Ulmer v. Austill

9 Port. 157 | Ala. | 1839

GOLDTHWAITE, J.

The last objection taken to the deposition, 'will be first examined.

It is, by no means, improbable that the oath which is signed by the witness, and certified by the justice of the peace, was the only one taken by him. This, if so, would be sufficient to exclude his testimony, as that is not the oath which the law requires to be administered; but the court below was not authorised to arrive at such a conclusion, in opposition to the certificate of its commissioners. They state that the witness was duly sworn, and it may be, that another and a legal oath was administered to the witness, by them, or in their presence. The commissioners appointed to take the testimony of an absent witness, act under the authority of the court; they are its officers, and by it, are invested with authority to administer the necessary oath; .their certificate that such oath lias been administered, is prima facie evidence of the fact, and must be conclusive, unless it is clearly shewn, that they have disregarded their duties, or violated the trust reposed in them. As nothing of this kind was made to appear by extrinsic evidence, and as it cannot be inferred from their return to the commission, the deposition is not obnoxious to objection on this accouut.

The other objections, depend on the construction. of the act of assembly, prescribing the manner of taking the depositions of absent witnesses. Oath being made to any judge, justice, or clerk of the court, wherein the suit is depending, of the existence of a cause, for which a deposition is allowed to be taken, such judge, justice, or clerk, is empowered to issue a commission, to one or more persons, to take and receive the deposition of the witness. The party praying the commission, is to give such notice to the adverse party, of the time and placej when and where such comission is to he executed, as the court, judge, justice or clerk shall think proper: and the adverse party shall have liberty to cross-examine any witness whose deposition shall be so taken — (Aik. Dig. 126, s. 1.)

In the present case, the commission does not instruct the commissioners as to the time within which they are to cause the witness to come before them; they are empowered to act generally, but their action, to be effectual as an execution of the delegated authority, must be within the period designated in the notice -given under the directions of the clerk. It is obvious, if the party wishing to take the deposition, can extend the time to more than one day, then the designation of time, might be of no benefit to the adverse party, as the information that the action of the commissioners would take place on any day of a particular month or week, in most cases would be purely vexatious.

We do not wish to be understood as intimating that the course .pursued in this case was unreasonable or vexatious ; on the contrary, we think such a practice would be highly convenient, if authorised by the act, as it would frequently save parties the trouble of suing out a new commission, or giving a second notice, when disappointed in the attendance of his witnesses on the day named. The designation of place, is not more specific in the notice required, by law, than of time; yet, none would suppose a notice sufficient, which designated more than one place of executing the commission.

The adverse party was informed, that this commission would be executed on the third Monday of May, and if the deposition was not then taken, it would he, on any of the three next succeeding days. He was bound to attend alone on the day first named, as the designation of the others was unauthorised, either by the act of assembly or the order of the clerk. If the commissioners found themselves unable to conclude the examination on the day named, their authority for that cause, would not have ceased, but they might have continued the examination from day to day until finally closed.

The acknowledgment of service of the notice, imposed no obligation on the party or his attorney, which would not have arisen from its execution by an authorised officer. The party had no means in his power, of restraining any action under the commission directed by the plaintiff, and his only course was to attend to the examination, if made on the appointed day.

We have not thought it important to advert to the decision cited from Hay woo'd, (Kennedy vs. Alexander, 1 vol. 25,) because the statute under which that court acted, is not given by the reporter, and we are unable to judge how far it corresponds or differs from our own, — but if made with reference to one similarin terms, we could not yield our own convictions to a nisi prius adjudication.

Let the judgment be reversed and remanded.