
    Titus Welles, Executor of Abraham Touro, versus Ebenezer Fish and Nathaniel Winsor.
    To a plea of the statute of limitations in an action to recover back money paid, it is a good replication that the money was paid in consequence of a fraudulent concealment on the part of the defendant, and that the plaintiff did not discover the fraud until within six years before the commencement of the action.
    
    In general a deposition taken in perpetuam under St. 1797, c. 35, $ 8, at the request of A upon notice to B, cannot be used in an action against B by C, a stranger no) claiming under A, neither can A use it against any other person than B, or one claiming under him, unless such person lived more than twenty miles from the place of caption.
    
    This was an action for money had and received, brought to recover back the amount of the testator’s subscription to a policy of assurance upon the schooner Jefferson, belonging to the defendants, on which a total loss had been paid on the 18th of September, 1813. The money was sought to be recovered back, on the ground, that at the time when the policy was subscribed the loss of the vessel was known to one or both of the defendants, and so that the insurance was fraudulently obtained. The defen lants pleaded the general issue and the statute of limitations To this last plea the plaintiff replied, setting forth the fraud practised by the defendants and averring that the testator did not discover it until within six years before the commencement of the suit; to which there was a general demurrer.
    At the trial of the cause the judge admitted in evidence the deposition of Betsy Knox, taken in perpetuara, before the institution of this action, at the request of one Homer and others, underwriters on the same policy, but not at the request of the plaintiff or his testator. If the deposition was improperly admitted a new trial was to be granted.
    
      L. Shaw for the defendants.
    The plaintiff waives the tort and sues in assumpsit. The promise, if any, was made in 1813. The plaintiff says he ought not to be barred by the statute of limitations, because the testator paid the money in consequence of a fraudulent concealment ; but he ought to state that fraudulent means were used after the action accrued, such as falsifying records or accounts, &c., to prevent the testator from coming at a knowledge of the facts. If this replication is sustained it will repeal the statute, so far as concerns actions founded on fraud, for a party will have only to say that he did not discover, the fraud until within six years. But does this present an issue which can be tried at common law ? And what is a discovery ? Shall it be full proof of fraud ? Certainly not; it is enough if the inference of fraud may be drawn from circumstances . A party is not to say that he will pay the money and will get proof of one circumstance one year and of another the next, and so on, till his evidence shall be sufficient to convince a jury of the fraud, and then he will recover the money back. There is a peculiar propriety in applying the statute to cases of this kind, because fraud is commonly proved or disproved by many little circumstances. The question is not whether fraud, if proved, shall be protected, but whether evidence of it shall be admitted after such a lapse of time.
    The deposition of Betsy Knox should have been rejected, because it was res inter alios acta. It was an answer to such questions only as were put to the witness, and it is to be considered as a partial representation of facts in regard to persons who had not an opportunity to be present. In a deposition taken at the request of Homer, it would have been impertinent in the defendants to put interrogatories relating to the claim of the plaintiff’s testator. Berkeley Peerage Case, 4 Campb. 412.
    
      Gorham and Curtis, for the plaintiff,
    referred on the first point to Homer v. Fish et al., 1 Pick. 435, and the cases there cited ; and in regard to the deposition they relied on St. 1797, c. 35, § 8, which says that a deposition taken in perpetuam maybe “ used as evidence in any cause to which it may relate.” In the provision in the same section, that the deposition shall be recorded in the registry of deeds of the county where the land lies, if it respects real estate, and if it relates to personal estate, in the registry of deeds of the county where the person lives for whose use it is taken, the place of recording is designated, merely that the deposition maybe recorded somewhere, without any intention to restrict the use of it to any particular person.
    
      
       The law upon this point is settled by Revised Stat. c. 120, § 12.
    
    
      
       See Revised Stat. c. 94, § 38.
    
   Parker C. J.

delivered the opinion of the Court. In relation to the point which grows out of the plea of the statute of limitations it is sufficient to observe, that it has been distinctly settled in the case of Homer v. Fish et al., 1 Pick. 435. The authorities cited in support of the opinion given by the Court are equally applicable to this case.

