Dodge v. Israel

7 F. Cas. 792, 4 Wash. C. C. 323

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: October 15, 1822
• Status: Published

Opinion

WASHINGTON, Circuit Justice,

delivered the opinion of the court.

The second objection is fatal to the whole •of the deposition, and has been so' decided in this court, more than once. The witness must answer substantially all the interrogatories, as it is otherwise impossible to say that he has told the whole truth. There «eems also to be great weight in the other two objections. As to the first, although it may be fair, and indeed proper, to give the witness an opportunity' to prepare himself ■to answer the interrogatories, after having examined them, it might be of dangerous consequence, by being a temptation to perjury, ■to receive his written answers to those interrogatories, given without the solemnity of an oath previously administered to him; as he might possibly be seduced, by false notions, to attest by his oath the truth of what he had deliberately stated in writing to be true.

There are very strong reasons also in support of the last objection. For although the ■exhibits come in the same envelope with the eommission, they should appear, beyond all reasonable doubt, to be the very papers referred to by the witness.

The plaintiff agreed to suffer a non-suit, And then obtained a rule to show cause why it should not be set aside.

BY THE COURT.

As this non-suit was suffered in consequence of objections taken to the formal execution of the commission, •of which the plaintiff's counsel had no notice until he was surprised by them at the trial, the court think it but fair to take off the non-suit. Had timely notice been given of these objections, the plaintiff might possibly have had time to remove them by sending •another commission, and having it returned to this term. But as the defendant’s counsel was not required by the practice of the court to give such notice, the non-suit must be taken off upon payment of the costs to this time. In future, the want of such notice will have weight with the court in cases where applications are made to take off non-suits, and to grant new trials upon the ground •of surprise, without the payment of costs.