Birdseye, J.
—In Jackson v. Hobby (20 Johns., 361), it was 'said that the statute authorizing the issuing of commissions to take the testimony of witnesses residing abroad, was an innovation on the common law rules of evidence, and that its positive requirements must be strictly complied with. The principle has ever since been acted upon and generally acquiesced in. It is, in substance, repeated in Dwinelle v. Howland (1 Abbotts’ Pr. R., 89). It is there said that the taking testimony upon commission 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 principle is undoubtedly a safe one; although, as happens to be within my knowledge, the decision in that case does not turn upon the main question presented in it. The facts of that case were, that the defendants’ attorneys, who took the objection to the manner in which the commission was returned, had, prior to the issuing of the commission, signed a stipulation consenting to the issuing of the commission and to its return—precisely as it was returned. The order for the commission was, in fact, made upon this stipulation, and pursued its terms; and, instead of procuring from a judge of the court the usual direction how the commission should [417]*417be returned, another stipulation was endorsed on it, and signed by the attorneys for the defendants as well as for the plaintiff, providing that the commission might be returned precisely in the manner in which it was returned.
The irregularities pointed out in the present commission are undoubtedly to be disposed of upon the principle enunciated by Mr. Justice Platt in Jackson v. Hobby, and repeated in Dwinelle v. Howland.
The objection to the interrogatories, by reason of slight alterations in their form, rendered necessary by an error of the copyist in the copy served, and by the refusal of the plaintiff’s attorney to furnish the original of an exhibit referred to as annexed to the interrogatories, is utterly untenable. It ought never to have been made.
The absence of the commissioner’s return on the commission, on which it is required to be endorsed by statute (2 Rev. Stats., 394, § 16, subd. 4), would undoubtedly be a good reason for not allowing the commission to be read upon the trial* But it is not a sufficient reason for granting this motion. It may be that the court would, on a proper application, allow that defect to be supplied by returning the commission to the commissioner, in order that he might make and sign the proper return.
There is, upon the papers presented, no good reason for believing that the witness was of unsound mind when examined; and the objection to his testimony on that ground is unwarranted. But it does appear that the witness was attacked with a vertigo, or some similar affection of the head, on the first day appointed for his examination, and after four or five of the interrogatories had been answered ; that his examination was then suspended By the commissioner, and resumed upon another day, when the answers previously taken were disregarded, and are omitted from the return, and a new examination was had on all the interrogatories. It may well be that if the commissioner had [419]*419fairly set forth all the facts attending the commencement and adjournment of the examination upon the record of his proceedings, which he has returned here, they might have tended to throw light upon the witness’s testimony. They would at least have been of some account in judging of the credit to be given to his evidence. I think, in these matters, the proceedings as they take place should be stated and returned by the commissioner, according to the facts. Still the failure to do so would, in this case, scarcely warrant the suppression of the deposition.
But there is another singular feature presented. On the day when the examination was resumed, the witness appears with his own counsel: he holds in his hands a written paper, containing answers to all the interrogatories, direct and cross, and numbered to correspond with them, which he reads, and which are taken down, and now form the testimony returned by the commissioner. That paper was not in the witness’s handwriting, and was not prepared by him; but, it may be clearly inferred Rom the affidavits, by his counsel, Mr. Waugh.
The witness Perry was the maker of the note in suit; and it is sought by his testimony to prove usury in its inception. His interest in the transaction is therefore such as to warrant the application of strict rules to his testimony. Mr. Waugh states in his affidavit that a long time ago a claim was made against Perry arising out of the transaction in which the note was given; that in respect to this, he (Waugh) was consulted by Perry as his counsel; and he (Waugh) thus became familiar with the facts relating to the giving of the note, and the circumstances attending the transaction aforesaid ; that a day or two before the second examination, Perry called oh him, and spoke of his expected examination as a witness under the commission in this case ; and stated that as the transaction in question ivas an old matter, he would like to talk it over with Mr. Waugh, and refresh his recollection of the facts; that thereupon they sat down together in Waugh’s office, and together made a brief memorandum of the facts which Perry supposed he would be interrogated upon. Mr. Waugh adds that, knowing Perry’s liability to sudden attacks of vertigo, or rush of blood to the head, he, at Perry’s request, attended the second examination of Perry under the commission, and heard the testimony given by Perry, and from his (Waugh’s) “ knowledge of the transactions inquired [420]*420of therein, he verily believes the said testimony to be perfectly true.”
