Porter v. Beltzhoover

2 Del. 484

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

Per Curiam.

Chief Justice, J. M. Crayton ;

The objection rests on the ground that this court cannot authorize a commissioner to take depositions, nor confer on him the authority to administer oaths to witnesses, except by a regular commission, or at least by an entry on the docket of the court. This is erroneous. The power of the court to take written evidence is conferred by the constitution. Sec. 7, art. 6, gives power to the court “ of directing the examination of witnesses that are aged, very infirm, or going out of the state, upon interrogatories de bone esse, to be read in evidence in case of the death or departure of the witnesses before the trial, or inability by reason of age, sickness, bodily infirmity orimprisonment, then to attend; and also the power of obtaining evidence from places not within the state.” The constitution says nothing about commissions, or restricting the execution of this power to a written authority. The court maj7 direct the examination of witnesses that are going out of the state, upon interrogatories de bene esse. This is precisely what we did in this case. On continuing this cause at the instance of the plaintiff and on account of the indisposition of his counsel, that this act of the court might not operate unjustly on the defendant, who was attending with his witnesses from Baltimore, w7e directed Mr. Gordon to examine those witnesses, who were going out of the state, on interrogatories de bene esse. He proceeded to discharge this duty, but the clerk did not make the entry or issue the commission as evidence of his authority, until after the depositions were in fact taken. But had not John Gordon authority to do this act before the commission issued 1 Is it the act of the clerk that gives the authority, or the appointment of the court! Certainly the latter; and we would now direct the commission to be dated tunc pro nunc in conformity with the fact, if that were necessary. Then did the appointment confer on Mr. Gordon the authority to administer an oath, without the issuing a commission ? Unquestionably this court has the power in open session, to authorize another to administer oaths; but as the commissioner lawfully appointed by this court, he had the power to swear the witnesses examined before him. And in what respect were these oaths extrajudicial ? They were taken in the course of a cause depending in this court, by order of the court, on interrogatories prepared by both parties, and by a person appointed by the court. Shall we, under these circumstances, allow the great injustice of ruling out these depositions, because the evidence of Mr. Gordon’s appointment was not made out in due time. We place the decision not on the ground that counsel agreed to the taking these depositions without issuing the commission, but on the ground that the depositions were taken under the orders of the court; which gave sufficient authority to the commissioner to take them, without the issuing a commission. The counsel agreed to waive the usual notice of interrogatories, and this is the only matter of consent which was necessary to make these depositions evidence.

J. A. Bayard.

This is not a commission de bene esse, and the court has no authority to issue a general commission to a commissioner resident here, to take depositions of witnesses. No commission can issue to a citizen of the state other than a commission de bene esse.

R. H. Bayard and Wales.

The court has power to issue commissions de bene esse to take the testimony of old or going witnesses, and power to issue a general commission to take depositions of witnesses residing abroad; and such may be issued either to a foreign commissioner or to one residing in the state, if the foreign witness can be brought before him.

J. A. Bayard.

At common law depositions could be taken only by bill in equity. Our constitution has conferred the power of issuing commissions here to take depositions de bene esse, or to get evidence from abroad by issuing a general commission to a person residing abroad. It is to issue a commission general which must be out of the state; or de bene esse, which must be to a person within the state. This has been the universal construction under the constitution. No general commission ever issued to a person residing in the state.

Depositions admitted.

The defendant’s counsel now offered in evidence the deposition of a witness residing out of the state, taken on a commission directed to Andrew C. Gray, Esq. of New Castle. Objected to.

The question has not arisen before. The record shows that Andrew C. Gray was appointed a commissioner to take depositions de bene esse. The commission issued is general. The witness examined was a non-resident, brought into the state for the purpose, and who departed from and is proved to be out of the state now. The question then is, does the constitution require that the witness should be a resident of the state, to be examined under a de bene esse commission. We think neither the terms nor intent of the constitution are to be so restricted. It is to take the testimony of going witnesses. If, therefore, a foreigner is brought into the state,' he may be examined de bene esse, provided he is going, and does go out before the trial.

The cause was argued before the jury by Wm. H. Rogers and J. A. Bayard, for plaintiff; and by R. H. Bayard and Wales, for defendant.

It is true, that the commission which issued in this case is general in its terms, and assumes to confer more power than the court could confer; or than, as appears from the record entry, they intended to confer; yet the execution of it was not general but restricted, and on the principle that omne magis in se minus continet, it is good to that extent. It is, in truth, nothing more than a commission de bene esse, though in its terms, general. We add, that for the purpose of procuring a proper execution of commissions, a commissioner appointed from among our citizens, residing here, would be safer than one out of the state, and unknown to the court.

Deposition admitted.

On the law of the case generally the court charged, that when a special contract is declared on, and plaintiff proves a special contract, different from the one declared on, he cannot recover; but if he declares on a special contract and does not prove it, he cannot recover on it, but he may recover on the quantum meruit count. As in the case of a carpenter building a house under a contract, but not according to the contract. He cannot recover under the contract, because he has not performed it; but he can recover on the quantum meruit, or he could not recover at all.

Verdict for plaintiff.