10 N.H. 473 (N.H. 1839), Dearborn v. Dearborn

• Citation: 10 N.H. 473
• Opinion Judge: UPHAM, J.
• Party Name: DEARBORN v. DEARBORN.
• Attorney: Dodge, & C. H. Atherton, for the plaintiff. Farley, for the defendant.
• Court: Superior Court of New Hampshire

Page 473

10 N.H. 473 (N.H. 1839)

DEARBORN

v.

DEARBORN.

Superior Court of Judicature of New Hampshire.

December, 1839

Depositions taken in perpetuam rei memoriam may be used in suits pending at the time of the caption of such depositions, in cases where, prior to the trial of such suit, the witness had deceased.

But in all cases of testimony taken in perpetuam, notice must be given to the parties in interest in the subject matter to which the deposition relates; and such depositions cannot be used as evidence except against those who were duly notified, or persons claiming under them; and the same rules of notice, as to time and service, will be required as in the caption of ordinary depositions.

Where an individual is collaterally interested in the event of a suit in any given sum, so as to render him incompetent as a witness, such incompetency may be removed by the payment of the amount of the liability.

Where an individual was surety on a bond, with a condition to pay the plaintiff the amount due on a judgment recovered in his favor, unless the judgment was reversed on a review of the action --Held, that such person was incompetent as a witness on such review, until he had received money sufficient to respond the amount of such judgment, with interest on the same up to such period as there was any probability the action might remain pending.

ASSUMPSIT, on review.

Upon the trial the defendant offered in evidence the deposition of James Moore, Jr., taken in perpetuam rei memoriam, subsequent to the commencement of the suit.

The plaintiff objected to its admission; but it appearing that Moore had since deceased, it was admitted.

The defendant also offered the evidence of Isaac Riddle, to whose admission as a witness the plaintiff objected, on the ground that he was interested in the event of the suit; to show which they introduced a bond, executed by the defendant and said Riddle, to the plaintiff, with the condition that the obligees would pay the amount due on the judgment previously recovered by the plaintiff against the defendant in this suit, unless the same should be reversed in the present action of review.

The defendant thereupon, for the purpose of removing the interest of said Riddle, paid to him the sum of $202.14 1/2, to be applied towards any judgment which the plaintiff might recover in the case--alleging that the same...