Carlisle v. Rust

1 Del. Ch. 72

• Court: Court of Chancery of Delaware
• Decided: July 15, 1819
• Status: Published

Opinion

Ridgely, Chancellor.

According to our Terms and mode of doing business, the English rules do not always apply or suit us. But even in England this matter seems to be discretionary. Here, if the party cannot have an examination of these witnesses, injustice may be done; for, if he did not know of, and had not discovered,this testimony before publication, he could not have made the affidavit; but the discovery being made since the last Term and after the publication, it is now the first opportunity that he has to apply. However, the affidavit states nothing respecting the complainant’s or his counsel’s knowledge of the depositions ; and, therefore, it is not sufficient.

Afterwards, the complainant filed an affidavit, in which he said that he had not “seen, heard, or read the depositions “ taken in the cause, nor is he informed of the contents “ thereof.” Mr. Cooper, the counsel, swore that he “ had “ read the depositions buthad not any copies of them.” The chancellor held this affidavit not sufficient; that it should state that he had not taken any notes or abstracts of them, nor any copies.