Majority
p. 21FAIRBANKS a. TREGENT. Supreme Court, Second District; Special Term, April, 1858.
Headnote
Examination of Pabties.—Deposition on Commission.Under the provision of section 399 of the Code,—that a party may be examined as a witness in his own behalf, the same as any witness, on previous notice, except in certain cases,—a non-resident is entitled to be examined upon commission in his own behalf, although the adverse party has not given any notice of his own examination.
Motion for a commission to' examine the defendant on his own behalf.
The defendant was a resident of the State of Michigan, and this application was made by him for the issue of a commission in the action for the examination of himself and other nonresidents of this State on his own behalf. Mo notice of the intended examination of the plaintiff at the trial had been given in the action, and it was insisted by the plaintiff in opposition to the motion, that under such circumstances a commission could not issue for the examination of the defendant on his own behalf.
Livingston K. Miller, for the motion.
Wm. Tracy, opposed.
—It is provided by section 399 of the Code as amended in 1857, that a party to an action or proceeding may be examined as a witness in his own behalf, the same as any other witness, on previous notice, except in certain cases. The
p. 22
defendant is a resident of Michigan, and it is conceded that this is a case in which he can he examined on the trial. The provision is general. It permits the examination of a party the same as any other witness. This necessarily, in my opinion, places him in the same position as any other person to be examined in reference to time, manner, and in every other respect, and consequently authorizes him to be examined conditionally, or under a commission as well as on the trial. There is certainly nothing in its terms restricting such examination to the trial, and I cannot discover any reason, in the spirit or policy of the act, which requires such a construction. It is true that there is a subsequent provision in the same section, which declares that when a notice of such intended examination of a party is given in an action, in which the opposite party shall reside out of the jurisdiction of the court, such party may be examined by commission issued and executed as now provided by law. That is entirely disconnected with the portion of the section first quoted, and while it may be difficult to discover the necessity of this last provision, yet that- does not warrant a construction of a clause general in its terms, so as to limit it to a certain class of cases only. I think, however, that the provisions are not necessarily inconsistent. As a general rule, a party can only be examined on a previous notice given by himself of such intended examination; but whenever a party or person in interest has been examined under the provisions of this section, the other party or person in interest may offer himself as a witness in his own behalf, and shall be so received. As, however, a party residing out of the jurisdiction of the court may not be able to be personally present, to avail himself of that right, the privilege of taking his examination under a commission is given to him on receiving a notice of the intended examination of his adversary, without demanding a compliance with the requisitions of law necessary to authorize the examination of other persons in such manner.
After a full examination of the question, which-was ably discussed by counsel, I have concluded that the commission must be awarded, directing the examination of the defendant as well as the other persons named in the notice of motion.