Mosely v. Mosely, 1 N.C. 522, 1 Cam. & Nor. 522 (1804)

June 1804 · North Carolina Court of Conference

1 N.C. 522, 1 Cam. & Nor. 522

Mosely vs. Mosely.

In Equity. The complainant offered to read the deposition of Mrs. Livingston. To which it was objected, that the, on die examination, had behaved rudely to Mr. Watters, the guardian of the defendant, and had refused to answer some question put to her by him relative, as the commissioner believed, to the subject matter of the suit. The complainant also offered the deposition of Mrs. Tucker, and to that the defendant objected, that it was reduced to writing by Mr. Walker, a practicing attorney then attending the examination on behalf of the complainant, but admitted that this was done under the view and control of the commissioner, in the presence of the defendant, and without any objection taken at the time.

Hall, Judge.

-The belt mode of receiving testimony, is certainly from the mouths of the witnesses themselves; and if any other mode is substituted in the room of that, it ought to be guarded with much precaution. It may sometimes be convenient, but it is not of necessity, that depositions should be written by counsel concerned in the cause. The best may sometimes feel a bias that inclines them too much to one side, without being sensible of it; but if the case was otherwise, those more relaxed in principle ought not to be trusted. This remark applies to mankind generally. Testimony is presumed to flow from disinterested sources; and the medium through which counts of justice receive it, ought to be as unexceptionable as the nature of the case will admit of. This idea corresponds with the regulations prescribed by Congress, for taking testimony to be read in the Federal Courts; and although those regulations, as such, have no binding force in our courts, set the reason on which they are founded should be duly appreciated.

By the Court.—These depositions were properly rejected by the District Court, and ought to be suppressed.