Chapter 518: Depositions in Perpetual Remembrance

Depositions in perpetual remembrance of any fact or transaction may be taken before a court of record, or before two justices, one of whom shall be of the quorum. If the depositions relate to the burning, destruction or loss of any public files or records they shall be taken by the superior court, or by a commissioner appointed by the court.

A person desiring to take such deposition shall present his petition to the court or justices in writing, under oath, briefly setting forth his interest in the subject, and the facts to which the desired testimony relates, the names and residences of all persons supposed to be interested therein, or, if the fact be so, that the names or residences of such persons are unknown, and the names of the witnesses proposed to be examined.

Notice of the time and place of taking such depositions shall be given by the court, commissioner or justices to all parties known to be interested in the property or transaction to which the testimony relates, in the manner provided for taking depositions to be used in actions pending. Such notice shall contain, or be annexed to, a copy of the petition for the taking of the depositions.

When the persons supposed to be interested are minors notices may be given to their guardians. If they have no guardians the judge of probate in the county where they reside, on application, may appoint guardians, to whom notice may be given to appear for and protect the rights of such minors.

If the name or residence of a party interested is unknown the notice shall be published three weeks successively, beginning at least eight weeks before the time of taking, in some newspaper printed in Concord, and in some newspaper printed in the county, and, if the deposition relate to land, a like notice shall be posted in some public place in the shire town of the county in which the land lies.

All such depositions shall be written, signed and sworn to as provided in case of depositions in actions pending, with the necessary variation in the form of the oath. The court, commissioner or justices shall annex to the depositions a certificate of the time and place of taking, the name of the person at whose request they were taken, and of all who were notified to attend and did attend, a copy of the notice and evidence of the service thereof.

If the depositions relate to the records of a court or public office they, with all the proceedings connected therewith, shall be filed in such court or office.

If the depositions relate to real estate, or to any transaction connected therewith, the petition, depositions, certificate, notice and evidence of service shall, within ninety days from the taking thereof, be recorded in the registry of deeds of the county where the estate lies; and the depositions taken in any other case may be so recorded.

Depositions in perpetual remembrance may be used in the trial of any cause wherein the matters concerning which they were taken are drawn in question; and in case they shall be lost or out of the possession and control of the party desiring to use them a copy of the record thereof may be used.