Vandervoort v. The Col. Ins. Co.

missible. Judgment ought, therefore, to be rendered for the plaintiffs.

LEWIS, Ch. J. was also of opinion, that the plaintiffs were entitled to judgment, and delivered his reasons at length.

LIVINGSTON, J. and THOMPSON, J. concurred.

Judgment for the plaintiffs.(e)

[*137] *VANDERVOORT and others against THE COLUMBIAN INSURANCE COMPANY.

The granting of commissions to examine witnesses abroad, rests in the sound discretion of the court.

Where a motion was made. on the usual affidavit, to examine the Portuguese secretary of state, at Lisbon, in an action on a policy of insurance, where the loss happened on the coast of Brazil, the court refused a commission, unless the party would disclose the nature and object of the evidence he wished to obtain, and show how it was material.

THIS was an application, in behalf of the defendants, for a commission to be sent to Lisbon, to examine the secretary of state for foreign affairs, of the kingdom of Portugal, as a witness for the defendants.

The motion was made in due season, and the affidavit on which it was founded was in the usual form. It was shown on the part of the plaintifs, by affidavit, that the loss which

(e) Where an entire voyage is illegal at its commencement, the illegality infects every part of it. (1 Duer on Ins. 536, § 26.) But successive voyages are not to be bound together, as parts of an integral, if previous to the commencement of the first, the order, in which they are to be performed, and the objects, in the prosecution of each, are not embraced in a general and definite plan. When these are left to depend upon contingencies-when it is meant that they shall vary according to existing circumstances, or the discretion, at the time, of the master of the ship, the voyages thus separated in design, there is no reason to doubt, are distinct and independent in law. (1 Duer on Ins. 338, § 28.)

Vandervoort v. The Col. Ins. Co.

was the subject of the action happened at Para, on the coast of Brazil, in South America; and by the same deposition, and by a certificate of the Portuguese consul, (admitted by consent,) it appeared that the Portuguese secretary, at ano long before the time of the loss, and since, was either at London or in Portugal. The plaintiffs, therefore, insisted,

1st. That being remote from the place of action, it was scarcely possible he could be personally acquainted with any fact material to the defendants' defence which might not as well be proved by other witnesses.

2d. That if he were a material witness, it would be improper to issue a commission to examine him, because might involve an inquiry into his official concerns, and the affairs of his government, which he ought not, and could not, be required to disclose.

Harison and Hamilton, for the plaintiffs.

Troup, Hoffman, and C. I. Bogert, for the defendants. Per Curiam. An application for a commission, in general, rests in the sound discretion of the court, and we ought to grant or refuse it, according to circumstances, and as it may appear essential to the discovery of truth, *or to prevent delay. It is not, on the general affi- [*138] davit, always a matter of course, as it would be in the first instance, on putting off a trial on account of the temporary absence of a material witness. The effect is very different. Our process, to obtain the testimony desired, is not compulsory; the delay which it may occasion must be proportioned to the distance and difficulty of procuring it, and may, sometimes, hang up a cause for an uncertain or indefinite period. Besides, the act places it wholly in our discrection, and directs that we shall be satisfied of the propriety of the measure. It is, therefore, in the first instance, competent for the plaintiff to oppose the application, if he can show reasonable grounds on which it ought to be de

nied.

In the present case, the circumstance of the witness being a foreign minister has been much relied upon, but that alone

Vandervoort v. The Col. Ins. Co.

would not be a sufficient reason for refusing the application. It would be improper to attempt to examine him, in relation to his official duty or concerns, but he may be a witness to other facts, and to such his examination ought to be confined. The interrogatories to be put to him might be regulated accordingly, or, if improper, he might, although he submitted to a general examination, refuse to answer them. A witness, although generally sworn, is in no instance bound to answer improper questions, either in relation to himself or others. If examined here in court, the rule would be the same. His oath is always general, and is understood to be thus qualified.

But from the situation of this minister, there is great reason to doubt the propriety or necessity of examining him as a witness. It is highly probable that he can, personally know nothing of the matters in controversy between these parties. If the object is to prove, by him, the general laws of Portugal, in relation to her colonies, they may be proved as facts, by other witnesses, and probably by some within.

the reach of our process, or by others whose testimony [*139] might be more easily obtained. If any *private or secret regulations are expected to be discovered from his testimony, it would be improper to send a commission, to examine him for that purpose, since it would be evidently improper for him to answer interrogatories respecting them. If the object is to prove the existence of any documents in his possession, they may be liable to the same objection, and we ought first to be satisfied that they do exist, and of the purpose they are intended to answer.

