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Livingston and Mitchell agt. Cleaveland.

to have returned the execution prematurely, if he returned the same before the return day named in the one case, and before the expiration of the sixty days in the other. The 244th section of the Code of procedure of 1848 (Laws of 1848, p. 542), which prescribed the form of the execution, was entirely silent as to the return day thereof, but the 245th section provided that the sheriff should in all cases return the execution within sixty days after its receipt. The omission in the act of 1848 is provided for by the amended Code of 1849 (Laws of 1849, p. 672, 9 289 and 290), which requires the execution to contain the mandate that it shall be returned within sixty days from the receipt thereof by the sheriff. The mandate of the execution under the Code of 1849, therefore, requiring the sheriff to return it within sixty days, and he might consequently legally return it at any time within the sixty days, whenever he had made diligent search for property and became satisfied that the defendant had not property to satisfy the same, or any part thereof; and the day on which the sheriff should make such a return may well be regarded as a proper return day of the execution. It follows, therefore, that as we are to presume that the sheriff has done his duty in searching for property when he has made his return of nulla buna, that we must regard the legal remedies of the plaintiffs as exhausted before these proceedings supplementary to the execution were instituted. If I am correct, therefore, in the views above expressed, this order must be affirmed; and I see no reason why the respondent should not have his costs upon the appeal. The order, therefore, is affirmed, with ten dollars costs.

Patons and Stewart agt. Westervelt.


PATON AND PATON AND STEWART agt. WESTERVELT, late Sheriff. Under the 5th article, title 3, chap. 8, 2 R. S. 398, which treats of proceedings

to perpetuate testimony; it must be made to appear to the officer, before whom an application is made for the examination of witness, that the object is in good faith to perpetuate testimony.

At Chainbers, December 4th, 1850.
Charles H. Smith, for Plaintiffs.

N. Bowditch BLUNT, for Defendant. CAMPBELI., Justice.—An application was made to one of the justices of this court for an order to examine certain witnesses on the part of the plaintiffs. The order was granted upon an affidavit setiing forth that a suit was pending between the parties and at issue, and that the testimony of the witnesses was material and necessary.

On the return of the order the counsel of the defendant appeared before me and objected to such examination on the ground that the cause was at issue and ready for trial, and it did not appear that the witnesses were aged or infirm, or sick, or were about to leave the state. This was admitted by the plaintiff's counsel, but he insisted that under the 5th article, title 3d, chap. 8, 2 R. S. 398, he was entitled to the examination of the witnesses. The affidavit is sufficient under the provisions of that article to authorize the granting of the order and the party would be entitled to have the witnesses examined, provided that it was made to appear to the officer that the object was to perpetuate the testimony. That article treats of“ proceedings to perpetuate testimony” and is a reenactment in part of the old law (1 R. L. 455), which provided a means for perpetuating testimony where the controversy related to real estate. It has been extended in the Revised Statutes to all controversies; but it is very evident from an examination of the whole title that it was not contemplated to apply to a case such as is before me, for the first article in the same chapter and title page 391, provides for “taking conditionally

Patons and Stewart agt. Westervelt.

the testimony of witnesses within this state." But under the first article it must appear either that the witness is about to depart from the state, or that he is so sick or infirm as to afford reasonable grounds for apprehension that he will not be able to attend the trial.

If the construction contended for by the plaintiffs be correct, then all the parties to the seven hundred causes at issue and ready for trial in this court may, upon affidavits simply that the testimony of the witnesses is material, be examined before a judge in advance of the trials, and he may be required to reduce all such testimony to writing.

And when this should be done the testimony could not be read upon the trials except upon proof of the death or insanity of the witness, or of his inability to attend such trial by reason of old age, sickness or settled infirmity.

I agree with the chancellor in the matter of Kips (1 Paige, 608), that “the officer must have some discretion and may require the party on whose application the examination is made, to explain the nature of the litigation so far as to enable him to judge whether such applicant is proceeding in good faith to perpetuate testimony against the adverse party, or is under that pretence only fishing for testimony to be used against the witness or for other purposes."