In regard to the deposition of Betsy Knox, there is an insuperable difficulty. It was not taken for this action, and a deposition taken in perpetuam can be used only by those at whose request it was taken, or some one claiming title to the subject matter to which it relates under such persons. The words in the statute, that a deposition taken according to the form prescribed may be used in certain contingencies in any cause to which it may relate, must be restricted to the sense intended by the legislature which used them. We think it < ould not be intended, that a deposition thus taken at the special request of one person, might be resorted to by any stranger as evidence of his interest in property, which interest may have accrued in a manner wholly independent of the party who caused it to be taken ; for though it may seem to be no prejudice to the party whose interests are to be affected by it, if he had notice, or was beyond the distance which makes notice necessary, yet it may be important to him to know at whose instance, or on whose account he is summoned to hear testimony, as with one person he may intend to have no controversy, though in regard to another he may intend to resist a claim. So lie may think he has a complete defence against one, whatever may be his evidence, and may not be so well prepared against another.

The cases which have arisen on the subject of this suit will illustrate the different degree of interest which a defendant may have in being present at the examination of witnesses. In the case of Homer the defendants, on receiving notice to attend the taking of a deposition, upon application to their counsel may have learned that they were in no jeopardy, because the subject matter of the contemplated suit might have been determined on a former suit between the parties, and that Homer would not be allowed to sustain an action upon facts which he might have shown in defence of the action against him by the defendants ; whereas in the case of Touro they have no such defence to set up, and therefore it might be of the greatest importance that they should cross-examine the witness whose deposition was proposed to be taken. And the circumstance that the present suit arises out of the same contract which gave Homer his cause of action is not material, for thr rights of Homer and Touro were several and independent, as though they had subscribed separate policies, and it is for this reason that the defendants cannot now defend themselves on the ground that an action had been tried, in which the merits of the question might have been decided.

We think for these reasons that the deposition of Betsy Knox should not have been admitted in this action, and that this construction of our statute respecting depositions in perpetuara should be recognised.

This statute provision undoubtedly was intended as a substitute for the bill in chancery to perpetuate evidence, as practised in England, which was expensive and dilatory ; but the rules applicable to evidence thus taken were founded in a wise regard to the security of those whose interests might be affected by testimony taken out of the course of the trial, when the opportunity to sift and examine the evidence might be imperfect. This caution is not less necessary with us under the statute, as much less security exists here than in the course adopted by the courts of chancery. 1 Madd. Chan. Pr. 185.

In Phillipps on Evidence, 267, it is stated, that depositions in a suit in chancery may be given in evidence in an action at law on the same matter between the same parties, or between any who claim under them ; and (p. 268) depositions are not to be admitted in evidence for a party to a suit against a stranger who was not a party, nor can they be used by a stranger who was not a party against either of the parties. And in 1 Gilbert (Lofft’s ed.) 36, it is said, that if A .prefer a bill against B, and B exhibit his bill against A and C, C cannot give in evidence the depositions in a cause between A and B. Bull. N. P. 232, 233. In p. 239, Buller says, “ a deposition cannot be given in evidence against any person that was not party to the suit ; and the reason is, because he had not liberty to cross-examine the witness; and it is against natural justice that a man should be concluded by proofs in a cause to which he was not a party. For this reason depositions in chancery shall not be read for or against the party defendant upon an information or indictment, for the king was no party to the suit.” The rule, he says, admits of some exceptions, as in cases of customs and tolls and "n cases where hearsay and reputation are evidence ; or where the deposition is used to contradict what the same witness swears at a trial. And in p. 240 ; “ a man shall not regularly take advantage of a deposition who was not a party to the suit, for, as he cannot be prejudiced by the deposition, he shall never receive any advantage from it.”

It seems that in England depositions are to be governed by the same rules as verdicts, in respect to their admission as evidence, that is, none but parties and privies can make use of them. See Lock v. Norbonne, 3 Mod. 141 ; Rushworth v. Countess of Pembroke et al., Hardr. 472. This latter case is very strong. Currier had presented a bill in the Exchequer against the plaintiffs and others, tenants of a manor of the countess of Pembroke, for suit to his mill, which he claimed by prescription. Many witnesses were examined on both sides, and now upon this bill against the same Currier and the countess she wished to use the depositions taken for the former suit and was refused, because she was not a party to the former suit, and as she was not bound by the depositions, neither should she have advantage of them. This case in Hardr. is cited by Comyns, Dig. Testm. Ev. C, 4, and by Peake, Law of Evidence, (3d ed.) 64. Comyns says, a deposition cannot be used against him who is no party to the suit, nor claims under one, nor for a stranger against a party.

