:N. Y. & BALT. COFFEl!: POL. CO. V.
N. "Y. OOFFEE POL. 00.
BALTIMORE COFFEE POLISHING CO. COFFEE POLISHING CO.
(Circuit Court, E. D. New York. 1882)
OF WITNESS-COMMISSION TO TAKE TESTIMONY.
An order to show cause why a witness should not be held in contempt, a,sked for to lay a foundation for a motion to issue a commission to take the testimony, refused on the ground that the order to attach would be useless, and on subsequent motion an order was made to issue the commission.
Order for commission to take testimony:. Bichards If Heald and Henr,y R Starbuck, for complainant. Goodrich, Deedy If Platt, for defendant. Appeal from taxation of oosts under the decision in 'the above (9 FED. REP. 578,) bavingqeep that,decision was so far IIlodifiedas to allow no costs to the plaiIitiff on the demurrer. The defendant having failed to answer'withirt' the ten days given, plaintiff's solicitor ltllplied for an order to be serv:ed onthe president of the cotfipariy defendant, should not be punished as for a contempt ih and cited Coveny v. Athill, Lancaster V. Biro. 489, stating also'in open court that the 8.(;le' teast)D'for' the order was to lay a foundatiob'for a motion to issue sio11 to take testimohy whfCl(was prayed: for in the bilI."tJpon' this the order to show cause wastefusedon the grourid'thattb'e'oraei fO attach the defendant would be useless, it would ',not' tend to the bill' of establish the truth' of the allegations Thereafter 80licitorfor complainant applied onn9tice foi'a commisissue had siari to issue,and defendant"oppo'sed on the groutid not been joined hi The objecHoh wah overrul'ed, al;ldan to the oftpe order 'made for a named in the bill, in to'H13s to be attached to tiieco:iri.'mi'asion. ' , ',
(Oircuit Oourt, 8. D. Georgia, W. D. :May 16,1882.)
1. LANNING V. LOCKETT; 10 FED; HEP, 451, affirmed. 2. ISSUABLE DEFENCE-,CONSTITUTION OF GEORGIA. . A plea dellying the plaintiff's title, to the note sued on and right to sue ',.thereon is, ,an "issuable plea," within the meaning of the constitution of . 'Georgia; 'and where evidence was <;>ffered by both 'parties upon the trial of suell plea (no other being interposed) a verdict of the jury finding for ,the plaintiff the amount due on the note will not be set aside as violation of the provision in the,constitution: "The'l court shall judgment without the verdict, of a jury in all civil cases founded on unconditional contracts in writing where an issuable d'Cfence is not filed uilder oath or affirmation." 3. STA'l'E LAWS, HOW FOLLOWED-IsSUES Oll' FACT TRIED BY JURY. ,-While the Upited courts, in cases at law,Jollow as near 88 practicable the practice, pleading, forms, and, modes of of the state cc;>urts of , , u'record;'yetthe constitution and laws of the United Htates reqnire all issues of , fact in colJ1mon.laWC88l!s to be determined by 8 jury, the same is waived ',' iI'H'vriting.by thepartills.
the case 10 ,district The m,ovant,s to the rulings of the court whio.b are there reported, 0J,lthe of a ,91 bank to indorse,<to 'the of etc. It is unneceS7 s,lJ'ry refer .to. thlin to say that tl),ey by who announced ,tho . tepif'lion J '. .; I." ,,: the following " _.I: :, opinion. ,';" , ',', , ' ,'Willis A·. and Lyon, <t Gresham, (or, m()vants. 'Bacori, .contra, i, ': " ., . plaintiff in this case, a. citizen of the state of New, brought this action the defendant, a residentcit:of tliis.division district of alleging herto be b:o,l,der and of ,s. p,rop:lissory note execute.d by the d'eferidant in 1879, to Bank& iTrllSt Company, payable December 1, 1879, with interest after maturity, which note, being negotiable by the law merchant, the said Bank & Trust Company, for a valuable consideration, negotiated and transferred, and by written indorsement assigned, to plaintiff, whereby defendant became bound to and promised to pay plaintiff the amount thereof, etc.; concluding with the usual allegations and prayer in such cases. The defendant appeared and filed a plea. to
l1'*I>: REP. ,45l.,
*Reported by H. B. Hill, Esq., of the !1acon unr.