Ridgely’s Notebook III, 173
Court of Chancery of Delaware, New Castle County. In Vacation.
July 29, 1820.
Page 573
Petition on the part of the complainants to examine two of the defendants.
To NICHOLAS RIDGELY, Esquire, CHANCELLOR of the State of Delaware.
The petition of the said complainants respectfully showeth that your petitioners having exhibited their bill in this honourable Court against the said defendants, the said defendants appeared to the same, and the said cause was so proceeded in, as that a decree was made ordering the said defendants to file certain accounts, and that the complainants and defendants should respectively be at liberty to enter rules for commissions to take depositions.
Your petitioners farther show that they are advised that Matthew Kean and John Stockton, two of the said defendants, are material witnesses for your petitioners. And forasmuch as they are in no way concerned in interest upon the matters about which your petitioners wish to examine them, your petitioners therefore respectfully pray your Honour that they may be at liberty to examine the said defendants, or either of them, at the examination of witnesses in this cause for and in behalf of your petitioners, saving just exceptions. And your petitioners will ever pray, etc.
(Signed) Ann Clark, Elizabeth Clark, Administrators of John Clark, deceased, by James Rogers, their counsel. July 22, 1820.
The order was made thus:
On the petition of Ann Clark and Elizabeth Clark, Administrators of John Clark, deceased, the complainants in the cause mentioned in the within petition, it is ordered by THE CHANCELLOR this 29 July 1820, that the said complainants be at liberty to examine Matthew Kean and John Stock-ton, two of the defendants in said cause, or either of them, at the examination of witnesses in said cause, for and in behalf of said petitioners, saving just exceptions.
(Signed) Nicholas Ridgely, CHANCELLOR.
In the same case, THE CHANCELLOR received a letter from George Read, Esq., the defendant, as follows:
New Castle, July 28, 1820.
Dear Sir,
It is a rule in the Court of Chancery where causes are set down for hearing, that commissions to take depositions issued under rule of court, should be returned six days before the first day of the term. I had not supposed that suchPage 574
rule would be applicable to my case, to wit, Clark’s Administrators against Kean’s Administrators and G. Read, because it is not a case for hearing, but merely taking an account, wherein considerable latitude as to the mode and form of making the inquiry is allowed. No particular rule appearing therefore to exist, applicable to the case, I would beg leave to solicit you in your discretion (believing it to be discretionary) to allow the return of the commissions on all sides to be made on or before the first day of the term, with liberty to except within the first five or four days of the term.
I find commissions requisite to such a variety of the places, and the witnesses and documents to be examined so numerous that it will be impossible to get the returns of most of the commissions before the first day of the term. No possible inconvenience can result from this time being allowed, and much delay [may] be prevented. I beg, Sir, your immediate answer, and am, Sir, with great respect, your humble servant.
(Signed) G. Read.
THE CHANCELLOR’S answer:
Dover, July 31, 1820.
Sir,
I had the honour to receive your letter of the 28th instant on the evening of the same day, shortly after I arrived at home, on my return from Sussex County, but under circumstances which prevented me from replying by the next day’s mail. I do not perceive Sir, that the English practice in taking an account, with respect to the proof of any matters relating to such account, differs from the course of proceeding in any other question in chancery, which depends upon evidence. In Harr. Ch. Pr., Farrand’s edition, 2 Vol. 94, 95, 1 Vol. 345, etc., it seems that interrogatories must be filed, and publication pass, as in other cases: and this rule is applicable to every fact in such a cause, unless it may be that the party is allowed, by his own affidavit, to prove sums to the amount of forty shillings and under.
Our rule is as general as words can make it, and appears to me to embrace the taking an account, as well as every other matter.
If I could imagine that it is discretionary, I certainly should be disposed to exercise the power, in such manner as would be entirely suited to your convenience and the exigencePage 575
of the case, I am Sir, very respectfully, your most obedient and very humble servant.
(Signed) Nicholas Ridgely.
P. S. I do not desire to be understood that publication may not be enlarged, if any reasonable ground can be shown; but this must be upon notice of motion, and upon affidavit showing satisfactory reason and cause to the Court why the party could not examine his witnesses sooner. See 1 Harr. Ch. Pr. 348. According to our practice a petition and affidavit, I apprehend, would be sufficient with notice, considering our long vacations, and that the Chancellor is in the respective counties at term time only. This enlargement of publication is not a matter of course, where the cause is set down for hearing etc. But as all our causes are for hearing, after they are put at issue, at present, I do not think that circumstance should be considered as any objection to enlargement of publication, on proper terms, upon an application by petition and affidavit, and notice.
N. R.
On the 2nd of August, the Chancellor put into the Post Office at Dover, a paper addressed to George Read, Esq., of which the following is a copy (except that there was added an apology for writing by the mail):
August 2, 1820.
From a conversation which the Chancellor yesterday had with Mr. Rogers, he apprehends that there will be no difficulty in entering a rule by consent, for making the return of the commissions to take depositions and enlarging publication, in the case of Clark and Clark, Administrators, against Kean and Stockton, Administrators, and George Read, Esq., to the first day of next term, with liberty to object to the execution of the commissions and to the competency of the witnesses, on or before the fifth day of the term.[1] . . .
September 4, 1820. Mr. Rodney, for Mr. Read, contended that Messrs. Kean and Stockton were interested; that Kean, their intestate, was liable to the demand of the plaintiffs; that these defendants in their answer had alleged that they had no assets, which is a fact to be proved by testimony not in the court, which does not appear; that a correspondence in relation to this business had taken place in writing between Mr. Read and Mr. Kean, one of the defendants, relating to matters material in this case,
Page 576
which can only be proved by testimony hereafter to be taken. He also urged that this was the common course of the court.
THE CHANCELLOR.
The defendants, Kean and Stockton, Administrators of Thomas Kean, Esq., in their answer have alleged that they have no assets. By the interlocutory decree, Kean and Stockton, the administrators, are made liable, and are decreed to pay such part of the money which came into the hands of Thomas Kean, formerly sheriff, as has not been applied to the judgments which were liens on the real estate of John Clark, Esq., at the time it was sold under execution. Process by Thomas Kean, and such part of the money as has not been paid by Mr. Read to Thomas Kean, and has not been applied by him to judgments, he, Mr. Read is decreed to pay to the complainants. Here there seems to be a direct interest in Kean and Stockton in fixing on Mr. Read as much of the purchase money as they can. It is true, if there are no assets of Thomas Kean, they cannot be charged with any portion of this money claimed by the complainants; but that is a question which can be proved only by the examination, now desired to be made by Mr. Read, to prove their interest, and it does not appear by any proceedings in this cause. Further, there are other facts suggested in the articles which may prove an interest in them, and which are to be made out by testimony hereafter to be obtained. A commission must be ordered, but it should be confined to the special matter here referred to, and not extend to the various matters suggested, which are questions of law, and to be decided on by the Court, on the record and proceedings in this cause.
Afterwards Mr. Rogers, counsel for the complainants, agreed that the depositions of Matthew Kean and John Stockton should be suppressed, and so it was entered on record, and of course no commission was awarded.