Lawrence v. Dakin

1 Sarat. Ch. Sent. 29, 1841 N.Y. LEXIS 366

• Court: Saratoga Chancery Court
• Decided: April 6, 1841
• Status: Published

Opinion

In this case the court ^decided that it would not encourage the practice of compelling witnesses to attend beforeamasteratagreatdis-tance from their place of residence, when they might as well have been examined upou a commission issued upon the certificate of the master. That in accordance with the spirit of the 76th Rule, by which it is provided that no witness can be compelled to appear before an examiner or commissioner more than forty miles from his residence, the court ought not to compel the attendance of witnesses before a master at a greater distance, unless there is something in the nature of the examination which requires the personal attendance of the witness before the master. That in ordinary cases, where the witnesses reside at a greater distance from the master’s office, the proper course is to obtain a commission for their examination, or to get an order for their examination before a master or examiner in the neighborhood of their residence. Order that defendant appear before a master and submit to an examination, discharged, without costs; but complainant allowed to take out a new summons for that purpose, on filing an affidavit of its necessity. Order for Gould, the witness, to show cause, dismissed.