Franklin v. United Insurance — 2 Johns. Cas. 285

Majority

p. 284

*Franklin against The United Insurance Company.

Headnote

A commission to examine witnesses will not be granted, so as to stay the proceedings in the cause, unless the party swears positively that he has a good defence on the merits, and that the witnesses named are material.

An application, in behalf of the defendants, was made, in October term, which was within the time for making the motion for a commission to Porto Bello, in South America ; but as the affidavit did not mention the names of the witnesses to be examined, the motion was denied.

Troup, for the defendant,

now moved again for a commission. He read the affidavit of the president of the company, stating, that though diligent means were used, the names of the witnesses could not be obtained until after the last term; that the testimony of the four witnesses named was material to prove the condition of the vessel at Porto Bello, the state of the winds, the materials for repairs, and the practicability of the vessel’s proceeding to the place of destination ; that

p. 285

the material point in controversy was, whether the vessel might not have continued her voyage, and that this point cannot be ascertained without a knowledge of facts which he believed the witnesses could testify; and that he is advised, and believes, that the defendants cannot safely proceed to trial without their testimony.

It was stated, on the part of the plaintiffs, that there was little trade between the United States and Porto Bello ; that two of the witnesses named were also named by the defendants as commissioners, at the October term, and the names of the witnesses were contained in the testimony, brought by the vessel on her return, relative to the vessel and cargo.

Riggs and Hamilton, contra.

Pendleton and Harison

replied, in support of the motion.

Though the defendants account for their delay, in making this application, yet they do not state with certainty that there is a substantial defence ; or that they are informed, and believe any to exist. Where a party asks for delay, he ought to state positively that he has a defence on the merits ; and that he seeks only the requisite proof. The defendants ask for a commission, for the double purpose of ascertaining or discovering whether a defence really exists, and if it does, to obtain the requisite proof to support it. The affidavit does not state probable grounds to induce a belief that the vessel could have continued her voyage. The commission appears to be intended for general inquiry, to fish for facts. If it should be granted, it would become a precedent that would lead to abuse.

The motion must be denied ; but the defendants will be at liberty to take out a commission, if they choose, without any stay of proceedings in the case.

Buie refused.(^[1] )

a a (a) See Graham’s Practice, 2d ed. 592, 593. See note (5) to Franklin v. The United Insurance Company, supra, p. 68.