
    Andrew J. Emlaw v. Helen J. Emlaw.
    
      Examination of witnesses: Depositions taken de bene esse. A deposition taken die bene esse, will not be allowed to be read when the witness is in a condition to be sworn, and the cause on which the deposition was taken de bene, no longer exists.
    
      Evidence: Quality of proof. The testimony of a witness, so far as his statements are incredible, ought to be disregarded, whether he be impeached or not.
    
      Heard and decided January 7.
    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 for a divorce, and the case comes into this Court on the appeal of the defendant.
    
      Gray & Smith and T. B. Glmrch for complainant.
    
      Pattison & Pirns and B. S. Eggleston for defendant.
   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 reversed and bill dismissed; and an order entered that the complainant pay the defendant, as an allowance for the expenses of her defense, the sum of two hundred and fifty dollars.  