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M'Vickar v. Woolcot

1 Cole. & Cai. Cas. 501 Court N.Y. Sup. Ct. English

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p. 501
John M'Vickar v. Oliver Woolcot.

Headnote

HOPKINS, in consequence of the death of a witness to be examined on a commission sent to England, and sued out early in the last spring, moved, on behalf of the defendant, to amend by inserting the name of a new witness, who could prove the fact the testimony of the deceased would have gone to establish, or to be at liberty to issue a new commission.

Were we to permit the amendment, the opposite party might lose the benefit of cross-examining ; for the interrogatories exhibited to one, might not be proper to administer to another, from

p. 502
whom it might be wished to extract new evidence. ° The first part of the motion must, therefore, be denied ; but you may take a new commission at your peril, without, however, any stay of proceedings on the partrof the plaintiff.