Hollander v. Baiz

43 F. 35, 1890 U.S. Dist. LEXIS 188

Opinion

Brown, J.

Notwithstanding the great laches in making the application for the proposed amendment of the answer setting up the truth of the alleged libelous matter, and the changes of view which have led to the application, I think it should bo granted, together with leave to issue a commission for the examination of witnesses in Guatemala so far as is necessary for the proof of any paper, document, record, report, decree, or sentence on file in the archives of the United States consulate in Guatemala, or in any court, public department, or public office in Guatemala, and filed therein prior to the decree of May 14, 1889, and referred to in the said decree, or pertinent thereto, the originals whereof cannot be produced on the trial here, and of which copies shall not be consented to be admitted on the trial by the plaintiffs stipulation, subject to the same objections as the originals, if produced; and also a photographic copy or copies of the paper purporting to be signed by Señor Herrera, but alleged to be a counterfeited signature.

Considering that the government or ministry of Guatemala stands in the virtual relation of principal to the defendant in ordering the publication of the alleged libel in this country, and that it has already shown its interest and taken part, though not in any way improperly, in the defense of this suit, by the action of its minister here; and considering that the examination of the numerous witnesses, some 30 or upwards, proposed by the defendant to be examined in Guatemala by commission, would transfer within the jurisdiction of that government a considerable and important part of the trial of this action, and would render necessary the examination of witnesses there by the plaintiff; and considering, further, that the government of Guatemala has heretofore, notwithstanding' the strenuous efforts of the defendant, and of its minister in this country, refused to give to the plaintiff' a safe conduct to Guatemala for the sole purpose of attending the execution of a commission for the examination of witnesses there applied for by the defendant, except on condition of an abandonment by the plaintiff of his claims against Guatemala, thereby refusing to the plaintiff the right of either facing his accusers in Guatemala, or of meeting the defendant on equal terms in the execution of any commission within that jurisdiction; and considering that that right, and the right of an oral cross-examination of witnesses, are of special importance on the trial of the issues in this action, except as to the proof of documentary evidence, — I think that the plaintiff’s legal right to have the trial here, where the alleged libel was published, and where the alleged injury was inflicted, should not be abridged by an examination of witnesses in Guatemala under such disadvantages to the plaintiff as that government insists upon inflicting, and under such circumstances as the affidavits disclose, except as above permitted; but that the witnesses should be produced in this court, in order that the trial may proceed here upon equal terms, and with the plaintiff’s common-law rights unimpaired; and the motion for a commission is to that extent denied.