
    * Jackson, ex dem. Green and others, against N. and O. Kent.
    ALBANY,
    Feb. 1827.
    Where it is bab^tiiT^the personal attendance of a witness cannot an ^ ex-animation de ^judge,ef°or todiShe'cham ber duties of a should Pbe encouraged,
    preliminary the may be proved affidavits^1 or mustbeproved Qumre.
    
    is objected to the^® ground that it is by mva mcl testi™on7 inaisted
    
      Semi, "thar nary proof may be b7 a party, terestedTs iessorofthepiam-
    The party cannot object that the notice of'the eisa'min'ation-' iZe Señe esse was - too short, where he appears before the commissioner, and omits to object, for that reason there; but puts his objection on other grounds.
    Forms of affidavits, order, and notice to examine a foreign- witness de lene esse, note (a) .0 this case.
    'Form of deposition, noté (a) to this-case.
    Ejectment for land in Oneida county tried at the cireuit in that county, March 27th, 1826, before Williams, C. J.
    _ At the trial, the claim of the plaintiff, to one-fifth of the premises in question, depended on the- inquiry, whether one of the-lessors" of the plaintiff "whs the heir of George Clark, the patentee ' of the land. Eor this purpose,' the plaintiff offered in evidence, the'deposition of Jáspar Graham, - a witness residing- out of the state, taken de lene esse, before James Cochran, Esq.,- a-commissioner-to perform certain duties of a judge of the "supreme courtand stated that Graham was at Utica at the time "the deposition was taken, but that he resided in thé state of Connecticut, was then about to return home; and offered to prove the service of notice of the examination; and-the-other proof preliminary to the taking of the deposition, by affidavits, To this preliminary proof the counsel for the" defendants objected; but the objection was" overruled. The ant’s counsel-then offered to prove that the notice of amination, and the copy of the ordér for such notice, were served on the attorney for the defendants only twenty-three minutes before the time mentioned for the examination; and that the defendants resided at Deerfield, a distance of about eight miles from Utica, the place of examination. But it appearing that the defendants’ attorney"did not appear and request further time, and only objected to the commissioner against the examination of the witness on other grounds, "the judge considered" the testimony as immaterial, and overruled it. The defendants’ counsel "still obj ected to the- reading of the deposition, ■' and insisted that *it was not a proper case for taking evidence in this way; and also that sufficient notice of the examination had not been given. Both objections were overruled. ■
    
      *The plaintiff then proved that Graham’s residence was at Weathersfield, in Connecticut.
    There were also various other questions in the cause, principally of fact. A verdict was taken for the plaintiff, subject to the opinion of the court, on a case.
    
      *Thé causé' was argued by
    
      W. 3. Maynard and 3. S. Storrs, for the plaintiff, and
    
      3.'Denió and' G.G. ÍBróñson, for "the defendants.
    For the defendants it was insisted, among other things, "thafthe law"will' not""aliów "testimony to "be talien,"&';&M6 
      esse, la such, a case as this; but if otherwise, the notice of examination was too short; and that the preliminary proof should have been made viva voce, and not by affidavit. It was denied that this manner of taking evidence is known to the common lawand insisted, that it could only be taken under our statute.
    For the plaintiff, the case , of Mumfoyd y. Church, (1 John. Gas. 147,) was relied upon as settling the .question.
    
      
      
