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ty, where the examination is to be had, or before a justice of the peace or referee residing therein, to be designated by the judge making the order.

§ 355. A copy of such order shall be forthwith served. on the adverse party. The examination may thereupon be taken by such county judge, justice of the peace, or referee; and being certified by him to have been written and subscribed in his presence, and sworn to before him, and being filed with the clerk, may be read by either party on any trial or proceeding in the action.

§ 356. If any witness served with such order, disobey it, he may be punished by the judge as for a contempt, and shall be liable to all the penalties to which a witness is liable, who is duly served with process for his attendance at a court, and neglects to attend.

Can there be a doubt that, under our present system, the rights of witnesses are grossly disregarded? Why should the law permit a person to be taken from Suffolk to Niagara against his will, and at great sacrifice, because two persons in Niagara have a legal dispute. The loss to the witness may be more than the whole subject of litigation. Does not the law in this case inflict a greater wrong that it may redress a less? We think it does; and we propose to prevent it hereafter, by declaring that no person shall be taken hereafter out of his own county for another person's civil action..

The assimilation of legal and equitable proceedings should seem moreover to render some provision of this sort necessary. In cases of equity, the witnesses, before the present constitution, were examined before officers called examiners in chancery, distributed through the State, near the homes of the witnesses. It was a regulation of that practice that no witness should be

obliged to go more than forty miles to be examined. If all these witnesses are to be taken from their homes to distant counties, to testify at the trial what they would before have testified before the examiners preparatory to the trial, the burthen upon them will prove intolerable.

There should seem, moreover, to be no good reason to require the personal attendance of a witness at so great a sacrifice. No doubt, his appearance upon the stand, where the testimony may be taken from his lips, is preferable to a written deposition, taken at a distance. But that is not the only question. The point is this, whether the increased advantage to the parties of having the judge and jury see the witness, is more than a counterpoise to the increased injury to the witness from being brought so far, and at so great a loss. We think the question can be answered in only one way. In his own county let him be called to the stand. If it be wanted in another, let it be taken in his own, and transmitted thither.

Should there be a really urgent occasion for the personal attendanco of the witness, there can be little doubt that the party may be able to induce him to attend, by compensating him for his expenses and time. So it is now, where a witness is wanted from another state; the party makes an arrangemet with him to come in many cases where his attendance is important. If a witness in Jersey city be wanted for a trial in New-York, het can generally be induced to attend, though be cannot be compelled to do so. So it will happen, we doubt not, if our plan be adopted. Certain we are, that in any event, the testimony of the witness will not be lost, because we compel him to attend before an officer in his own county, and give the testimony in writing; and that is far better than to compel his attendance against his will, and at whatever sacrifice.

CHAPTER VIII.

MOTIONS AND ORDERS.

SECTION 357. An order, what.

358. A motion, what.

259. Motions, how made.

360. Orders how made.

361. Motions to be made in the district, or adjoining county.

362. Orders may be made with or without notice to shew cause.

363. When notice is necessary, it must be served five days before

hearing.

364. In actions in supreme court county judge may act.

365. In the absence of judge, motion may be transferred.

366. Time may be enlarged on affidavit.

$357. Every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.

§ 358. An application for an order is a motion.

§ 359. All motions may be made to the court, at a special term, except upon appeals.

§ 360. Motions may likewise be made to a judge, out of court, except for a new trial on the merits, or on an attachment for a contempt.

We are unable to perceive any good reason, against allowing special motions to be heard before a judge at any time, when not otherwise employed. It has been suggested, that courts held for that purpose at stated terms, only in presence of a numerous bar, would be more imposing, and that the judge would feel a higher responsibility, and the dignity of the judicial forum be better secured. There may be something in this of more force than is apparent to us, but we think the advantages. of a hearing near the parties, and of a speedier decision outweigh it.

§ 361. Motions must be made within the district in which the action is triable, or in a county adjoining that in which it is triable, except that where the action is triable in the first judicial district, the motion must be made therein.

§ 362. Orders may be made upon or without notice, or on an order to shew cause, according to the existing practice, except as otherwise provided in this act.

§ 363. When a notice of motion is necessary, it must be served five days before the time appointed for the hearing; but the court or judge may, by an order to show cause, prescribe a shorter time.

§ 364. In an action in the supreme court, a county judge, in addition to the powers conferred upon him by this act, may exercise, within his county, the powers of a judge out of court, according to the existing practice, except as otherwise provided in this act. And in all cases where an order is made by a county judge, it may be reviewed in the same manner, as if it had been made by a judge of the court.

§ 365. When notice of a motion is given, or an order to show cause is returnable, before a judge out of court, and at the time fixed for the motion, he is absent, or unable to hear it, the same may be transferred, by his order, (or if no order be made, by a notice, from either party to the other, of not less that five days,)

to some other judge, before whom the motion might originally have been made, as provided in section 361.

§ 366. The time, within which any proceeding in an action must be had, after its commencement, and before judgment, except the time within which an appeal must be taken, may be enlarged, upon an affidavit shewing grounds therefor, by a judge of the court, or if the action be in the supreme court, by a county judge. The affidavit must be served with a copy of the order, or the order may be disregarded.

CHAPTER IX.

ENTITLING AFFIDAVITS.

Sec. 367. Affidavits defective entitled, valid.

§ 367. It shall not be necessary to entitle an affidavit in the action; but an affidavit made without a title, or with a defective title, shall be as valid and effec tual for every purpose, as if it were duly entitled, if it intelligibly refer to the action or proceeding in which it is made.

This section is intended to obviate an objection often made upon motions, that an affidavit is incorrectly entitled, and therefore should not be received. Thus it is said, that if the affidavit to hold to bail be entitled in the suit which is to be commenced, it is bad, because there is no suit pending till the service of the writ. There should seem to be no good reason, for requiring more than that the affidavit should refer to the action, so that it cannot be mistaken.

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