Majority
p. 432Clark vs. Bundy. 1837. April 5,
Headnote
The coiirt, Upon a special application, is authorized to gránt a commission td examine witnesses, although it is a case in which the commission might have been issued by the register or clerk, under the provisionsof the statute and the 69th rule of the court.But where application is made to the court unnecessarily, within the twenty days allowed by the rule for applying- to the register or clerk, the party making such application will not be allowed oil taxation for the extra costs of applying to the court.
The complainant, upofl due notice of the application',moved for a commission to examine witnesses residing out of the state. The motion was resisted upon the ground that the time limited by the 69th rule of the cóurt for applying to the register had not expired, and that the court had' no authority to grant a commission in' a case in which it might
p. 433
be issued by the register or clerk under the provisions of the statute.
D. S. Dickenson, for the complainant.
J. Rhoades, for the defendant.
decided that the court had authority in all cases to grant an order for a commission, although in certain cases the commission might be issued by the register; or clerk, under the provisions of the statute and in conformity to the general rules of the court. But that where a special application to the court was made by a party,unnecessarily, within the twenty days allowed by the 69th rule for applying to the register or clerk, the extra expense of the applifcation to the court could not be allowed to such party on taxation.-
Order accordingly.