         The proceedings to take the examination, the preliminary proofs offered at the trial, and the deposition, were set forth at large in the case; and were as follows:
      Supreme Court. . "1 James Jackson, ex dem. Henry Green, I George Clark and others, >• ' vs. I Nathaniel Kent cmd Orrin Kent. 1 J
      Caption of deposition.
      Memorandum, that on the ISth'day of October, A. D., 1825, Henry Green, one of the lessors of the plaintiff, in the above entitled cause, personally appeared before me, James Cochran, commissioner to do certain duties of a judge of the supreme court; and made oath that Jasper Graham, a resident in the state of Connecticut, is a material witness for the above lessors of the plaintiff; and had been attending the late circuit of the county of Oneida, to testify in said cause: that said cause did not come to trial, and that said witness was on the point of returning home; and that he, the said Henry Green, was advised by counsel, that he could not safely proceed to trial without the testimony of said Jasper Graham. And the said Henry Green requested of me, that the said Jasper Graham might be examined, according to law, de dene esse; whereupon I ordered that a notice should he given to the attorney for the defendants in the above cause, whereof the annexed is a true copy; and I, having satisfactory proof that said notice has been given and duly served, have thereupon proceeded with the said examination. • And the said Jasper Graham, being duly sworn, testified to the truth of the facts contained in the annexed affidavit, subscribed by him, the said Jasper Graham, on the 15th day of October, in the year 1825. And I do certify, that the examination aforesaid was read to the said Jasper Graham, and subscribed by him in my presence. In testimony whereof I have hereunto subscribed my name, this 15th day of October, A. D. 1825.
      JAMES COCHRAN, Com'r.
      
      Deposition of witness.
      Supreme Court. Jomes Jackson, ex dem. Henry Green, George Clarke and others, Nathaniel Kent and Orrin Kent.
      
      Oneida County, ss. Jasper Graham, of the county of Hartford, in the state of Connecticut, and late of the British navy, being sworn, deposeth, that he, the said Jasper Graham, is personally acquainted with George Clark, one of the lessors of the plaintiff, now living in the county of Otsego; and has known him since the year 1186. That he, the said George Clark, was the son of George Hyde Clark, lately deceased, and who resided in London, in England. That the deponent was personally acquainted with the said George Hyde Clark, and knew him upwards of forty years before his death, which took place in July last. That the said George and Edward Clark, the latter now living in France, were the only sons of the said George Hyde Clark. That the deponent went to the same school with the said George Clark and Edward Clark, at Westminster and Eton, in England; and that this deponent was a prisoner at Verdun in France, with the said Edward Clark, in part of the year 1802, in the years 1803, 1804, 1805, 1806, and part of the year 1807. That George Clark is older than Edward Clark, his brother. That this deponent understood from the said George Clark, and believes the same to be true, that he the said George Clark, is upwards of 67 years of age; that the late George Hyde Clark had but one brother, whose name was Edward Clark, who died young and unmarried. That the said George Hyde Clark and Edward Clark, brothers as aforesaid, were the only children of major Edward Clark, of Hyde and Swansea, in the county of Cheshire, in England. That the said major Clark owned large estates in Hyde and Swanswick, in the parish of Trelany, in the county of Cornwall, on the north side of the island of Jamaica, in the West Indies. That the said major Edward Clark, was the only son of George Clark, formerly lieutenant governor of the province, now state, of New York. That this deponent derived the information above stated, from a long and intimate acquaintance with the relatives and connexions of the above family generally; and believes the same to be correct and true. J. GRAHAM.
      October, 15, 1825.
      Sworn before me, this 15th day of October, 1825,
      James Cochran, Com’r. to the duties of a Judge of the Supreme Court.
      Supreme Court. James Jackson, ex dem. Bemry Green and others, vs. Nathaniel Kent and Orrin Kent.
      
      Oneida County, ss. Henry Green, attorney in the above cause for the plaintiff, being duly sworn, deposeth, that on the 15th day of October inst., he, this deponent, personally served Hiram Denio, attorney for the defendants in said cause, with a copy of the annexed notice, and also with a copy of the annexed order, by delivering the same to him; and at the same time showed-him, the said Hiram Denio, the original order hereunto annexed. That said service, as above, was made immediately after said order was allowed by James Cochran, the commissioner who signed the same.
      HENRY GREEN.
      Bwom the 15th day of October, 1825.
      James Coohbam, Com’r. to do certain duties of a
      Judge of the Supreme Court.
      Affidavit of serving notice and order for examination.
      
        Additional affidavit as to service
      “"Supreme Court. The Same . • • -vs. , The Sarnie.
      
