
    WALN v. FREEDLAND.
    November 25, 1837.
    
      Exceptions to the return of a commission to take depositions.
    
    1. Commissioners to take depositions of witnesses in another state, returned to the commission, “the execution of this commission appears by the schedule hereunto annexed,” signed with their names, but not affixing a seal to them ; and the envelope had two seals, with the name only of one commissioner. Held, to be irregular, and the depositions cannot be read in evidence.
    2. In such case, where the defect is the result of inadvertence, the court will order the commission to be returned to be re-executed.
    IN this case, a commission issued to New York to take the depositions of witnesses, at the instance of the defendant, each party naming a commissioner, both of whom attended to the execution of the commission. The usual endorsement was on the margin of each sheet of paper, containing the depositions, of the names of both commissioners, and there was the usual return, “ the execution of this commission appears by the schedule hereunto annexed,” which was signed by both commissioners, but without seal by either. The depositions were put under an envelope which had two seals, but the name of one commissioner only was written over both seals.
    Exceptions were filed to the sufficiency of the execution and return of this commission, under the 90th rule of this court, (1 Miles 459,) alleging that, 1. The return was not under the seals of the commissioners; 2. The envelope was not endorsed under the seals of both of them.
    
      Wain, for the exceptions.
    
      Tyson, contra.
   Per Curiam.—

The commissioners are officers of the court, and the commission is a grant of its power to record the evidence according to rules established by long practice. These rules are intended for the safety of the parties, who are generally at a distance from the place where the depositions are taken. The court have always required certain forms to be complied with, all having relation to the utmost precaution to be used on the part of the commissioners, to verify the faithful execution of the commission. The union of the commissioners in sealing the return, and in endorsing the seals on the envelope, tend to prevent mistake, accident, or fraud. At the same time, where the error is most probably the result of inadvertence, the court will not put the parties to unnecessary expense. It is therefore ordered that the commission, and all the proceedings of the commissioners, or either of them, under it, be returned to the commissioners, with instructions to make a full return, after a re-examination of the defendant’s witnesses, upon notice to the plaintiff.

Decree accordingly. 
      
      
        Vide New York State Bank v. Western Bank, in this volume.
     