. The words of our statute which provides for the taking and the use of depositions in perpetuam are undoubtedly very broad and general. A deposition taken pursuant to the statute “ may be used as evidence in any cause to which it may relate.” But the very extensiveness of this provision proves that a limitation according to pre-existing rules was intended. Surely it was not meant that any stranger might use a deposition thus taken, against any other stranger, if some facts in the deposition should happen t0 affect a cause between these two ; and yet that would be within the words of the statute. The meaning must have been, that it shall be used b> any party having a right by the rules of law to use it, in any cause, to the subject matter of which it has relation. And if it is not to be so restricted, there would seem to be no necessity or use in requiring the justices who shall take the deposition, to certify the names of all persons whom they notified of the taking thereof. No other person would be bound, unless he lived beyond the distance which requires notice, and no other person, we think, could use the deposition, unless it appeared that it was taken at his request, or at the request of those under whom he claims. There is another provision in the statute which carries a strong implication that the legislature did not intend that all persons might make use of a deposition so taken. If it relates to land, it is to be recorded in the county where the land lies ; if it respects personal estate, it is to be recorded in the county where the person lives for whose use it is taken. This seems to limit the use of the deposition to the person who appears by the certificate to have caused it to be taken, and none other, except by the rules of law those who claim under such person. A caption that did not state at whose request the deposition was taken would be imperfect, and the deposition could not be used. This would seem to be a superfluous provision, if any person .might use it. Upon the whole we are of opinion that the deposition of Betsy Knox was improperly admitted, and for that cause only there must be a new trial. 
      
       See also First Mass. Turnp. Corp. v. Field, 3 Mass. R. 201; Bishop v. Little, 3 Greenl. 405; Morton v. Chandler, 8 Greenl. 9; Cole v. McGlathry, 9 Greenl. 131; Payne v. Hathaway, 3 Vermont R. 212; Sherwood v. Sutton, 5 Mason, 143; Mussi v. Lorain, 2 P. A. Brown’s (Penn.) R. 59; Jones v. Conoway, 4 Yeates, 109; Pennock v. Freeman, 1 Watts, 401; Bertine v. Vartan, 1 Edward’s Ch. R. 342; Hunter v. Spotswood, 1 Wash. 146; Harrell v. Kelly, 2 M'Cord, 426; Croft v. Arthur, 3 Desaus. 223; Cowper v. Godmond, 9 Bingh. 748; Clark v. Hougham, 2 Barn. & Cressw. 149; Brown v. Howard, 4 B. Moore, 508; Granger v. George, 7 Dowl. & Ryl. 729; S. C. 5 Barn. & Cressw. 149; Howell v. Young, 5 Barn. & Cressw. 259; Ex parte Bolton, 1 Mont. & Ayrton, 60. But see Troup v. Smith, 20 Johns. R. 33; Oothout v. Thompson, 20 Johns. R. 277; Hamilton v. Sheppard, 2 Murphey, 115, Thompson v. Blair, 2 Murphey, 583; Sweat v. Arrington, 2 Haywood, 129; Croft v. Townsend, 3 Desaus 239; Wamburzee v Kennedy, 4 Desaus. 474, 
        Callis v. Waddey, 2 Munf. 511; Shelby v. Shelby, Cooke’s (Tenn.) R. 183; Whalley v. Whalley, 3 Bligh, 2; 1 Chitty’s Gen. Pract. 766.
      The operation of the statute of limitations is, however, unaffected by fraud, if the party upon whom the fraud is practised had full means of detecting it. Farnam v. Brooks, 9 Pick. 212; Cole v. McGlathry, 9 Greenl. 131.
     
      
       The want of notice is held to be no valid objection tó a deposition taken in perpetuam rei memoriam, under che province statute 7 Will. 3, c. 35, § 3; Goodwin v. Mussey, 4 Greenl. 88. And such deposition may be used wl en the depon irt is sick and unable to attend court, Ibid
      
     
      
       12 Vin. Abr. 109, pl. 24; 1 Stark. Ev. 265; Bondereau v. Montgomery, 4 Wash. C. C. R. 186
     
      
       But now a deposition in perpetuara, if it relate to personal estate, is to be recorded in the county where the parties, or some of them, reside. Revised Stat. c. 94, § 37.
     
      
       Revised Stat. c. 94, § 23, 35.
     