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a. Form of commission.-To the commission should be annexed a copy of the sixteenth section of article 2, title iii., chap. vii., part iii., of the revised statutes (which contains instructions to the commissioners for executing the commission), together with any other particular directions that special circumstances may render necessary (Smith v. Randall, 3 Hill, 395). This provision is directory only, if the body of the commission contain the direction, although no directions are indorsed, it is sufficient (Hall v. Barton, 25 Barb. 274). These provisions do not apply to commissions issued by justices of the peace (id.) If the commission be correctly executed, the court will presume that a copy of the said sixteenth section was annexed, until the contrary is shown (1 Hill, 249). The direction as to the manner of returning a commission must be signed by the officer settling the interrogatories, or the deposition cannot be read in evidence (Crawford v. Loper, 25 Barb. 449).
b. If any deeds or writings are to be proved, they, or copies thereof,. should be annexed to the interrogatories, for the purpose of reference, description, and identification, producing the original on the examination of the witness. It is not indispensable that the original be annexed to the interrogatories (Commercial B'k of Pa. v. Union B'k of N. Y. 11 N. Y. 203). Nor has the court the power to order the original instrument to be annexed to the commission (Butler v. Lee, 32 Barb. 75; 19 How. 384).
c. Where by mistake the name of C. instead of K. was inserted in the caption of the commission, the name of K. being on the commission and the commission being executed by K.,-held, the error might be disregarded (Hall v. Barton, 25 Barb. 274).
d. Further instructions are contained in the printed forms of commissions sold by the law stationers.
e. The witnesses to be examined should be named in the commission; and this is a rule which is only departed from under very special circumstances, and never when, by reasonable diligence, the names of the witnesses can be ascertained (Wright v. Jessup, 3 Duer, 642; see McMahon v. Allen, 18 Abb. 292). Where, by mistake, a witness intended to be examined was not rightly named in the commission, but the commissioners, notwithstanding such mistake, examined the witness,-held, that the deposition was extra-judicial, and could not be read in evidence (Brown v. Southworth, 9 Paige, 352).
f. The commission should be sealed with the seal of the court out of which it issued (Whitney v. Wynkoop, 4 Abb. 370; Tracy v. Suydam, 30 Barb. 110; Ford v. Williams, 24 N. Y. 359).
g. The court will not depart from the usual method of issuing commissions to take testimony in foreign countries, unless important advantages to be gained by some other mode are shown (3 Bradf. Surr. R. 249).
h. The execution and return of the commission.-Want of diligence on the part of a plaintiff in obtaining a return to a commission entitles the defendant to move for a nonsuit (Coles v. Thompson, Col. & C. Cas. 330); see ante, p. 615 j.
i. The court will intend that the oath was publicly administered when the commissioners certify that they administered the oath; and such oath will be deemed to apply to the interrogatories on both sides (23 Wend. 38); and it need not appear by the return that the oath was publicly administered (1 Hill, 249). And a deposition has been received in evidence, although the oath to the witness was not administered by the commissioners, it appearing that they were prohibited from administering it, and that it was, in fact, administered by the local authorities (6 Wend. 476). But where it appeared by the return that the witnesses had been sworn "to make true answers to the interrogatories read to them," instead of being sworn "to tell the truth, the whole truth, and nothing but the truth," as the statute requires, it was held that the oath administered was insufficient, and the testimony taken under the commission not properly receivable in evidence (Whitney v. Wynkoop, 4 Abb. 370).
j. The absence of the return which the statute requires the commissioner
to indorse upon the commission, though it may be a good reason for not allowing the deposition to be read on the trial, is not ground for suppressing the deposition upon motion. The defect may be cured by sending back the commission to the commissioner to amend his return (Creamer v. Jackson, 4 Abb. 413).
a. It is immaterial in whose handwriting the depositions are; the commissioners may employ a clerk (3 Peters, 8), although they are not bound to do so (2 Har. & Johns. 442).
b. On the execution of a commission, the parties have a right to appear by counsel (Union B'k of Sandusky v. Torrey, 2 Abb. 269; and see 8 Blackf 443).
