57 Pa. 404 | Pa. | 1868
The opinion of the court was delivered, by
All depositions of witnesses under a rule of court to be irsed in evidence on the trial of the cause, like the depositions of witnesses taken under a commission, must be filed with the prothonotary, and in the present case the rule of court expressly directs that all depositions so taken shall be filed within a reasonable time in the prothonotary’s or clerk’s office.
The court were therefore in error in refusing to order the plaintiff to produce the deposition of the defendant taken under a rule of court and not then filed by him. The court should have ordered him to produce and file with the prothonotary, the deposition so taken and in his possession.
The next question is, when so filed, can the defendant use it on the trial. By examining the defendant, the plaintiff made him a competent witness for all purposes. This is the effect of the Act of 27th March 1865, as decided by this court in Seip v. Storch, 2 P. F. Smith 210. It was by force of this act the deposition of the defendant was taken, and it would lead to fraud and deception if the plaintiff should be permitted to suppress it, and withhold the truth from the court and jury. The question was virtually decided by us at this term in O’Connor v. American Iron Mountain Co., 6 P. F. Smith 234, in which we said: “ The deposition of one of the real plaintiffs, taken under a commission issued by and on behalf of the defendant and filed in the case, was offered in evidence by the plaintiff, objected to and received. Such a deposition of a disinterested witness would clearly have been evidence for either party: 1 Greenl. Ev. § 324 and notes; Linfield
Judgment reversed, and venire de novo awarded.
