Speyerer & Co. v. Bennett's Executors

Judgment was entered in Supreme Court, November 26th 1875, Per Curiam. 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 — 447 — the same means of preserving his own testimony against loss by death, and could cross-examine, aided by the light of his own knowledge. On what principle then are we to put aside the Act of 1814, which preserves and perpetuates the evidence for the purposes of justice ? It is not expressly repealed by the Act of 1869, and no evil consequences demand an implied repeal. The argument that the living party cannot now he heard, against the deceased witness, is not sound, for this is to turn competency into incompetency by an accident, which offends against neither the letter nor the reason of the law. How far the living party can now be heard is not the real question, for the question before us concerns not the present state of the case, but that which existed when the deposition was taken. It may be- that not having perpetuated his testimony by a written deposition he cannot now be heard against the deceased witness, but when the deposition- of the deceased was taken, he could have been heard, and had all the privileges, both of an examining party, and a competent witness. We perceive no reason therefore to strike down the operation of the Act of 1814, by holding it to be impliedly repealed, and therefore reaffirm the case of Evans v. Reed. Judgment affirmed.