Dupy v. Wickwire

By the Court. If the plaintiff be entitled to read the deposition in this case, he is not entitled to read it by virtue of the act of the legislature. The act is most clearly unconstitutional and void. It is an attempt of the legislature to make a judicial decision in a particular case ; but the constitution of this State, prohibits the legislature from.the exercise of any judicial powers. The act is also retrospective in its operation, is rather in the nature of a legislative sentence, order or decree, than of a law. Besides, if the deposition was not legally taken in this case, it is a mere voluntary affidavit. And, the person making such a voluntary affidavit, does not subject himself to the pains and penalties of perjury, for any false swearing in such affidavit; it is not taken, therefore^ under that security to which the .person, against whom it is to be read, is entitled; nor, can any ex pos facto law give that security. Suppose this deposition to have been false, in some material fact, and that Morse were not dead, but gone to some parts unknown, and, by virtue of this act his deposition read, and a verdict obtained against the defendant, and Morse should return ; could he be convicted of perjury, forswearing falsely in giving the deposition ? Certainly not. Even if the legislature should have specially provided, that the deponent, should be liable to all the pains and penalties of wilful and corrupt perjury, for false swearing; such expos facto provision would have been void, as being against the constitution of this State, the constitution of .the United States, and even against the laws of na [239] ture. The deposition, therefore cannot be admitted on the authority of the act of the legislature. But, the Court on consideration are of opinion that the deposition is legally taken. It seems to have been settled that the person suing in such case may bring the action in his own name only. In England, the writ may be brought qui torn, and the declaration be in the name of the person prosecuting only' — and, that there is no necessity that the writ or declaration should express the qui tom. The person prosecuting may well be considered as the sole plaintiff. The title of the action given in the caption of the deposition is sufficiently correct. Let the deposition be read.