Luckie v. Carothers

Supreme Court of Alabama

Luckie v. Carothers

5 Ala. 290

DecidedJanuary 15, 1843

StatusPublished

This text of 5 Ala. 290 (Luckie v. Carothers) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Luckie v. Carothers, 5 Ala. 290 (Ala. 1843).

Pincite

Opinion

COLLIER, C. J.

It is certainly true, that a commission to take a deposition is a special.authority to the persons to whom it is addressed, which, in order to authorise the admission of the testimony, must appear by their report-or certificate to have been pursued. The cases cited for the plaintiff in error, from Washington s Circuit Court Reports, affirm this to be the law, and nothing more. They do not determine,- that it is necessary for the certificate to recite in totidem verbis, the special directions of the commission, and declare that they had been observed. The certificates in these cases were palpably defective in not showing, [292]*292either in general or special terms, that the commission had been regularly executed.

In the present case, the commissioners are directed to examine the witness on a day named in the commission; pursuant thereto they certify, that they have taken his testimony. It is immaterial which one of its appropriate meanings we attach to the word “ pursuantit indicates that the examination has been made as the commissioners were required; that under, in virtue of, in obedience to, &c. they had called the witness before them. The commission required the witness to be examined on but one day; the commissioners say that they performed that duty pursuant to its directions, and if their certificate is to be accredited, it can mean nothing else than, that the commission was executed on the day designated. The case of Sanford & Cleveland v. Spence, at the last term, leads directly to this conclusion. In Bolte v. Wooten, [4 Johns. Rep. 130,] the commissioners certified that the witness had been examined in virtue of, and under the commission directed to them by name. The eourt said “ If the witness was sworn and examined under that commission, and that fact be certified by the commissioners, as acting commissioners, he must have been sworn and examined by them. There is no other meaning to be put upon the words. It is not a thing of inference, but equivalent to a direct averment of the fact.”

This view is decisive to show, that the deposition was properly admitted, and the judgment of. the Circuit court is therefore affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

COLLIER, C. J.

It is certainly true, that a commission to take a deposition is a special.authority to the persons to whom it is addressed, which, in order to authorise the admission of the testimony, must appear by their report-or certificate to have been pursued. The cases cited for the plaintiff in error, from Washington s Circuit Court Reports, affirm this to be the law, and nothing more. They do not determine,- that it is necessary for the certificate to recite in totidem verbis, the special directions of the commission, and declare that they had been observed. The certificates in these cases were palpably defective in not showing, [292]*292either in general or special terms, that the commission had been regularly executed.

In the present case, the commissioners are directed to examine the witness on a day named in the commission; pursuant thereto they certify, that they have taken his testimony. It is immaterial which one of its appropriate meanings we attach to the word “ pursuantit indicates that the examination has been made as the commissioners were required; that under, in virtue of, in obedience to, &c. they had called the witness before them. The commission required the witness to be examined on but one day; the commissioners say that they performed that duty pursuant to its directions, and if their certificate is to be accredited, it can mean nothing else than, that the commission was executed on the day designated. The case of Sanford & Cleveland v. Spence, at the last term, leads directly to this conclusion. In Bolte v. Wooten, [4 Johns. Rep. 130,] the commissioners certified that the witness had been examined in virtue of, and under the commission directed to them by name. The eourt said “ If the witness was sworn and examined under that commission, and that fact be certified by the commissioners, as acting commissioners, he must have been sworn and examined by them. There is no other meaning to be put upon the words. It is not a thing of inference, but equivalent to a direct averment of the fact.”

This view is decisive to show, that the deposition was properly admitted, and the judgment of. the Circuit court is therefore affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

5 Ala. 290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luckie-v-carothers-ala-1843.