Froude v. Froude

In this case the plaintiff applied to the court below to allow him to examine two witnesses abroad, under a commission to be issued to the French courts, at the place of residence of the witnesses, to procure such examination orally; the reason given being that one of the witnesses had already been examined, *81and, as claimed, testified falsely, and .the other, it is apprehended by the plaintiff, would do so. The court below denied the application, and from that order the plaintiff appealed. I think the court below was right. The Revised Statutes, part III, chap. 7, tit. 3, art. 2 (2 R. S. 393), fix the mode of taking testimony abroad, and the cases cited by the plaintiff, as well as defendant, establish the rule that this is not departed from unless the court cannot otherwise get the testimony. Lincoln v. Battelle, 6 Wend. 478, is a case in point. The cases cited from the English reports must be viewed in the light of the English rule, which has always been averse to taking testimony except in presence of the parties, and has always appeared to excuse itself when adopting testimony taken in any other way. Hoffman’s Chancery Practice (page 481) lays down the rule as practiced here in equity cases.

To adopt the cumbrous and expensive rule of the English courts on this subject, or open commissions, would be to subject parties to disastrous delays and expenses. If the rule were adopted that whenever a party thinks his testimony could be better taken by such commission he could have it, his opponent would, at his peril, have to accompany him, and perhaps find, when he had gone to such country as his opponent desired to send him, and had incurred the expense of employing counsel, that no witnesses were produced. Again, to adopt this system would be to subject all our causes to the rules of evidence and mode of examination under the laws of each particular country to which the commission would go.

In this case the facts show that no difficulty exists in obtaining the execution of a commission in our own form. It has been done in this case, and no pretense exists that it cannot be done as to the other witness. The mere statement that plaintiff expects in this way to get different testimony is not enough. Raney v. Weed, 1 Barb. 220. Should the witness already examined testify differently, the testimony would be worthless; and as to the other, such fact is not to be presumed. Again, it is a question, in the absence of all settled form of taking the testimony in our courts, whether we are prepared to sanction the mode of taking testimony adopted in some cases under the civil law. The order appealed from should be affirmed.

Davis, P. J., and Daniels, J., concurred.

Order affirmed.