Doe D. Van v. Draper

7 Del. 126

• Court: Superior Court of Delaware
• Decided: July 5, 1859
• Status: Published

Opinion

The Court,

however, admitted the deposition. This is a commission de bene esse to take the testimony of aged, infirm and going witnesses in the State. It does not appear, nor is it usual to appear, by the return of the commissioner, that he was sworn, or affirmed and duly qualified to perform his duty with fidelity, But admitting for the sake of argument that he was not in fact so qualified, we should not be prepared, for that reason merely, to exclude the deposition in the absence of any positive provision of law, or rule, or practice of the court, requiring that such a commissioner should be so qualified. But we are not aware of any such provision, rule, or practice ; and as it is not usual for this to appear by the return of the commissioner, it would not be improper to infer as this matter now stands before the court, that the commissioner, as an officer of the court, has performed his whole duty in the case; and if necessary, that he was duly qualified to execute the commission. The courts of England in some cases, on application for commissioners to take testimony in foreign countries, have omitted the usual command to the commissioners in such commissions, to be sworn, or affirmed. 1 Greenl. Ev. sec. 320. Ponsford v. O’ Connor, 5 M. & W. 673. Clay v. Stephenson, 3 Ad. & Ellis, 807. In cases of commissions issued out of this court to the commissioners appointed in other States by the executive of this, to take depositions to be used here, the law providing for their appointment, requires that they shall take a general oath or affirmation before entering upon the duties of their office, and in all such cases, the court will presume that they have complied with the requirements of the statute.