c. Cross-interrogatories cannot be withdrawn on the execution of the commission, unless by the consent of the adverse party (2 Abb. 269). Subsequently it was held that it is not a valid objection that cross-interrogatories in a commission, offered in evidence, are not all answered, where it appears that some of them, in whole or in part, are answered by reference to previous answers, the latter being full and explicit (McCarty v. Edwards, 24 How. 237; see, however, 2 Code, Rep. 64; 5 Duer, 626).
d. Under a commission for the examination of a foreign witness who cannot speak English, the deposition must nevertheless be taken in English, by means of an interpreter (Belmore v. Anderson, 2 Cox Chan. Cas. 288)
e. A deed or other exhibit, proved under a commission, must be annexed to and returned with the commission (20 Johns. 361), except it be in the custody of the law; then a copy is sufficient, and the exhibit may be produced on the trial, separate from the commission (6 Cow. 144). And where notes offered in evidence, as proved by a witness examined on commission, were attached to and returned with his deposition, were marked A. and B., and had the names of the witness and the commissioners written upon them, and the witness in the deposition described the notes, to which he testified by dates, amounts, &c., corresponding with those of the notes offered, and stated they were produced to him on his examination, marked A. and B., and that he wrote his name upon them, and the commissioners in their return certified that the notes attached to the deposition were produced to the witness on his examination, and he signed his name thereon in their presence,-held, that the notes offered in evidence were sufficiently identified as those testified to by the witness (Brumskill v. James, 11 N. Y. 294). Witnesses may be examined under a commission in respect to an original paper, by annexing a copy thereof to the interrogatories, and producing the original upon the examination and having it identified by the witness. The original need not be annexed to the interrogatories (Comm. B'k of Penn. v. Union B'k of N. Y 11 N. Y. 203). Where an exhibit proved before a commissioner was a bill of sale executed by J. M. and wife, and the commissioner certified that the same was produced and shown to the said J. M., a witness sworn and examined, and by him deposed unto,-held the certificate was sufficient (Hall v. Ba ton, 25 Barb. 274).
f. Where the return was written on the deposition, and the deposition, commission, &c., were all annexed together in such a manner that the return could not be separated from the commission and the evidence, held a substantial compliance with the statute (Hall v. Barton, 25 Barb. 274; McCleary v. Edwards, 27 id. 239). And in Pendell v. Coon (20 N. Y. 134), the court of appeals held that the return need not be indorsed on the commission itself, nor upon a paper containing the depositions annexed or any part thereof; but that where it is necessary by reason of the paper containing the depositions being filled thereby, to annex an additional sheet of paper, the return may be upon such additional sheet.
g. The deposition of a witness examined on interrogatories is admissible, although it appears on his examination he referred to papers which he refused to allow the commissioner to see (Steinkeller v Newton, 2 M. & Rob. 372). h. The signature of a commissioner will be judicially noticed, though his
name be not written at length (1 Hill, 249). The annexing the papers together by wafers is sufficient. A tape and seal are not necessary (ib.) When a commission is directed to two, either or both of whom being authorized thereby to execute it, and the return is by only one of them, it will be presumed that he alone was present at its execution (ib.)
a. It will be presumed that the commissioner who took the testimony closed and sealed the package himself, and that he discharged his duty by doing all those things in the execution of the commission which he is not bound to certify specifically as done. And when the manner of the return is provided for by stipulation, it will be no objection to the reading of the depositions, that the direction on the return does not specify the clerk's residence (id.)
b. It cannot, however, be urged on the trial as an objection, that the depositions were not deposited in the post-office immediately after they were taken (23 Wend. 38).
c. Although there be nothing on the envelope, or elsewhere, showing that the commission was deposited as required by the statute, or that it was returned by mail, it will be presumed that the commission was so deposited and returned (Hall v. Barton, 25 Barb. 274).
d. If the packet containing the commission and return be transmitted by mail, the clerk to whom it is addressed must receive it from the post-office, and open and file it in his office. If delivered to an agent, he must deliver the packet to the clerk to whom it is directed, or to one of the judges of the court, who will receive and open it on the agent making affidavit that he received it from the hands of one of the commissioners, and that it has not been opened or altered since he received it.
e. If the agent be dead, or from sickness or other casualty be unable to deliver such packet personally, it may be received by the clerk or judge from the hands of any other person, upon such person making affidavit that he received the same from the agent, that the agent is dead or otherwise unable to deliver it, that it has not been opened or altered since such person received it, and that he believes it has not been opened or altered since it came from the hands of the commissioners.
