The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-10-24

/
Qualified 10 Testifys SC.
SUPERIOR 0oURT--CHAMBERs.
Before Judge Mencrief aF
VILLAIN H. McVickay u.s. Norris KstehSm, Sim q o.
and Their Asignees: and ~ Creenlogf Norris Co., asd
The Sheriff. Holding AttacAments Aoaina r. b koch
umFew people aware Of tho fact yesterday that
Mr. Edward b. Ketchum out Of the City Prison and
present considerable time in tho Superior Court
chambers, where a motion for his examination a. .
material witness being made. or all who happened
to be present scarcely any but the lawyers interested in
the and the attaches Of the court were aware Of the
presence OF this famous but unfortunate young person
age He sat quietly in small room of the apartment
dedicated 70 chamber business and guarded by the
warden Of the City Prison. assisted by few policemen
His look was pale and careworn the result OF his con
nement and the natural anxiety and suspense incident
TO his position For this transient puff OF fresh air and
peep at the outer world Kechum was indebted 70 writ
Of habeas corpus sued out by Mr. jeremiah larocquc
counsel OF Mr.. VIM H. Mcvckar, one among the many
plaintiffs that have brought suits against the unlucky
house OF Ketchum Son and their assgnecs.
Mr. Mevckars suit was brought to establish his right
under account opened with them by Kcchum, Jr in
the name Of Mr.. Mcvickar The latter claims that the
money accumulated in the hands Of Greeneaf,
Norris & Co towards satisfying Indebtedness which
he had contracted to Mr. Mcvickar in tho OF his
firm The suit having been commenced, the plaintiff
Ketchum was material and necessary, and that he
in prison awaiting sentence on an indictment which
obtained order for his examination under section 39l
OF the Code as an adverse party In the suit before tho
tria ana also ooalned naDeas corpus al ustncandum
TO the warden of the City Prison to produce him in court
for examination.
The following Is the affidavit on which the order and
writ were granted
AFFIDAVIT OF MR.. LARoCQUE.
Joseph Iarocque being duly sworn, says-That he is
OF tho attorneys to the plaintiff in this action, which
ing in this court in which Edward and Thlo c.
Calhoun, as asslgnees OF Kechum, Son = Co., and the
plaintiff herein and all the defendants in this action
except the members composing the firm OF Ketchum,
Son Co.. defendants and that this action has been
commenced by the service Of the summons upon some
Of the defendants; that tho defendant, Edward b.
Kctchnm who is an adverse party TO the plaintiff herein
Ia confined under Indictment In the City Prison In
this city charges Of forgery but under conviction
Attorney and tho counsel for the said Edward b.
Ketchr ss the deponent informed and believes that
upon days notice TO his counsel they will appear in
court and withdraw tho plea Of not guilty, which
he has ntcrposed, and plead guilty 10 at least
OF the indictments against him, the doing Of which
Is being postponed, with the sanction Of the court
In which the indictments pending, as long as can
conveniently be done for the express purpose OF allow
ing his testimony to DO taken in civil SUITS where II
material TO avoid the technical disqualification which
would result from his sentence the criminal charge,
aud that IL few days interval we're required between
the service or summons and notice Of his examination
and tho actual taking of mis- deposition there would be
danger Of the plaintiffs losing the benefit q his test;
other actions
THE ARGUMENT.
Inc prisoner was represented IN court ycSttIuay
Mr. r. N. Bangs, while Mr.. Larocquc appeared for Nc
vickar Mr. Carter for Grcenlcaf Norris Co., and Mr..
vanderpoe for Sheriff Kelly. The argument was con
fined however, to Messrs Bangs and LarocQue the other
legal gentry being Of bottle holders the occasion
Mr. Bangs opposed the examination OF Mr.. Kctchum
on the ground that issue had not been
joined in tho suit and that no exami-
nation could be had until that done
The decisions in the Supreme Court and Court OF Com
Pleas WERE he sad against allowing such an exami
nation
Mr. Larocquc conceded that the decisions In the
Supreme Court In this district aud of the Court OF Com
Pleas the right examine the party
in the Superior Court The decisions in the Supreme
and Common Pleas ours had originally been based upon
view taken OF clause In s,ction 800 or the Code pro-
vidng that upon such examination party might be
examined 's TO any matter pertinent " the Issue - but
the Legislature In 1858 had amended that section OF the
Of making clear that the examination to be allowed
either before after issue joined II was just and rea
sonablc that that latitude should be allowed as TO
the examination Of parties, the presumption which
existed in the OF other witnesses that they
important and would willingly disclose the facts at
time upon the request OF either party not applying
TO parties whose interest was adverse II was often i'm
porant 10 have the examination n order to know how
TO frame the issues in the SALT and 1t was greater lat
tud than had always been allowed in cases o: De bcne
ease examinations under the Revised Statues whore i'm
mediatcly upon the issuing OF process to commence
suit, witness who was sick or indrm or going away
could be examined. Tho statute impcrntivcly
required that everything in the way OF testimony given
should be taken down when either party required to
be committed paper Theec vcwE he contended were
supported by two decisions In the Superior Court
Alter bearing the argument the Court took the papers,
reserving its decision Young Ketchum was thcreupon
taken back 10 the City Prison IN charge Of the warden