Pigott v. Holloway

Tilghman C. J.

This cause comes hefore us on a writ of error to the common pleas of Montgomery county, founded on a bill of exceptions. Thomas Holloway the defendant in error was plaintiff below. His action was founded on a judgment obtained against the defendant in one of the courts of England. A commission to take depositions of witnesses residing in England was moved for by the defendant and issued, in which both plaintiff and defendant joined. Each party exhibited interrogatories. The plaintiff filed interrogatories to be administered to his own witnesses, and also to the witnesses of the defendant. The defendant filed interrogatories to be administered *441 to his own witnesses only. Two commissioners were appointed on each part, and the commission was sent forward directed to the four commissioners. It was returned executed by the plaintiff’s commissioners only, who certified that after diligent inquiry and search, no such persons, as those who were named commissioners for the defendant, could be found. Annexed to the return of the commission was an ex parte affidavit of Faithful Croft, making particular mention of the steps taken by him to discover the defendant’s commissioners. The plaintiff’s commissioners are described in the commission both by their profession and place of abode. The defendant’s are only described as being of London.

Two objections were urged by the defendant to the admission of the depositions taken on this commission as evidence on the trial. 1st. That the execution of the commission b}'-the commissioners of the plaintiff only, was irregular. 2d. That the interrogatories of the defendant ought to have been administered to the witnesses produced on the part of the plaintiff. On both these points the court'below gave an opinion against the defendant, and permitted the depositions to be read in evidence.

The defendant then objected to the reading in evidence of a warrant of attorney, said to be executed by him, annexed to the return, and referred to in the deposition of one of the witnesses, who swore that his name subscribed as a witness was of his own handwriting, as was also the defeasance to the warrant of attorney; that on having recourse to some private minutes of his own he found that on the day of the date of the said warrant he was at a certain house in London, where he supposed it was executed; that the seal was an impression from an engraving which belonged to him; and from all these circumstances he was convinced he was present and witnessed the execution of the said instrument; and that there was no other subscribing witness. The court below were of opinion that on this evidence the warrant of attorney might be read to the jury.

These several objections are stated in the bill of exceptions, on which this court is now to decide.

As to the irregularity of the execution of the commission by the plaintiff’s commissioners only, it appears to me that, circumstanced as matters were, an ex parte execution was not improper. It was the defendant’s fault that his commissioners had no share in the execution; he was negligent in not describing *442 them by their profession or occupation, and place of abode. Re-Aides it does not appear that he took the proper measures for executing the commission. He had a right to forward it himself, and should have done so. If he did not know where his own commissioners resided, he should have sent the commission to some friend or agent, with directions to find them out; and he should have taken care to give notice to the plaintiff’s commissioners where his own were to be found. The court cannot avoid observing that this would have been very easy, as the plaintiff’s commissioners were men of notoriety; one of them Mr. Marshall, a serjeant at law and author of the treatise on insurance; the other Mr. Latues, a barrister. The commission is dated in May 180o, and executed in January 1806; so that there was ample time for taking every necessary step to insure the attendance of the defendant’s commissioners. It would be extremely hard if, after this lapse of time; and this carelessness of the defendant, the plaintiff should be deprived of the benefit of his testimony, merely because the commission was not executed by men who were sought for and could not be found.

The'second objection is answered by adverting to the interrogatories filed by the defendant. They are directed to be administered to his own witnesses. It is much to be regretted, if any material facts have been lost for want of a cross examination of the plaintiff’s witnesses. But the commissioners acted with strict propriety in not propounding any questions on the part of the defendant to the plaintiff’s witnesses, because the defendant had not directed any such questions to be put.

As to the third objection, which goes to the reading the warrant of attorney in evidence, I am clearly of opinion the court below were right.

Whether the evidence contained in the deposition was sufficient to establish the execution of the warrant of attorney, was for the consideration of the jury; but surely there was enough to authorize the court to submit it to them. Few men can swear positively to the sealing and delivery of an instrument after any considerable time. In this instance the witness mentioned strong circumstances from which he was coiivinced that he attested the execution; he knew his own handwriting and his own seal. But the defendant’s counsel has urged, that he has not said that the signature of the defendant’s name *443 was the defendant’s writing, nor that the instrument was executed by the defendant. True, he has not; his expressions are that he is convinced he was present, and attested the execu- “ tion of the instrument.” It is possible the witness may have quibbled. He might have seen the instrument executed by some other person who forged the defendant’s name. But this kind of quibbling approaches so near to perjury, that none but a rogue would be guilty of it. If his character had been proved to be bad, the jury might have disregarded the evidence. But unless his character was impeached, I should think the jury well justified in believing, that the instrument was executed by the defendant. On this point however they were left to judge. The objection is, that the court ought not to have suffered them to exercise any judgment on it.

My opinion is, that the court of common pleas decided rightly, and that their judgment be affirmed.

Yeates J. of the same opinion. Smith J.

Were the objections of the plaintiff in error to the regularity of the commission to prevail, it would be in the power of an artful defendant to delay a trial for a long period, by naming commissioners not in existence, or not to be found. The defendant .below first applied for the commission; the plaintiff joined; regularly the defendant should have given notice to the plaintiff’s commissioners of the time and place,of taking the depositions, as they not only did exist, but were well known, and the place of their residence described in the commission; while that of the defendant’s commissioners was carefully concealed; nor has it been to this day disclosed. It is impossible not to see at least an affectation of delay in the defendant’s conduct. As to the neglect of examining the plaintiff’s witnesses upon the defendant’s interrogatories, the defendant did not direct any questions to be put to them. In all the proceedings of the lower court, I think they were right, and concur in the affirmance of the judgment. ‘ Br.ackenr.idge J. concurred with the chief justice.

Judgment affirmed.-