
    Newell Waton against Tolever Bostwick.
    
      Columbia District,
    
    
      1801.
    
    Commissions mination of broad^trans-fte^eh-mneis of the post-offices, without auy suspi-cioos of unfairness about tcTbe opened Stions readtai evidence, although there he no endorsement of the delivery officetheby°Sa commissioner on the hack of the on the ’ where*1, there Segec/^shaií not be presumed ; and that it is fair that ^aU was ought to have the'1 commit sioners in the execution of their trust in another state.
    MOTION for a new trial.
    The ground upon which this motion was made, was, that certain commissions which had been issued in this cast, in order t0 examine witnesses in Virginia, and also in Georgia, ha¿ not been permitted to be opened, and the depositions ; ... 1 read on the trial by the presiding judge ; because, it did not ¡ . . . appear that the commissioners named m said commissions, or one °f them, had deposited the said commissions and de«-Pos^ons after the examination of the witnesses in the post-offices in those states to be forwarded on to Carolina; by . which means the defendant was deprived of the benefit of . .... *1111 the testimony 01 the witnesses so examined, and had a verdict aSainst
    In support of the present motion, it was urged, that the commissions themselves had all imaginable fairness about them; they had been taken out of the post-office at Edge-fie^ by the clerk of the court, who paid the postage for them : and they had each the name and seal of the commis-J sioners on the package, enclosing the commissions with the interrogatories and answers, &c. and no allegation of fraud or foul play had ever been suggested. I he reason why an a®davit had been formerly required by a person who re-cejveq the commission, was, because they were generally 1 / j o j entrusted to the care of private persons, and often t.o the . , r ' parties themselves or their agents ; and therelore, to guard against frauds and fraudulent practices, the oath of some credible witness was required, that the commission had been received from the commissioners, and had re» mained unopened with such witness until delivered to the clerk of the court. JBy the rule, and present practice of our courts, these commissions for the purposes of des-patch, and to avoid expense, have been ordered to be transmitted through the channel of the post-offices throughout the union; as the post-masters are all sworn officers of the government* who can have no interest in the matter in dispute one way or the other: which inode of conveyance has been thought to be as safe, if not safer, than the old mode of forwarding them by a private hand ; and although the rule of the court does require, that a certificate shall be endorsed on the back of the commission, that it was lodged in one of the post-offices by one of the commissioners, yet the name endorsed blank on the commission is tantamount to such certificate, for it may be filled up, or the certificate wrote over the name or names of the commissioner or commissioners; but supposing the name of the commissioner endorsed blank on the back of the commission will not bear this construction, no rule of court here will be binding on a person in another country ; and it may be imposing a trouble on a man, which he may not be disposed to submit to; at all events, it is a much safer mode of conveyance than the old one, and a better security against frauds. The commissioners are men in whom the parties on both sides are supposed to place confidence and trust * it is therefore fair to presume, that every thing has been done by them which ought to have been done. Fraud or improper conduct is not to be presumed.
    In reply, it was said, the rule of court on the subject, re» quired such a certificate, that the commissioners, or one of them, had deposited the commission in the post-office abroad ; that this was done to guard against fraud or improper conduct, and that a deviation from it might be dangerous to suitors, as it would be opening a door for the admission of impositions, and practices inconsistent with justice.
   A majority of the Judges present were of opinion, that there should be a new trial in this case ; and the more especially, as no fraud or improper conduct has been alleged, which ought not to be presumed. With respect to the rule of court, it was certainly intended to prevent frauds and impositions in procuring the testimony of witnesses abroad; but in cases where no such fraud is alleged, or even suggested, ic would be instrumental in working a material injury to the party to give it a rigid construction.

It has been wisely said, that rules of practice are made for the advancement of justice; but in cases where a rigid adherence to them would produce manifest injustice, they may be relaxed for obtaining the ends of justice. For aught that appears in the present case, the commissions in question may have been deposited in the post-offices in Alexandria, and also in Georgia, by one of the commissioners, although there be no certificate of it endorsed on the commissions ; and in the execution of a trust it is fair to presume, that every thing which ought to have been done by the commissioners has been done by them.

For these reasons, a majority of the judges were of opinion, that the commissions should have been opened, and depositions read on the trial.

Rule for a new trial made absolute.

■ Waties, Bay and Jphnson, for the new trial. Treze* vant, contra* 
      
      
        Kitchens v. Pettypore, a case from Camden. A new trial was ordered inn the same grounds.
     