
    W. A. Fuller vs. Alden Damon.
    Hampden.
    Sept. 25.
    Oct. 1, 1883.
    Field & W. Allen, JJ., absent.
    A deposition oí a witness, taken within the Commonwealth, and out oí the town in which the court is held, in term time, without a special order of the court, is in violation of the ninth rule of the Superior Court, and is not admissible in evidence.
    Coetract upon two promissory notes, made by the defendant, and payable to the order of the plaintiff. Answer, want of consideration.
    At the trial in the Superior Court, before Putnam, J., without a jury, the defendant, for the purpose of proving the defence set out in the answer, offered in evidence by his attorney his own deposition, which deposition contained matter material to the defence. To the admission of this deposition the plaintiff objected. It was conceded that the deposition was taken in term time, and while the court was in session, and without any application to the court for leave to take it, as required by the ninth rule of the Superior Court. The deposition was taken at Ludlow, the place of residence of the defendant; and no objection was made to its admissibility other than on the ground stated.
    The judge ruled that the deposition was not admissible, as not having been taken in compliance with said rule of the court, and rejected it as evidence; and found for the plaintiff. The defendant alleged exceptions.
    
      S. Sanders, for the defendant.
    
      E. B. Maynard & H. C. Bliss, for the plaintiff.
    
      
       This rule is as follows: “Depositions maybe taken within the Commonwealth for the causes, and in the manner by law prescribed, in term time, provided they be taken in the town in which the court is holden, and at an hour when the court is not actually in session, unless by special order of the court.”
    
   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 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.  