1810.

August 12th, 1800, a dedimus was granted the defendant APRIL, to take the depositions of Philip Dick and William Jones, of the city of Philadelphia; but whether he ever took their depositions accordingly does not appear.

A fifth Jury was empannelled the 15th of April, 1801, when the plaintiff again offered in evidence the same deposition; " and the defendant by his counsel objected to the reading thereof, because, 1st. The commission was directed to five Commissioners, (any three of them to execute,) and it was subscribed, and from the face thereof, as he contended, appeared executed by one only; 2dly. It was not taken at the time and place mentioned in the notice; and, 3dly. By no evidence other than the deposition itself did it now* appear that William Jones was the agent of the defendant, or had authority, either express or implied, to consent to the postponement until the 21st of December, 1798, and to a different place."

The Court overruled the defendant's objections; and permitted the deposition to be read to the Jury, who returned a verdict for the plaintiff for 120 dollars damages; and judgment was accordingly entered, which, on an appeal to the District Court, was affirmed; whereupon the defendant appealed to this Court.

Wickham, for the appellant.

Hay, for the appellee.

*Note by the Reporter. In the former bill of exceptions, filed in April, 1799, the defendant alleged "that William Jones did not appear to have been constituted his representative with authority to do any thing "except attend to the taking of the deposition" And in the bill of exceptions, filed the 12th of November, 1800, the same allegation was in substance repeated; the defendant contending "that Jones had not an absolute authority, but only a power to attend at the time designated in the notice." On both those occasions a witness proved the defendant's acknowledgment that he had authorized Jones to attend to the taking of the deposition; the witness using in the first instance, the words "in his stead;" and in the last instance, the words "and to act as his agent therein."

Marshall

V.

Frisbie.

APRIL, 1810.

Marshall

V.

Frisbie.

Friday, May 11. The Judges pronounced their opinions.

Judge TUCKER. The only question in this cause is, whether the deposition of one Philip Dick, taken in Philadelphia, by virtue of a commission from the County Court of Wythe, ought to have been read in evidence at the trial. The act of 1792, 1 Rev. Code, c. 141. s. 13. authorizes the issuing of a commission directed to such Commissioners, not exceeding five, as shall be nominated and agreed on by the parties litigant.

On the 15th of June, 1796, a commission was granted the defendant to take the deposition of Philip Dick; and Benjamin Jones, William Kenner, and any three aldermen of the said city were to take the same by consent of the parties; and the same was granted the plaintiff.

On the 11th of July, 1797, by consent of the parties, it was ordered that a commission issue to any four aldermen of the city of Philadelphia, and William Kenner, for the same purpose. September 14, 1797, the cause was continued at the plaintiff's costs, and, by consent of parties, an order was granted for new commissions to take depositions.

A commission was issued on the 23d of November, 1798, directed to Reynold Keen, gentleman, alderman of the sity of Philadelphia, and John Gibson, William Rogers, Robert Underwood, and David Denniston, (any three of whom to act if the whole cannot,) of the same city, greeting, &c."

This commission does not conform to the consent order. 1st. The name of WILLIAM KENNER is not in it. And, 2dly. It is not directed to John Gibson, and the other three as aldermen, nor do they appear to have been aldermen. For, although the order of the 11th of July, 1797, was not carried into effect before the next term, I consider the order of September 14 following, not as revoking, but, as extending the time for the execution of it: and, consequently, that the commission ought to have conformed to it.

1810.

Marshall

V.

Frisbie.

Again, the deposition is certified only by Reynold Keen, APRIL, and not by any other of the Commissioners, as it ought in my opinion. Both the commission, and the execution of it, being thus manifestly defective upon the face of them, the deposition ought not to have been read. The judgment, therefore, ought to be reversed; and a new trial awarded, with directions not to permit the deposition to be read on such trial.

