Brown v. Southworth
New York Court of Chancery
This was an application on the part of the complainants for leave to read, upon the trial of an issue directed in this cause, certain depositions taken in the state of Indiana, under a commission issued out of this court. The commission was granted by a special order of the court; but through inadvertence the order contained no direction authorizing the commission to be returned by mail.
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This was an application on the part of the complainants for leave to read, upon the trial of an issue directed in this cause, certain depositions taken in the state of Indiana, under a commission issued out of this court. The commission was granted by a special order of the court; but through inadvertence the order contained no direction authorizing the commission to be returned by mail. In the petition upon which the order was obtained the name of one of the witnesses was stated to be either James or Imes one Hurd. But in the order, and in the commission he was called James Hurd only;…
1Opinion of the Court
The Chancellor.
In Richardson v. Gere, (21 Wend. Rep. 156,) the supreme court decided that depositions taken under a commission were not admissible in evidence, where the return had been transmitted to the clerk through the post office; unless a previous order had been made by the officer who settled the interrogatories, directing the commission to be returned in that manner. But the counsel for the complainants is right in supposing that the decision in that case is inapplicable to the case of a commission issuing out of this court. Courts of common law have no authority to take testimony…
2Cases cited1 opinion
- Richardson v. GereNew York Supreme Court · 1839
3Cited by3 opinions
- Smith v. WesterfieldCalifornia Supreme Court · 1891
- Denny v. HortonNew York Court of Common Pleas · 1883
- State v. Spartanburg & Union RailroadSupreme Court of South Carolina · 1875