79 Pa. 445 | Pa. | 1875
Judgment was entered in Supreme Court, November 26th 1875,
This case is ruled by the decision in the case of Evans v. Reed, heard at Harrisburg last May, and decided at this term; opinion by Mercur, J. : 28 P. F. Smith 415. The deposition of Hugh Bennett was taken when both parties were alive, and the plaintiff had an ample opportunity to cross-examine him. Had Bennett lived it is conceded the deposition was admissible under the very words of the Act of 28th March 1814. What has occurred to make it incompetent ? Not the death of the plaintiffs, or any one of them, and a substitution of the executors or administrators. The person dying is the witness himself, whose substituted representative is seeking to give the deposition in evidence against the living parties. These parties insist on what ? Not that the deposition was taken irregularly; not that they had no opportunity to cross-examine; not that their own depositions might not have been taken to prevent the loss of everything they knew; but insisting on the loss of the defendants, of the knowledge contained'in the deposition, by the accident of a death which has left nothing but this written statement of facts. But it is said it offends against the proviso of the Act of 15th April 1869, that “ this act shall not apply to actions by or against executors, administrators or guardians.” But against whom is this process directed ? The act says no intent or policy of law shall exclude a party or person from being a witness. Provided — provided what ? Clearly that no party or person shall testify in actions by or against executors, &c. It is the living party or person then who is excluded, and this, as has been held repeatedly, on the ground of inequality. But the deposition of the deceased party is not within the letter of the act, for it is the testimony of the dead party which is offered for the execution against the living party. Does this offend against the spirit of the act? Clearly not, for the living party had
Judgment affirmed.
