptions is on the admissibility of the deposition of Henry Corey. The magistrate certified : “ The deponent being so aged and infirm in health as to render Mm unsuitable to attend the trial, is the cause of taking-the deposition.” The deposition had been used on a former trial, against the defendant’s objection. Before it was offered for use in the court below on the last trial, the magistrate, without leave of court, had stricken out the second syllable from the word “ unsuitable,” leaving it “ unable,” and appended a note to the caption, stating that he had made the alteration “ on the suggestion that the word unsuitable was not precisely the word of the statute, and that the same should have been unable. I altered said word so as to read unable, which was my then opinion of the witness, at the time of taking the deposition.” In this condition the deposition was admitted, against the defendant’s exception. The statute allows a deposition to be taken and used when the deponent, “ by reason of age, sickness or other bodily infirmity, is rendered incapable of traveling and appearing at court.” The cause for taking the deposition, as originally certified, we do not regard as substantially the same cause stated in the statute. A magistrate might, frequently, certify that a person, by reason of age and infirmity of health, was unsuitable to attend the trial of the cause, when he would not certify that the deponent was thereby rendered incapable of traveling and appearing at court. The unsuitableness might arise from the condition of the deponent’s [471] mind when affected by age and infirmity of health. The statute contemplates only a physical incapacity arising from the same causes. As the caption originally stood, we hold the deposition should not have been admitted. It is not contended, with the alteration, that the statutory cause is not substantially set forth, but it is claimed that the magistrate had no right or authority to make the alteration. After a deposition has been once used, or after the party taking it has caused it to be filed as one of the papers in the cause, the magistrate taking it has no more right or authority to make any amendment to or alterations in the caption than a party has to make alterations in his writ after he has entered it in court. The deposition in such a case has become a part of the files in the cause, and is in the custody of the court, and no amendment can properly be made without the permission of the court. The court may in their sound discretion grant the magistrate leave to amend the caption so as to correspond with the facts as they appeared at the time of taking the deposition, the same as they may allow amendments in other papers in the cause. The court, having the power to allow the magistrate to amend the caption, may approve of and ratify an amendment properly made without leave. This naturally flows from the power to grant leave to amend. Although it is not stated in the exceptions that the county court approved of the amendment, it is to be presumed the court did approve of it from the fact the deposition was admitted. We therefore find no error in the court below in admitting the deposition. The defendant excepted to the ruling of the county court in refusing to submit to the jury the question whether a certain line of marked trees across the lot had been established as the line between the fifteen acres reserved off from the west end of the lot and the rest of the lot. That a line other than the true line may become the established line between adjoining owners, where there has been no actual occupancy to the line by either, the owners on each side of the line, or their grantors, must have treated it as the true line, by acquiescing in it as such, for fifteen consecutive years. The reporter’s minutes contain some evidence tending to [472] show that the owners of the rest of the lot had pointed out, at various times, the line of marked trees as the line to which they claimed ; but there was no evidence showing when or by whom this line was made, or that the owners of the fifteen acres had ever treated it as the true line. Inasmuch as this testimony falls short of tending to show all that is necessary in order that a line other than the true line may become the established line, and as the court gave the defendant the full benefit of the existence of the line of marked trees, in determining the location of the true line, we find no error in this ruling and charge of the court. Neither the deed from Henry Corey and wife to Simeon Martin, in which the premises conveyed are described as bounded on the north by the Pierce farm, nor the deeds from John Mattison to Samuel Ames, and from Samuel Ames to Walter Perkins, in which the premises conveyed are described as bounded north by land of Levi Hale, mention the black oak stub, where the plaintiff claimed the southwest corner to be, as a corner or monument on the common line. Neither were the grantors in those deeds shown to have deceased. The most that can be claimed from these deeds is that Corey, when conveying, called the land on the north, between the black oak stub and black oak stump, the Pierce farm, and the other grantors called the land on the north of their land between the same points, the land of Levi Hale. The fact that these declarations,—for they can be regarded as nothing more than declarations,—of the grantors were made at the time of conveying their lands, and were incorporated into their deeds, do not render them any more admissible than if made at any other time or in any other places. We do not think they fall within any of the exceptions to the general rule excluding hearsay testimony. It has frequently been held that testimony that a piece of land had been known or called as the land of a particular person, is inadmissible to establish the title to real estate. Howand v. Crocker, 7 Allen, 153 ; Sullivan v. Lowder, 11 Me., 426 ; South School District v. Blakesley, 13 Conn., 227. In the admission of this testimony we think the county court erred. The judgment is therefore reversed and cause remanded.