Nichol v. Columbian Insurance

1 Cai. Cas. 345

• Court: New York Supreme Court
• Decided: August 15, 1803
• Status: Published

Opinion

JBenson contra.

It is now too late ; there was never an instance of a second commission to examine the same witnesses. The answer shows the defence that arises on the return, and this is an attempt to do it away.

Emmot in reply. The application may be noyel, but it is not unreasonable. Suppose the witness had been examined in court, and had testified-to a certain fact, which, taken without any explanation, would have one effect, if explained, another, might not a question be asked to ex;-

p]ajn ? especially when it comes out collaterally. Here the deviation was not the object of enquiry. The question was shnpty to and from what places were you bound ? There may be an apparent, though not a real deviation ; for there might be a custom to go that rout.

“ Per curiam. Take your commission. The answer being directed to another point, may be explained by an interrogatory to the one which it discloses; for it may assign very sufficient reasons for the iter adopted. The commission, however, must be at the peril of the party.