It is impossible not to see that such a practice as this might lead to the grossest abuse. It may not be so in the present case. The witness may have stated nothing but the truth. But what was wanted was Ms recollection of the transaction, not Mr. Waugh’s. It does not appear that the latter had any actual knowledge of the transaction in question ; or that all he communicated to, or wrote down for, the witness, was not mere hearsay.
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Birdseye, J.
—In Jackson v. Hobby (20 Johns., 361), it was 'said that the statute authorizing the issuing of commissions to take the testimony of witnesses residing abroad, was an innovation on the common law rules of evidence, and that its positive requirements must be strictly complied with. The principle has ever since been acted upon and generally acquiesced in. It is, in substance, repeated in Dwinelle v. Howland (1 Abbotts’ Pr. R., 89). It is there said that the taking testimony upon commission 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 principle is undoubtedly a safe one; although, as happens to be within my knowledge, the decision in that case does not turn upon the main question presented in it. The facts of that case were, that the defendants’ attorneys, who took the objection to the manner in which the commission was returned, had, prior to the issuing of the commission, signed a stipulation consenting to the issuing of the commission and to its return—precisely as it was returned. The order for the commission was, in fact, made upon this stipulation, and pursued its terms; and, instead of procuring from a judge of the court the usual direction how the commission should [417]*417be returned, another stipulation was endorsed on it, and signed by the attorneys for the defendants as well as for the plaintiff, providing that the commission might be returned precisely in the manner in which it was returned.
The irregularities pointed out in the present commission are undoubtedly to be disposed of upon the principle enunciated by Mr. Justice Platt in Jackson v. Hobby, and repeated in Dwinelle v. Howland.
The objection to the interrogatories, by reason of slight alterations in their form, rendered necessary by an error of the copyist in the copy served, and by the refusal of the plaintiff’s attorney to furnish the original of an exhibit referred to as annexed to the interrogatories, is utterly untenable. It ought never to have been made.
The absence of the commissioner’s return on the commission, on which it is required to be endorsed by statute (2 Rev. Stats., 394, § 16, subd. 4), would undoubtedly be a good reason for not allowing the commission to be read upon the trial* But it is not a sufficient reason for granting this motion. It may be that the court would, on a proper application, allow that defect to be supplied by returning the commission to the commissioner, in order that he might make and sign the proper return.
There is, upon the papers presented, no good reason for believing that the witness was of unsound mind when examined; and the objection to his testimony on that ground is unwarranted. But it does appear that the witness was attacked with a vertigo, or some similar affection of the head, on the first day appointed for his examination, and after four or five of the interrogatories had been answered ; that his examination was then suspended By the commissioner, and resumed upon another day, when the answers previously taken were disregarded, and are omitted from the return, and a new examination was had on all the interrogatories. It may well be that if the commissioner had [419]*419fairly set forth all the facts attending the commencement and adjournment of the examination upon the record of his proceedings, which he has returned here, they might have tended to throw light upon the witness’s testimony. They would at least have been of some account in judging of the credit to be given to his evidence. I think, in these matters, the proceedings as they take place should be stated and returned by the commissioner, according to the facts. Still the failure to do so would, in this case, scarcely warrant the suppression of the deposition.
But there is another singular feature presented. On the day when the examination was resumed, the witness appears with his own counsel: he holds in his hands a written paper, containing answers to all the interrogatories, direct and cross, and numbered to correspond with them, which he reads, and which are taken down, and now form the testimony returned by the commissioner. That paper was not in the witness’s handwriting, and was not prepared by him; but, it may be clearly inferred Rom the affidavits, by his counsel, Mr. Waugh.
