41 How. Pr. 421 | N.Y. Sup. Ct. | 1870
It is insisted by the defendant’s counsel, that the court erred' upon the trial in rejecting the deposition of Nicholas Beams taken upon commission in the state oí Wisconsin. The grounds of objection urged to the admission of this testimony are: 1st. That the
The commission was issued by the authority of the court, and the signature of the judge was sufficient (2 Wh. Pr. 3 cd., 320, 321), without the signature of the clerk. It would be more in accordance with the forms in the books, if the clerk’s name had been signed, but this is purely formal. There is no case which holds that the clerk’s name is essential to the validity of the commission, and this objection is not well taken, nor is there any valid objection to the return of the commissioner. It shows that the witness was duly and publicly sworn pursuant to the^directions hereunto annexed ‘‘ and examined” &c., thus referring to the provisions of the Revised Statutes (2 R. S., 304, § 16), which were annexed and constituted a part of the commission and thus conforming substantially with its requirement. There is nothing in the statute which requires that there should be a separate certificate, and I have been unable to discover any decision which holds, that where the depositions show that the statute has been substantially followed, that the
The remaining objection relates to the omission of the attorney to direct that the commission be returned by mail. This was the ground upon which alone it was rejected upon the trial, and the judge stated he had some doubt as to this point, and must therefore hold that it was not properly in
In Richardson agt. Gere (21 Wend., 156) there was a direction on the commission to return to the clerk, without specifying that it should be returned by mail, and it was held that it was improperly sent by mail. The court say it is clear that the return by mail is admissible only by the permission of the officer in the exercise of his discretion.” It will be seen that the return in this manner could only be made by some authority which was not given, while in the case now considered it was done by express stipulation, which obviates the difficulty. In Smith agt. Randall (3 Hill., 495) it was decided that a justice of the peace, on issuing a commission to examine witnesses, must direct the manner in which it shall be returned, and, if he omit to do so, the deposition cannot be read in evidence. Here was neither directions or a stipulation, and there is no doubt of the soundness of" the rule laid down (see 1 Wend., 249).
In Hall agt. Barton (25 Barb., 274), where the commission was issued out of a justices court, and it was held that when the body of the commission contains an explicit direction in respect to the return of such commission, this is sufficient, although there be no direction indorsed on the bach of it. By parity of reasoning, when the stipulation shows how the commission should be returned, it is enough, and the case cited sustains the position that it should control-
In Crawford agt. Loper (25 Barb., 449) it was decided that the direction as to the manner of returning a commission must be signed by the officer settling the interrogatories, otherwise the deposition cannot be read in evidence. The learned judge says, u This provision cannot be dispensed with, except by the consent of parties.” It follows then if they stipulate, that the consent thus given should control.
Hone of these cases hold, that under the circumstances
New trial granted, with costs, to abide the event.
Potter and Parker, JJ. concurred.