Troup v. Haight

6 Johns. Ch. 335 | New York Court of Chancery | 1822

The Chancellor.

The counsel for the defendants consents to enlarge the time for examining the witnesses, Cameron and Fellows, according to the plaintiff’s motion 5 and the first question is, whether the examination of those witnesses shall be transferred from one examiner to another ; from Mr. Griffin, at Utica, to Mr. Whiting, at Geneva. The plaintiff puts it upon the ground of being more convenient and cheaper, and that his interrogatories are filed with Mr. Whiting. On the other hand, the defendants have selected Mr. Griffin for their examiner, and filed the interrogatories and exhibits on their part with Mr. G., and they say it will be more convenient for them to examine all their witnesses, including C. and F-., before the examiner they have employed, Mr. G. has agreed to attend at Bath, and will pass through Geneva, and therefore the expense and convenience will be nearly the same in taking the examination of the witnesses, C. and F., by Mr. Griffin, as by Mr. Whiting.

I do not perceive any sufficient ground for interfering with the right of each party to elect his own examiner. In Turner v. Burleigh, (17 Ves. 354.) Lord Eldon gave the defendant his option, either that the examiner for the ,plaintiff, in whose hands the deeds were placed, should cross-examine, or that they should be delivered over to the other examiner for that purpose. In that case it was allowed, that the examination might be by one examiner, and the cross-examination by another, touching the execution of deeds. The statute of 50 G. III. (referred to in that case) which gave to the Chancellor the power of increasing the number of examiners, provided that the witnesses, on difieren! sides of the same cause, should always (if the same be practicable) be examined by different examiners.

In the present case, the defendants intend to examine C. and F., as principal witnesses for them, and they prefer the examiner they have elected, and they exercise a right when they make the selection. It wonld seem to be unreasonable that the plaintiff could require the defendants to examine those witnesses before the examiner that the plaintiff had elected. If a mere cross-examination was intended on the part of the defendants, we have seen that it has been allowed to be taken before a different examiner. Bat the examina-fiops of C. and F., are intended as principal examinations on the pari of the defendants, and it would have the appearance of partiality to require the defendants to go before-the examiner selected by their adversary to examine them. I have no hesitation, therefore, in denying this part of the motion.

The next point is, whether the plaintiff* be entitled to a copy or inspection of the exhibits referred to in the interrogatories exhibited on the part of the defendants. He says, it is necessary he should have copies of them, in order to exhibit correct and pertinent cross-interrogatories. On the other hand, it is stated, that the exhibits are marked and referred to in the interrogatories of the defendants, which are so drawn as to apprize the plaintiff of the nature of their claim, and of the mistakes and errors alleged by the defendants in the settlement of the accounts, and that the exhibits go more or less to establish the facts relied on in ihe answer.

Upon an examination of the cases, I am led to believe, that such an order as the one prayed for, would be without precedent, and contrary to the established course and practice of the Court.

In Davers v. Davers, (2 P. Wms. 410.) the plaintiff had proved a certain deed, and the defendant moved and obtained from the Master of the Rolls an order for leave to inspect the deed, because the deposition of the witness referring to the deed made the same part of the deposition. It was afterwards moved before Lord Chancellor King, to discharge the order, because the other side had no right to see the evidence of the title before the hearing, and it was asserted that no such order was ever made in a like case, and if that motion was granted, similar ones would be made every day, since it would be every one’s curiosity to try to pick holes in the deeds, by which he was disinherited. The Lord Chancellor concurred in the objection, and discharged the order. The same practice was declared in Hodson v. Earl of Warrington, (3 P. Wms. 34.) The defendant had examined a witness to prove a deed, and the question was, whether the plaintiff could compel the defendant to produce the deed, as the witness had referred to it in his deposition. The Lord Chancellor held it to be the course of the Court, that it remained in the election of the defendant whether he would produce and use the deed of not, and refused the order.

These two cases related to an effort of the adverse party to inspect, before the hearing, a deed which had been actually proved as an exhibit. In the more modern case of Wiley v. Pistor, (7 Ves. 411.) a motion was made, that letters referred to by the depositions on the part of the plaintiff, as exhibits, might be delivered to the defendant’s clerk to be inspected. It was said, in opposition to the motion, that it was contrary to the course of the Court, the constant rule being, that one party cannot see the exhibits of the other; and the case of Hodson v. Earl of Warrington was referred to. On the other side, the practice was admitted to be as stated, where the party refers to deeds as exhibits, and the reason was, that by inspection you might invalidate the deed; but it was supposed, that letters were mere matter of evidence, and an exception to the rule. The Master of the Rolls consulted the Register, who did sot recollect any such order, and refused the motí on s but allowed it to be made before the Lord Chancellor. It was made accordingly, and argued, and Lord Eldon said, he never heard of such a motion. You must, says he, describe the exhibit to be proved viva voce, but he did not remember any motion for the inspection of such an exhibit, and the motion was denied with costs.

In the case of Ogle v. Earl Gower, (January, 1783, 2 Fowler’s Ex. Pr. 47.) the Solicitor General, for the plaintiff, moved, that the defendant produce, for inspection, exhibits A. and B. already proved, being two books, and publication had already passed. It was objected to, as being contrary to all the rules of practice to call for an inspection of exhibits proved, out of the hands of a party who had so proved them, previous to the hearing, and the motion was denied.

Here is a settled and uniform practice, for above a century, without one solitary exception. An exhibit, be it a deed or letter, is not to be inspected by the opposite party before publication. The rule is founded on the same principle of policy as that by which the testimony at large is kept concealed until publication is duly declared. The exhibit must be sufficiently referred to in the interrogatories to enable the witness to prove it, and that is all that can be required. There is no reason why the opposite party should previously inspect the exhibits, more than the depositions. In the one case it would enable him to hunt after testimony to prop up the weak sides of his cause, which would produce an excitement of a most dangerous tendency; and in the other case, it would enable him to try to “ pick holes” in the documentary evidence of his adversary, and which evidence, as we have seen, the party may finally produce or withhold, at his election. When an exhibit is proved at the hearing, viva voce, a copy of it is not previously required. < It is only to be particularly named, or sufficiently described, in the order or nor.ce >:• ccvng ¡the viva voce examination, so as to enable the other party to know what is to be proved. (Gilbert's F. R. 141, 142, 1 Harr. Ch. Pr. 596. 2 Johns. Ch. Rep. 484.) The petition of the plaintiff, and the affidavit of his solicitor, do hot complain of any particular and unusual deficiency in the reference to the exhibits made in the interrogatories on the part of the defendant. It is to be presumed they are designated in the. interrogatories, according to the usual practice, and that is sufficient for the purpose of putting the plaintifl* upon all due inquiry. The plaintiff insists on seeing the exhibits, or having copies of them, and that too without laying a foundation for such an indulgence, by any special cause of weight in itself, and peculiar to this case. If the motion was to be granted in this case, it must be granted in all others ; and it would work an entire revolution in the practice of the Court, on the important point of taking testimony.

I shall deny, also, this branch of the motion; and, according to the decision in the case of a similar motion before Lord Eldon, the motion, in both branches of it, is denied, with costs.

Order accordingly.