After the plaintiff had closed his case the defendant's counsel offered to read in evidence the deposition of one Eli Miller. Due notice of the time and place of taking the deposition had been given; but the evidence was objected to, and rejected by the court on the ground that the witness not appearing to have been sworn to depose the truth, the whole truth, and nothing but the truth, but simply having been sworn to the truth of the facts stated in the deposition, and the plaintiff not having attended to cross-examine, it was mere affidavit ex parte. The defendant's counsel then stated that he had seen and examined the deposition before the trial with a view of ascertaining whether it was regularly taken and could be read; that he had not discovered or had any idea (206) of such an objection, nor had he supposed that it would be either taken or allowed; that the deposition was considered by him as all-important in his defense, and expressed a hope that the court would grant him a new trial on the ground of surprise, unless the opposite counsel would consent to a mistrial. The opposite counsel refused to consent, and the judge declined expressing any opinion at that time whether a new trial would be awarded on the ground of surprise. *Page 110
The defendant's counsel then proceeded to examine several witnesses to make out his defense, and the case was argued to the jury and a verdict insisted on for the defendant on the evidence offered. The jury found for the plaintiff, and defendant moved for a new trial, first, because the court had improperly rejected the deposition, and, secondly, on the matter of surprise before mentioned. As to the first, the presiding judge retained the opinion expressed at the trial; and, as to the second, it was held that the defendant could not have a new trial, because, first, the deposition having been seen and examined, and the objection being apparent on its face, it was a surprise as to matter of law and not matter of fact; and, second, because he did not submit to a verdict on discovering that his deposition could not be read, but went on, examined witnesses, argued his case to the jury, and insisted on a verdict on the proof he had offered; and he ought not thus to take two chances, but should be bound by the election he had made to try his case before the jury rather than depend on the ground of surprise.
Judgment was rendered for plaintiff, and defendant appealed. The common form of administering an oath is so familiarly known to all persons in any degree conversant with the (207) trial of causes that it is a very reasonable presumption that magistrates who are in the daily practice of transacting such business are conusant of it; and when they certify, on a deposition taken under the authority of a commission, that a witness was sworn, a presumption arises prima facie that he was duly sworn according to the forms and ceremonies of law. In the act concerning oaths, passed for the very purpose of prescribing the mode of administering them, the Legislature has presumed that the practice and detailed form was known to every person competent to administer them, or, at least, has not though it necessary to recite it in the act, but leaves it to be gathered from common law and common usage. 1 New Rev., ch. 269. The certificate to this deposition states that the witness was sworn on the Holy Evangelist, but I should have thought it quite sufficient if it had simply stated that the witness was sworn, inasmuch as every witness is legally sworn who takes an oath according to the ceremonies of his peculiar religion, as a Jew on the Pentateuch, and a Gentoo and all others according to the belief in which they are educated. So the affirmation of a Quaker, and of the other sects enumerated in the act of 1777, are equally valid with an oath, however solemn. However the forms may differ, the substance and meaning are the same in all, viz., calling God to witness what we say, and imprecating His vengeance if we assert a falsehood. When a person is prosecuted for perjury, committed in an answer of chancery, it is according to the regular practice, and rendered necessary by the course of business, to prove that the defendant took the oath, *Page 111 by the production of the jurat, attested by the person before whom it was taken. Such proof is sufficient at least to put the party upon showing or raising a reasonable presumption that he was personated; otherwise it has been thought almost impossible to convict a person of a perjury so committed. 2 Bac., 1189. If the certificate were defective on principle, which I do not think it is, the generality of the usage of so making them, with very few exceptions of a more (208) formal statement, was enough to surprise a counsel who examined a deposition with a view to ascertain whether it was regularly taken. My opinion consequently is that there ought to be a new trial on the ground of the rejection of legal evidence, and on the ground of surprise, which, although it might be in matter of law, is not therefore an insufficient reason, for in enumerating the reasons for a new trial Mr.Justice Blackstone states as one, "that either party may be puzzled by a legal doubt which a little recollection would have solved." 3 Bl., 390.
HALL and HENDERSON, JJ., concurred in granting a new trial.
PER CURIAM. New trial.