Keene v. Meade
Page 2 ERROR to the circuit court for the county of Washington in the district of Columbia.
In the circuit court the testator of the defendant in error Richard W. Meade, instituted an action against Richard R. Keene, the plaintiff in error, for money lent and advanced to him in Spain, where Mr Meade, at the time of the loan, resided, and carried on business as a merchant. In order to establish the claims of the plaintiff below, a commission was issued to Cadiz; and under the same, certain depositions were taken, which were returned with the commission. The commission was directed to the commissioners in a case stated to be depending in the court in which Richard M. Meade was plaintiff, and Richard R. Keene defendant; and it was returned to the court under the hands and seals of the commissioners, who certified that the 'execution of the commission appears in a certain schedule annexed.'
In the schedule annexed to the commission was also the following certificate under the hands of the commissioners.
'We the undersigned, appointed commissioners to examine evidences in a cause depending in the circuit court of the county of Washington in the district of Columbia, between Richard W. Meade plaintiff, and Richard R. Keene defendant, do hereby certify that we have severally taken the oath into the hands of each other prescribed in the herein annexed commission, and we further certify that we have likewise administered the oath prescribed by the same herein annexed commission, to Mr James M'Cann, the clerk we are going to employ for the execution of the same.'The commission 'required the commissioners, or a majority of them, to cause to come before them all such evidences as shall be named or produced to them by either the plaintiff or defendant; and to examine them on oath touching their knowledge or remembrance of any thing relating to the cause.' The record does not show that any interrogatories were annexed to the commission.
The commissioners also certify as to the execution of the commission in the following words. 'We the undersigned do certify that, in compliance with our duty, we shall examine the witnesses upon the following interrogatories, which we deem necessary first to establish.'
Interrogatories returned with the commission, were then administered to the witnesses, and the separate answers to each written and returned.
Frederick Rudolph, who was the clerk and book keeper of Mr Meade, testified as to one of the items of the account, 'that on the defendant's receiving two hundred and fifty dollars, the defendant himself made the entry thereof in the rough cash book, writing his name at full length, probably at my own request, not so much for the sake of the receipt, as in order for me to become acquainted with his signature, and the way of spelling his name.'
On the trial of the cause, the counsel for the defendant objected to the reading of the commission on the ground of a variance in the name of the plaintiff in the commission, the plaintiff being called Richard M. Meade, instead of Richard W. Meade. This objection was overruled by the court; the defendant's counsel also objected to the deposition of F. Rudolph, so far as the same went to prove the item of $250 in the plaintiff's account; alleging as the ground of the objection, that as there was a written acknowledgement made by the defendant, the writing should be produced, and the same could not be proved by parol. The plaintiff by his counsel offered to withdraw, and stated that he withdrew and waived that part of the deposition which went to prove the existence of a written acknowledgement or receipt, and he relied only on the proof of the actual payment of the amount paid by the witness. The court overruled the objection and permitted the evidence to be read.
The defendant by his counsel also objected to the reading of the depositions returned with the commission, because the commissioners had not certified in whose hand writing the depositions were taken down, nor that they had appointed a clerk, nor administered the oath to their clerk, as required by the said commission; nor that the said witnesses were required to testify all their knowledge or remembrance of any thing that may relate to the said cause; nor that they were sworn so to do, but were examined on particular interrogatories propounded by the commissioners themselves. But the court overruled the objections, and permitted the depositions to be read in evidence to the jury, & c.
The defendant's counsel excepted to the opinion of the court, on the objections made to the evidence, and the court sealed a bill of exceptions: upon which the defendant prosecuted this writ of error.
Mr Key, for the plaintiff in error, contended, that as there was written evidence of the payment of the sum of $250, it should have been produced; and that in its absence, no allegation of its loss having been made, parol proof of its contents could not be given. The entry in the book was the original and superior evidence.
The offer of the plaintiff's counsel to strike out that part of the deposition of Rudolph which referred to the written entry, did not prevent the influence of the fact that such evidence existed, nor deprive the defendant of his right to its production.
As to the misnomer of the plaintiff, he argued that the commission was an ex parte proceeding, and a strict scrutiny of it is warranted and demandable. The misnomer shows a different plaintiff from the real plaintiff in the cause.
He objected to the execution of the commission, as it did not appear that the interrogatories were those of the parties to the cause, but had been framed and put by the commissioners, without notice of the same. Nor did it appear that the clerk, who was sworn, wrote down the examinations of the witnesses; the certificate stating only that the clerk was sworn, whom the commissioners 'were about to employ.' The clerk does not attest the depositions.
He also contended that the other matters stated in the court below were legal objections to the commission. Cited 5 Har. and John. 438.
Mr Lee and Mr Jones, for the defendant in error, maintained, that the objections made by the plaintiff in error were merely technical, and such as were exclusively in the power of the circuit court. This court has decided against such objections as ground of error. 7 Cranch, 208.
As to the variance, it was said it was immaterial; or if material, should have been the subject of a plea; and if it had been pleaded, the plaintiff could have cured the defect by an averment that the person named in the commission and the plaintiff were the same. Cited 5 Bac. Ab. 215. 1 Wash. Rep. 257. 1 T. R. 235.
The evidence of Rudolph was not to prove the contents of the memorandum, but the advance of the money by the witness as the plaintiff's agent. The entry in the book was but secondary evidence of the payment; and to claim that the whole of the account book should have been annexed to the commission was unrea nable; and yet it must have been so annexed, if the position of the plaintiff in error is correct.
It was also contended, that upon a fair construction of the certificate of the commissioners, the execution of the commission was legal and proper.
Mr Justice THOMPSON delivered the opinion of the Court.