The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1899-07-15

in the method Of examination
ton OF
remedy
OPINION OF THE COURT BY w. O. SMITH ESQ.
This application by the CoectorCenersl of
for writ Of nananus directed Circuit Judge of the First
Circuit, compel him order commission issue for the
examination Of witnesses residing abroad upon oral questions
intcrrogaorics.
The petition alleges as follows:
Your petitioner respectfully unto your onors
he is the Coecor|ienera of Customs of the Republic of la
wall; that there pending in the Circuit Court of the First
Judicial Circuit Of said Republic of Hawaii before his Honor
Antonio Perry First Judge of said Court manmus pro
ceclng against petitioner, wit In Application of
Lincoln D. Spencer for nanuls against the Collector
General Of Customs ship Star of France; In application
of Lincoln d. Spencer for writ of aneamus against the Col
ector( General of Customs ship 'Euterpe; In application
of John T. Campbell for writ Of mandam against the Collector
General Of Customs Star of Russia that Friday the Both
day of June A. d. 1899 the said for hearing
upon the alternative of manous issued, and the
thereto fled therein before the said Antonio Perry sitting in
chambers First Judge of the First Judicial Circuit afore
said, that your petitioner such hearing, applied the
said Judge for order i'll each of said directing
commission to issue for the examination of witnesses re
siding in the States Of washington and California United
States of America respectively, upon oath by oral ques
ons be propoundel by counsel for either party pro-
vided by law that petitioner showed the said Judge
that the object of taking such dispositions for the pur
pose of acertainng and proving the fact Of the ownership
of the vessels concerned in said that petitioner had
believe, and did believe that certain persons other than
the petitioners said and citizens of the Republic of
directly by way OF trust confidence or otherwise interested IN
said the profits thereof that the of
such persons could be inserted in the commission persons
whose dispositions to be taken but that petitioner
pecte learn the OF such examination
alleged said vessels then and residing in
said Washington and California respectively and whom
it desired and expected by petitioner examine and
their dispositions upon the bectsnatter aforesaid
that petitioner had to believe and did believe that
the petitioners in said mantam, proceedings peti
conceae the fact of the interest of other per-
III said vessels aforesaid that such fact and
of such petitioners and such other interested
aforesaid; that utterly mpractcab for petitioner
attempt obtain this nonation without great delay and
the suing Of repeated commissions, if the examna
confined heterogeneous be propouned solely
the petitioners in said that petitioner would be
placed disadvantage, amounting denial OF Justice
if the commission to take dispositions in the said causes did
oral examination of such named
such commission and such other witnesses might be pro
ced v either party before the commissioner therein named;
that your petitioner entitled under the law TO have
mission issue for oral examination afoesid but the said
Antonio Perry judge aforesaid refused said application and
peremptorv and without right unjusv and law,
declined order commission for the examination OF
upon oral questions nerrogatore aforesaid but
ordered that commission each of said for the
examination OF witnesses solely upon written hefroSatorie
bsn such refusal and such order wholly upon the ground that
oral examination might entail additional expense upon the
said petitioners in said causes.
Your petitioner further shows that under the provisions of
section 1872 of the Civil Laws of 1891 the of the apca
cation order for the examination of witnesses under
mission, and of the order and proceedings theeupon shall be
in the unless otherwise directed by the judge making
such order and that this sufficient protection to the SAID pet
TONERS in said against expense resulting
from the oral examination of witnesses aforesaid
The questions presented to the
First Is the granting of an order appointing commission
for the Of witnesses orally of discretion
with the Judge!
Sccond If it is discretionary, there abuse of discretion
of discretion interference
of this
The governing the issuance of commissions take
tmony is section of the Civil Laws of 1897 follows
1910. 1t shall be lawful for any Of record
Judge thereof action depending such court
I'i TIC "Plie'lh Oh iN ol te 'fe9 10 icl ciih OF suit
the
siding foreign country, in other circuit than that