Smith v. Wadleigh , 17 Me. 353 ( 1840 )

The opinion of the Court, was drawn up by

Weston C. J.

The act of 1821, c. 85, prescribing the mode of taking depositions, is a' transcript of the statute of Massachusetts, existing at the time of our separation. It had there been decided that a deposition, takén in perpetuam, after an action had been instituted, could not be used in such action. Greenfield v. Cushman, 16 Mass. R. 393. This objection has been removed by the statute of 1823, c. 211.

The general statute .provides; that a deposition, taken in perpetuam, may be used as evidence in any cause, to which it may relate. But it seems reasonable, that it should have some limitation as to parties, whose interests are to be affected by it, and that those, against whom it is to be used, should have the means of being apprized for whose benefit it is to be taken. The necessity and expediency of such a limitation, in a similar statute in Massachusetts, was settled in the case of Wells v. Fish, & al. 3 Pick. 74. It was there held, that no person can use such deposition, unless it appears to have been taken at his request, or at the request of those under whom he claims. We are satisfied with the correctness of that decision, without repeating the reasons, upon which it is founded. The deposition in question, not having been taken at the request of the plaintiff, or of any one under whom he claims, could not, in our opinion, be used by him under the statute.

• It is insisted however that it was admissible, in virtue of the parol agreement of the parties. Justice may require, that the lawful agreements of parties, in respect to the prosecution of a cause, fairly entered into, should be carried into effect. And we have no doubt, that where they are clearly established, the Court have authority to cause them to be enforced. We think however, that they should appear in writing, that the terms may be clearly understood, and that there may be no room for mistake or misapprehension. Where they depend on parol evidence, witnesses may, and often do differ in their recollection. They may be perverted, from the frailty and imperfection of memory, as well as from other causes ; and there is certainly danger, that they may rather embarrass than aid the administration of justice. We desire therefore, that it may be distinctly understood, that the Court will not in future enforce such agreements, unless made in writing. Whether any one heretofore made, not sustained by written evidence shall or shall not be recognized as binding the parties, will depend upon the nature of the agreement, and the clearness of the proof, by which it may be established.

In the case before us, the defendants were notified of the time and place of caption. One of them attended in person, and the other was represented by his counsel. They agreed that the deposition should be used in this action. This the jury have found, upon satisfactory proof. The deponent has deceased, and his testimony is forever lost, unless the plaintiff can avail himself of this deposition,- in pursuance of the agreement, made with the defendants. But for that, they might have preserved, the evidence, in a mode legally admissible. And under all the circumstances we are of opinion, that the defendants have no right to complain of the usé of the deposition, and that the verdict ought not to be disturbed upon this objection-

Judgment on the verdict.