Jackson ex dem. Parker v. Hobby

Platt, J. delivered the opinion of the Court. The statote directs that the e< examinations, and all exhibits proshxccd to such commissioners, and proved by any witness, shall he annexed to the said commission, and returned to the Court out of which such commission issued, closed up and under the seals of Wo or more of the commissioners,” and that one of the commissioners or an agent shall deliver the same to one of the Judges of the Court from whence the commission issued, and shall make affidavit before such Judge, that he received the same from the hand of one of the commissioners, fee. “ and such Judge shall then open the same and endorse upon the commission, as the case may be, either received by the hands of one of the commissioners, or upon the oath of the person who delivers the same, as appears by his affidavit, and subscribe his name to the same endorsement 5 and shall then deposit the said commission and return, with the said affidavit, in the office of the clerk of the said Court, there to remain as a record : and every such deposition, being so taken and returned, shall be allowed and read, and shall be deemed as good and competent evidence as if such witness had been sworn and examined viva voce in open Court, on the trial of such cause s and all parties shall be entitled to take copies of such depositions, as soon as the same shall be deposited in the clerk’s office as aforesaid.” (1 N. R. L. 520.) I incline to the opinion, that, if insisted on, the commission must be actually filed in the clerk’s office, before the depositions taken under it can be legal evidence. When a statute makes innovations on the common law rules of evidence, its positive requirements must be strictly complied with. In this case, the Legislature have wisely provided against frauds and abuses, by prescribing the manner of taking such testimony, and the channel through which it shall be returned. The commissioner, or a special agent, is to deliver the sealed enclosure to the Judge j who is to take proof, that it has been sent in the regular channel; and, that it has not been openéd nor altered: the Judge is then to open the enclosure, for the specified purpose of endorsing on the commission a certificate, that such proof was made before him ; so as'-'.to authorize the filing of the commission [362] and depositions \ and the Judge is then required to deposit tkem jn t¡)e cl81-k’s office. And, after these positive injunctions, the statute declares, that “ every such deposition, being so taken and returned, shall be allowed and read as evidence,” &sc. “ Being so returned,” means not only that it shall be so delivered to the Judge, but that it shall be so authenticated by his endorsement, and actually deposited by him in the clerk’s office. The Judge is made one of the agents for completing the return; and, in legal signification, as well as in common parlance, a writ or a commission from a Court of record, is not returned, until it is deposited in the office of the clerk of the Court in which it is returnable. And there is good reason for requiring the depositions to be actually filed, before they are used as evidence. They are often prolix and voluminous; so that without time to take a copy, and to examine it deliberately, it is impossible to apprehend the testimony correctly, or to take the proper exceptions. Besides, the party suing out the commission,. generally knows, pretty accurately, what his witnesses have sworn, before the commission is opened; and, if he or his agent, who brings back the commission, may withhold it, till after the trial has commenced, it would give to such party an unfair advantage, and enable him to surprise his adversary. It is the right of either party to move the Court to suppress the depositions, for fraud, partiality, or irregularity ; and this cannot be done at nisi prius, nor until the depositions are filed. In this case, the commission, with the depositions seeded up, was delivered to the Judge at the trial, and had not been endorsed by him, nor deposited in the clerk’s office, and that specific objection was made by the counsel for the defendant, and overruled. This appears to me to be sufficient ground for awarding a new trial; and I, therefore, deem it unnecessary to consider the other exceptions to particular depositions, included in the mass of testimony. I take occasion, however, to remark, that it is very questionable, whether any of the exceptions but the first, were so specific and distinct, as to entitle the party to any benefit of his exception. Good faith and the convenient administration of justice require, that the counsel who objects to evidence, or excepts [363] no the opinion of the Judge, at the trial, should state the par-Ocular grounds of his objection j for the double purpose of calling the attention of the Judge to the point of the exception, and to afford the opposite party an opportunity of ohviating the objection by additional proof, which, perhaps, liad been inadvertently omitted. In this case, the counsel first objected to the whole depositions, because they had not been filed. He afterwards objected to the reading of the depositions of particular witnesses, but said no more. Now, without explanation, the opposite counsel was not bound to answer such vague objections \ nor was it the duty of the Judge to notice them. It may be, that on a future trial, those exceptions, if explained, may be obviated by supplementary proof, if necessary. There mast be a venire in novo awarded 5 the costs to abide the event of the suit. Venire Ae novo awarded.