
    SELON H. CASE v. GARRET GARRETSON.
    Where a deposition de bene esse has been taken upon short notice under-section 25 of the act concerning evidence (Rev., p. 382), the reasons, for the taking of the same and the requirement of the commissioner-in respect to the notice, together with a copy of the notice itself, cam appear only by the certificate of the commissioner. Oral proofs-offered before the trial court were properly rejected.
    On rule to show cause. The facts appear fully in the-opinion.
    Argued at February Term, 1891, before Beasley, Chief Justice, and Justices Magie, Dixon and Garrison.
    For the plaintiff, Frank E. Bradner.
    
    For the defendant, John S. Voorhees.
    
   The opinion of the court was delivered by

Garrison, J.

This is an action on a promissory note, the-making and endorsement of which were admitted at the trial.. The defence was that the note had been obtained by false representations, of which there was some proof. The plaintiff offered in evidence certain depositions which had been received1 by the trial court properly sealed. What these depositions-contained we do not know, as the state of the case is silent upon that point. The justice before whom the case was tried' excluded these depositions upon the ground that the Supreme-Court commissioner before whom they had been taken had not certified any reason for taking them, and upon the further-ground that, whereas they were taken upon short notice it did not appear by the certificate of the" commissioner that the-case, in his opinion, required such short notice. The verdict was for the defendant, whereupon this rule to show cause why a new trial should not be granted was allowed. The question, is, whether the depositions should have been received in evidence. The affidavits in question had been taken at Newark,. New Jersey, before a Supreme Court commissioner, upon short notice, in the absence of the adverse party. The certificate of the officer who took them was in these words:

“I, A. B. C. Salmon, Supreme Court commissioner, do-hereby certify that the witnesses above named herein appeared: personally before me, were .duly sworn by me and examined' by plaintiff’s attorney and gave evidence as is set out above* that such other and further proceedings were had as shown, by this transcript.
“A. B. C. Salmon,
“ Bup. Ot. Comm’r.”

The notice stated that the witnesses to be examined were-about to leave this state, but the certificate of the commissioner is silent as to the reasons why he took the affidavits,, or whether, in his opinion, the case was one requiring short-notice. In this condition of affairs the party who had procured the taking of the depositions offered to supply by orall proof evidence as to the reasons which moved the commissioner to take the affidavits, and that the commissioner had" fixed the time for taking the same and had authorized the giving of the notice. The overruling of this offer raises the-only question before us. The privilege of producing upon rthe trial of an issue of fact affidavits taken elsewhere is so marked a departure from the ordinary course of trials that every safeguard thrown by the legislature around the extraordinary procedure should be upheld. Upon this point there is entire unanimity of judicial sentiment. Chief Justice Kirkpatrick, in the case of Hendricks v. Craig, 2 South. 568, speaking of commissions to take testimony, said: “As the power to take the testimony of absent witnesses is a new power created by statute, the rule is that it must be pursued strictly.” To the same effect is the language of Ryerson, J., in Sayre v. Sayre, 2 Gr. 487, 492: “The statute is an innovation on a great and valuable principle of the common law that the witness shall be produced before the jury, who are to judge, as well from his manner as otherwise, of the credit to which he is entitled.” “I do not think,” said this learned judge, with marked discrimination, “ that this is a case where the legislature have engrafted a new principle on the common law which the courts are to regard as a principle, and • give efficiency to it in practice. They have only made an exception, and the party has not brought himself within it.” “This statute,” said Chancellor Zabriskie, speaking of the same act, “ creates a new power contrary to the settled practice, and should, therefore, be strictly construed and'strictly complied with.” Parker v. Hayes, 8 C. E. Gr. 186, 187.

In the case of Moran v. Green, 1 Zab. 562, 569, Chief Justice Hornblower, Avhile relaxing thep-ule as to the directory parts of the statute in reference to the filing of the affidavits, says: “For the due observation of everything relating to these matters the party suing out the commission is alone responsible; but Avhen he has got it back into the hands of a judge of the court out of which it issued, he has done all the law requires him to do,” an exception Avhich, it will be •observed, instead of loosening the rule rather emphasizes it, so far as the present case is concerned. If we are to be guided by the views- thus expressed there will be no difficulty in giving a construction to the statute under which these depositions have been taken.

