Walton v. Bostick

3 S.C.L. 162

• Court: Supreme Court of South Carolina
• Decided: November 15, 1802
• Status: Published

Opinion

Iff this case, which was tried before Brevard, J, in Edgefield district, the counsel for the plaintiff offered to read in evidence the examination of certain witnesses, taken by commission, and used upon a former trial, between the same parties, this being a second trial by order of this court; which was objected to, because the examination had not taken place since the new trial was ordered, and the court which granted the new trial did not direct that such evidence should be allowed upon the new trial, nor had the parties .consented thereto. This objection was sustained by the district court. Before the cause was called on for trial, the defendant’s counsel moved for leave to open a commission which had been sent to Virginia, to take the examination of certain witnesses there, on his part, to which the counsel for the plaintiff consented ; and the commission, which had been duly executed, closed up, and returned to court, and in the custody of the clerk, was opened. After the trial was gone into, but before the defendant had offered any evidence, the plaintiff’s counsel called for the examination of the witnesses, taken by commission, on the part of the defendant, in which he had joined ; and insisted, that after an order for publication, either party was entitled to make use of them. The district court overruled this motion ; and held, that the evidence obtained by commission by either party, was entirely in the power of the party for whose benefit it has been taken : and that until the answers to the interrogatories, taken by commission, are offered by the party putting in such interrogatories, the other party cannot take any advantage of them, or of the answers to his cross-interpogatories.

The district court having directed a nonsuit, with leave to submit a motion to this court to set the same aside, and grant a new trial, the same was set aside, and a new trial awarded: and the following resolutions were unanimously adopted, to govern the practice on future occasions of a like nature.

1, In' all cases where a new trial is granted, the evidence taken by commission, and produced, or ready to be produced, on the former trial; or which would have been proper evidence on the former trial, if produced : shall be admitted upon the new trial, in the same manner, and liable to the same objections, and no other, to which the same would have been liable, if offered upon the former trial. But such evidence taken and used, or taken to be used on the former trial, must be placed in the hands of the clerk pf the court, where the new trial is to be had.

2. Where parties join in a commission to take the examination pf witnesses, and the commission is returned into court, either parfymay move for publication, and neither can object to it. Both havs an *nterest the evidence thus procured ; and the court having possession of it, will allow both parties the benefit of it.