There would be no hardship on the defendants to oblige them, therefore, to disclose their defence on an applcation which is for their benefit, and is to delay the plaintiffs; the terms of granting the commission being wholly in our discretion.

On the whole, we think that enough is shown by the plaintiffs, to render the propriety of issuing the commission doubtful and suspicious, and it is incumbent on the defen

Vandervoort v. The Col. Ins. Co.

dants to remove this doubt, by showing the particular object of the commission, and specifying the evidence they want to obtain, and in what manner it is material. If they pursue the application, by doing this, we shall then be better able to judge of the propriety of granting it. We are, therefore, of opinion, that the application ought not to succeed, under the circumstances which now appear.

Motion denied.(a)(b)

(a) [Old note.] On a subsequent day, the application for a commission was renewed, on an affidavit of the defendants, stating that they expected to prove by the Portuguese secretary of state, at Lisbon, the laws of Portugal, relative to the trade with the Brazils, and an authentic copy of the judicial proceedings at Para, relative to the brig Aurora and her cargo, seized for illicit trade with the Brazils. The counsel also exhibited a copy of a letter, proved by affidavit, from the Portuguese secretary of state, stating his official information as to the case, and an expectation of receiving the judicial pro ceedings from Para, &c.

It appeared, that the action was on a policy, on the brig Aurora and her cargo, from New York to Rio Janeiro, with liberty to go to one other port, on the coast of Brazil, and back to New York. The property was warranted "free from any charge, damage, or loss, which may arise in consequence of a seizure or detention, for or on account of any illicit or prohibited trade,"

&c.

THE COURT (Lewis, Ch. J dissenting,) granted the commission, with the limitation, that it should not stay the proceedings beyond the next November circuit; although Radcliff, J. and Thompson, J. thought it was not a case strictly within the act, as the documentary evidence did not require a com mission, and that it was not necessary te examine a witness abroad, as to the laws of Portugal. Kent, J. was of opinion, since the object of the commission had been disclosed, that it was within the act, and ought to be granted without hesitation, as the witness might prove the laws of Portugal, which were stated to have been fluctuating during the late war, and might be known only to a person resident in Portugal.

(b) In granting or refusing a commission, with a stay of proceedings, (for without a stay it would seen to be a matter of course at any time, at the peril of the party,) the court have a right to exercise a sound discretion, according to the circumstances of the case, and as it may tend to the discovery of truth, on the one hand, and the prevention of delay on the other. It is, therefore, competent for the opposite party to resist the application, if he can show reasonable grounds, on which it ought to be denied; (3 Johns. Cas. 137;) and, in such case, the court will order the party applying for the com

Hunt v. Leon.

[*140]

*HUNT against LEON.

In an action of trespass, assault and battery, where the damages found by the jury are under 5 dollars, the judge, notwithstanding the verdict or pleadings, may, in his discretion, refuse a certificate to entitle the plaintiff to full costs, if he is satisfied, on the evidence, that the assault and battery were not sufficiently proved.

THIS was an action of assault and battery, in which a verdict was found for the plaintiff, for one cent damages; and the judge, before whom the cause was tried, supposing he had no discretion, granted a certificate to give full costs, under the statute, but which he would have otherwise refused.

M. Livingston, for the plaintiff.
Riker, contra.

mission, to disclose by affidavit, what he expects to prove, and may then, in its discretion, grant the rule, either absolutely or conditionally, unless the adverse party will admit what is sought to be proved; by which is meant, however, an admission of the facts, and not mere that the witness would, if present, testify to those facts. (7 Cowen, 369; Grah. Prac. 2d ed. 285.) But the court will not refuse a commission with a stay, upon an affidavit that the witnesses named are interested in the cause, but will leave their competency to be determined at the trial. (11 Johns. 200.)

It would seem, also, that the rule before laid down, with regard to putting off a trial, is fully applicable in the case of a commission, namely, that the court will not require a specification of the testimony, unless circumstances of suspicion are made to appear. (Graham's Practice, 2d edition, 287.) And, it has been held, that on a motion for a commission to examine witnesses, with a stay of proceedings, where doubt is cast upon the bona fides of the application, the commission will not be granted on the common aflidavit; but, if at a subsequent term, a prima facie case for a commission be made out, the motion will be granted. (7 Wendell, 514.)

It would seem, also, that the court, in granting a commission with a stay of proceedings, may, under the provision of the statute authorizing it to impose such terms as it shall think proper, (2 R. S. 393, sec. 11,) impose terms for the preservation of the rights of the other party, in the same manner as upon an application for the postponement of a trial, to which we have before adverted. (Grah. Prac. 2d ed. 288, 289. See 1 Burr. Prac. 2d ed. 443.)