Majority
p. 292McMAHON a. ALLEN. Supreme Court, First District ; Chambers, December, 1864.
Headnote
Commission to Take Testimony.[1]A commission will be issued to commissioners, to take, on interrogatories to be annexed to the commission, the testimony of such witnesses as the plaintiff may producé before them under the commission, to prove a distinct fact named, even though the names of such witnesses be not inserted in the commission at the time of its issue. But this is allowed only in special cases.
p. 293
D. McMahon, on behalf of the plaintiff, moved for a commission to issue to Denver City, Colorado territory, and to Fort Smith, Arkansas, to take the testimony of three witnesses named. The counsel desired to have a provision in the order, that the plaintiff should have liberty to produce and examine before the commissioners any other witnesses, though not named in the commission; such examination to be on interrogatories to be annexed to and sent with the commission. He relied on Shaffer a. Wilcox ( 2 Hall, 502 ), which tended to show that such leave should be granted in special cases.
The special circumstances which he claimed to exist, were the inability to make exact proof of the death of one S. C. Harrison, who had been killed on the plains by the Indians.! It could only be pro.ven by circumstances, the knowledge of which existed in the breasts of many individuals, whom he could not now name, but who could be readily found in Denver City, if the requisite. authority was given to the commissioners to examine such persons.
Albert Mathews, opposed the insertion of such a provision as to witnesses not named, and relied on Wright a. Jessup ( 3 Duer, 642 ).
at first doubted his, power to issue the com-
mission as prayed for, but after examining the two cases cited
p. 294
by the counsel, granted the motion, making an order, which, after reciting the commissions to be issued, and the names of the witnesses, contained this provision, “ with the privilege to the plaintiff to examine any other witness not named in «said commission whom she may produce on her behalf, in either of said* places, before the commissioners named therein, to prove any fact or facts tending to establish the death of S. O. II., formerly of Santa Fé, FT. M., afterwards of Denver City. All of said witnesses named, and all of those who may be produced under said commission, to be examined under and in pursuance of interrogatories direct and cross., which are to be annexed to and accompany said several commissions, and are to be settled on the usual notice.”