The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-05-29
SUPERIOR coUIT-sPEcIAL TERM.
Before Judge Duer.

csrn,RSE A. FORREST vs. EDWIN FORREST.
NAY 2S.-This application on behalf Of dcfen-
dant for commission 10 take the evidence debene
witness residing In New Orleans. The motion de-
bated at length BY counsel both sides and this
ing Judge Duer delivered his opinion.
Ills Homer said that this application the part
OF defendant for a fmmssion to be- issued TO New Or
leans for the examination q Ann fewers who sworn
~ be matt rial witness and In order that time may be
allowed for the execution and return Of the commission
II Is further asked that the proceedings the part Of
the plaintiff may be stayed for thirty days The mate
raty the evidence sought BE- obtained Is forth
in the affidavit Of defendant with sufficient certainty,
and the persons named as commissioners are known to
the court 10 be unohjectionabe The application Is
resisted on the part Of the plaintiff, upon several
grounds, and II has been earnestly contended that, IL
granted at all, |. should be only upon the following
terms:-first that the execution Of the commission be-
OPEN and the examination Of the witness be conducted
that until the issues directed In this be brought
to trial the defendant shall submit to the counte-
nance Of the Injunction ~ which he restrained from
prosecuting In Pennsylvania the suit for divorce which
he has there instituted; and. lastly, that defendant
he compelled to advance such sum will pro-
baby be sufficient TO dcfray all the expense
including counsel fees, TO which the plaintiff may
be put In the execution Of the commission To the first
Of these conditions the defendant through his counsel
strenuousiy denied that The imposition Of the further
terms that has been insisted would be proper exer-
else q the discretion a the court shall first consider
whether the commission prayed for In this stage II
the cause be properly issued aud not whether the order
shall embrace stay Ct the proceedings; and II for
what time aud upon what terms the stay shall be
granted The objections 10 the issuing IL the commits
ton arc the late period nj which the application II made;
next that the psst conduct Of the witness and her
relations with thu defendant have been such justify
the belief that she Il prepared to give any evidence that
his interests and wishes may dictate In other words
that shc u person wholly unworthy Il credit. This
last objection which 1t me, would have been
better not 70 have pressed. 10 override deci-
syey upon the hearing The credibiiy Of the witness
viii be proper question for tho consideration a the
jury who 70 try the cause and have right by
excluding her testimony 70 Withdraw II from their de-
Ia ltlig 4 Efa1 In FL
the evidence before that she ought not TO be be-
lievsd especially when opportunity has been given
70 the defendant TO sustain her credit by denial Of
The facts which relied on 10 impeach her. must
not Be Understood saying that the infamous charac
ter q witness named for examination, may not in
some be just ground for refusing commissitn
but this only be where the infamy Of the witness IL
admitted and HE discredit l. it, inevitable consequence
II We exclude from the affidavit OF the piaintin,
a. am bound to DO her suspicious Of corrupt Until
macy and corrupt nhuence-which, however honestly
entertained, ought net to have teen expressed--the
facts not such we're they admitted 70 be true,
would necessarily operate 10 discrrdit the wit
She may have been unchastc before her mar
rage and yet the nature Of her evidence may be such
A. not merely t. warrant but compel the belief a
jury The objection that the application too late
VIII ~ necessary " examine Hmy ~, ~ c.ne'usl,e!
but It, effects may b. TO give discretion TO the Court
that could not otherwise BE- properly exercised The APP
pication for the examination Of witness who i known
TO be absent and whose testimony known to be mate
rial ought to be made NJ tho earliest opportunity after
ssue has been Joined in the cause and II male, the
suing o. the commission with stay Of proceeding
u II usually regarded a. positive right The Issues In
this settled and ordered for trial on the 2ih Of
December last; the absence Of the witness and the
eriaty of her testimony then known 70 the dcen
dant and had the regular been followed the com
mission applied FOR could have been obtained early
In January and then issue would, long this, have
been executed and returned, without sujecting the
plaintiff the delay Of single hour in the prosecution
Of her suit Whereas, " the commission and stay as
asked for shall be granted the necessary effect win
be to postpone the trial II the not for the thirty
days which the motion specifies but until October next
The only intervening trial term s in June. IL may b.
regarded certain that the for obvious
will BE- taken up any day In the last week Of the
term; and that within three weeks from this
day q commission BE- sent 10 New Orleans. exc
euted there and returned here, I must refuse
10 believe. even with the aid a the telegraph,
could that aid he invoked. This would be scarcely
practicable Practically therefore, stay of proceedings
for thirty days u stay FIR than four months
upon this n fact think shall not be Justified 10
deprivirg the plaintiff q the opportunity q trial
which she now has viii have, at the next trial term
unless the apparent negligence Of the defendant in the
delay a. his application. has been explained aud satsac
tory excused by which mean that such explanation
and excuse should place him IA the situation be would