Williams v. Eldridge — 1 Hill & Den. 249

Majority

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Williams vs. Eldridge and others.

Headnote

Where there was a stipulation between the attorneys, that either party might receive the return of commissioners authorized to take testimony, duly sealed, and deliver it to the clerk, which was done; held, no objection to the reading of the testimony, that the direction on the return did not specify the clerk’s residence, as required by 2 U- S. 394 , § 16, subd. 4.

Quere, whether the form of the direction be essential in any case, where the commissioners’ return in fact reaches the proper officer’s hands ?

The deposition in this case was held properly read in evidence, though it did not appear that a copy of § 16 of said statute had been annexed to the commission.

If annexing a copy of that section were essential, the court, it seems, would intend it to have been done, unless the contrary were shown.

It will be presumed that the commissioner who took the testimony, closed and sealed the package himself.

That the papers composing the return are connected by wafers only, is not an objection to the deposition being read.

It need not appear by the return to a commission, that the oath was publicly administered to the witness, as that will be presumed to have been regularly done.

A commissioner to take testimony, is quoad hoc an officer of the court in which the proceeding is pending; and his signature, like that of the clerk to an office copy, will be judicially noticed, though his'name be not written at length.

On the same principle, the court will presume that the commissioner discharged his duty, by doing all those things in the execution of the commission which he is not bound specifically to certify as done.

Where several objections were made to the reading of a deposition, which the court, after taking time to deliberate, overruled; held, that they had no right to preclude the party from raising other objections afterwards.

Counsel have an unqualified right to raise what number of objections they please to the admission of testimony; and it is the duty of the court to hear and decide them.

It seems, that it is not the absolute duty of counsel to raise objections which go merely to form, and are only calculated to produce delay,, or turn the party round to another action.

The party who calls a witness to prove that his adversary has admitted an account, may put it into the witness’ hands, and then ask him the proper questions.

The objection to an interrogatory annexed to a commission, on the ground of its being leading, may be made when the answer of the witness is proposed to be read in evidence; especially, when the interrogatories are annexed under a stipulation, expressly saving all legal exceptions.

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When a commission is directed to two, either or both of whom being authorized thereby to execute it, and the return is signed by only one of them, it will be presumed that he alone was present at its execution, though the words, “ by virtue of a commission to us directed,” appear in the caption of the return.

It is not a ground of error, semble, that the court at the trial allowed a leading question to be put by a party to his own witness, as that is matter resting in discretion ; otherwise in respect to answers to leading interrogatories annexed to a deposition. If these are objected to on that ground, the court are bound to exclude them.

Error from the common pleas of Franklin county. The action below, was by Eldridge & Ransom against Williams, to recover the balance of a merchant’s account, which was proved by the testimony of James Loney, the former clerk of the plaintiffs. This testimony was taken under a commission addressed to Solomon Y. Chesley and Guy 0. Wood, of Cornwall, Upper Canada, authorizing them, or either of' them, to act. And the attorneys stipulated that either of the parties, &c. might receive the commission, interrogatories, cross-interrogatories and deposition, from the commissioners, or either of them, duly sealed up, and deliver them thus sealed to the clerk of the C. P.; and that the affidavit of such party, &c. that he did so receive, and deliver the package unopened, should be evidence, and of like effect as if the commission were returned pursuant to the rule of court. The commission, &c. after being executed, was received by Eldridge, who delivered the same to the clerk, and made the requisite affidavit. The' interrogatories were not settled by a judge; but the parties annexed their respective interrogatories ' and cross-interrogatories, and stipulated that they might be put to the witness, saving all legal exceptions to the same. The caption of the return annexed to the commission was—“ Deposition of James Loney, produced, sworn, &c. on, &c. by virtue 'of a commission, &c. to us directed,” &c.; and the deposition was signed, “S. Y. Chesley, commissioner,” without the name of Wood. It did not appear on the papers returned, that a copy of the section, declaring the manner in which commissions are to be executed, had been annexed, pursuant to the. act. (2 R. S. 315, 316, 2d ed. § 24,

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[§ 16 of 1st erf.]) The package containing the commission, &c. received and delivered by Eldridge, was directed to “ U. D. Meeker, Esq. clerk, Franklin co., New-York,” without mentioning his place of residence, as required by id. § 24, sub. 4, [§ 16 of 1st erf.]

