Halleran v. Field

Cowen, J.

By the Court, The statutes, 2 R. S. 274, 2d ed. § 7, and Session Laws of 1837. p. 72, allow the plaintiff, in a joint action, [ *40 ] to declare on the money counts alone. *They do not require, as a condition to the right of giving the bill or note in evidence, that other counts shall not be added. Accordingly it has been held that the plaintiff may count specially on the bill or note. We think other special or general counts may be added and pursued to a joint recovery, if there be testimony to sustain them. But at any rate they will not vitiate the proceeding where, as in the instance before us, they were abandoned at the trial. This could, at most, form a question on taxation of costs.

The judge was clearly right in refusing to go behind the commission, and require proof that it issued regularly. He was also right in deciding that the interrogatories annexed and produced at the trial, were the same a3 those which were allowed, and used by the commissioner. No fraud or surprise in either respect was proved by which the defendants could have been prejudiced ; and, in the absence of such proof, the commission, endorsement, and accompanying papers produced with them were to be presumed regular and properly connected.

Enough appeared to show that the oaths which were administered extended to the interrogatories on both sides.

But the statute, 2 R. S. 315, 2d ed. § 24, subí 1, requires that the commissioners, or one of them, shall publicly administer an oath to the witnesses named in the commission, and sub. 4 and 5, prescribe that the commissioners, after closing up and sealing the depositions, shall, if the direction be to return by mail, immediately deposite the packet in the nearest post office.

It is objected that the return failed to state that the oath was publicly administered, and that the deposite was immediately made. In respect to the latter, it is, we apprehend, a sufficient answer that the statute is directory, and speaks with a view to hasten the commissioners for the benefit of the party suing out the commission. It relates to a matter over which he has no control. The delay cannot be supposed to prejudice the opposite party, who, if it be unreasonable, has his remedy by moving for judgment as in case of nonsuit, notwithstanding the commission, provided he be defendant in the cause, Tilford v. Thompson, *1 Caines 517. We think a [ *41 ] motion was the only remedy of the defendants.

In respect to the manner of administering the oath, as whether public or private; no doubt, when a statute proposes to substitute depositions to be taken in a prescribed form as a substitute for the open common law examination on the stand, it must be strictly pursued, Jackson, ex dem. Parker, v. Hobby, 20 Johns. R. 357, 361; and the only question here is, whether the manner of administering the oath must expressly appear in the return of the commissioners. If that be essential, the return was defective. It gives the form of the oaths, which was right. By § 24, they are to execute the commission as follows : 1. They, or one of them, shall publicly administer an oath that the answers given by the witnesses to the interrogatories proposed to them shall be the truth, &c. ; 2. They shall cause the examination of each witness to be reduced to writing, subscribed by him, and certified by such of the commissioners as are present, &c. ; 3. By sub. 4th, the commissioners subscribe their names to each sheet of the depositions taken by them, and close them up under their seals, and address them as required by the statute. A copy of the section containing these directions, with others as to the mode of executing the commissions, certifying the proceedings under it and transmitting them, must, by sub. 6, be annexed to the commission. In short, the statute requires the written examination of the witness by him subscribed to be certified by the commissioners. This is all; and the express requirement of the statute would seem to be fairly complied with, if the court be enabled to see from the return that the oath was sufficiently broad in terms to cover all the interrogatories proposed ; that it was in fact administered to the witness, and that he answered to the questions put. All this appeared, or rather, we are to intend that it appeared ; for the certificate of the commissioner is not impeachable for any defect, unless it be the omission to state that the oath was administered •publicly. If that be not made by the statute an essential part of the certificate, then we ought to intend that it [ *42 ]‘ was administered publicly. These ^commissioners are, for the purpose of taking testimony under the statute, officers of the law, officers, it is true, with limited powers, like an inferior magistrate holding his court; but in favor of whom, when he returns that he administered a certain oath required by statute, wo intend that he administered it publicly, and even in proper form, unless he give particulars, or state something from which it appears affirmatively that he departed from the statute. The common form of a jurat shows this. An officer certifies that the deponent was sworn before him on such a day ; we-intend that he was sworn in due form. It cannot, in the nature of things, be necessary for the commissioners to say that the witness was sworn in public, more than that he ivas sworn on the gospels, or that these were tendered to him, and he preferred some other form. On the whole, as the statute has not required commissioners to return expressly whether the oath was in public or private, we think the return may easily be sustained by the doctrine of intendment.

The cases cited in support of the objection, Bailis v. Cochran, 2 Johns. R. 417, and Bolte v. Van Rooten, 4 id. 130, far from discountenancing, rather go to confirm this view. In the first, the commissioners no where certified that the witness was sworn or even examined by them, or that they caused his examination to be reduced to writing. It was therefore rejected. In the last case, the examination was received without the form of the oath being returned. The court contented themselves with being able to collect from the whole return that the witness had been sworn and examined before the commissioners on interrogatories administered under the commission. The court intended that the examination was reduced to writing by the commissioners, that the witness was sworn by them ; and it was not even questioned but that the oath must be intended to have been correct in form.

New trial denied.