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Graves v. Delaplaine

11 Johns. 200 Court N.Y. Sup. Ct. English

Contents

Majority

p. 200
Graves and others against Delaplaine.
NEW-YORK,
May, 1814.

Headnote

The court will not refuse a Irule for a com wamoratotake the examination of witnesses residing ahroad, though the opposite party make affidavit that the witnesses named are interested in thé cause; but will leave the question as to their competency,to be determined at the trial of the cause.
EiUiYIET, for the plaintiffs, movéd, on the usual affidavit, for a commission to take the examination of witnesses residing in Liverpool, in Great Britain.
Slosson, cdhtra,
objected to the issuing of the commission, on the ground that the witnesses named by the plaintiffs were interested in the cause, and, therefore, incompetent, and he read an affidavit of the defendant to show their interest.
Emmet said;
that tlie court ought not to prejudgfe the question Of interest, nor try it thus; in limine, by affidavits; It may be that the plaintiffs; at the trial of the' cause, may disprove all the facts now stated by the defendant, to show the interest of these witnesses, and wholly repel every objection to their competency. Commissions are issued ex parte. It is the right of the party td take out a commission at his own risk. The court will only exercise its discretion, as to the effect which the issuing of a commission is to have on the proceedings in the cause, so as to prevent a delay of justices

The affidavit read is neither proper ñor suffi-> cient evidence to show that the witnesses are incompetent, on the ground of interest. If we are to deny the commission, it ought to be on the same evidence, as to the fact of interest, which would be proper and sufficient, at the' trial of the' cause, to show the incompetency. The affidavit or testimony of the defendant, would not be admitted for that purpose. Besides, if the witnesses have any interest, it may be that it will be released before their examination, so as to render them competent. We think the commission ought to issue. •

Rule granted.

Footnotes

  1. * N. B. In most of the cases decided this term, Mr. Justice Platt gave no opinion, they having been argued before he took his seat on the bench. The other judges being unanimous, rendered it the less necessary to notice this circumstance at the end of each case.