20 N.H. 379 | Superior Court of New Hampshire | 1850
Several exceptions which have been taken to the verdict in this case will require to be considered.
The first is, that the caption of the depositions, notified to the plaintiff to be at a certain place, was, in his absence, adjourned to another place. The statute requires of the party proposing to take depositions, to give notice to the opposite party of “ the day, hour and place of taking the sameand that the magistrate shall, with the certificate of the taking of the depositions, certify the time and place of the proceedings. The object in requiring such notice to be given very plainly is to enable the adverse party to attend ; and if, having repaired to the place indicated in the notice, the party taking the testimony were permitted to adjourn forthwith to another place, it is quite obvious that it would be in his power wholly to defeat that object. He has the power of selecting the place, and should avail himself of it, so far as to make choice of one suited to his occasion, and where he can carry into effect his lawful purposes. If it were to be conceded that he might, for any sudden and imperative event, rendering it impossible tor him to remain at the place notified till the taking of his depositions should be completed, remove to another for that purpose, no such cause for removal appears in this case, and the proceedings must, by reason of the unauthorized removal, be held to be irregular.
It is, therefore, unnecessary to inquire whether the joining of the two commissioners in the act of taking the testimony was an irregularity, although an unusual course.
Another exception relates to the proof of an act of the parliament of Great Britain by the Canada Gazette, a paper proved to be published by the government of the province for the use and guidance of the officers of the various departments. As to the proper evidence for proving a foreign law, we cite the opinion of the Supreme Court, as delivered by Chief Justice Marshall, in Church v.
It is scarcely necessary to remark that the foreign laws, purporting to be copied in the Gazette used at the trial, were neither established by the oath of a witness, nor the seal of a State, nor by any other authority which the law respects not less than the oath of an individual. The Gazette was evidence of nothing that was in issue in the cause, and was, therefore, improperly admitted.
The commission of the defendant was not proved by the seal of the governor. The great seal of a State, the clavis regni, is recognized by courts, and proves itself, as was held in an anonymous case, 9 Mod. 66, and has been repeatedly held since. 1 Gr. Ev. 6. The seals of notaries public are not required to be proved, “ for that,” said Lord Chief Justice Molt, in an anonymous case in 12 Mod. 345, “would destroy commerce;” and the same practice has since prevailed. Browne v. Philadelphia Bank, 6 S. & R. 484. Upon the same grounds the seals of foreign admiralty and maritime courts need not be proved. Those courts, like the notarial office, are recognized every where among civilized nations, and in the language of Mr. Justice Washington, “ all the world are parties in an admiralty cause.” Croudson v. Leonard, 4 Cranch 434.
If, upon evidence, it appeared that the governor of Canada had power by law to constitute the officer m question by a commission under his private seal, the appointment would he capable of being proved, perhaps, by producing the commission, with the proper evidence of its ensealment and delivery, and without resorting to copies from the records.
For the reasons that have been assigned, the verdict must be set aside, and a
New trial granted.
