Wait v. Whitney
New York Supreme Court
Assumpsit, on a promissory note, dated Quebec, December 21st, 1818, for £125, made by the defendant, and pay-a"kie to Robertson or order, at 90 days, and endorsed by J 7 J Robertson to the plaintiff.
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Assumpsit, on a promissory note, dated Quebec, December 21st, 1818, for £125, made by the defendant, and pay-a"kie to Robertson or order, at 90 days, and endorsed by J 7 J Robertson to the plaintiff. The cause was tried at the Clinton circuit, June 27th, 1826, before Throop, 0. Judge. ^ appearing that the note was negotiated by Robertson, to the plaintiff, in October, 1824, after it was due, defendant offered to prove by the deposition of Solomon Levy, duly taken de bene esse, that the note was paid to Robertson before he negotiated it. For this purPose> he proved, by witnesses sworn and…
1Opinion of the Court
Curia, per Sutherland, J.
The deposition should have been admitted in evidence. The preliminary proof of the witness being without the jurisdiction of the state, was admitted to be sufficient to show that fact. It was also admitted that the deposition was taken on regular notice to the opposite attorney; and that he attended before the officer who took it. He was admitted to have competent authority.
The practice of taking the deposition of witnesses, who are about to leave the state, de bene esse, received .the sanction of this court, in Mumford v. Church, (1 John. Cas. 150.) It has been in…
2Cited by2 opinions
- Brooks v. SchultzNew York Supreme Court · 1867
- Higginson v. Second National BankNew York Supreme Court · 1889