f. Where a commission is returned by an agent, his affidavit, as prescribed by statute, that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it, is indispensable, unless waived by consent. A commission returned by express, and unaccompanied by such affidavit, is inadmissible, although that method of returning it was expressly authorized by the commission (Dwinelle v. Howland, 1 Abb. 87).
g. The clerk or judge receiving and opening the commission, must immediately file the same in the office of the clerk of the court from which it issued, or, if the action be pending in the supreme court, in the office of the clerk of the county in which the action is triable (20 Johns. 357).
h. The parties, or their attorneys, may agree in writing on the manner in which the commission shall be returned; and on filing such agreement in the clerk's office, the attorney for the party suing out the commission may indorse on it a direction according to such agreement, and the commission shall be returned accordingly.
i. Where the direction as to the return of a commission required it to be inclosed in a wrapper and deposited in the post-office at Toronto by the commissioners, directed to W. B., Buffalo, and a certificate thereof indorsed upon the wrapper by the commissioners, and the commission was received from the post-office at Buffalo, post-marked "Toronto,"-held, that it was not requisite that the certificate on the wrapper should state that the commission was deposited in the post-office by the commissioners (Brumskill v. James, 11 N. Y. 294). In the foregoing case the certificate was, "We certify that within is contained the commission, interrogatories, exhibits, depositions, and the examinations, taken before us in a certain suit, where Thomas Brumskill is plainttiff, and William I. James is defendant.”
a. Filing. The commission, return, depositions, and exhibits annexed, are required to be kept on file in the office of the clerk to whom they were addressed (unless otherwise directed by a special order of the court), when they are to be at all times open to the inspection of the parties, who are entitled to copies on payment of the fees allowed by law.
b. Reading on trial.—On the trial of the cause, the examination and depositions taken under the commission (or an exemplification thereof, where the originals are filed in any other county than that in which the cause is tried), may be offered and used in evidence by either party (Weber v. Kingsland, 8 Bosw. 416).
c. Every objection to the competency or credibility of a witness so examined, or to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner and with the like effect as if the witness were personally examined at the trial. The objection to an interrogatory annexed to a commission, on the ground of its being leading, may be made when the answer of the witness is proposed to be read in evidence; especially when the interrogatories are annexed under a stipulation expressly saving all legal exceptions (Fleming v. Hollenback, 7 Barb. 271). And generally it is in time to take exceptions to interrogatories when the answers are offered in evidence on the trial (2 Wend. 65, 71; 6 Cow. 404, 416, contra). But the statute provision reserving to the parties every objection to the competency or relevancy of any question put to or answer given by a witness examined upon commission, is not applicable to a case in which the parties have stipulated upon the objections which are reserved, and thus by implication waiving all others (Moss v. Cloyes, 11 Barb. 101; and see Cope v. Sibley, 12 Barb. 521; Howard v. Orient Ins. Co. 9 Bosw. 645).
d. Where depositions taken on a commission are offered to be read on the trial, and the opposite party objects to them on the ground that the interrogatories are leading, the question whether the interrogatories and the answers thereto are admissible is one addressed to the discretion of the court (Cope v. Sibley, 12 Barb. 521; disapproving, Williams v. Eldridge, 1 Hill, 249; and see Hall v. Barton, 25 Barb. 274).
e. Where the attorneys indorsed on the interrogatories: "It is stipulated that the within interrogatories and cross-interrogatories are agreed upon, and that these stipulations have the same effect as the allowance of a judge, reserving all legal rights,"-held, that on the trial neither party could object to the reading of the depositions on the ground that the interrogatories were leading (Cope v. Sibley, 12 Barb. 521; and see Morse v. Cloyes, 11 Barb. 101).
f. When a commission has been returned and opened, so that its contents might, with reasonable diligence, have been known to the parties before the trial of the cause, a motion for the suppression or re execution of the commission, on the ground of its irregular or defective execution, must be made at chambers, and will not be entertained by the judge on the trial. The objections on the trial are limited to the competency of the witnesses, or the admissibility of their testimony." This was pronounced as the rule of practice in the superior court (see 2 Abb. 271; and see Sheldon v. Wood, 2 Bosw. 269; Burrill v. Watertown B'k, 51 Barb. 106).