The section in question is this (Rev., p. 382, § 25): If any material witness in an action or- suit -of a civil nature, &c., is about to leave the state (his deposition may be taken d& bene esse), “ provided, that the officer before whom the deposition is to be taken shall cause notice to be given to the-adverse party immediately, or at such short day as the case, in> the opinion of the said officer, may require to'attend and be-present at the taking thereof, and to put questions and cross-examine, if he shall think -fit.” As has been shown, the con-census of judicial opinion favors that construction of this-statute which gives to the language employed its plain 'and unmistakable meaning. The-act says that there shall be a-certificate by the officer who took the affidavits, of the reasons-for their being taken and of the notice given to the adverse-party. Rev., p. 382, § 27. The entire matter is a creature-of legislative enactment, so that it is'difficult to see by"what power these statutory provisions can be altered by this court-,, eveu' if it were deemed advisable to dispense with them.. Apart, however, from authority there are cogent reasons why these jurisdictional matters should appear to the trial court by-official certificate rather than by oral proofs. ' In the first place, they concern matters resting- in the bosom of the official who makes the adjudication, and hence cannot safely be the-subject of oral testimony from the mouths of others. The-reasons which move the officer to take the affidavits and his opinion as to the facts required by the exigencies of the case-before him are known to himself. The best evidence, therefore, is his own statement. All else is hearsay or surmise.. Further, it is evident that the cases in which contention will arise are those in which the depositions have been taken in> the absence of the adverse party. For, if he appear and cross-examine the witnesses, his presence or his conduct may be-such as to waive his- right to insist - upon the statutory provisions designed for his protection. In this respect each case-must be determined upon the general principles applicable to< its peculiar features. But where the return of the officer shows that the affidavits were taken in the presence only of the party procuring them, the adverse party has a right- to insist that they shall become evidence against him only when delivered to the trial court with the jurisdictional facts proved in the manner prescribed by the statute. To hold otherwise would be to place it within the power of the party who had procured the proofs and who alone was represented at their taking to adduce testimony in their support, which, under the ■circumstances, it would be entirely beyond the power of the absent party to gainsay or even to verify except by calling the officer himself, thus shifting the burden of proof in an opppressive and unwarranted manner. When we consider that the matters to be proved are the reasons which operated upon the mind of the official, and his opinion as to the necessity of short notice, we shall see the difficulty and danger of permitting such matters to rest in oral proofs offered by an interested party during the course of a trial — difficulties and dangers which are incurred solely by an arbitrary disregard ■of the provisions of the statute which plainly enacts that these matters are to be shown by the certificate of the officer. As between these two lines of practice, if the language of the ■statute was open equally to either construction, I should deem the construction indicated most consonant with correct principle and sound policy. When to this conclusion is added the weight of judicial opinion as to the spirit in which acts of this kind are to be construed and the legislative intent is ■expressed in unambiguous language, I can see neither reason nor authority for permitting the substitution of oral testimony for the official certificate required by the statute under review.

Section 43 of an act concerning evidence (Rev., p. 385) does not reach the infirmity of the certificate now before us. That section provides that any deposition may be overruled upon objections to the competency of witnesses or of testimony, or to the regularity of questions, but “ shall not be excluded for any irregularity or informality in taking or returning the same, if the court in which the same is offered shall be satisfied that the testimony of the witnesses has been fairly and truly taken and returned.” The taking of testimony here mentioned ■ refers to the mode in which the witness is interrogated and to the form in which his testimony is transcribed, ¿nd the returning of the depositions refers to their custody from the time they are sealed by the commissioner until they :are delivered to the court. But nothing in this act alters the previous provisions as to what the certificate shall contain. Moreover, these irregularities are to be overlooked only when the court is satisfied concerning the fairness with which the testimony was taken. But under the views above expressed it would be petitio principii to say that depositions which •cannot be received, because not properly accredited, may be used to satisfy the mind of the court by their internal evidence •concerning the manner in which the testimony was taken. Such a course would not be overlooking an irregularity, it would be abrogating a legislative provision..

The rule to show cause should be dismissed, with costs.  