Majority
p. 567Vermilyea vs. Rogers.
Headnote
The second section of the act to prevent usury (S'css. L. of ’37, p. 487) was in,.--, tended to give the defendant the right to insist on a personal examination of the plaintiff at the trial; and the latter ought not to be allowed, by absenting him self from the state, to compel the defendant to resort to a commission. Per Cowen J.Whether a commission may issue for the purpose of examining the plaintiff, in such case, quere.
Where the plaintiff was temporarily absent from the state, so that he could not be served with a subpoena, and neglected to attend the circuit at which the cause was set down for trial, notwithstanding a nonce to his attorney requiring such attendance, held, that the circuit judge might, in his discretion, make a general order postponing the trial till the plaintiff should appear, especially as there was reason to suspect he remained absent with a view of evading a personal examination. Bronson, J. dissented.
The granting or refusing of a motion for postponement at the circuit is within the discretion of the judge, and his decision ought not, in general, to be interfered . with. Per Cowen, J.
Staying proceedings till the plaintiff attend as a witness. In debt on bond, the defendant interposed and verified by affidavit a plea of usury, giving notice to the plaintiff’s attorney that he should require his (the plaintiff’s) attendance as a witness at the circuit in New-York in March 1841, where the venue was laid. The plaintiff not attending in pursuance of the notice, the judge put off the cause. It was afterwards noticed for trial at each successive circuit, but was postponed for the same cause ; and was reached on the calendar at the two circuits previous to the last. At this circuit, an order was made by the circuit judge delaying the trial till the plaintiff should personally appear, or until further order, &c. The plaintiff was all this time in London, and the judge made the order on the ground that the defendant was entitled to insist on the personal attendance of the plaintiff at the trial; though the plaintiff ’s counsel contended that the defendant had a right to examine the plaintiff under a commission. The judge held that
p. 568
a commission could not issue. The plaintiff also offered to show by certain proceedings in chancery, and other circumstances, that the application to postpone was not with a reasonable expectation of obtaining material evidence from the examination of the plaintiff; but the judge decided that he could not look into such proceedings.
On the part of the defendant it was shown that the plaintiff did not reside in. England, but in the city of New-York, and was only temporarily absent; that the amount in controversy was large, and that the plaintiff was alone interested.
It now appeared that the plaintiff was expected to return to his residence in New-York in a short time.
A. Taber, for the plaintiff,
moved to vacate the judge’s order, citing Sess. Laws of 1837, p. 487, § 2 ; 2 R. S. 315, § 19, 2d ed.
G. M. Speir, contra,
cited Bosworth v. Perhamus, ( 20 Wend. 611 .) He denied that the court had power to grant a commission.
By the Court,
It is scarcely necessary to deny, in order to justify the judge’s course, that a commission might have been issued. In authorizing the defendant to demand his adversary’s oath, the statute intended effectually to enlarge his means of proof. We cannot impute to it a promise of the plaintiff’s testimony ; and at the same time an intent that he may absent himself from the .state at such convenient period as he shall choose to commence his suit, and put off the defendant with a commission. If he take one, of what value will it be 1 On its reaching London, the plaintiff has perhaps gone to Paris, and on following him there, he has departed for Rome. The large amount here in controversy (more than $19,000) would defray the expense of such evasions through a large series and for a good while. But if he remain at London, what law is shown to us that would there compel him to testify 1 He is a party j
p. 569
but if otherwise, I know not of any process which would compel his attendance before commissioners; or, if there be such, and it is no more efficient than our own, he could afford to pay the penalty of refusing to appear. In some of the European nations, the government, I believe, will not allow commissioners to examine even a voluntary witness without our first asking its permission. Suppose the plaintiff had gone into New-Jersey to remain while this suit was pending, the same arguments against delay would come with the same force. He controls the time of trial, and is most deeply interested, if the defendant’s plea and oath be true, to evade testifying at all, and especially upon the stand where he can be cross-examined. It is not without some weight that the defendant may desire an appeal to the fear of temporal punishment if the plaintiff should testify falsely. This would be lost, perhaps entirely, by an examination abroad. Suppose the plaintiff had spirited away a material witness for the defendant, would the judge be bound to take for answer that the witness might be pursued by a' commission % Would he not rather be bound to postpone the trial, with costs to be paid by the plaintiff 1 I said in Bosworth v. Perhamus, ( 20 Wend. 611 ,) in respect to a case somewhat similar to the present, that the judge has a discretion. It was no more than what has been said a thousand times of an application to put off a trial for want of testimony. He always has a discretion in such a case, with which we ought not in general to interfere—perhaps never—in the case at bar obviously not. The cause has been repeatedly postponed, being as many times noticed for trial by the plaintiff, until we are now informed that the necessities of his business will probably bring him home in a short time, say this winter or next spring. Yet we find his counsel stoutly resisting a motion made last November circuit to put off the cause, on the- ground that a commission should have gone. Very likely the judge felt a suspicion that the plaintiff was keeping away from his business because he was'afraid of being subpoenaed if the cause, should not be pressed through before his arrival.
p. 570
It is suggested, and a belief expressed in one of the affidavits, that the plaintiff is sick. If a witness be so much indisposed that he will probably be unable to attend at one circuit, it is always an excuse for putting off the trial till the next j and, on a strong and clear case like the present, it is by no means.an abuse of discretion to postpone the trial generally till he shall attend.
Bronson, J. dissented.
Motion denied.[1]
(a) (a) See Rapelye v. Prince, (ante, p. 119.)
Cases cited
- Bosworth v. Perhamus 20 Wend. 611 p. 568, p. 569