I must be satisfied in this case, before the examination can proceed, that the object is in good faith to perpetuate the testiinony of these witnesses.

It certainly can not be for this object if it shall appear that the trial, which may be had at an early day, will necessarily determine the matters in difference between the parties, and that no subsequent or other suit between the parties, or between other parties, relating to the same subject matter, will be necessary.

B How. 401-OBSOLETE-See Act of 1851.

Mechanics' and Farmers' Bank agt. Rider and Wilbur.


THE PRESIDENT, &c., of th3 MECHANICS AND Farmers' BANK, or

THE CITY OF ALBANY, agt. Rider AND WILBUR. Under the first clause of \ 397 of the Code, any party to any action may be

examined as a witness on behalf of any other party-a plaintiff for his coplaintiff, and a defendant for his codefendant, upon joint contract or other

wise. The court must discriminate and restrict the testimony offered to its proper

office, so that it shall not be used on behalf of the party examined. Parker, Justice, dissenting, holding that upon a joint contract, where the defence was joint, a separate judgment could not be rendered, and therefore a defendant could not be examined on behalf of his codefendunt as to such joint defence. See the case of Selkirk agt. Waters, ante page 296, and also the dissenling opinion in this case,

Albany General Term, May 1851. This action was brought to recover the amount of a promissory note for $7000, signed by the defendants jointly, dated June 12, 1848, and payable to the order of the plaintiffs' cashier, four months after date. The defence was usury. The cause was tried at the Albany circuit in June 1849, before Mr. Justice Parker. Upon the trial, each defendant offered his codefendant as a witness to prove all the facts stated in his answer. The plaintiffs' counsel insisted that the defendants, being joint contractors, were incompetent witnesses for each other, and the court so decided. The witnesses were therefore excluded, and the defendants' counsel excepted to the decision. The jury, under the direction of the court, rendered a verdict for the plaintiffs for the amount of the note and interest, and judgment having been perfected thereon, the defendants appealed to the general term.

M. T. REYNOLDS, for Plaintiffs.

S. STEVENS, for Defendants. By the Court, Harris, J.— This case presents directly for adjudication, the question whether, under the first clause of the 397th section of the Code, one joint contractor is a competent witness for his cocontractor, who is also his codefendant. The

Mechanics' and FarmersBank agt. Rider and Wilbur.

question is one of considerable difficulty; but its difficulty consists not so much in any obscurity in the statute itself, as in the consequences which are supposed to result from a literal application of the language of the section. The common law rules relating to the competency or incompetency of witnesses are, to a great extent, arbitrary and technical. To say that a witness who has an interest in the event of a suit, to the amount of six cents, shall be excluded, while another whose whole fortune, though not involved in the particular issue upon trial, may depend upon the question to be decided by the trial is adınitted, seems little less than an absurdity. To say that one who, as bail or security, may be contingently liable to a limited amount can not testify, even though he may feel himself perfectly secure in the responsibility of his principal, while a child, though in the confident expectation of inheriting the estate of his parent, and in fact regarding the estate as already his own, is allowed, without objection, to testify upon an issue involving the whole of that estate, would seem to any mind, not trained to regard with veneration every thing pertaining to the common law, as the extreme of absurdity: and yet these are among the prominent and acknowledged rules of evidence, at common law, sanctioned by the acquiescence of centuries. The innovation which the code proposes to make upon these venerable absurdities, seems to those who have been accustomed to deal with, and apply the common law rules of evidence, startling and dangerous. Hence the effort has been made by some, more alarmed at the radical change effected by these provisions of the code than others, to restrict and limit their application to particular classes of cases.

Some think the particular section in question only applicable to cases of tort, in which, at common law, a recovery might be had against one defendant, while another was acquitted. Others think it is applicable only to cases founded upon equitable principles. Mr. Justice Gridles, and his associates in the fifth district, seem to have adopted the latter opinion. Accordingly it was held in a case decided at the general term, in which that learned judge delivered the judgment of the court, that by the clause in question "the legislature merely

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