Cushman v. Wooster

45 N.H. 410 | N.H. | 1864

Sargent, J.

There was no literal compliance with the provisions of the statute in regard to the notice. The magistrate is required to certify in the caption that the adverse party was or was not notified, was or was not present, &c.; and when the adverse party does not attend it is provided that "a copy of the notice left with the adverse party, his agent or attorney, with the return of the officer or affidavit of the person leaving such notice thereon, stating the time of leaving the same, shall be annexed to the certificate of the taking thereof.” Rev. Stats, chap. 188, sec. 21; Comp. Stats. 486.

This provision is peremptory, and we may as well dispense with any other provision of the statute in regard to the taking of the depositions, as with this which requires a copy of the notice to be annexed to the certificate. If it is- an unimportant provision, the statute which requires it should be modified. But we consider it by no means an unimportant provision, but think that the statute has wisely made this requirement and that it must be observed. If this requirement were relaxed, there would be no limit beyond which we might not be required to go in admitting proof that such notice was properly served. Upon this point the ruling of the referee was erroneous.

Our statute authorizes justices of the peace and notaries public in this State, to take depositions. Rev. Stats. chap. 188, sec. 14; Comp. Stats. 486. There is no provision in the statute or in any rule of court on that subject that has any reference to the manner in which this shall be done, only that, the questions shall be written by the magistrate or counsel and read to the witness by the magistrate, who shall write the answers thereto without the interference of either party.

But the case finds that the person called in to write the answers in this case, was an indifferent person who wrote the answers of the witnesses, the magistrate being present,supervising. Was that a compliance with the provisions of the statute and of the rule of court?

It is stated in Kidder v. Prescott, 24 N. H. 267, as a well settled principle, "that an act done by one in the presence and under the control of another, for that other, is regarded not as the exercise of a delegated authority, but as the personal act of the party in whose behalf it was performed.” This is recognized in The People v. Smith, 20 Johns. 62; 2 Greenl. Evi. 295; Rex v. Longnor, 4 B. & Ad. 647.

Therefore, if the signature of the obligor’s name is made upon a deed or obligation by a stranger in his presence and at his request it is a sufficient signing. And so it was held that a writ, which the statute requires to be signed by a justice of the peace, cannot be properly signed by another for him even though expressly authorized to sign writs generally, or even to sign that particular writ in question, unless it is so signed in the presence and by the direction of the magistrate. But when thus signed in his presence and by his direction it would be a good signing by the magistrate.

So it might be, if the magistrate were present all the time, superintending and controlling the caption of a deposition, deciding all questions that required the exercise of any discretion, he might have a clerk to do just the manual labor of writing down the answers to the questions as read to the witness, or who should read the questions to the witness by the magistrate’s direction and in his presence, and if any question arose as to what the witness said, the magistrate deciding that question and directing his clerk what to write, and have the deposition so taken as to meet the requirements of the law.

But such a practice would be attended with inconvenience, and would be liable to great abuse, could not often be necessary, and should not be encouraged.

But we are asked to sustain the award in this case on the ground that the submission is general, and because in such cases the referee has authority to decide all questions of law and of fact, and that when he thus decides upon questions that are raised and discussed before him, his decision is final and conclusive, and we are referred by plaintiff’s counsel to White Mountains Railroad v. Beane, 39 N. H. 107, as an authority.

There is no doubt but that this is good authority, but it does not apply to the case before us. Where the submission is general, and the referee undertakes to decide all matters of law and of fact without saving any exceptions or referring any question to the court for their revision, then, though the referee may have made a mistake either of law or of fact, if it was a question which was discussed before him and considered by him, and one which he deliberately undertook to decide, his decision will be final. Bean v. Wendell, 22 N. H. 582.

But this is not in conflict with the well settled doctrine, that, if the referees intending to decide according to law, mistake the law and refer the same to the court for revision by an express reference, or impliedly, by stating specially the principles upon which they have acted, the award will be set aside, not for want of authority in the referees to decide against law, but for the reason that the award is not such as the referee intended to make. Johnson v. Noble, 13 N. H. 286, and cases cited; Severance v. Hilton, 32N. H. 289.

In the case before us, notwithstanding the question was discussed, the referee did not undertake to decide it conclusively, settling both the law and the fact, as he might have done; but, in the affidavit annexed to the report, he expressly refers the whole matter to the court, and says that he presents the facts in his report and his ruling thereon, "expecting that the court would review the questions there decided, and sustain or set aside the report as they might consider the questions of law decided by' me right or wrong.” A plainer case could not well be stated.

The award is therefore set aside.