The opinion of the Court was delivered by
Whitman C. J.This action was tried at the Nov. Term of this Court, 1840. The plaintiff offered in evidence a deposition taken in perpetuara, by a notary public, and duly recorded in his office, but not elsewhere. The Court admitted it, though objected to by the defendant, who thereupon tendered a bill of exceptions, on account of this and other supposed errors in the ruling of the Court, which was duly allowed and signed. The question first in order to be decided is — was this deposition admissible ? If not, the other exceptions need not be noticed.
The statute concerning notaries public, passed in 1821, authorises them to take depositions in perpetuara, and requires them to record all their notarial acts, and depositions, by them taken, in books to be by them kept for the purpose. The statute is silent as to the further recording of depositions so taken, in the registry of deeds, and also as to their being admissible in evidence* when so taken, under any circumstances.
The other enactments, concerning the taking of depositions in perpetuara-, before other magistrates, required, that they should be recorded in the registry of deeds, within a specified time; upon which they, or copies of them from the registry, under certain circumstances, were to be admissible in evidence, in trials at law. This species of testimony is never so admissible, unless by special enáctment for the purpose. There being none such, in reference to depositions taken and recorded as this was, we cannot consider it as having been correctly admitted at the trial.
The exceptions are therefore sustained, and a new trial granted.