Homer v. Martin

Curia, per

Woodworth, J.

The statute directs that the interrogatories be signed by the parties, or their counsel. They were signed by Ward and Hoyt, attorneys for the plaintiff ; and approved by the judge. Proof was offered that Ward and Hoyt were counsel. I think this sufficient. The fact that they were counsel was a compliance with the act; although they were not described as such. The strictness applicable to special pleas was, I apprehend, never intended. This is evident from the statute allowing the party, as well as his counsel, to sign. No good reason can, in my view, be assigned, for rejecting the evidence, because the names were not followed by the addition of counsel.

The statute, (sess. 45, ch. 217, s. 1,) authorizes the judges to prescribe a return of the commission by mail, to be directed to one of the clerks of this court, and to be by him opened and filed in his office. This duty may be performed by a single judge, (id. s. 2.) The power was rightfully exercised by judge Irving, who has the power pf a judge of this court in vacation.

*161‘There is no express provision as to the manner oi conveying the commission from the post office to the clerk’s office. I think it may safely be concluded, that the legislature were satisfied to leave the transmission from the one office to the other, to the usual course, and the vigilance and care the court would exercise when there was any suspicion of unfairness and fraud. The manner letters are taken from a post office was undoubtedly known.

Some times the person to whom the letters are addressed, calls and receives them. Perhaps more frequently they are sent for by a messenger. At other times, they may be delivered by a penny post. A delivery in either way is sufficient. It will not be pretended that the clerk must attend personally and receive the commission from the office. If that ground be abandoned, it follows that a delivery to any person is allowable.

The only question would seem to be, was the commission delivered to the clerk, in the same state as when received from the post office. The attorney of the party is not disqualified from being the medium of conveyance. If he has discharged the duty faithfully, the commission should be received ; and is no more objectionable on that ground, than if the penny post, or the clerk’s messenger, had been the carrier. The commission has been opened by the clerk, and filed in the office. There is not a suggestion that it was opened by any other person. The non-suit must be set aside, and a new trial granted.

New trial granted.