Jackson ex dem. Green v. Kent — 7 Cow. 59

Majority

p. 59

* Jackson, ex dem. Green and others, against N. and O. Kent.

ALBANY,

Feb. 1827.

Headnote

Where it is bab^tiiT^the personal attendance of a witness cannot an ^ ex-animation de ^judge,ef°or todiShe'cham ber duties of a should Pbe encouraged,

preliminary the may be proved affidavits^1 or mustbeproved Qumre.

is objected to the^® ground that it is by mva mcl testi™on7 inaisted

Semi, "thar nary proof may be b7 a party, terestedTs iessorofthepiam-

The party cannot object that the notice of'the eisa'min'ation-' iZe Señe esse was - too short, where he appears before the commissioner, and omits to object, for that reason there; but puts his objection on other grounds.

Forms of affidavits, order, and notice to examine a foreign- witness de lene esse, note (a) .0 this case.

'Form of deposition, noté (a) to this-case.

Ejectment for land in Oneida county tried at the cireuit in that county, March 27th, 1826, before Williams, C. J.

_ At the trial, the claim of the plaintiff, to one-fifth of the premises in question, depended on the- inquiry, whether one of the-lessors" of the plaintiff "whs the heir of George Clark, the patentee ' of the land. Eor this purpose,' the plaintiff offered in evidence, the'deposition of Jáspar Graham, - a witness residing- out of the state, taken de lene esse, before James Cochran, Esq.,- a-commissioner-to perform certain duties of a judge of the "supreme courtand stated that Graham was at Utica at the time "the deposition was taken, but that he resided in thé state of Connecticut, was then about to return home; and offered to prove the service of notice of the examination; and-the-other proof preliminary to the taking of the deposition, by affidavits, To this preliminary proof the counsel for the" defendants objected; but the objection was" overruled. The ant’s counsel-then offered to prove that the notice of amination, and the copy of the ordér for such notice, were served on the attorney for the defendants only twenty-three minutes before the time mentioned for the examination; and that the defendants resided at Deerfield, a distance of about eight miles from Utica, the place of examination. But it appearing that the defendants’ attorney"did not appear and request further time, and only objected to the commissioner against the examination of the witness on other grounds, "the judge considered" the testimony as immaterial, and overruled it. The defendants’ counsel "still obj ected to the- reading of the deposition, ■' and insisted that

p. 60

*it was not a proper case for taking evidence in this way; and also that sufficient notice of the examination had not been given. Both objections were overruled.^[1] ■

p. 61

*The plaintiff then proved that Graham’s residence was at Weathersfield, in Connecticut.

There were also various other questions in the cause, principally of fact. A verdict was taken for the plaintiff, subject to the opinion of the court, on a case.

p. 62

*Thé causé' was argued by

W. 3. Maynard and 3. S. Storrs, for the plaintiff, and

3.'Denió and' G.G. ÍBróñson, for "the defendants.

For the defendants it was insisted, among other things, "thafthe law"will' not""aliów "testimony to "be talien,"&';&M6

esse, la such, a case as this; but if otherwise, the notice of examination was too short; and that the preliminary proof should have been made viva voce, and not by affidavit. It was denied that this manner of taking evidence is known to the common lawand insisted, that it could only be taken under our statute.

For the plaintiff, the case , of Mumfoyd y. Church, (1 John. Gas. 147,) was relied upon as settling the .question.

(in delivering the opinion of the court,) said, the preliminhry objections to giving in evidence the deposition of Jasper Graham, were properly *overruled.

The objection at the trial was not specifically to proving the service of notice of Graham’s examination before the commissioner, by affidavit. It was in general terms, to the preliminary proof. If it had. been made expressly to the nature of the evidence of service, it might have beén obviated by calling the witness who made the service, and swore to the affidavit. He was probably in court; for he was the attorney in the cause, and one of the lessors.

It .was a proper case for an. examination de bene esse,

p. 63

within the decision in Mumford v. Church, 1 John. Cas. 147. It is more favorable to the opposite party, thaii an examination upon interrogatories under a commission; and more likely to elicit truth. Instead of being discouraged, I think it merits bhe countenance of the court, where it is certain or probable that the personal attendance of the wit~ ness cannot be procured upon the trial.

*The shortness of the notice to the defendant's attorney, of the intention to examine Graham before the commis-' sioner,' it is stated in the case, was not objected to before the commissioner; but the objection to his examination was on other grounds. The evidence offered to the court was, therefore, properly overruled at nisi prius. If the objection had been taken before the commissioner, the time might have been enlarged.

Judgment for the plaintiff, for one-fifth of the premises.