Allen v. Rand

Hosmer, Ch. J. The only question raised in this case, is, whether the deposition of Mrs. Trowbridge was legally rejected. By statute it is enacted, (p. 47.) that “ the party, his attorney, or any person interested, shall not write, draw up or dictate any deposition ;" and that every such deposition, shall be rejected by the court. Whether the deposition of Mrs. Trowbridge was taken under the above law, or while the preceding statute was in force, does not appear from the motion ; but this is perfectly immaterial, as the law now existing is precisely similar to the former, not in words, but in the construction, which the courts had put upon it. The law will not trust an agent to draw up a deposition for his principal ; as by the insertion of a word, the meaning of which is not correctly understood, or by the omission of a fact that ought to be inserted, the testimony thus garbled and discoloured, will be false and deceptive. Nor is there a possible argument in favour of such a proceeding. The deponent may write the deposition ; or procure it to be written, by a disinterested person ; or it may be drawn up, by the magistrate who takes it ; or the parties may agree on a fit person for this purpose. The statute, even when strictly construed, is sufficiently lax, when ex parte depositions are taken, at least not unfrequently, to admit of the poisoning of justice in the very fountain ; for if the evidence is untrue or partial, the result can never be conformable to right. The deposition in question was written by Cornelia Hall, in the absence of the plaintiffs, their counsel, and the magistrate, [325] on the procurement of Mr. Rand, one of the defendants. He requested and procured her to write it. from time to time, as the deponent was able to give her testimony. Miss Hall was an agent and attorney, authorized by her principal to do this specific act ; for what is an agent but a substitute or deputy, and an attorney but one who is put in the place, stead or turn of another ? 3 Black. Com. 25. A general agent cannot be permitted to draw up a deposition ; a fortiori, is a special agent objectionable, who, in the situation of Miss Hall, must be influenced, in some degree, by the wishes, feelings and interest of her employer. As the witness ought to be disinterested, so must the evidence be impartial, comprising the whole truth, as well as nothing but the truth ; and this never can be rationally expected, when a deposition is drawn up by an attorney or agent, or what is little less exceptionable, by the party himself. Sickness constitutes no reason for the relaxation of the law ; as it produces no actual necessity ; and if it did, it would make no difference, as no such exception to the general rule is admissible. It is much preferable, that in particular instances, the party should even be deprived of testimony, than that a principle leading to wide-spread mischief should be adopted ; as private disadvantage is a less evil, than general inconvenience. It is true, that an agent may draw up a deposition impartially ; and there is no reason to doubt that the young lady, in the case before us, acted with the most delicate integrity. But the statute was made in prevention of wrong ; and intends not, in any case, to place confidence where it may be abused. Brainard and Bristol, Js. were of the same opinion. Peters, J. dissented. New trial not to be granted.