Packard v. Hill

7 Cow. 489

Opinion

Curia.

One important object of these examinations de bene esse is, to enable the party to secure evidence at any time in the progress of the cause, to be used on the trial, if the witness shall happen then to be without the jurisdiction of the court, or unable to obey its process. The rule would be of but little use if confined to any particular stage of the cause. It is generally applied to secure the testimony of transient or foreign witnesses, who are here accidentally; or come for the purpose of being examined on the request of the party. The deposition may be taken before there is an issue of any kind.

[1]

Motion denied.

It has boen the practice in this state, from a very early period, where a material witness was about to depart the state, and there was no probability of his returning, so as to appear at the trial, to allow his cstimony to be taken de tens esse, before a judge or commissioner of the court, at chambers. This practice, which has always received the sanction of the courts as tending to prevent unnecessary delay and expense, (7 Cowen, 63, 69; 1 Johns. Cas. 147,) and which grew up without any statutory provision, and from analogy to the practice of the English courts of examining witnesses, when going abroad, upon interrogatories, provided the parties consented, and has been recently incorporated into the statutes of that country, (1 Chit. Archb. 297,) is now with us, also, the subject of statutory regulation.

It has been accordingly provided, that whenever any action pending in any court of law, being a court of record, shall have been commenced, by the actual service of process, or where the defendant shall have appeared to the action, either party may have the testimony of any witness taken conditionally, to be used in the cases and under the circumstances therein prescribed. (2 R. S. 391, sec. 1. Graham’s Pr. 2d ed. p. 684.)