Page images
PDF
EPUB

court to which the deposition is returnable, it, nevertheless, may, at the discretion of the court, be received in evidence.5% 52

21. The justices of the supreme judicial court may issue commissions to take depositions without the State, to be used in pending suits in the State, on such terms and conditions as they think proper.53

DEPOSITIONS IN PERPETUAM.

22. When any person wishes to perpetuate the testimony of a witness, he shall make a statement in writing under oath, briefly setting forth in substance his title, interest, or claim in the subject to which the desired testimony relates, and the names of all persons supposed to be interested therein, and the name of each witness proposed to be examined; and shall deliver the statement to a judge or register of probate, notary public, clerk of the supreme judicial court, or justice of the peace and quorum, requesting him to take the deposition of such witness; and he shall thereupon cause notice to be given of the time and place for taking such deposition, to all persons so named in the statement, which may be given and proved as in case of other depositions.54

23. The deponent shall be sworn and examined, and the deposition written, read, and subscribed, as other depositions; and the person taking it shall annex to it a like certificate, as near as the case will admit, and also state therein that it was taken in perpetual remembrance of the thing, and the name of the person at whose request it was taken, and of all who were notified, and all who attended.55

24. The statement, deposition, and certificate, within ninety days after the taking, shall be recorded in the registry of deeds in the county where the land or any part of it lies, if the deposition relates to real estate; if not, in the county where the parties or some of them re

side.56

25. All such depositions, recorded as aforesaid, or a copy thereof, attested by the register of deeds, may be

63 R. S. c. 107, § 21.54 R. S. c. 107, § 22.-55 R. S. c. 107, § 23.-56 R. S. c. 107 § 24.

used in the trial of any cause pending, when the deposition was taken or commenced afterwards, between the person at whose request it was taken, and either of the persons named in the statement and duly notified, or those claiming under either concerning the title, claim, or interest set forth in the statement, subject to the same objections as if originally taken for the suit.57

26. Depositions to perpetuate the testimony of witnesses living out of the State, may be taken in any other State or foreign country, upon a commission issued by the supreme judicial court; and the persons desirous to procure such depositions may apply to said court, and file a statement as aforesaid; and if it relates to real estate in this State, the statement shall be filed in the county where it lies; if not, in the county where some of the parties reside.58

27. The court shall order notice to be served on each of the persons named in the statement living in the State fourteen days before the time appointed for hearing the parties, and on hearing the parties or the applicant, if no adverse party appears, may issue a commission for taking such deposition as in a cause pending,59

28. The deposition shall be taken on interrogatories filed by the applicant, and cross-interrogatories by any party adversely interested, substantially as when taken to be used in pending causes. Or the person wishing to take the deposition may file his statement in the clerk's office in vacation, and cause notice to be given to the persons named therein as interested, fourteen days at least before the next term of the court, at which time the parties may be heard."

29. When a magistrate, duly authorized, has summoned a person before him to give his deposition or affidavit in any case authorized by this chapter, pending in this or any other State; the summons has been served and returned by a proper officer or other person, and proof thereof is entered on the summons; legal fees have been tendered him a reasonable time before the day appointed for taking the deposition; and he refuses to attend, the

57 R. S. c. 107, § 25.—58 R. S. c. 107, § 26.59 R. S. c. 107, § 27.— R. S. c. 107,

magistrate may adjourn the time of taking his deposition, and issue a capias, directed to a proper officer, to apprehend and bring such person before him; and if, at the time of the adjournment, he is not apprehended, the magistrate may adjourn from time to time, until he is brought before him; and if he then refuses to depose and answer such questions as are propounded to him by either of the parties or persons interested, under his direction, he may commit him to the prison of the county for contempt, as the supreme judicial court may commit a witness for refusing to testify. The capias may be served by the sheriff, deputy-sheriff, or any constable of the county, in which such person resides; and if he escapes into another county, either of said officers may arrest him there, and bring him before said magistrate.61

(y) Where the magistrate, before whom a deposition is to be taken, adjourns the time of taking it because the deponent, although duly summoned did not attend, it is not necessary to give a new notice to the adverse party, where he had been duly notified of the time first appointed and did not attend.62

(z) FORMS.

1. Summons for witness to appear before supreme judicial court.

[Name of county,] ss.

To name of witness], of, in the county of

GREETING.

You are hereby required, in the name of the State of Maine, to make your appearance at the supreme judicial court next to be holden (or now sitting) at, in and for the county of, on the Tuesday of, to give evidence of what you know relating to an action or plea of →, then and there to be heard and tried betwixt P. L., plaintiff, and D. F., defendant.*

Hereof fail not, as you will answer your default_under the pains and penalties of the law in that behalf made and provided. Dated at, in said county of —, A. D. —.

