delivered the opinion of the Court. On the first point, the Court are of opinion, that the exception is not maintained.
In the caption of a deposition, the cause assigned was, that toe deponent was so aged and infirm as to be únanle to travel and attend at the trial.
The evidence offered on the other side, to prevent the use of the deposition, was, that the deponent was not so aged and infirm, &c. at the time of taking the deposition. We think this evidence was rightly rejected, under these circumstances.
The certificate of the magistrate taking the deposition, is made evidence, by the statute, by necessary implication, of the facts stated in it, and such certificate is necessary to the admission of the deposition. The statute must be construed in reference to the subject matter. A deposition may be taken, at any time after the action is commenced, although the circumstances are such, that the trial may not be expected to take place for many months then to come. The certificate must be, that of the deponent being so sick, or so infirm, or so aged, as to be unable to travel and attend at the trial. The certificate is necessarily prospective, and whether the fact of such inability to attend from the cause supposed, will exist at the time of the trial, must of necessity be uncertain and contingent. It must then be construed as if thus expressed, *128“ being so aged, as to afford reasonable or probable ground to believe, that he will be unable to travel and attend at the :ime of the trial.”
There is another clause in the statute, § 5, which provides, that if the cause has ceased to exist at the time of the trial, the deposition shall not be used, and it therefore is always open to this objection and proof. So that the presence of the witness is secured and the benefit of viva voce testirrony and cross-examination attained by the adverse party, if the expectation of the witness’s inability to attend, upon the suggestion of which the deposition is taken, should not be realized. We do not mean to say, that if a magistrate is imposed on by some false pretence and if there be any fraud, this may not be shown ; but we are of opinion, that evidence, that the deponent was not so aged and infirm at the time of the taking of the deposition, was rightly rejected.
As to the other point, we are also of opinion, that the exception is not well founded. The proof was of an act done recognising the pauper as an inhabitant, and as such we think it was competent proof, among other facts, upon the point of inhabitancy. The question of domicil is often a difficult one, depending upon many circumstances, some of which are of themselves very slight. We believe that the fact, that one’s name has been placed on the list of voters, has been admitted for this purpose, although it is the act of other persons. The evidence in question is similar ; it is an act of the officers of the town, recognising the individual as an inhabitant, and acting towards him and with him, as such. The weight of such circumstance would of course be for the jury, and if standing alone and unconnected with other circumstances, would probably be considered as very slight The only question here is, whether it was competent.
Exceptions overruled, and judgment m the verdict.