Cook v. Holmes

1 Mass. 295 | Mass. | 1805

The whole Court were of opinion that in common cases, where there were no suspicious circumstances attending the certificate of a witness, as to his travel and attendance, the certificate would be conclusive upon the Court as well as the clerk, and, if the certificate was false, the only remedy for the party injured was by a special action of. the case against the witness. And Strong, and Sewall, justices, thought it was his only remedy in any case. But Dana, C. J., Sedgwick, and Thacher, justices, were of opinion that where the certificate itself was attended with such circumstances, which they thought to be the case here, the Court might interfere and correct the taxation of the clerk. They * therefore [ * 298 J directed that M’Farland should make an affidavit in explanation.

Afterwards, in this term, M’Farland having made an affidavit, and the same not proving satisfactory, Strong, Sedgwick, and Thacher, justices, ordered the costs which had been taxed on those subpoenas for M’Farland to be struck out. Sewall, J., adhered to the opinion he had before expressed. Dana, C. J., absent.

The affidavit was—That he was requested by Cook to assist him in this suit; that he did assist him in summoning his witnesses and making other preparations for the trial of said action ; that he knew, from his own inspection, what demands of Cook against Holmes were submitted to referees, and determined by them in a former reference; and that none of said demands were included in the present action; that he was present, and heard Cook declare, in presence of Holmes, and in his hearing, that Holmes had got the writ, and Holmes did not deny it, but refused to deliver it up to Cook; and that it was at all times, as he fully believed, the desire and expectation of Cook that he should attend the several courts as a witness, in which he was taxed as such, and that he should testify to the fact that Holmes had the writ, and that it contained no demand which was settled in the former reference. Question. Was you ever summoned to attend as a witness in this cause? Ansioer. Yes; hiving had the opinion of Esq. Ward, that my evidence might be material in the cause. Question. Did you appear as the agent of Cook, and argue the cause for him before the reference? Answer. I had spoken to Esq. Ward to argue the cause before the referees; but he not being there at the time, .after Esq. Hastings had closed his observations in behalf of Holmes, I made a few observations in behalf of Cook.