Judge ROANE. Several objections have been made to the reception of the deposition stated in the bill of exceptions. It is first said, that there is no proof that W. Jones was the agent of the appellant; without which, it is also alleged, the deposition could not properly have been taken on the day and at the place in which it was taken. Several answers occur to this objection. In the first place, I apprehend that the Commissioners, by their own mere authority, could have adjourned the taking of the deposition to any other convenient time and place, in the event that the business could not readily have been finished, on the day and at the place to which the notice applied. In the next place, if it were necessary, and the execution of the commission were in other respects regular, I would presume that W. Jones was constituted by the appellant his agent, for the purpose of taking the deposition: I would presume this, because P. Dick was considered by the appellant himself as a material witness for him, as appears by the orders for commissions, granted at his instance, on the 15th of June, 1796, and 12th of August, 1800, and it is natural to suppose, that a man would appoint an agent to attend to the examination of a material witness: I would also easily presume that W. Jones was this agent, because (in addition to other considerations) a confidence in him may be in some degree inferred, on the part of the appellant, from his having considered him also as a material witness; having included him in the order for a commission of the 12th of August, 1800.

APRIL, 1810.

Marshall

V

Frisbie.

Another objection (if I understood the counsel rightly} was, that there was a variance between the order for the commission, and the commission itself, in this, that the former requires the latter to be directed to five aldermen, any three of whom are authorized to act, whereas it does not appear by the commission, or return, that more than one of the persons, to whom the commission under which the deposition was taken, was an alderman. That objection of variance applies, it is true, to the order of 12th of August, 1800; but it was not under that order that the commission issued, but under that of 14th September, 1797, as appears by the date of the commission itself, it being the 23d November, 1798; and it does not appear that that order of 14th September, 1797, made aldermen indispensable, as Commissioners; and, as the arrangement for the commission was by consent of parties, there is no ground to say that the commission in question is in this respect objectionable. I consider this order of 14th September, 1797, and not those of a prior date, as the one under which the deposition was taken; and that the former commissions were superseded by the latter, by which alone we are to be governed.

I should, therefore, readily get over all these objections: but this commission is not returned as executed by more than one out of five Commissioners, contrary as well to the tenor of the commission itself, as to the general principles of law in relation to authorities. See 1 Bac. Abr. 319. (Gwill. edit.) and the cases there cited. It might be of dangerous consequence to sanction such a return as this; which would be as properly done in the case of twenty Commissioners as of five, and thus one dishonourable character might abuse his trust to the injury of the parties, and in opposition to the precautions they have taken to require the concurrence of a majority. The terms of this commission, which is directed to five by name, (any three of whom are, however, empowered to act,) in using the word "you" and omitting to use the expression "any of you," are very emphatical to import, that the trust was

confided to, and can only be executed (which includes the return) by, the whole number, or, at least, the majority thereof. If this objection had never been taken in the Court below, or even if we were now considering it upon the first bill of exceptions, (and no previous notice of the objection on the part of the appellant had been given,) I will not determine that the objection ought to prevail: bat the case is widely different at the present time. We are now acting upon the bill of exceptions exhibited on the 15th of April, 1801, when the case was on trial before the fifth Jury. The objection in question was not then taken for the first time: it had been taken on the 1st of April, 1799, and on the 13th of November, 1800, as appears by the several bills of exceptions of those periods. On the 12th of August, 1800, the appellant also obtained an order for taking Dick's deposition, which shewed he was not satisfied with the one formerly rendered. All these facts and circumstances shew an early and constant objection, on the part of the appellant, to the deposition in question: the appellee cannot, therefore, complain of surprise, and the case now comes before us as it would in relation to a first trial, if notice that the objection would be made had been previously and formally given. The principles of law must therefore prevail; and the appellee having deliberately staked his right to recover upon this, as an abstract question, he must submit to a decision upon it accordingly.

My opinion therefore is, that the judgment of the County Court is erroneous, in having admitted the deposition in question to go to the Jury, and that the judgment of the District Court affirming it is also erroneous; that both ought to be reversed, and a new trial awarded, in which. the said deposition is not to be admitted in evidence.

Judge FLEMING. The only important point in this cause is, whether the deposition of Philip Dick, taken in the city of Philadelphia, and read at the trial of the cause in the County Court, was legal evidence or not?

APRIL, 1810.

Marshall

V.

Frisbie.