Langden Littlehale vs. Joel Dix, Jr., 11 Cush. 364

Bigelow, J. It is made the duty of a magistrate taking a deposition to state in his certificate “the reason for taking it.” Rev. Sts. c. 94, § 23. This is primd facie proof of the fact, and is sufficient to render a deposition admissible, unless it is controlled by other evidence. West Boylston v. Sterling, 17 Pick. 126; Kinney v. Berran, 6 Cush. 394. Nor is it necessary that it should appear by the deposition or the certificate in what manner or by what evidence the magistrate was satisfied of the existence of the cause of the taking.

It is sufficient that he certifies to the fact upon his official responsibility. In the present case the magistrate certified in due form that the deponent lived more than thirty miles from the place of trial. No evidence was offered to control the certificate, and the court was not bound to take judicial notice of the distance of one place from another. 1 Greenl. Ev. § 6. The deposition was therefore rightly admitted. The instructions given to the jury were sufficiently favorable to the defendant.

An assault and battery is none the less a wrong for which the party injured is entitled to damages, ■ because inflicted on a person enfeebled by disease or by any other cause. The defendant could not screen himself from the legitimate consequences of his own unlawful act by proof of the bad habits of the plaintiff. Exceptions overruled.