The witness Perry was the maker of the note in suit; and it is sought by his testimony to prove usury in its inception. His interest in the transaction is therefore such as to warrant the application of strict rules to his testimony. Mr. Waugh states in his affidavit that a long time ago a claim was made against Perry arising out of the transaction in which the note was given; that in respect to this, he (Waugh) was consulted by Perry as his counsel; and he (Waugh) thus became familiar with the facts relating to the giving of the note, and the circumstances attending the transaction aforesaid ; that a day or two before the second examination, Perry called oh him, and spoke of his expected examination as a witness under the commission in this case ; and stated that as the transaction in question ivas an old matter, he would like to talk it over with Mr. Waugh, and refresh his recollection of the facts; that thereupon they sat down together in Waugh’s office, and together made a brief memorandum of the facts which Perry supposed he would be interrogated upon. Mr. Waugh adds that, knowing Perry’s liability to sudden attacks of vertigo, or rush of blood to the head, he, at Perry’s request, attended the second examination of Perry under the commission, and heard the testimony given by Perry, and from his (Waugh’s) “ knowledge of the transactions inquired [420]*420of therein, he verily believes the said testimony to be perfectly true.”
It is impossible not to see that such a practice as this might lead to the grossest abuse. It may not be so in the present case. The witness may have stated nothing but the truth. But what was wanted was Ms recollection of the transaction, not Mr. Waugh’s. It does not appear that the latter had any actual knowledge of the transaction in question ; or that all he communicated to, or wrote down for, the witness, was not mere hearsay. If he knew, and could testify to any material facts, he should have been named as a witness in the commission, and' duly examined. But his statements, not under oath, and probably made at second-hand, should not be substituted for what the law was intended to procure, the positive, independent recollection of the witness.
It may be said, that if Perry, after these consultations with his counsel, swore positively to the matters returned by the commissioner, that should be sufficient; that he had a right thus to refresh his recollection. But if a witness, dismissed from the stand at a trial one day, on account of illness, were thus to refresh his recollection, and then return at a subsequent day with that refreshment in the form of a written statement, made by a stranger, and in a stranger’s handwriting, and should offer to read that to the jury as his evidence in the case, what court would permit it ? Especially if there could he no cross-examination to draw out how much of the statement was the result of the knowledge or recollection of the witness, and how much was contributed by the stranger.
I think the deposition must be suppressed, though I arrive at the conclusion with some regret, as the witness has since died ; and as it is abundantly shown that neither the defendant nor his attorneys were at all concerned in the irregularities complained of. The costs of the motion, $10, to plaintiff, to abide the event of the action*
The stipulations in Dwinelle v. Howland (1 Abbotts Pr. R, 87), concerning the commission were as follows:—
Title of the Cause.
It is hereby stipulated and agreed by and between the respective parties to this action, that a commission therein may issue on the part of the said plaintiff, to be directed to J M. H., Esquire, of San Francisco, in the State of California, counsellor at law, authorizing and requiring him to examine upon oath, on interrogatories to be annexed to such commission, and in which the said defendant shall be at liberty to join T. H. H., Esquire, and H. McA., Esquire, of San Francisco, aforesaid, as witnesses on behalf of the said plaintiff; and that such commission, and the return thereto, when taken, may be transmitted either by mail, or by either of the express companies doing business between Mew York and San Francisco; and that the return to such commission may be directed to Richard B. Connolly, clerk of the city and county of Mew York, at Mew York city. And also that on the filing of this stipulation, an order, in pursuance of the terms thereof, may be at any time entered.
Signed by the attorneys.
The commission having been accordingly issued, instead of the usual order directing the method of return, the attorneys endorsed thereon the following stipulation :—
This commission, when executed, is to be returned to Richard B. Connolly, clerk of the city and county of Mew York, at Mew York city ; and the same may be transmitted either by mail, or by either of the express companies doing business between Mew York and San Francisco.