Hurd v. Pendrigh — 2 Hill & Den. 502

Majority

p. 502

Hurd vs. Pendrigh.

Headnote

It is no objection to receiving in evidence depositions taken on commission, that the officer’s direction of the manner in which the commission should be returned, was endorsed on the interrogatories annexed, instead of being endorsed on the commission itself.

Where, in an action on the case for the value of goods lost by a common carrier, it appeared that after the commencement of the suit, the defendant agreed, if the plaintiff would swear to a bill of the articles lost he would pay for them: Held, that the agreement was an admission of the defendant’s liability, and that an affidavit of the plaintiff made in pursuance of such agreement might be received as evidence of the amount of his demand.

Eeror to the Schenectady common pleas. Pendrigh sued Hurd before a justice of the peace, and declared in case for the value of certain goods alleged to have been delivered to the defendant as a common carrier to be transported from Buffalo to Schenectady, but which were lost upon their passage. Issue being joined and the cause tried, the justice gave judgment for the plaintiff for §51,50, from which the defendant appealed to the C. P. On the trial in that court, the only questions raised were these: 1. The plaintiff offered in evidence the depositions of certain witnesses taken under a commission issued to the state of Michigan. The defendant objected, on the ground that the officer's direction of the manner in which the commission should be returned, was endorsed on the interrogatories which were annexed to the commission, and not on the commission itself, as required by 2 R. iS. 315, § 23, 2d ed. The court overruled the objection, and the defendant excepted. 2. It appeared in evidence that while the cause was pending in the justice’s court, the defendant agreed that if the plaintiff would swear to a bill of the articles lost, he would pay for them; and that an affidavit was accordingly made which was used in evidence on the trial before the justice without objection. This affidavit was offered in evidence on the trial in the C. P., but its intro

p. 503

duction was objected to by the defendant. The court’ overruled the objection and received the evidence, to which the defendant excepted. A verdict and judgment having been rendered for the plaintiff, the defendant sued out a writ of error.

T. W. Harman, for the plaintiff in error.

A. C. Gibson, for the defendant in error.

By the Court,

It is provided by statute, (2 R. S. 315, § 23, 2d ed.) that the officer settling the interrogatories shall annex them to the commission, and that “ upon the commission, he shall direct the manner in which it shall be returned,” &c. When annexed, the interrogatories form a part of the commission; for they are essential to the execution and return, and without them the commission would be entirely useless. The direction, in this case, therefore, was fairly within the sense and meaning of the statute. The term commission, in the connection in which it is used in that part of the section above quoted, and in the general sense of the statute, includes both the commission and interrogatories.

The affidavit was properly received in connection with the defendant’s agreement, as evidence of his own view of the justice of the plaintiff’s claim. Taking the whole together, it amounted to an admission that the plaintiff was entitled to recover the value of the goods sworn to. Indeed, if the plaintiff had discontinued this suit and commenced an action of assumpsit predicated upon this promise, the affidavit would have afforded a valid and binding consideration, according to the case of Brooks v. Ball, ( 18 John. Rep. 337 ;) and if this be so, surely it was properly received in evidence to show the extent of the defendant’s conceded liability— a matter directly involved in the action as laid. The affidavit fixed the amount which the defendant had agreed to pay, and was therefore pertinent and material upon the measure of damages by which the jury were to be governed in

p. 504

determining the sum which the plaintiff was entitled to recover. The verdict was clearly right, and the judgment of the court below should be affirmed.

Judgment affirmed.