Johnson v. Clark

1 Tyl. 449

Opinion

Sed per Curiam.

The deposition cannot be read. -The objections are, that it is in the hand-writing of the party’s attorney,, and taken by a Justice of the Peace, interested in the cause. The authorities cited embrace cases where depositions were taken legally, though-not in the causes pending. By the decease of the deponents they obtained efficacy under the general principle of constituting the best evidence which could be produced. But here the deposition is illegally taken. The decease of the deponent cannot render that valid which was intrinsically void. It would be setting aside the Chancery process of taking depositions in perpetuara rei memoriam, to sanction the admission of depositions taken otherwise than agreeably to the statute.

Daniel Chipman and Samuel Walker, for the plaintiff. John Cook, Cephas Smith, and — -- — -, for the defendant.