Nichol and Thompson against The Columbian Insurance Company of New York

Nichol and Thompson against The Columbian Insurance Company of New York. If a witness under a commission disclose a collateral fact to which the inquiry was not directed, a second commission mqy issue to examine as to that fact. Emott moved for a second commission in this cause, to re-examine the same witnesses to a particular fact disclosed, and from which, as the answers then stood, it might be supposed a deviation had been made, to which point the former investigation was not directed, Benson, contra. It is now too late; there was never an instance of a second commission to examine the same witnesses. The answer shows the defence that arises on the return, and this is an attempt to do it away. Emott, in reply. The application may be novel, but it is not unreasonable. Suppose the witness had been examined in court, and had testified to a certain fact which, taken without any explanation, would, have one effect, if explained, another; might not a question be asked to ^explain ? especially when it comes out colla- [*346] terally. Here the deviation was not the object of inquiry The question was simply, to and from what places were you bound ? There may be an apparent, though not real deviation; for there might be a custom to go that route. Livingston, v. Delafie, ante, 6, n. (a) Brain v. Rodelicks & Shivers, ante, 74. [MAJORITY — Per Curiam.] Per Curiam. Take your commission. The answer being directed to another point, may be explained by an interrogatory to the one which it discloses; for it may assign very sufficient reasons for the iter adopted. The commission, however, must be at the peril of the party. Rule granted. See Fisher v. Dale, 17 J. R. 343.