[ocr errors]

J. S. H., Justice of the Peace. Any number of witnesses may be included in one subpoena. If the witness is required to testify in a criminal prosecution, instead of "action or plea of -, &c., substitute "to an indictment then and there to be heard and tried betwixt the State of Maine and R. S.” [the accused].

61 R. S. c. 107, § 29.-62 Dorrance v. Hutchinson, 22 Me. 357.

2. Summons for a witness to appear before a justice.

[Name of county], ss.

To [name of witness], of, in the county of —

GREETING. You are hereby required, in the name of the State of Maine, to make your appearance before J. S. H.. esquire, a trial justice in and for said county of at his office in, in said county, on the day of , A. D. -, at o'clock in the -noon, [then remainder same as No. 1].

[ocr errors]

-

Form of summons to a deponent will be found ante, p. 140.

If a person, who is not a party to the cause, have in his possession any written instrument which is material evidence for either party at the trial, instead of a common subpoena, a subpoena duces tecum should be served upon him, commanding him to bring with him and produce at the trial the instrument named.68

3. Subpoena duces tecum.

[ocr errors]

[Same as No. 1 to *, then] and you are likewise requested to bring with you and produce at the time and place aforesaid a written contract, dated the day of —, A. D., concerning the erection of a house, entered into by you and the said P. L., plaintiff in said action, [or whatever instrument is intended]. [Close as in No. 1.]

The statute prescribes the mode of serving a subpoena. If the writ be served by an officer, his simple return upon the back thereof is sufficient evidence of the service; but if served by any other person, his return must be sworn

to.64

4. Return of service of subpoena or summons.

[ocr errors]

[Name of county], ss., [date]. I this day summoned the within-named to appear as within directed, by reading to him the within summons; and at the same time I paid or tendered to him Idollars and cents, for his travel of

[ocr errors]

day's attendance.

FEES. Travel, 2 miles, .16

[blocks in formation]
[ocr errors]

miles and one J. C., Deputy-sheriff.

If served by a person other than an officer, the return may be the same with an affidavit, as follows:

me,.

STATE OF MAINE.

[Name of county], ss., [date]. Subscribed and sworn to before J. S. H., Justice of the Peace. No time is fixed, before the trial, within which a sum

63 Howe's Pr. 230.64 R. S. c. 107, §§ 6 and 10.

mons must be served; but a reasonable time is allowed to witnesses to travel to the place of trial.

5. Capias for a deponent who refuses to attend according to

a summons.

[Name of county], ss.

STATE OF MAINE.

To the sheriff of the county of, or to either of his deputies, or to any constable in said county, GREETING.

[L. S.] Whereas, by virtue of a summons in due form of law, issued by me, J. D., esquire, a justice of the peace in and for said county, on the day of, A. D. —; and duly served by C. D. on the day of aforesaid, as by said summons together with the return thereof entered thereou and hereunto annexed will more fully appear, A. B., of —, in said county, laborer, was duly summoned to appear before me the said J. D., justice as aforesaid, at my office in, in said county, on the day of —, A. D. —, -, at - o'clock in the noon, to give his deposition to be used in a civil suit in which P. L., of in said county, is plaintiff, and D. F., of, in said county, is defendant, now pending in the supreme judicial court in and for said county; and notwithstanding legal fees, to wit, twenty-four cents for four miles' travel, and fifty cents for one day's attendance, were tendered to the said A. B. on the - day of —, A. D. —, a reasonable time before the said day appointed for the taking of his said deposition; still the said A. B. hath refused and he still refuses to appear at the time and place named for the taking of his said deposition: Now, therefore, you are hereby commanded, in the name of the State of Maine, to apprehend, and bring the said A. B. before me, at my office aforesaid, on the day of A. D., at o'clock in the noon, to which time I have adjourned the taking of said deposition, to the end that the said A. B. may give his said deposition. Hereof fail not, and make due return of your doings hereon.

Witness my hand and seal, at -, in said county of this day of, A. D. -. J. D., Justice of the Peace.

6. Return on capias.

[Name of county], ss., [date]. By virtue of the within writ, I apprehended the within-named A. B., and now have him before the said J. D., the justice within named, as within commanded. J. C., Deputy-sheriff.

FEES. Travel, 2 miles, .08

[blocks in formation]

7. Capias for witness refusing to appear and testify in the trial of an action before a trial justice, under R. S., c. 82, § 90.

65 Colby's Pr. 256.

« PreviousContinue »