      ' Oneida County, ss. Henry. Green,, being duly sworn, saith, that when he served the notice on Hiram Denlo, on the 15,th day of .October last, as mentioned in the preceding affidavit, he, the said,De.nio, was in the village of Utica, where the examination.of the said, Jasper Graham was had according to the notice then served; and the said Denio had been hi the .village of Utica for some days before, and remained in the said village "úntú after the said examination "had been had. -:v;,
      "HENRY GREEN.
      . Sworn this 21th day of March, .1826,.
      "before me, G."0. Bronson, Com’r.'&e.
      Notice of examination.
      , -. Supreme Court, ....., James Jackson, ex dem. Éerny Green airiJ otters.
      
      vs.
      . Nathaniel Kent and Orrin Kent.
      
      Sir—Take notice, that in pursuance of an order this day made by James Cochran, Esq.., commissioner to do certain duties of a judge of the Supreme court, Jasper Graham, of the county of Hartford, in the "state of Connecticut, will be examined on this day at six o’clock in the "evening, before him, at his office in Utica, de bene esse, as a witness for the above plaintiff. Oct. 15, 1825. ■ , . -
      Y’rs, &e. HENRY GREEN, pitF’e att’y.
      H. Demo, Esq. att’y for def’ts.
      u. tor ex" animation.
      , . .. Supreme Court, , . 'Janies Jáekson, éx dem. Kéñry Green '"¿hdothers.
      
      .VS.
      
        Nathaniel Kent aaid Orrin Kent..
      
      Henry Green, one of the lessors, of the plaintiff inthe above.capa* jiayipg applied to me for the examination of Jasper Graham, a witness, on, hie behalf in said cause, "who reside in the county of Hartford and. state of.Conneqticpt, and is about to depart from hence,, and having made oath before me, snch.as is réquired, by law;-let notice be therefore given to the above defendants, that the said Jasper Graham will be examined, de- Serae esse,.before me, .at pry office at Utica, county of Oneida, at six o’clock P. M, on this day. October 15, 1826. -. ,, , ... -
      JAMES COCHRA.N, Com’r,
      
        Supreme Court. James Jackson, ex dem. Henry Oreen - and others, . ' vs. Hathanid Kent and Orrin Kent.
      
      Affidavit to obtain, order for , examination. .
      Oneida County, ss. Henry Green being duly sworn, deposeth and saith, that Jasper Graham, a resident of the state of Connecticut, and a material witness for the lessors of the plaintiff in the above entitled cause, has been attending the late circuit for this county to testify therein; but said cause did not come to trial, and the said witness is now on the point of returning home ; that deponent is advised by his counsel, that he cannot safely proceed to trial, without the testimony of said Graham; and this deponent is desirous of having him examined, de bene esse; that said witness intends, leaving this place to-morrow morning, on his return; and unless he is examined this day, this deponent Will lose the benefit of his testimony.
      HENRY GREEN.
      Sworn before me, this 15th of October,. 1825.
      James Coohran, Com’r.
      The late Mr. Caines, in his summary of the practice of the supreme court, 433 to 438, has given very convenient forms for this kind of examination, nearly corresponding with the above; together with practical instructions for taking the examination."
    
   Sutherland, J.,

(in delivering the opinion of the court,) said, the preliminhry objections to giving in evidence the deposition of Jasper Graham, were properly *overruled.

The objection at the trial was not specifically to proving the service of notice of Graham’s examination before the commissioner, by affidavit. It was in general terms, to the preliminary proof. If it had. been made expressly to the nature of the evidence of service, it might have beén obviated by calling the witness who made the service, and swore to the affidavit. He was probably in court; for he was the attorney in the cause, and one of the lessors.

It .was a proper case for an. examination de bene esse, within the decision in Mumford v. Church, 1 John. Cas. 147. It is more favorable to the opposite party, thaii an examination upon interrogatories under a commission; and more likely to elicit truth. Instead of being discouraged, I think it merits bhe countenance of the court, where it is certain or probable that the personal attendance of the wit~ ness cannot be procured upon the trial.

*The shortness of the notice to the defendant's attorney, of the intention to examine Graham before the commis-' sioner,' it is stated in the case, was not objected to before the commissioner; but the objection to his examination was on other grounds. The evidence offered to the court was, therefore, properly overruled at nisi prius. If the objection had been taken before the commissioner, the time might have been enlarged.

Judgment for the plaintiff, for one-fifth of the premises.  