The opinion of the Court was by
Shepley J.— The question presented is, whether the deposition of Nathan Howe, was properly received as testimony in the case. It was taken in accordance with the provisions of the act approved on February 12,1842, which provides, that depositions may be taken, “ when the deponent is about to go, before the session of the Court, more than sixty miles from the place of trial of the action, in which the deposition is to be used, and not return in season to attend the same.”
The deponent’s family resided in Portland, the place of trial; he was doing business in the town of Cherryfield, but was in Portland during the latter part of the month of July, or the former part of the month of August, 1847. His deposition was taken early in the year 1845, placed on file and received as testimony on trial of the action, during the session of this Court, in the month of November, 1847.
The act of February 12, 1842, provides for the cases, in which such depositions may be taken for use, by reference to the Revised Statutes, c. 133, <§> 1. If their use be not also regulated by that chapter, no rule to govern the use of them will be found ; none to prescribe the form of caption ; to compel the witness to attend and give his testimony ; to regulate objections to the competency of the witness, or to the questions proposed; to provide for the manner in which such depositions are to be sealed, directed to the tribunal, and preserved until opened by its order. It could not have been the intention of the legislature, to leave all these matters without regulation. The act was intended to be supplementary to the Revised Statutes, although it is not declared to be so. Being thus regarded, the right of use under any circumstances will be determined. There are several cases named in the fourth section of that chapter, in which depositions are allowed to be taken, *41for temporary causes ; such as sickness or infirmity, absence from the State, and when the deponent is about to go out of the State, by sea or land, before the session of the court, without expecting to return in season to attend the trial. In these cases the statute determines, whether the deposition may be used, when the cause for which it was taken, has ceased to exist. The nineteenth section provides, that it shall not be used, if the adverse party shall make it appear, that the cause for taking it no longer exists, but that the deponent is within thirty miles of the place of trial, and able to attend the trial in person. The burden of proof is thus placed upon the adverse party, not only to show, that the cause for taking no longer exists, but to show, that the witness is within thirty miles, and able to attend the trial, if he would prevent the use of a deposition, taken for sufficient cause.
In this case it did appear, that the cause for which thu deposition had been taken, had ceased to exist, but it did not appear, that the witness was then within thirty miles of the place of trial, and able to attend. The deposition was therefore correctly admitted, and the exceptions are overruled.