Hodgkin v. Atlantic & Pacific Railroad

—The question presented is whether subdivision 7 of section 401 of the Code, enacted in 1862, is broad enough to cover the case of a party to an action, whose affidavit, for the purposes of a motion, is required by his adversary. Section 389 specifically provides that no examination of a party, at the instance of the adverse party, shall be had, except in the manner prescribed in chapter 6 of title 12. That chapter only permits such an examination before or at the trial, or conditionally or up*74on commission, and clearly for the sole purpose of obtaining testimony to be used upon the actual…