Smith v. Randall — 3 Hill & Den. 495

Majority

p. 495

Smith and others vs. Randall.

Headnote

A justice of the peace on issuing a commission to examine witnesses, must direct the manner in which it shall he returnedand if he omit to do so, the depositions cannot be read in evidence.

Statutes which innovate upon the common law rules of evidence must be strictly pursued. Per Bronson, J.

The term warrant implies a seal, except in cases where a seal has been dispensed with by statute. Semhle.

Though a warrant for the collection of a tax, issued by the trustees of a school district previous to the act of May 26th, 1841, be invalid if without seal; yet a renewal of it under the hands and seals of the trustees will render it valid as to proceedings upon it afterwards.

The dictum in Preston v. Leavitt, ( 6 Wend. 663 ,) that a renewal of a justice’s execution does not per se constitute new process, commented on and disapapproved.

Eirkpb. to the Oneida C. P. Randall sued Smith and others before a justice, and declared in trespass for taking a wagon, and upon issue joined he recovered a judgment, from which the defendants appealed to the C. P., where the cause was tried in March, 1841. The plaintiff proved the taking and sale of the wagon in the fall of 1839. The defendants were trustees of school district No. 6 in the town of Paris, and the wagon was taken by the district collector by authority of the

p. 496

■defendants, to satisfy the plaintiff’s portion of a tax of $400. which had been voted by the district in February of that year to build a new school house. The defendants offered in evidence the deposition of one Dávis taken under a commission issued by the justice in another cause, with stipulations on the part of the plaintiff which made it admissible in 'this suit and in the C. P., provided the commission was issued and returned in such a manner as would make the deposition evidence before the justice. The plaintiff objected that it did not appear upon the commission how the same was to be returned. The court sustained the objection, and the defendants excepted.

The defendants offered in evidence the warrant and the renewals thereof under which the property was taken. The warrant bore date March 15th, 1839, was in the proper form, and was signed by the then trustees of the district, but there were no seals to it. The warrant had been twice renewed by the trustees who issued it, but without using seals. On the 25th of October, 1839, the defendants, who were then the trustees of the district, in pursuance of the written authority of the superintendent of common schools, renewed the warrant by writing thereon as follows: “ The within warrant is renewed for thirty days from the25thof October, 1839, by order of the superintendent of common schools.” Signed by the defendants as trustees,. with their seals affixed. The plaintiff, among other things, objected that the warrant was void for the want of seals, and that the renewal of a void thing could not make it valid. The court sustained the objection, and decided that the warrant was not admissible as a defence, but might go the jury in mitigation of damages. The defendants excepted. The plaintiff had a verdict ; and, after judgment in his favor, the defendants brought .error on a bill of exceptions.

M. B. Church, for the plaintiffs in error.

J, Huger, for the defendants in error..

The act of 1838 gives the justice authority to issue a commission to one or more competent persons to take and certify the depositions of witnesses, “ and to return the same according to the directions given with such commission.” (Stat. 1838, p. 132, § 2.) u The commission shall be executed and returned as is prescribed by statute when a commission issues out of a court of record, and the deposition and testimony taken in pursuance thereof shall be received on the trial.” (§ 4.) The interrogatories are to be settled by the justice, and certified by his approbation endorsed thereon. (§ 2.) The authority to issue the commission is substantially the same as that which is given to courts of record. (2 R. S. 393, § 11.) When a commission issues out of a court of record, the officer who settles the interrogatories directs upon the commission the manner in which it shall he returned, which may be by an agent, or through the post office, and the commissioner must return it in such manner as shall have been directed on the commission. (§ 15, 16.) In this case the justice settled the interrogatories, but he gave no direction as to the mode of returning the commission. This is a fatal objection. Statutes which innovate upon the common law rules of evidence must be strictly pursued. The mode of returning the commission is highly important for the purpose of guarding against frauds, and no substantial requirement of the statute can be dispensed with. The case of Jackson v. Hobby, ( 20 John. 357 ,) is decisive upon this point. In Williams v. Eldridge, ( 1 Hill, 249 ,) the interrogatories were not settled by a judge, and the manner of returning the commission was agreed upon by stipulation of the parties.

Seals are no longer necessary to the warrants of district trustees. (Stat. 1841, p. 241, § 29.) But under the law as it stood at the time this warrant issued, seals were expressly required. (1 R. S. 484, § 88.) Indeed, the term warrant implies a seal, in cases where a seal has not been dispensed with by statute. (Beekman v. Traver, 20 Wend. 67 .) This objection could not be got over if the case steod upon the warrant

p. 498

as it was originally issued by the old trustees. But I think the renewal of the warrant by the defendants under their hands and seals obviates the difficulty. The renewal of the warrant made it new process for all the purposes of collecting the taxes which then remained unpaid. By renewing “ the within warrant,” the defendants said, in effect, to the collector, “ we command you, as within you are commanded,” to collect &c. It is the same thing, substantially, as though the original warrant had been recited in the renewal; and thus we have a warrant under the hands and seals of the trustees for the collection of the tax.

We are referred to a dictum of Sutherland J. in Preston v. Leavitt, ( 6 Wend. 663 ,) which militates against this doctrine. He says that the renewal of a justice’s execution “ does not per se constitute a new execution. It is what the statute calls it, a renewal of the original execution.” That remark was not necessary to the decision, and I cannot but think that the renewal or repetition of a command is fully equivalent to an original order. If the warrant had been defective in point of form, the .renewal would have been chargeable with the same vice. But the language of the warrant was perfect, and when the defendants said “ we renew it,” they, in effect, gave a new or original command to levy the money.

In rejecting the warrant as a defence, the court below went on the ground that the want of seals was a fatal defect, and I do not, therefore, think it necessary to examine the other objections which have been urged against the validity of the process. If the decision had been put upon the ground that there was a defect of proof in relation to the original formation of the district, or as to giving notice of the meeting at which the tax was voted, or in showing that the plaintiff was a taxable inhabitant of the district, the defendants might then have given further evidence upon these points. But as an indispensable link in the chain of defence was rejected for a supposed defect which no further proofs could supply, and as the decision was erroneous, justice requires that there should be a new trial.

Judgment reversed.

Cases cited

Preston v. Leavitt 6 Wend. 663 N.Y. Sup. Ct. p. 495, p. 498
Beekman v. Traver 20 Wend. 67 N.Y. Sup. Ct. p. 496