Opinion
August 23, 1826.
The petition and affidavit, of which the following are copies, were found by the Chancellor at his house on Monday, the 21st August, 1826, after his return from the Orphans' Court and Court of Chancery held at George Town in Sussex County, which was begun on Monday, the 7th August, and was adjourned on Saturday, the 19th of that month. The Chancellor stayed until Monday next after, to be conveyed home by the stage.
In Chancery.
Job S. Dodd,
Complainant,
v. Bill filed to July, 1826. Rule answer.
Philip Reybold,
Defendant.
To the Honourable Nicholas Ridgely, Chancellor of the State of Delaware.
The petition of the complainant humbly showeth,
That your petitioner hath filed his bill in this honourable Court against the said defendant, whereto he hath appeared, and hath obtained time to put in his answer.
That one Enoch Hugg of Pencader Hundred, New Castle County, is a material witness for your petitioner in this cause, and without the benefit of whose evidence, your petitioner, as he is advised, cannot safely proceed to a hearing of this cause. That the said Enoch Hugg is labouring under a pulmonary disease, and is very infirm and weak, so that in all probability he may not live till your petitioner can bring this cause to an issue.
That one George Richards, at present living in St. George's Hundred, New Castle County, is a very material witness for your petitioner in this cause, and without the benefit of whose testimony, as he is advised, [he] cannot safely proceed to a hearing of this cause. That the said George Richards is a transient person, not having a permanent residence in said county, and intends shortly to leave the same, so that in all probability he may not be here when your petitioner can bring his cause to issue.
Your petitioner therefore prays your Honour that he may be at liberty forthwith to examine the said Enoch Hugg and George Richards, before a commissioner to be appointed by your Honour, as a witness for your petitioner in this cause, saving all just exceptions. And, etc.
(Signed by Job S. Dodd.)
Then there was an affidavit made August 5, 1826, before the Register, that what is contained in the preceding petition is true of his own knowledge.
The following order was made:
Upon the annexed affidavit and petition of Job S. Dodd, it is this August 23, 1826, ordered by THE CHANCELLOR that the said Job S. Dodd, the complainant, be at liberty to take out a commission to examine Enoch Hugg and George Richards, witnesses named in the annexed affidavit and petition, de bene esse, to preserve their testimonies; and that Kensey Johns the younger, Esquire, be the commissioner on the part of said complainant, and that the defendant, Philip Reybold, be at liberty to join in said commission if he pleases, and to name a commissioner on his part; and in default, the complainant is at liberty to take out a commission ex parte after a service of a copy of this order, ten days, on the defendant.
And it is ordered by THE CHANCELLOR that the said commission be issued ex parte after ten days notice to the defendant of the filing interrogatories by the complainant, saving all just exceptions.
And it is ordered by THE CHANCELLOR that the depositions of said witnesses taken pursuant to this order be not published but by the special order of THE CHANCELLOR made in vacation or in term time.
The following is the copy of a letter written to George Read, Jr., Esq., counsel for the complainant:
Sir,
The enclosed affidavit and petition I found at my house on Monday night, on my return from the court in Sussex County, where I had been since the 5th instant; and I now forward the order as early as it was practicable after getting home. I suppose that the defendant should have liberty to name a commissioner, and therefore notice of the order is required; but if the parties agree upon one, then one will be sufficient.
According to my meaning, two periods of ten consecutive days will not be necessary; but notice may be given of the order, and the interrogatories may be filed and notice thereof given on the same day, or on any day later, and then the commission be taken out. So that if the defendant have ten days notice of the order, and ten days notice of the filing the interrogatories, it will be sufficient, though they be all the same ten days, or at any distance apart, provided that ten days notice be given of each.
Depositions taken de bene esse are not, you know, to be used, if the witnesses can be examined in chief, and therefore are not to be published unless the witnesses die or go out of the power of the court; and that our rule for publication may not improperly act in the case, I have required a special order for publication. Be pleased to show this letter to Reybold's counsel. I am, Sir, very respectfully, etc.
[(Signed) Nicholas Ridgely, Chancellor.]