Richardson v. Gere

21 Wend. 156 | N.Y. Sup. Ct. | 1839

By the Court,

Nelson, Ch. J.

The commission, I am of •opinion, was improperly admitted. The statute, 2 R. S. 394, i 14, prescribes that the officer settling the interrogateríes shall “ direct the manner in which it shall be returned, and may, in his discretion, direct the same to be returned by mail, addressed to the clerk,” &xv It then provides, §16, sub. 5, that if there is a direction on the commission to return the same by mail, they [the commissioners] shall deposit the packet in the nearest post office, &c.; and by sub. 6, .if there be a direction .to return the same by an assent of the party who sued out the same, it shall be delivered to him. The old statute. 1 R. L. 520, provided that the commission should be returned by one of the commissioners, or an agent of the party; the revised statutes have extended the provision so as -to enable the officer, in the exercise of his discretion, to authorize .a return by mail.

This is a statute proceeding, innovating upon the common law rules of evidence, and must be. strictly 'Complied with. Without the direction.provided for by the act, 1 do not see how a return can be legally made at all.; for in the absence of it, there is no mode recognized by the law. The commission would be nugatory in this respect. But it is clear, that the relurn by mail is admissible only by the permission ef the officer, in the exercise of his discretion. The statute puts it upon this footing in express terms.

New trial granted.