Todd v. Lambden

Section 391 provides that a party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance. I entertain the opinion that the latter alternative was not designed to authorize the examination of a party only temporarily out of Ms county, but was intended to apply to persons who do business in some county other than that of their residence. The language of the section does not admit, however, of such a construction, and leaves no doubt of the right, in terms, to examine a party wherever he may be served with a summons. He may be called to another county, far distant from Ms . home, by some emergency, and be there served with a summons requiring him to submit to an examination in the absence of his counsel and advisers. I think such a proceeding may always operate with prejudice, and should be corrected either by legislation or rule.

The defendant must appear on November 38, at ten o’clock, to be examined. Notice to be given him by the plaintiff’s attorney on or before November 37.