Richardson v. Gere — 21 Wend. 156

Majority

p. 156

Richardson vs. Gere.

Headnote

.54 commission issued to take the testimony -of a witness,-and the testimony taken under it, are not admissible in evidence, although returned by mail, ■addressed to the clerk, &c. unless an order or direction for its return in that manner was made by the officer settling-the interrogatories.

This was an action 'of ejectment for dower, tried at the Tompkins circuit, in September, 1837, before the Hon. Robert Monell, one of the circuit judges.

The' plaintiff, to prove her right to recover, produced a commission sued out to Illinois, and the testimony token under it, which was received by the judge, although objected to by the defendant as inadmissible. The commission was allowed by a circnit judge, and the interrogatories to be attached thereto were settled and allowed by a supreme court commissioner, who endorsed upon the commission a direction in these words : Let the within commission and the testimony taken under it be returned to Arthur S. Johnston, clerk of the county of Tompkins, Ithaca, New York. Dated 18th March, 18371” It was admitted that the commissioner named in the commission, and the witness to be examined, resided at York,.Clark County, Illinois; that the commission and testimony were in fact returned by mail, enclosed in a wrapper, post marked York, Clark Co. Illinois, directed to Arthur S. Johnson, Ithaca, Tompkins county, and that the commission -and testimony so enclosed were taken from the post office-in Ithaca by Arthur S. Johnston, clerk of the county of Tompkins. The plaintiff obtained a ■verdict, and the defendant asks for a new trial.

J. A. Spencer, for the defendant.

D. Cady, for the plaintiff

By the Court,

The commission, I am of •opinion, was improperly admitted. The statute, 2 R. S. 394, i 14, prescribes that the officer settling the interrogate

p. 157

ríes 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.