Read's Adm'r. v. Randel

2 Del. 500

• Court: Superior Court of Delaware
• Decided: July 5, 1839
• Status: Published

Opinion

The Court.

This affidavit was filed by an administrator, and for the purpose of holding the party to bail. It does not state, positively that the action is for services rendered under an agreement in writing. He states that he believed it to be so. He spoke of a paper which he had never seen, and which was in possession of the defendant ; which was indeed an inchoate agreement, and understood, even by counsel, to have been a complete agreement. Under these circumstances, the affidavit of the administrator is explained. It is not the positive oath of a plaintiff, knowing, or having the means of knowledge, to a certainty, what was the ground of his action. If it were so, he ought reasonably to be held to it; but we cannot shut out all the evidence in this cause because the plaintiff, who sues in the right of another, a mere administrator, has filed a mistaken affidavit, under circumstances wherein he had not full means of knowledge of the facts.

J. A. Bayard and Gray, for plaintiff. Frame, R. H. Bayard and Wales, for defendant.

The defendant offered in evidence certain depositions taken under a commission to Hermanus Bleeker of New York, which were objected to because the commission did not authorize the employment of a clerk, and yet this testimony was taken down by a clerk. The English commissions always authorize the employment of a clerk, and prescribe the oath to be administered. The objection was not that the clerk was not sworn; nor to the form of the oath in this case; but to the want of authority to administer it; and because the clerk could not be prosecuted for perjury in violating such an oath.

It was answered, that it was settled in the case about which this suit was brought, (1 Harr. Rep. 290,) that a clerk might be used. It is no matter who writes down the witness’ testimony, so that the witness reads it over, signs it, and swears to it, which is done here. And also that this objection came too late.

Per Curiam.

As to the objection that the deposition was written out by a clerk, it has been decided, by this court, (1 Harr. Rep. 290,) and we re-affirm that decision. We are satisfied that in many cases it would be impossible to procure testimony from abroad, to be taken by competent commissioners, without allowing them to employ a clerk. The power of procuring such testimony is given by the constitution to this court, and this construction is necessary to its exercise. In this case the oath administered, and all the forms of verifying the depositions, are strictly regular and very particular. The power to administer the oath is expressly given by law ; which answers the objection that the clerk could not be indicted for perjury. (Digest, 419.)

The case was afterwards compromised, and the plaintiff took a verdict and judgment for $2000.