Sandford v. Shelby

4 Blackf. 134, 1835 Ind. LEXIS 60

• Court: Indiana Supreme Court
• Decided: December 14, 1835
• Status: Published

Opinion

WHEN exhibits are the foundation of a suit in chancery and their execution is not admitted, they must be proved either by depositions, of viva voce at the hearing

(1).

In New-York, exhibits of all kinds, viz. deeds, letters, &c. may be prove-ed viva voce at the hearing, provided satisfactory reasons be given why they were not proved in the regular way before the examiner, and provided due notice have been given to the opposite party of an intention to make such proof at the hearing. Consequa v. Fanning, 2 Johns. C. R. 481.

When an exhibit is proved viva voce at the hearing, the witness may be cross-examined under the direction and discretion of the Court. Ibid.

In England, to authorise the proof of an exhibit viva voce at the hearing, an order for that purpose must bo previously obtained, and a copy of the order must be served on the opposite party. 1 Newl. Ch. Pr. 285.

Such proof is allowed only on the application of the party who is to use the exhibit; but not on the application of tho opposite party. Graves v. Budgel, 1 Atk. 444.-2 Madd. Ch. 427.

A subpoena may be obtained to enforce the attendance of the witness, to prove an exhibit viva voce at the hearing. 2 Madd. Supra.