
    DEN EX DEM. PERRY, AUSTIN AND AL. v. THOMPSON, SINNICKSON AND AL.
    In ejectment.
    A witness examined under a commission issued from this court, must be sworn by the commissioners, their commission being a dedimus potestatem, and a personal trust; a justice of the peace has no authority to administer the oath to the witness. Per Horsblower C. J. and Ford J.
    Commissioners to take depositions in a foreign state, must be sworn or affirmed faithfully, fairly and impartially to execute the commission. Their oath faithfully to execute &c. omitting the other terms, is insufficient.
    It should appear on the face of the return, that the officer before whom the commissioners were sworn, was lawfully authorized to administer an oath. His styling himself a justice of the peace of the county &c. is not sufficient evidence of his authority._ Per Ford, J.
    In this case, a commission was issued out of this court, directed to Samuel Woodson and Henry P. Bates to take the deposition of Elias Bates of the state of Missouri. The commissioners, went before a justice of the peace, of that state, and were sworn faithfully to discharge the duties assigned them &c. The witness instead of being sworn by the commissioners, was sworn by the same justice of the peace.
    The deposition thus taken was offered in evidence on the trial at Circuit, and being objected to, was rejected, and the plaintiff want of evidence was nonsuited.
    The case was argued before the court at bar, in November term 1836 on a rule to shew cause why the nonsuit should not be set aside.
    The Reporter is possessed of no further information respecting the case, than what appears in the opinions of the Chief justice and Mr. Justice Ford, — The opinion of the Court seems to be delivered by the latter — As the reporter finds no opinion of Mr. Justice Ryerson, in this case.
    It will be remembered that the present law Reporter did not receive his appointment until October 1837, and consequently his knowledge of the decisions of the Court, prior to November term of that year, is confined to that obtained from the papers handed to him by the members of the Court. This explanation, will be accepted, he trusts, as an apology for many of the deficiencies in the reports of the cases decided prior to that term.
   Ford, J.

1. The statute enacts, that the commissioners shall first take an “ oath or affirmation, faithfully, fairly and impartially, to execute the said commission; which oath or affirmation may be taken before any person lawfully authorised to administer an oath or affirmation in the state, territory or kingdom where the said commissioners may be.” liar. Comp. 11 seo. 1. now the oath that was administered, and the authority of the person to administer it, appeared on the face of the return, to be as follows; “ State of Missouri, county of Jefferson : ” This day, personally appeared before me Chauney Smith a justice of the peace for the county oj Jefferson aforesaid, Samuel Woodson and Ilenry P. Bates, commissioners for taking the following depositions, and were sworn, “faithfully to discharge the duties assigned them in the foregoing commission, May 18th 1832, Chauney Smith justice of the peace.” They do not swear that they will execute the commission cither fairly or impartially as the statute enacts; but leaving out both those requirements, they swear to do it faithfully. Now the court has a power which it often exercises, of dispensing with form; not however with the substance of a statute; and yet “fairly and impartially ” are a part of the substance of the oath. They mean something more than is meant by the word faithfully,” or they would not have been used in the statute. If they mean only the same thing as faithfully, then it is granted, that by the rule of legal construction, they become useless words, and may be stricken out of the statute. The word “ faithfully,” as it respects temporal affairs, means diligently, without unnecessary delay: as a faithful officer, a faithful servant, in applying to their duties. An agent may be very faithful, yet very partial, to his employer. If there is the least room for evasion, the legislature did well, by way of guarding against it, after the word faithfully, to add the words “fairly and impartially,” in order to be sure to bind the conscience of the commissioners on the point of impartiality; and to expunge both these words from the oath, and not substitute any others in their place as equivalent, is a substantial departure from the statute. It is no sufficient reason for abolishing part of our laws, that they are unknown to foreign commissioners; they are not presumed to be known; the official oaths should have been placed on the back of the commission, before it left the state. We have no power to repeal the statute, merely to heal such an omission.

2. Another defect is this; the return no where shews that Chauncey Smith had lawful authority to administer an oath. It sufficiently appears that he was a justice of the peace, but it depends on the laws of Missouri, whether a justice of the peace has “ lawful authority to administer an oath or affirmation; ” and the court must have something that will amount to evidence of those laws. This court cannot take judicial notice of the laws and constitution of a foreign state. If we were to do so, it would be error. Our desire is to administer justice, but it must be public justice, according to the laws of the state. Our statute says, that the oath must be administered by a person “ lawfully authorized ” to do it, not here but “ in the state where the commissioners may be.” IfChauncy Smith, after his style “justice of peace,” had added, “ lawfully authorized to administer an oath or affirmation in said county,” the court would have received it as official evidence of their laws. We did so in the case of Ludlum and Broderick. Here again, the form of jurat required by our law, should have been sent with the commission, or furnished by instructions. Ought or can the court abolish this part of the statute, in order to save that trouble?

3. But there is another objection, which nothing that I hear, has been able to remove. This court in the body ofthe commission, gave to the commissioners, a dedimus potestatem, by authority of the statute, or in other words, a power to administer an oath or affirmation to any witness they should have occasion to examine. The trust was of a personal nature; they could exercise it themselves ; but could not delegate it to another. Now they have not returned that they swore the witness. It is evident they did not; for the jurat is signed by Chauncy Smith justice of peace; so that the witness was sworn by him ; and the commissioners only certify that he was examined before them, and subscribed his name in their presence. The commissioners had the authority, but they did not exercise it; it was done by the justice, to whom the power was not granted. Upon these objections, the examination was properly rejected. Yet these mistakes are not the act of the plaintiff, nor has the court any ground to suspect that they happened by his instigation or design; they were committed by the commissioners, who were acting as officers of this court; and instead of turning the plaintiff’ entirely round, to commence a new action ; if he chooses to apply for another commission, in the place of this, so insufficiently executed by those officers of the court, the nonsuit induced by that means, ought to be set aside, • and a new commission awarded, on payment of costs.

Hoiiin'BloW-Eb, C. J.

I concur with Mr. Justice Ford, in refusing to make the rule absolute, upon the ground, that the witness was not sworn by the commissioners under the authority given to them in the commission, but by a person acting as a justice of the peace in the state of Missouri. Upon the other points, I express no opinion.

Absolute rule refused.

Cited in Den d. Saltar v. Applegate, 3 Zab. 115; Lawrence v. Finch, 2 C. E. Gr. 237-238.  