In re Whitney

Court for the Trial of Impeachments and Correction of Errors

Decided June 15, 1842

Court for the Trial of Impeachments and Correction of Errors · decided 1842-06-15

Proceedings were instituted before a supreme court commissioner on the application of Shaw, against Whitney, a non-resident debtor, and trustees appointed under the statute. (1 R. S. 764 et seq., 2d ed.) In his application, Shaw claimed that Whitney was indebted to him in the sum of $2500.

Decided 1842-06-15

¶1By the Court,

Nelson, Ch. J.

¶2The matter in controversy between these parties is not within the statute authorizing the award of a commission to examine witnesses residing out of the state, as there is no action pending in the court and no issue of fact joined. (2 R. S. 393, § 11.) The right to the commission depends altogether upon the statute, no such proceeding being known to the common law. (Tidd, 741; Francis v. Gilmore, 1 Bos. & Pul. 177; 1 Archb. 174.) This case is the same in principle as that of Wood v. Howard Ins. Co., (18 Wend. 646.)

¶3Motion denied.