General
John M'Vickar against Oliver Woolcot
3 Cai. 321·New York Supreme Court of Judicature·1805·NY
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Opinion
John M’Vickar against Oliver Woolcot.
NEW-YORK,
Nov. 1805.
■ HOPKINS, in consequence of the death of a witness xo be examined on a commission sent to England, and sued out early in the last spring, moved, on behalf of the defendant, to amend by inserting the name of a new witness, who could prove the fact the testimony of the deceased would have gone to establish, or to be at liberty to issue a new commission.
On the death of a witness to be examined on a commission, the court' will not permit a new name to be inserted, though they may allow a new commission, at the peril of the party,
[MAJORITY — Per Curiam.]
Per Curiam.
Were we to permit the amendment, the opposite party might lose the benefit of cross-examining; for the interrogatories exhibited to one, might not be proper to administer to another, from whom it might be wished to extract new evidence. The first part of the motion must, therefore, be denied; but you may take a new commission at your peril, without however, any stay of proceedings on the part of the plaintiff. .