g. A motion at the trial to suppress the whole of a deposition on the ground that some of the interrogatories and parts of the deposition are improper, shou denied (Com. Bank of Penn. v. Union Bk of N. Y. 11 N. Y. 203). If a any part of the deposition is competent, the objection should be confined to that part which is not so (ib.; see Champney v. Blanchard, 39 N. Y. 111).
h. If a direct interrogatory and the answer of the witness to it, are properly excluded by the court, cross-interrogatories and the answers thereto, which are dependent upon the direct interrogatory, should also be excluded (Fleming v. Hollenback, 7 Barb. 271).
i. An answer not responsive to an interrogatory, may be objected to by either party on the trial, and will thereupon be excluded (Lansing v. Coley, 13
Abb. 272). But under the general interrogatory, requiring a witness to state any thing known to him material to the issue or to the benefit of the party putting the interrogatory the witness may state a fact material to the issue, though it be to the detriment of such party (Van Ness v. Bush, 14 Abb. 33).
a. Where pertinent evidence is given in answer to the general interrogatory to which the attention of the opposing counsel was not called by the others, if he desires to cross-examine the witness as to such evidence, he should apply to the court for relief before the trial. It is not a ground for suppressing the whole deposition on the trial. If any part of the evidence so given is incompetent or impertinent, such part may be excluded. The refusal to suppress the deposition of a witness at the trial, where it was proved that the attorney of the party examining him, at the request of the witness, and before he was sworn, wrote down for him at his dictation the substance of what he afterward testified to in answer to the interrogatories, is not error; it goes to the credibility of the evidence. If the witness was imposed upon, or any fact was misstated, colored, or concealed, the court, on motion for that purpose, might set aside the deposition and order the commission to be executed anew, or grant other appropriate relief (id).
b. Where, on the return of a commission, it does not appear that the last general cross-interrogatory was put to and answered by the witness, the deposition cannot, in general be read in evidence (4 Wash. C. C. Rep. 324; 25 Wend. 259).
c. Upon the deposition of a witness taken on commission being offered in evidence at the trial, the defendants objected on the ground that two crossinterrogatories, one embracing nineteen questions and the other five, were unanswered in part, but in what respect they were unanswered was not specifically stated. After the deposition had been received and read, the same objection was renewed and exception taken,-held, that it would be an unjustifiable exercise of discretion to suppress the entire deposition upon such a vague and indefinite objection, and that the refusal to do so was no ground for a new trial. It is only when the officer neglects to put the interrogatories as settled, or when the witness refuses to answer, that the deposition will be suppressed on the ground of the commission having been imperfectly executed. Where a witness has not been impeached, nor any foundation laid for his impeachment, by showing contradictory statements made by him as to a material fact, and he has not been interrogated as to what he said in a particular conversation, proof of declarations made by him on that occasion, in the absence of the party by whom he is called, cannot be received (Valton v. Nat. Loan Fund Life Assur. Soc. 20 N. Y. 34). Where the taking of a deposition having been commenced, it was adjourned after four or five interrogatories were answered, upon the witness refusing to answer further because of vertigo and consequent confusion of mind; and subsequently the witness appeared again with his counsel, and the examination being commenced from the beginning, the witness read his answer from a paper he brought, which had been prepared by himself and counsel, and was in his counsel's handwriting,-held, upon motion, that the deposition must be suppressed. It seems that in such a case the answers taken upon the first examination should not have been disregarded by the commissioner, but that the proceedings should have been stated by him as they took place, and both examinations should have been included in the deposition returned (Creamer v. Jackson, 4 Abb. 413).
d. If a witness, after being examined on a commission, should come into the State, he may be examined on the trial (17 Johns. 345).
e. Second commission.-The court will sometimes allow a second commission to issue (17 Johns. 343; 2 Caines' R. 47, 253; 1 ib. 345; 3 ib. 321; 2 Sand. 689, 690).
f. After the testimony of a witness has been taken upon a commission, and the commission returned, the party cannot have a new commission to re-examine the witness, merely on the expectation that he may now swear more definitely than before, in the absence of any suggestion that the witness has made