Pomeroy v. Lownsbury

Headnote

Terms imposed on defendant, allowing a commission to issue with a stay, after plaintiff had prepared the cause, and was expecting to proceed to a hearing the next day after motion, papers were served.

Motion for a commission.— Defendant’s facts: Action assumpsit, issue joined 15th July, 1844; cause referred 10th August, 1844; noticed for hearing on the 31st August, 1844. Defendant swears to merits in the usual manner; and also to the materiality of the witness residing at St. Louis, Missouri, for which a commission is wanted, and the particulars of the defence which he expects to prove by said witness. Defendant was unable to find out, after diligent inquiry, where witness resided, until about 26th August 1844. Defendant is engaged in running a boat on the canal between Albany and Buffalo: he left Albany the latter part of July, and did not return until 30th August 1844, and heard nothing of the cause being noticed until the last mentioned day. One of defendant’s attorneys, on the 15th July 1844, wrote to plaintiffs’ attorneys, stating in substance the particulars of defendant’s defence, and that it would be material to have the testimony of said foreign witness, unless plaintiffs would admit the items of defence intended to be proved by him; and thinks he also stated that defendant’s attorneys did not know the residence of said witness, and urged plaintiffs’ attorneys to grant some delay, in order to get the testimony of said witness, as also to procure

the other witnesses in said cause, who were mostly engaged on the canal. Plaintiffs’ attorneys declined to admit the items above referred to, or to grant the delay requested. Defendant’s attorneys have since requested of plaintiffs’ attorneys to delay noticing the cause for hearing, on the ground of the difficulty in getting the necessary testimony. This cause was noticed for hearing on the 17th August 1844, after defendant had left. Albany; and defendant’s attorney did not know where to direct a communication to him, and was unable to move in the matter until defendant returned. Plaintiffs’ facts: one of the plaintiffs’ attorneys states they [31 are attorneys for a person not named, as one of the plaintiffs, but who is plaintiff in interest in this cause; after issue joined, plaintiffs’ attorneys received a letter from one of defendant’s attorneys, requesting a delay in said cause until the close of the canal navigation, to enable defendant to get his witnesses, and intimated they might want the testimony of a witness by commission. Plaintiffs’ attorneys after consultation with plaintiff in interest, who was opposed to any delay, wrote to defendant’s attorneys to that effect; and requested them to bring on the motion for a commission, at the same time with the motion for reference. Cause was referred on the 10th August, 1844; on the 9th August 1844, Plaintiffs’ attorneys received a letter from one of defendant’s attorneys, who had the charge of this suit, that he was going to be absent until 27th August, 1844, requesting plaintiffs’ attorneys to let the cause stand as it did until his return, and requesting them not to notice the cause until his return. Plaintiff in interest declined giving any delay, plaintiffs’ attorneys immediately informed defendant’s attorneys of the fact, together with the reasons of said plaintiff in interest, and also informed defendant’s attorneys they would" put the time of hearing beyond 27th August, 1844. On the 14th of August, 1844, plaintiffs’ attorney received a letter from the other attorney for defendant, requesting the hearing to be postponed until middle of September, in order to give time for the absent attorney to return and prepare for the hearing. Plaintiff in interest refused to give any delay, and plaintiffs’ attorneys so informed defendant’s attorneys. Plaintiffs’ attorneys, from the two letters last mentioned, were led to believe defendant had abandoned his commission : had they thought otherwise, they should not have noticed the cause for hearing until said commission was disposed of, plaintiff in interest being urgent to have the cause progress. Plaintiffs’ attorneys noticed it for hearing on the 17th August 1844, for the 31st August 1844. Late in the evening of 30th August 1844, and after the plaintiff in interest had procured his witnesses and entirely prepared for the hearing, plaintiffs’

attorneys were served with papers for this motion, with a stay of .proceedings.