Eaton v. North

By the Court, Gridley, J.

On an attentive examination of the affidavit on which the plaintiff moved fdr a commission, we think that the materiality of the absent witness was positively sworn to. The qualification of the previous allegation by a statement of the information and belief of the person making the affidavit, refers to its immediate antecedent, viz. the residence of the absent witness in Virginia. And so it seems to have been understood at the trial; for the defendants’ counsel questioned the witness as to his means of knowledge concerning the statement that the absent witness resided at Parkersburgh, the place mentioned in the notice of motion for the commission; and his answers were satisfactory. A sufficient excuse was contained in the affidavit for the making of it by the attorney, instead of the party. The materiality of the witness was positively sworn to, and inasmuch as the counsel might know the fact of materiality, from personal knowledge, we are bound to believe he did. There was no want of probability that the testimony could be obtained on the commission; nor do we see any reasonable ground for refusing the commission. All the requisites of the act (Laws of 1838, 232, § 2) were complied with; and the authorities cited to show that the application should have been denied, require nothing but what is fully stated in this affidavit.

The defendants’ counsel, after having been informed by the witness of his grounds for believing that the absent witness Mott resided at Parkersburgh, Virginia, proceeded to inquire of him what facts he wished or expected to prove by the absent witness. This question he refused to answer, and thereupon the justice denied the application. He doubtless denied the application because this question was not answered; and in that he erred. No laches was imputable to the plaintiff, and there was nothing to cast suspicion over the application. In such a case, it is settled that the applicant is not bound to slate what he expects to prove by the witness whose testimony he seeks to procure. (See The People v. Vermilya, 6 Cowen, 369.)

There is nothing in the other grounds of error complained of; but on this ground the judgment of the county court and of the justice must be reversed.

Judgment reversed.