King v. Patt

13 R.I. 132, 1880 R.I. LEXIS 59

Opinion

Pee Cubiam.

We think the rulings excepted to were right. Our statute provides that the deposition of any person duly taken may be used as evidence in the trial of the cause in which it was taken, and that a party may testify either orally or by deposition. Gen. Stat. R. I. cap. 203, §§ 23 and 33. Under these provisions the deposition of a party who dies after its caption is as admissible as the deposition of any other deceased witness. It is also clear, under Pub. Laws R. I. cap. 605, of March 28, 1877, that the testimony of the defendant was inadmissible after the death of the plaintiff, the cause being prosecuted by his administratrix. It is doubtless true that the reason why when one party is dead the testimony of the other is excluded, or rather not admitted by the statute, fails to some extent when the party who is dead has left a deposition which can be used, but nevertheless the statute is plain and peremptory, making no exception for such a case; and we must obey it. The exceptions are overruled, and the judgment of the court below affirmed with costs of this court. Exceptions overruled.