Wait v. Whitney — 7 Cow. 69

Majority

p. 68

*Wait against Whitney.

ALBANY,

Feb. 1827.

Headnote

ofTtakfng° depositions de bene esse approvea.

witoess,fOTwho statT on th* request of the purpose” may be examined

berea^thimgh it appear at he8is*"*1 home in a foreign country, or out of the jurisdiction of the court; and might have been examined on commission.

And this, even though a commission may have actually been obtained for the purpose of examining him at his foreign residence.

Notice n1' examination de lene esse should always be given.

Assumpsit, on a promissory note, dated Quebec, December 21st, 1818, for £125, made by the defendant, and pay-a"kie to Robertson or order, at 90 days, and endorsed by J 7 J Robertson to the plaintiff. The cause was tried at the Clinton circuit, June 27th, 1826, before Throop, 0. Judge.

^ appearing that the note was negotiated by Robertson, to the plaintiff, in October, 1824, after it was due, defendant offered to prove by the deposition of Solomon Levy, duly taken de bene esse, that the note was paid to Robertson before he negotiated it. For this purPose> he proved, by witnesses sworn and examined, in open court, that in December, 1825, Levy was in Plattsburgh, on his way to England, when he was examined, by order

p. 69

of a judge, de bene esse, in presence of the plaintiff’s counsel. That the defendant directed the witness to go to England by way of Plattsburgh, that he might be so examined. That since the examination, Levy had returned to Quebec. It also appeared that a commission had previously been obtained, to examine the witness at Quebec. The plaintiff’s counsel objected to the deposition, on the ground that, as the residence of Levy was known, he should have been examined on commission. The deposition was excluded by the judge; and the plaintiff’s counsel executed. Verdict for the plaintiff, $721 08.

S. Stevens, for the defendant,

moved for a new trial. He cited Munford v. Church, (1 John. Cas. 147.)

W. Swetland, contra,

said the only mode of examining witnesses known to the common law, was in open court, viva voce. This could not be departed from, unless by special order of the court, in the exercise of its discretion; or under the direction of some statute. Neither is pretended in this case. At any rate, it should appear that the witness cannot be found when the deposition is offered. J)unl. Pr. 550. It is not a proper case for a deposition, *unless the witness is a resident of this state; and about to depart from it.

The deposition should have been admitted in evidence. The preliminary proof of the witness being without the jurisdiction of the state, was admitted to be sufficient to show that fact. It was also admitted that the deposition was taken on regular notice to the opposite attorney; and that he attended before the officer who took it. He was admitted to have competent authority.

The practice of taking the deposition of witnesses, who are about to leave the state, de bene esse, received .the sanction of this court, in Mumford v. Church, (1 John. Cas. 150.) It has been in constant use from that period to the present; and we are not aware that the propriety of the practice has

p. 70

ever been questioned, when conducted under the guards and restrictions which have been imposed upon it. Notice to the opposite party is always required; and an examination conducted by the parties themselves, where the witness is present, and liable to be sifted on cross examination, is much more likely to elicit truth, and is attended with less delay and expense, than the ordinary mode of taking it by commission. ‘ We find the practice thoroughly established7; and we perceive no reason for changing it.

It is said the witness must be resident of this State; and that the practice is not admissible in the cáse of a foreign witness, who happens to be here. We are not aware of any reason for such a distinction. On the contrary, Mumford v. Church, which is the only reported case on the subject, was one of a foreign witness. The deposition was taken in New York, and the residence of the witness is stated to have been in Connecticut.

The deposition, if it had been received, and contained what the defendant offered to prove by it, must have defeated the plaintiff’s action; and a new trial must be granted.

New trial granted,^[1]

(a) (a) Vid. Jackson v. Kent, ante, 59; see Packard v. Mil, post, 489; 1 John. Oas. 291; 2 N. Y. Rev. Stat. 312, secs. 1, 2 ; Monell’s Pr. 2d ed. 609.