Majority
p. 245Heyward v. Stilwell and others. October 1, 1838.
Headnote
Practice.In a mortgage case which may require the examination of a complainant as to payments, such examination cannot take place prematurely, merely because he is leaving the state.
A case of foreclosure. An advertisement was running against some of the defendants ; and the complainant deposed, that he himself was about to leave the state and should not return until after the cause was ready for a hearing. Motion that he be now examined as to any payments.
Mr. Charles B. Moore, for the mortgagee.
considered the application premature. If it were a case that required the examination of the complainant, it could be done at the proper time, even if he were out of the state, by interrogatories through a commission : Rule 76 ; and the cause might even be settled before the usual time to examine the complainant.