Polynesian., 1854-12-02

Che 11olpnesian.
SUPREME COURT.
Decision OF Chief Justice Lee.
B. f. HARDY VS.. Z. F. ANGEL.


Decision Of Chief Justice Lee.
B. F. HARDY VS.. B. F. ANGEL.
j. MONTGOMERY, and J. D. BLAIR, Counsel for
the Plaintiff
A. b. BATES, Counsel for the Defendant
This was an action brought to recover balance
ofaccount due for services rendered by the plain
tiff as Physician of the United States Hospital,
amounting to $685. and $500 for rent of fce leased
to the defendant. Defendant plead, that as to the
S5o2 claimed for services he not indebted; and
as to the item of $500 for rent he only indebted
In the amount of Sl35, which sum he had rendered
to the plaintiff previous to the commencement of
this suit The Jury found a verdict for the plain
tin for only Sl35 the amount due to him for rent,
and defendants Counsel now moves that the plain
tiff be ordered to pay the costs of the suit ON the
ground, that good and sufficient tender was made
to him of the full amount found due by the Jury.
The plaintiff objects to this alleging that the tender
was not sufficient, inasmuch as it not uncOndi-
tional. From the evidence of Mr.. Dougherty, who
made tender on behalf of the defendant it appears,
that the tender was coupled with the condition
that the plaintiff would give proper receipt on ae-
count of rent this the plaintiff refused to do, bat
stated that he was willing to receive the money
and to give receipt ON account.
With regard to the law on this subject there can
be little doubt To support the plea Of tender, and
thereby save costs, it must appear that the tender
was absolute, and uncoupled with any condition.
Money rendered with demand for a receipt is not
a legal tender; and the defendant, by insisting on
a receipt on account of rent, has lost the benefit
Of his tender. He should have made his tender
unconditional, and then upon the rendition of the
verdict that no more was due to the plaintiff, he
would have been entitled to costs.
A case directly in point is that of Thayer vs..
Bracket. II Mass. $50 see also Loring vs. Cook 3
Pickering, so 5 Pickering, 259, go; Starkie on
Evidence 1886; 2 Greenleaf on Evidence, Cos; and
authorities there cited.
Motion denied.
WILLIAM FELL, ct. al, vs.. W. c. PARKE.
J. d. BLAIR, j. MoSTGoAERY, and c. c. HARRIS,
Counsel for plaintiffs
A. B. BATES Counsel for defendant
This is a motion for Second Commission 10 take the
evidence Of certain witnesses named in former CON-
mission, and also that of witnesses, the ground
that of the witnesses in the first commission was
improperly named, anu consequently his evidence not
aken that another witness had deceased since the is
suing of the first commission, and that the same facts
be proved by Henry E. Cohan, one of the new wit
nesses proposed to be examined. The plaintiffs afda-
Wit sets forth that the other witnesses not
known to them at the time of the issuing of the first
Commission.
To this motion it is objected that the plaintiffs af-
davt does not ae that the witnesses proposed to be
examined without the Kingdom, or that they are
motion should net be granted because certain bills Of
sale, referred to in the nterrogaOries accompanying
the affidavit, not attached, set forth in the pa
pers they ought to be- in order to enable the defend
ant to file proper cross interrogatories.
Every petition for commission under our statute,
should set forth the of the witnesses that they
are without the Kingdom; that they materials and
that the party asking for the commission cannot safely
proceed to trial without their evidence. As general
rule the affidavit should set forth what the petition ex
poets be able to prove by the witnesses in order that
the Court may judge of its materiay but, the Court
will always exercise sound discretion this point,
and will not require to be set forth, where good rea
sons are shewn why it should not be. But motion
to grant second commission, to take the evidence OF
new witnesses the Court will always require the party
asking for it, state what he expects to prove by those
witnesses
Now to apply these rules to the case in hand think
the affidavit is sufficient far the testimony OF
Smith, Bunker and Cohan is concerned but in refer
ence to Scheden it is insufficient for it does not state
that he is without the Kingdom that he is materials or
what the plaintiffs expect to prove by him.
We next to the objection that the bills of sale.
which the witnesses expected to prove, should ac-
company the affidavit. I think this objection is well
taken If there bills of sale, deeds'or writings OF
any kind to be proved they should be annexed to the
affidavit and marked they referred to in the In
terrogatOries Il. Burril's Practice, 445.) This is
necessary enable the other party to put intelligent
cross interrOgatories
| Motion denied.