Majority
p. 271Fisher and others against Dale.
Headnote
Where depositions of witnesses residing1 abroad, taken under a commission, were read on the trial of a cause, and the jury not being able to agree on their verdict, were discharged, a second commission was issued to re-examine the same witnesses, it being staled, by affidavit, that some of the doubts which existed at the trial, would, probably, be removed by such re-examination.'fills was an action of assumpsit against the defendant, as drawer of two bills of exchange.
Issue was joined in the cause, in March, 1818, and commissions were issued to take the examination of witnesses, in Ral-ifar, (A. S.) London, and Ashby de la Zouche, in England, which were duly executed and returned; and on the trial of the cause, at the last November sittings, in New-York, the depositions taken under the commissions were read in evidence ; but the jury who were impanneled to try the cause, not being able to agree on their verdict, were discharged by the judge.
A motion was now made for leave to issue commissions to take the further examination of some of the witnesses named in the former commissions, and whose depositions were read at the trial.
The affidavit of the attorney, in fact, of the plaintiffs, (who resided abroad,) stated, that great difficulty existed, as the deponent believed, in the minds of the judge and jury, whether the sum of 700 pounds sterling, mentioned in the return of the commission sent to London, had been paid on account of the two bills of exchange upon which *the suit was brought; and, also, whether the bills were included in, and intended to be secured by, a note of 10,000 pounds sterling, mentioned in the return to the commission directed to Ashby de la Zouche, given to the plaintiffs, as collateral security, and, also, whether the said note had not been paid by the maker thereof. The affidavit further stated, that the jury could not, as the deponent believed, agree in their verdict, by reason of the doubt
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and difficulty above-mentioned, and that these doubts would be removed by a further examination of the witnesses named.
The affidavit of the attorney of the defendant stated, that at the trial of the .cause, at the last sittings, the plaintiffs produced, and read in evidence, the deposition of J. 13., of Coventry, in England, taken under a commission, by whose testimony it appeared, that J. B. was the maker of the promissory note for 10,000 pounds, mentioned in the affidavit on the part of the plaintiffs, and which was one of the principal subjects of controversy at the trial of the cause.
D. B. Ogden, for the plaintiffs
Wells, contra,
objected, that the affidavit of the plaintiffs’ agent did not state that the witnesses proposed to be examined are material, as the act requires; nor that he was advised by counsel: That it did not appear that there was any cause for the doubts suggested as to the testimony, or any intrinsic difficulty concerning it, and the judge, in his charge to the jury, expressed no doubts; that 13. was the maker of the note, who must have known the consideration for which it was given, and who was examined under the commission, and his deposition read at the trial; yet the plaintiffs do not propose to’reexamine this witness, who, of all others, must be presumed capable of giving the best evidence on the subject. The power to issue a commission is derived from the statute; and where a commission has been once duly executed and returned, the power is spent. No irregularity in taking the depositions has been suggested ; nor is there any difficulty in regard to the testimony, except that it does not meet the wishes of the plaintiffs. To allow a second commission to issue to reexamine witnesses, *whose depositions have been regularly taken and read, would lead to a practice highly dangerous. It seems to bo against the spirit of the act, which does not entrust either of the parties with the testimony, nor permit them to see it, until it is returned into this court. It is not like the examination of a witness, de bene esse, before a judge or an officer of the court, amenable to its authority. The commission is executed before persons not within the jurisdiction or control of the court. It would be contrary to the rules of the Court of Chancery, from which the practice of issuing commissions to take depositions is derived,[1] The issuing of commissions rests in the sound discretion of the court. (Vander-voort v. The Columbian Ins. Co. 3 Johns. Cas. 137 .)
We see no solid objection to allowing a second commission. The examination of witnesses in the Court of Chancery is private ; and the proceedings in that court in
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relation to the manner of taking testimony, is so different from that of courts of law, that the reasons on which the practice in Chancery is founded, do not apply here. Suppose a witness has not answered some of the interrogatories, or has answered them in an obscure and unintelligible manner, it may be essential to the purposes of justice, to direct a second examination. If the witness himself should come to this country before the trial, the Court could not refuse to permit his examination, although his deposition had been taken in the cause.
Rule granted.