Majority
p. 683Ring v. Mott. January 26, 1850.
Headnote
The issuing of a commission to take the testimony of a witness out of the state, though usually directed, is not a matter of strict Tight.Where a commission is likely to produce great injury to the adverse party, terms •will be imposed, and in extreme cases it may be wholly refused.
Appeal from an order at chambers, denying a motion of the plaintiff for a commission. The action was of an equitable -nature. A brother of the plaintiff, whose family resided in New York, and who was an officer of the customs here, left tiome for the island of Cuba in October, 1849, for the benefit of his ■health. Previous to his departure, the plaintiff proceeded to examine him conditionally, but the cross-examination, which was very long, had not been completed, when he was obliged •to leave.
The commission was opposed, on the ground that the witness was a resident of the state • and because, as stated in affidavits, his cross-examination required the presence of numerous books of account and valuable vouchers, which it was impossible to send to Cuba and produce to him there ; and the omission to have the witness examined upon them, would be dangerous to the defendant’s rights.
J. I. Ring and O. Hoffman, for the plaintiff.
R. H. Bowne and W. C. Wetmore, for the defendant.
The issuing of a commission is in the discretion of the -court It is usually done as of course, with or
p. 684
without a stay of proceedings, but it is not a matter of strict right. • The court must be governed in the exercise of its discretion, by what it is apparent will be the consequences'; and if it is evident that great injustice will be likely to ensue to the adverse party, it is far from being of course to grant it. In such a case, the court will either impose terms so as to preserve the rights of the adverse party, or will even refuse it, if no way for their protection can be devised.[1]
(a) (a) The cause stood over to enable the parties to make an arrangement,