Banta v. Banta

3 Edw. Ch. 295, 1839 N.Y. LEXIS 348, 1839 N.Y. Misc. LEXIS 46

• Court: New York Court of Chancery
• Decided: March 12, 1839
• Status: Published

Opinion

The Vice-Chancellor :

Here is a case of marriage, the commission of adultery, and bill filed, all within the space of three months. The only witness to prove the adultery is a common prostitute, who swears it was committed with herself. She says she knows both the parties, complainant and defendant. Why was she not interrogated, as to how and when she became acquainted with the complainant, as well as with the defendant ? There is something extraordinary in this testimony, coming as it does from such a witness. Besides, the manner in which the deposition is written, is very suspicious. It appears as if it had been prepared in anticipation that some female might be found who would be willing to swear to it; and Ann Lee, being found, her name was inserted, and she then swore to it before the master ! Such a practice, if it was adopted in this instance, ought not to be tolerated. The master should take down the examination of w¿lnegs himself, as the answers are given to the questions propounded; and not rely upon a deposition previously prepared and brought to him : especially where the witness is illiterate, of no moral character, and of doubtful veracity. As at present advised, upon such testimony as is here presented, I cannot make a decree.