Dwinelle v. Howland
New York Supreme Court
This was a ruling at circuit, rejecting certain evidence. The plaintiff, on the 22d of December, 1853, applied to the special term of this court, for leave to issue a commission in this action on the part of the plaintiff, to be directed to certain commissioners in San Francisco in California, authorizing them to examine on oath upon interrogatories and cross interrogatories, certain witnesses on behalf of the plaintiff, residing in California.
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This was a ruling at circuit, rejecting certain evidence. The plaintiff, on the 22d of December, 1853, applied to the special term of this court, for leave to issue a commission in this action on the part of the plaintiff, to be directed to certain commissioners in San Francisco in California, authorizing them to examine on oath upon interrogatories and cross interrogatories, certain witnesses on behalf of the plaintiff, residing in California. The court made an order awarding the commission. This order provided that the commission and the return thereto when taken, might be transmitted…
1Opinion of the CourtClerks, J.
I. At common law, no commission to examine witnesses abroad on interrogatories could issue without consent; although a court of equity could, in aid of an action in a common law-court, compel an obstinate party to consent.
*89In England, the common law-courts had no general power to issue commissions, until the Act passed as recently as the reign of William IV. (1 W. IV., C. 22).
Our courts have possessed this power for more than sixty years; but, it was always considered an innovation, which should be exactly dealt with, as a departure from a mode of presenting evidence, which has ever been…
2Cited by1 opinion
- Collins v. SchafferNew York Supreme Court · 1894