The New York herald., 1868-01-28
SUPREME COuRT-CHAMHeAS.
The Chicago, Rock Island and Pacific Rail-
rond Observation-Disclosures Decision.
Before Judge Cardozo


rond Observation-Disclosures Decision.
Before Judge Cardozo
James Fisk 9, a. "a The Chiecgo Rock Isoad and
Pacfc Roilrodd Conpany.--Judge Cariozo gave
lengthcned decision this yesterday morning. and
the conclusions which he had come TO general
were following effect: First that party may bs
examined we'll any other witness previous 10 trial
TO obtain sidavits TO be used a motion. Second
that searching examination is proper but merely
examination concerning tho actual facts by party
to DO within the knowledge OF the person
examined aud necessary the motion. Third,
the right practice Is 10 prepare and tender
to the person whose deposition lie desired an affidavit
and to request him to verify It, He did not mean 10
say that such form matter Of jurisdiction before
the order could be.grantsd, but he thought was the
ruo OF practice which should govern tho pro.
ceedDg There was hardship the applicant in
This rule, because be must know what facts person
can testify OF be cannot say that tho affidavit Is
sary for him. He did not think that any OF the
quenccs which the counsel FOR the palnud deprecated
would follow from such course. III the party bc do.
privei OF any affidavit because ho does not know OF
any witnoss whom he believes can TESTIFY to
what ho deems necessary then all that could
be nad was that his motion may fail, bu, he
was IN the same plight that every ono who
has Just Of action 10 without adequate proof Tho
law has furnished by which he may examine
persons to 500 II ho can And who prove
what he may require to support his motion But II the
witness declines 70 mako tho AFFIDAVIT, tie Court NAV
compel him TO DO H. aud certainly court in the judi
cious exercise Of the discretion which tho statute confers
would hesitate TO grant the order whom appeared
the witness not only refused mako tho aDdayit
dered TO him. but thongh claiming that IL
rate IN soue particulars, dccped TO correct t. The
Court said further, that IL tho witness could show sss
facoriiy that hc knew nothing OF tho subject
matter o. tho ahdayi', or that Il was n
ought not 0bligc hun 10 testify The objection that
affidavit has been offered may bs wavod AID IS waived
when tue witness makes general refusal 70 testify, aud
II he intends 10 invoke hs strict rules OF practice hc
mus, place himself upon the objection when he 10 asked
20 testify. Ae has the right 10 demand that AFFIDAVIT
be submitted 20 him, and may lake reasonable time
consider 10 and to answer. Fftb. the whole matter
rests the discretion Of the Court and therefore, after
n refusal or after tho examination mas commenced
the Court might deny application vacats order
u one had boon granted to obgo the person 20 make
the deposition. Whether the Court would would
DO must depend upon the circumstances OF each p,r
ticrlar case; but be saw why, II there did
not appear to have been bad fslth and sufficient
aJavt rendered the Court should not arrest tho pro.
cssungs at any stage 81 ", tut ths should never he
done unless II be Gear that the affidavit be nl and frank
upon al the points within the d9rnnents kuoWodse.
sixth. he did not think tbs, this stage Of tbe
in is way an exatnnat on " the books conld be hai
II this witness does not know The racts sousht 70 10
proved thon his aiavt Is no, necessary. These gon
ersl views lead 70 lhe following conclusions = hat
the refusse of Nr. Marvin, without specifying
correction which he desired 20 have mndc the
affidavit rendered to him ami without showing uvon
inc motion either that he had 40 knowledge cf the
subject matior, or tbat the afdayit presented wss
substantially false in ~ gcugfs scope iuslihes and de-
,nands that the order tor a. sand 1nese
m0ssfs. Tracey and TOws having omitted % make tha.
objection, waved tho ssity or any ahfav't beu.
rendered and The ailiat "a when orders Tor examine
ticud was based showing general refusal by them 10
make a deposition the ofcerl 70 lake This testimony
ai7O properly msfe, Whs.h8r he vacated the o.
dor IN regsrd to hose three gcnenn bernnss Of heir
subsequently oferot aiHdayts must depend upon
whether their ainegYa fu ana frank as tho
plaintiffs had right y exact from thein, aud beiors a.
cifinR that lie would exsmue a.. the evidence taken
BY the reieree. Hs would 'obsetye that when
once refusal was mads ths Court should
not readily cut Of the examination. "
after thus furnishing counsel Wrh the result or bis
deliberations upon TIE questions or practice VII Oh he
deemed macra. they coGld not determine whether
the sihdaviis of Bows, Ireeey and rows be 4 comp.
ance with The rues whioh he should apply 70 hcu then
tho testimony must Ds subtnittsi and he vOuld
decide the matter but ne preferred that counsel would
determine among thenseltee, because 10 make ruling
upon tho suiciency oi theso sndayits on the compe
tency OF any OF ths questions objected 20 might Involve
sxami instion OF ths merits or the principal
tions which he wished 10 avoid until the arguments
o9on them we're heard II. however. further action
bic cEi was etcsssas lsi the complaint asidsnoe and