Dwinelle v. Howland

Clerks, J. I. At common law, no commission to examine witnesses abroad on interrogatories could issue without consent; although a court of equity could, in aid of an action in a common law-court, compel an obstinate party to consent. [89] In England, the common law-courts had no general power to issue commissions, until the Act passed as recently as the reign of William IV. (1 W. IV., C. 22). Our courts have possessed this power for more than sixty years; but, it was always considered an innovation, which should be exactly dealt with, as a departure from a mode of presenting evidence, which has ever been justly considered one of the best safeguards in the trial of facts. The presence of the witness at the trial, and his oral examination before the jury, is, under our system, a favorite and almost indispensable requisite; and, among numerous other usages, distinguishes the common from the civil law. Any statute encroaching upon this usage, like any other in derogation of the practice of the common law, must be strictly observed. II. The Rev. Statutes (2 v. 394) prescribe only two methods of returning a commission: either 1, by depositing it in the nearest post-office; or 2, returning it by an agent of the party who has sued out the order or writ, according to the direction made by the judge or court—no other mode is contemplated. In this case, it was provided that the commission might be returned either by mail, or by an agent,—an express company. Section 25 of the statute provides, that, if the packet be delivered to an agent, he, on delivering it to the clerk or judge, shall make an affidavit, that he received the same from the hands of one of the commissioners, and that it has not been opened or altered since he so received it. Indeed, the whole article is very exact and minute in its precautions to prevent abuse, and to insure the genuineness of the evidence. A rigorous compliance with its provisions was evidently intended, particularly in regard to the return of the commission. The affidavit, that it has not been opened or altered, is indispensable, unless expressly dispensed with by the written consent of the adverse party. It is no answer to say, that, in this case, after the order was so made at special term, allowing the commission, and directing the mode in which it should be returned, both parties signed a similar direction in the body of the commission. At the most, the adverse party, in doing this, consented to the appointment of the agent designated by the party suing it out; [90] —it was no waiver of the provisions of the law requiring full proof of the authenticity of the evidence. Nor is it any answer to say, that according to the practice of the express companies this provision could not be complied with, inasmuch as no one person employed in any of those companies accompanied the express the whole route. If the party suing out the commission knew this, he ought to have communicated it to the other party, if he thought this mode of transmission was preferable to the mail; if the other party refused to dispense with the affidavit verifying the return, the only course left was, to have the return made by mail. III. It does not appear that anything was suggested to the court, or to any of the parties, that a compliance with the statute was not practicable. At all events, the court cannot dispense with this requirement, without consent. The depositions cannot be read.