The third direct interrogatory annexed to the commission was as follows: “ Look upon the annexed account marked B., and declare how and which of said articles, mentioned in said account, were sold and delivered by the said plaintiffs to the defendant?” To which the answer was thus: “I have examined the annexed account marked B., and from the defendant’s own acknowledgment, he bought and received from the plaintiffs all the articles therein charged.” The fourth, and fifth direct interrogatories, were as follows: “ Is the account, correct, and is it a true copy and extract from the mercantile books of said plaintiffs ?”—“ Did you exhibit a copy of the account to the defendant, and did he admit it to be correct ?” To each these, the witness answered affirmatively, giving dates, circumstances, &c.

On the plaintiffs below offering to read the deposition in evidence, the defendant objected on various grounds stated in the opinion of the court—all of which were overruled; and the defendant excepted. Other decisions were made, and exceptions taken thereto—the nature of which sufficiently appear in the opinion of the court. A verdict and judgment having been rendered for the plaintiffs, the defendant sued out a writ of error.

J. H. Jackson, for the plaintiff in error.

J. Parkhurst, for the defendants in error.

Objections were taken below to the form in which the papers were directed to the clerk, and for want of its appearing that a copy of 2 R. 8 . 315, § 24, 2rf erf. [§ 16, 1st erf.] had been annexed to the commission; but neither objection is well founded. The particular form of the direction, (if in any case essential, where

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the package in fact reaches the proper officer’s hands,) need not be. pursued, except when direction is given for its return by a judge, &e. as required, by the previous section, 23, [§ 15 of Is# ed.] Here, the manner of return was provided for by stipulation.

The provision as to annexing a copy of the section of the statute, was with the view to a correct execution of the commission. If the execution be in fact correct, it is enough. Beside, the commissioners are no where required to certify their instructions; and if the fact were important, the court below were bound to presume that the copy had been annexed, till the contraiy appeared.

To the objection, that it did not appear by Eldridge’s affidavit that the papers had been closed up and sealed by the commissioner himself, the answer is, that he must be presumed to have done it himself, it appearing they were sealed up. The annexing them together by wafers was sufficient. A tape and seal were not necessary.

The objection, that it no where appears that the oath was ;publicly administered to the witness, is answered by the presumption that the commissioner administered in correct form, and he is not required to return the form.

It is 'also said, that only one commissioner subscribed the deposition, while the word, us, in the caption, denotes that both were present. It does not necessarily denote the presence of both; and the deposition being signed by only one, it must be intended that he alone executed the commission.

It is also objected, that the deposition is signed, S. Y. Chesley, when it should have been by his first name at length. But the abbreviation must be read with a view to the context, a part of which is, the annexed commission. That contains the name at length.

Commissioners under the act are, quoad hoc, officers of the court. Their return of evidence is, in effect, like an office copy made by the clerk of the very court to which he belongs. The court, knowing the real name of its officer, is every day in the habit of recognizing his signature

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as valid, though his first name be denoted only by initials. It is on that principle, too, that they will presume the commissioner discharged his duty, by doing all those things, in the execution of the commission, which he is not bound to return specifically as done.

The objections so far examined, were made in the court below on the 10th of October. They were overruled, the court deciding that the deposition might be read in evidence to the jury. At this stage of the cause, it being the evening of the 10th, the court adjourned till 8 A. M. of the 11th, when the defendant’s counsel stated, he had two other objections to the admissibility of the deposition, which he proposed to offer for the consideration of the court. The opposite counsel insisted, that the objection should not be heard, as the court had already determined that the deposition should be read in evidence, and the court so decided.

