Noah Haynes Swayne,
Burton v. Driggs — Opinion of the Court
“ But there are good reasons why this doctrine should not be extended to the case of lost deposition; as—1st. The statutes authorizing the use of depositions in cases at law, are variant from common law, and imply the existence of a better kind of evidence, viz., the testimony of the witness in open court; and allow depositions only in peculiar cases, and to prevent a possible failure of justice. As far, therefore, as the statute goes we may follow, but no further. Depositions themselves are regarded as only secondary evidence. ”
