Legal Opinion

Brown v. Foss

Supreme Judicial Court of Maine

Decided July 15, 1839PublishedCited by 4 opinions

ExceptxoNS from the Court of Common Pleas, Perham J. presiding. The action, which was assumpsit for a quantity of clapboards, was entered at the Oct. Term, C. C. Pleas, 1835. To make out his case the plaintiff introduced the deposition of one Leighton, taken June 20, 1837. The defendant was notified, but not present.

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ExceptxoNS from the Court of Common Pleas, Perham J. presiding. The action, which was assumpsit for a quantity of clapboards, was entered at the Oct. Term, C. C. Pleas, 1835. To make out his case the plaintiff introduced the deposition of one Leighton, taken June 20, 1837. The defendant was notified, but not present. To the admission of this deposition the defendant objected, because at the time of the caption the action was not pending in court; and in support of his objection produced the Clerk’s minutes in the case, as follows. “ January Term, 1837. Brown v. Foss. 47th day, plaintiff…

1Opinion of the Court

The opinion of the Court was by

Weston C. J.

A nonsuit had been entered in this case, but it was conditional. The action was not finally disposed of; and the very terms of the condition, upon which the nonsuit was entered, implied, that the plaintiff might have a trial, if he could be prepared. Ultimately the nonsuit was taken off, and the action tried. The suit must be regarded as pending, from its first institution, until its final termination. The deposition was therefore legally taken, to be used in an action actually pending.

As to the leading questions, they should have been objected to at…

2Cited by4 opinions

  1. Davis v. EmmonsOregon Supreme Court · 1898
  2. Paine v. MuellerSupreme Court of Iowa · 1911
  3. Airey v. PearsonSupreme Court of Missouri · 1866
  4. Carrollton Bank v. GlassCourt of Appeals of Georgia · 1926

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