UTICA,
July, 1835.
A defendant who has procured the testimony of a witness residing abroad to he taken under a commission, is not bound on the trial of the cause, upon the requisition of the plaintiff, to call the witness who is then in court, and examine him viva voce, but may read his deposition as taken under the commission; the plaintiff however may have the witness sworn and exam» ined, although he omitted to join in the commission.
And where in such case the defendant alleged that the testimony of the witness on the trial was materially variant from his deposition, and asked for a new trial on the ground of surprise, and that he could not fully establish his defence by other witnesses&emdash;the motion was denied, the court being of opinion that there was no variance in the testimony, and the defendant omitting to produce the affidavits of the persons by whom he alleged his defence could be established.