William H. Sewell vs. William Purnell, Executor of Benjamin Purnell

Collen, J.

The reason for taking a commission is that the party may have the benefit of the testimony, if the witness resides out of the State. If the attendance of the witness can be secured the Court will not allow depositions to be taken. It proceeds on the ground that the best evidence should be taken. Where the witness is produced the purposes of justice may be better served by examination and cross-examination in open court. I think in the absence of any authority to the contrary that the oral testimony is admissible.

Lobe, C. J.

I concur with the views expressed. In the case of Flynn vs. P., W. and B. R. R. Co., 1 Houst. 469, the Court ruled that the deposition of a witness might be read, although the witness was in court, but did not say that the witness could not be examined.