Counsel have an unqualified light to raise what number of objections they please to the admission of testimony, whenever it is offered; and a very common course is, to hear and decide each objection severally. The right is very important, as it is entirely settled, that unless the objection be mentioned, it cannot, in general, be presented to the appellate tribunal, whether on error upon a bill of exceptions, or by way of motion for a new trial. The court of original jurisdiction have power to abridge the discussion, either by allowing the objection at once, or overruling it as frivolous, or limiting the discussion to an opening, answer, and reply, by one or more counsel. When they have decided an objection specifically made, they may refuse to open the question for farther discussion, or to reconsider it; but I doubt their power absolutely to decline the hearing of any objection which counsel may express a desire to present, until the testimony has been pronounced competent, and is in the progress of being read or otherwise submitted to the jury. It is not denied, that the additional objections might have been made, had not the court already decided, that the deposition was competent evi

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dence, and should be submitted to the jury. But it should be added—“ notwithstanding the objections specified.” The court had not and could not have decided that other objections did not exist. Non constat that the counsel for the defendant had waived the right to add objections. He had mentioned quite a number, and the court had held them to be unfounded, and decided that they were not sufficient. I do not deny that they might refuse to reconsider their decision; but they gave it a broader construction than it would bear. Suppose that, on the counsel, mentioning the first of his seven objections, the court had at once overruled it, as they might have done, and added, “ the deposition must be readon the principle now contended for, they might, in this way, have cut off the other six objections; and, for aught I see, the more serious objections afterwards made to the form of certain interrogatories.

We have had occasion to observe some abuses from the vexatious multiplication of captious and frivolous exceptions, but cannot, for that reason, cut off or even qualify the right to take them at the proper stage of the cause, nor treat the right as waived, except iñ a very clear case. The character of the bar has been, and we have no doubt will continue to be, a guaranty against the general prevalence of such abuses;. and the few instances in which professional integrity or honor may fail to operate as a restraint, will become still fewer, in proportion as they shall be found unprofitable to the client, and injurious to the counsel’s reputation. In this remark I mean no allusion to any of the exceptions here taken, though I entirely concur in what has been said by Mr. Justice Washington, that counsel are not obliged, in any case, to make objections which go merely to form, and which are only calculated to produce delay, or turn the party round to another action. (Russell v. The Union Insurance Co., Wash. C. C. Rep. 441.)

In the progress of submitting the deposition to the jury, the defendant’s counsel farther objected severally to those parts of it which answered the third, fourth and

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fifth interrogatories, on two grounds: first, because they were leading, and secondly, because the account, mentioned in those interrogatories, ought not to have been exhibited and given to the witness.

The account was properly put in the hands of the witness; for, the object of the interrogatories was to prove, among other things, that the defendant had acknowledged its correctness.

But we, think the court erred, in deciding that the interrogatories were proper to be put to the witness. It is scarcely denied that they were leading, being calculated throughout to- instruct the witness in what the plaintiffs desired him to answer. The stipulation, under which they were administered, saved all legal exceptions; and the statute, even when interrogatories are allowed by a judge, permits all questions of competency and credibility to be. raised on the trial, in the same manner, and with the like effect, as if the witness were on the stand. (2 R. S. 317, 2d ed. § 31.) Among other objections, it expressly allows those which respect the competency of any question put to him. The questions objected to as leading, were most material. I admit that error would hardly lie for allowing a leading question to be put, on a personal examination, though it were to the party’s own witness ; for the court have a discretion, on discovering that the witness for a party is unwilling to permit leading questions. We might intend, perhaps, that a proper case for such a course of examination existed, unless the court below should declare the contrary in the bill of exceptions. But here there is no chance for such intendment. •

Judgment reversed.