G. & C. Railroad v. Choice

Court of Appeals of South Carolina

G. & C. Railroad v. Choice

41 S.C.L. 40

DecidedDecember 15, 1853

StatusPublished

This text of 41 S.C.L. 40 (G. & C. Railroad v. Choice) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

G. & C. Railroad v. Choice, 41 S.C.L. 40 (S.C. Ct. App. 1853).

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Opinion

The opinion of the Court was delivered by

Glover, J.

The 17th section of the Act of 1839 (11 Stat. 75) authorized and required the clerk to grant a commission to take the deposition of Mr. Gantt, a witness residing without the district where the trial was had.

Availing themselves of this provision, litigants are enabled to secure a speedy trial, and prevent those frequent delays which [42]*42were caused by the absence of witnesses. Where the personal attendance of a witness is preferred, a writ ad testificandum would be issued; but a party may also apply for a commission to be used, if necessary, and if the witness be present in obedience to the writ, his examination would supersede the depositions taken by commission. The presence of a witness is seldom indispensable, and it was not contemplated that the parties to a suit would, in all cases, avail themselves of both means to obtain evidence. Such a practice might lead to the unnecessary accumulation of costs, and, consequently, to abuse. If the presence of the witness be necessary, and yet the party desires to guard against delay, he may issue a commission in addition to the writ ad testificandum; and in this case the Court is satisfied that the personal attendance of Mr. Gantt was required, in good faith ; but as his examination in chief was dispensed with by his presence under the writ to testify, the costs of the commission cannot be taxed. '

It is, therefore, ordered that the clerk do re-tax the costs in the several cases stated in the report; that he allow Mr. Gantt’s costs as a witness under the writ ad testificandum, in each case, together with the costs of attorney, clerk and sheriff, on said writ, and that the costs on the commission be disallowed.

As the order made by the presiding Judge will attain the same result which is here contemplated, the motion is dismissed.

Wardlaw, Frost, Withers and Whitner, JJ., concurred.

Motion dismissed.

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The opinion of the Court was delivered by

Glover, J.

The 17th section of the Act of 1839 (11 Stat. 75) authorized and required the clerk to grant a commission to take the deposition of Mr. Gantt, a witness residing without the district where the trial was had.

Availing themselves of this provision, litigants are enabled to secure a speedy trial, and prevent those frequent delays which [42]*42were caused by the absence of witnesses. Where the personal attendance of a witness is preferred, a writ ad testificandum would be issued; but a party may also apply for a commission to be used, if necessary, and if the witness be present in obedience to the writ, his examination would supersede the depositions taken by commission. The presence of a witness is seldom indispensable, and it was not contemplated that the parties to a suit would, in all cases, avail themselves of both means to obtain evidence. Such a practice might lead to the unnecessary accumulation of costs, and, consequently, to abuse. If the presence of the witness be necessary, and yet the party desires to guard against delay, he may issue a commission in addition to the writ ad testificandum; and in this case the Court is satisfied that the personal attendance of Mr. Gantt was required, in good faith ; but as his examination in chief was dispensed with by his presence under the writ to testify, the costs of the commission cannot be taxed. '

It is, therefore, ordered that the clerk do re-tax the costs in the several cases stated in the report; that he allow Mr. Gantt’s costs as a witness under the writ ad testificandum, in each case, together with the costs of attorney, clerk and sheriff, on said writ, and that the costs on the commission be disallowed.

As the order made by the presiding Judge will attain the same result which is here contemplated, the motion is dismissed.

Wardlaw, Frost, Withers and Whitner, JJ., concurred.

Motion dismissed.

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Bluebook (online)

41 S.C.L. 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/g-c-railroad-v-choice-scctapp-1853.