Whitney v. Wyncoop

4 Abb. Pr. 370

Opinions

By the Court

*—Balcom, J.

—That the commission was duly received by the clerk of Steuben county by mail, opened by him, filed and kept on file in bis office, was properly presumed, on the principle that where, by law, certain acts are to be done by a public officer, the law always intends that they- have been done, until the contrary be shown (Hilts a. Colim, 14 Johns., 182).

The statute requires the judge who settles the interrogatories, if he directs that the commission be returned by mail, to direct the same to be returned addressed to the- clerk of the county in which the venue in the action shall be- laid (2 Rev. Stats., 394, § 15). There is no special provision respecting, the return of a commission, when issued after the place-of tidal or -venue in the action has been changed. The third rule of this court states that “papers shall be filed in the office of the clerk of the county specified in the complaint as the place of trial; and in case the place of trial is changed for the reason that the proper county is not specified, as required by section 125 (meaning section 125 of the Code), the papers on file at the time of the order making such change, shall be transferred to the county specified in such order; and all other papers in the cause shall be filed in the county so specified.”

There is nothing in the bill of exceptions to show that Steuben county was not the proper place for the trial of the action, so far as the residence of the parties affected it, according to section 125 of the Code; or but that the place of trial was changed to Chemung county merely for the convenience of witnesses ; therefore the commission was properly directed to be returned, and was correctly returned, to the clerk of Steuben county.

The statute is imperative that the order that a commission issue, when granted by a judge in vacation, shall be filed in the office of the clerk of the court (2 Rev. Stats., 394, § 13); consequently the neglect to file the order in this case made the commission, issued in pursuance of it, irregular.

The oath prescribed by statute for commissioners to administer to witnesses examined by them is, “ that the answers given by such witnesses to the interrogatories proposed to them shall be the truth, the whole truth, and nothing but the truth" (2 Rev. Stats., 394, §16, subd. 1). The oath which the commissioner administered to the witnesses in this case varies from that prescribed by the statute, and was therefore insufficient.

The remaining question in the case is, whether a seal was necessary to the validity of the commission. All that the Eevised Statutes contain touching the question is in these words :—“ The impression of the seal of any court by stamp, shall be a sufficient sealing, in all cases where sealing is required” (2 Rev. Stats., 276, § 10). The action being one at law, and a commission not being an original writ, other provisions in the Revised Statutes on the subject of seals meed not be noticed, as they do not affect the question. It is laid down, in. Graham’s Practice (2 ed., 120), that all process issuing out of the Supreme Court must be sealed (see 18 Johns., 212). The subject is mentioned in the judiciary act of 1847, where it is enacted that “ no process which shall be subscribed with, the name of the attorney, solicitor, or party, by whom it is issued, except such as shall be issued by special order of the court, shall be deemed void or voidable by reason of having no seal or a wrong seal thereon” (laws of 1847, 336, § 57). A commission to take the testimony of foreign witnesses in an action in a court of record cannot be issued except by a special order for that purpose : hence it should be sealed with the seal of the court out of. which it issues ; and it follows that the commission issued in this action was defective because it was not sealed.

The order of the special term, denying the defendant’s motion for a new trial, must be reversed, and a new trial granted ; costs to abide the event of the action.

Mason, J.,

delivered an opinion in which he held that the commission was defective because it was not sealed; that the oath administered by the commissioner to the witnesses was insufficient, and that the commission was' irregularly issued, because the order for it was not filed.

Present Gray, Mason, and Balcom, JJ.