Dodd v. Northrop

Carpenter, J. The statute provides that “ the party, his-attorney, or any person interested, shall not write, draw up, [218] or dictate any deposition, <fcc.” The object of the statute is obviously to secure the utmost fairness and impartiality in the taking of depositions. In furtherance of that object the courts have ever been disposed to interpret it liberally, and to reject depositions which were taken contrary to the manifest spirit of the statute, although not strictly violating its letter. Hence it was decided in Smith v. Huntington, 1 Root, 226, under a similar statute, that the agent of a party may not draw up a deposition. The same doctrine was held in Allen v. Rand, 5 Conn., 322. To put a more literal construction upon the statute would tend to laxity in the administration of justice — a result to be deplored rather than encouraged. This view of the law would seem to establish the propriety of the ruling, in the court below, excluding the deposition. The magistrate was the law partner of the defendant’s counsel, and was himself counsel for the defendant in another case, so that the defendant was a client of each member of the firm. He was also employed to draw up the notice for taking the deposition, and to that extent at least was the agent of the defendant. If upon these facts he was not technically the attorney for the defendant, it is obvious enough that his sympathies and feelings were favorable to him, and we think the court was justified in holding that he was not disinterested within the meaning of the statute. It is not enough that the magistrate acted fairly and impartially; he must be authorized by the statute to take the deposition or it cannot be used. No question of waiver was made in the court below, and we have no occasion to consider it here. A new trial is not advised. In this opinion the other judges concurred, except Granger, J., who did not sit.