Russell v. Fabyan
Supreme Court of New Hampshire
Is this and three other cases Messrs. Benton and Bellows, counsel for Russell, moved in the Court of Common Pleas that a special commission may be granted to take the deposition of Noah Burnham, of Concord, to be used in those cases in which he is a material witness, and that the commissioner be empowered to compel the attendance of the witness for that purpose.
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Is this and three other cases Messrs. Benton and Bellows, counsel for Russell, moved in the Court of Common Pleas that a special commission may be granted to take the deposition of Noah Burnham, of Concord, to be used in those cases in which he is a material witness, and that the commissioner be empowered to compel the attendance of the witness for that purpose. The grounds shown for the application are that Mr. Burnham’s testimony is material, and necessary for the said Russell upon the trial of said actions, because he is able to testify as to many material facts which are not known, or…
1Opinion of the CourtBell, J.
This case raises the question of the power of the Court of Common Pleas to issue a special commission to take the testimony of a material witness, who is unable to attend court, and refuses to give a deposition, and to authorize the commissioner to compel the attendance of the witness for that purpose.
In Cater v. McDaniel, 1 Foster 231, the Superior Court were of opinion that the powers .of the courts here in relation to depositions, beyond those exercised by courts of common law elsewhere, were derived from statutes and controlled by them, and were not to be traced to any ancient customs or…