of witnesses out of the State, may also be taken by virtue of a commission issued from either of the Courts. The mode of procedure is particularly pointed out in the Revised Statutes, c. 94, § 40-48. They may also be taken to perpetuate the testimony of witnesses within or without the State, "so that the same may be evidence against all persons." In this case, application is made to one of the Courts, and a statement in writing is required to be filed. The notice to be given to parties interested, in such case, is under the direction of the Court, and it is obvious that it should be às extensive as the nature of the case will admit. The reader is referred to the special provisions contained in chap. 94, § 49–53. The power of taking depositions in any and all cases, where a party chose to make a written statement upon any subject, was so liable to abuse, and was, in fact, so grossly abused, that the attention of the Legislature was soon called to the subject. There were instances, in which a party about to commence an action summoned his intended adversary, before two Justices, to give his deposition in perpetuam, examined him in relation to his intended suit, and then used his deposition as a confession. Faunce v. Gray, 21 Pick. 243. There were other instances of similar abuse, too gross even to be mentioned. In consequence of these abuses, the Act of 1839, c. 140, was passed, which provided, that if the witness or any person interested, appeared and objected to the taking of the deposition, the Justices should not proceed unless it was made satisfactorily to appear that the testimony was material, that it was not sought for the purpose of discovery, or to be used in any suit then pending or thereafter to be brought against the witness, and that the petitioner was in danger of losing the evidence, before it could be taken in any suit, and they were authorized to examine the petitioner on oath. Depositions in perpetuam may be used in a suit pending at the time they were taken. Dearborn v. Dearborn, 10 N. H. 474; contra, Greenfield v. Cushman, 16 M. R. 393. When commissioners are sent into this State from other States or foreign countries, or when a party, who has a suit pending in a foreign Court, desires to take a deposition here, the same measures may be taken to compel the attendance of witnesses as if the action were pending in our own Courts. Rev. Stat. c. 94, § 53. If the legal cause for taking a deposition no longer exists at the time of trial, the proof to exclude it must come from the objecting party. Logan v. Monroe, 20 Maine, 257. CHAPTER XXIV. COSTS. THE subject of costs is always one of considerable interest, both to the parties and the attorneys, and it is proposed, therefore, to state the law and the practice upon this subject, with particular care, under these two general divisions, viz.: 1st, in what cases, and by and against whom, are costs recoverable; and 2d, what amount is recoverable. -The gen 1. In what cases are costs recoverable. eral rule is that, in all cases, the prevailing party shall recover costs against the other party, unless a different provision is made by law. Rev. Stat. c. 121, § 1. This general provision, in totidem verbis, is repeated no less than five times in different parts of the Revised Statutes. There is one case, however, in which the prevailing party is not entitled to costs, viz: where a jury has been summoned to reduce the damages occasioned by laying out a town way. Baker v. Thayer, 3 Met. 312. This broad and authoritative declaration of the Legislature would seem to be sufficient to embrace all possible cases, and to afford a rule for the guidance of the Courts, which could not easily be misunderstood; and indeed it has not been without its influence. As long as justice is not gratuitously administered, nothing can be more reasonable than that the losing party — the party who has really no claim nor right, or no defence against an asserted claim or right—should pay the costs of his adversary, who is proved to have been wrongfully impleaded. It being, therefore, the general right of the prevailing party, to recover costs, it becomes the duty of the loser to show that he is specially exempted by law. I have looked through the Revised Statutes in vain to discover any special exemption. The only exceptions to this sweeping remark may be found in Revised Statutes, c. 12, § 112, relative to complaints to recover militia fines and in the Statute of 1834, c. 55, where it is provided, that if an action be discontinued or the plaintiff nonsuited, solely in consequence of the plea of bankruptcy, the defendant shall not recover costs; but this statute can be evaded so easily, that it is not of the slightest practical importance. Nor has this general provision been without its influence upon the Courts. It had been decided, in several cases, (Williams v. Blunt, 2 M. R. 207; Thomson v. White, 12 Ib. 367; Clarke v. Rockwell, 15 lb. 221; 23 Pick. 110,) that a defendant was not entitled to costs, where an action was dismissed for want of jurisdiction. But the subject has since been better considered, and it has been determined, upon the most satisfactory reasons, that, in all such cases, whether the want of jurisdiction be apparent upon the face of the papers, or be a question of doubt and difficulty, costs would be awarded. Hunt v. Hanover, 8 Met. 346; Jordan v. Dennis, 7 Met. 591; Cary v. Daniels, and Farrer v. Blodget, 5 Met. 236. The expression in the Statute of 1838, c. 163, § 4, (the Insolvent Law,) is, that the prevailing party in the suit shall recover costs; and it was accordingly held that, where the sum of five thousand six hundred dollars was allowed to a creditor of the insolvent estate, from which the assignee appealed, and on the appeal the creditor recovered only one thousand three hundred and ninety-six dollars, the creditor was the prevailing party, and entitled to costs. Stevens v. Hale, 7 Met. 85. The words "in the suit," do not seem to have great significance, and if the principle of the above decisions be carried out, the general rule will always afford a convenient practical rule for the guidance of the Courts. Whenever a party has a judgment entered in his favor, of whatever nature, and moves for costs, he is entitled to them, unless the other party can show some statutory exemption. This remark extends to every species of action. But in Peabody v. Minot, 24 Pick. 334, where the petitioner for partition recovered less than he claimed, it was held that the respondents were entitled to costs. This decision is founded on the express provision of chapter 103, 17, that if the issue is found against the petitioner in whole or in part, the adverse party shall receive costs, and is an exception to the general rule. Where a defendant pleaded usury, and usury was proved, and threefold the amount of interest reserved was deducted from the plaintiff's claim, according to the provisions of the statute, it was held, that the defendant was the prevailing party, and that the plaintiff could not have judgment for the balance due him, and for costs, but for the balance only. Mansur v. Wilkins, 1 Met. 488. Where an action was entered in the Common Pleas, and the writ was lost, and the clerk was directed to mark it as a misentry, it was held, by the- Supreme Court, that the defendant should recover costs. Gilbreth v. Brown, 15 M. R. 178. If the writ be abated, or dismissed on motion, the defendant re |