Emlaw v. Emlaw
Michigan Supreme Court
Appeal in Chancery from Muskegon Circuit. This was a bill for a divorce on the alleged adultery of the wife. The answer denied the offense charged; and the defendant demanded a trial of the issue by a jury, which the Court below refused.
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Appeal in Chancery from Muskegon Circuit. This was a bill for a divorce on the alleged adultery of the wife. The answer denied the offense charged; and the defendant demanded a trial of the issue by a jury, which the Court below refused. On the hearing, a deposition, which had been taken de lene esse in another cause on account of the sickness of the witness, was read in pursuance of a stipulation that it should have the same effect as if taken in this cause; the witness, however, had recovered, and was afterwards regularly sworn in the cause. The Court below granted the prayer of the bill…
1Opinion of the Court
The Court
held that the deposition in the Court below was improperly admitted; that the cause which justified the taking de bene esse having been removed, and the witness being in a condition to be sworn, the deposition ought to have been excluded.
Upon the facts in issue, the Court held that the positive statements of a witness, which are incredible, may be disregarded, even without reference to the effect of the impeaching testimony, which, in this ease, was complete; and that even if the suppressed deposition had been admitted, there was no evidence to justify the inference of adultery.
Decree…
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