Keene v. Meade - 28 U.S. 1 (1830)
U.S. Supreme Court
Keene v. Meade, 28 U.S. 3 Pet. 1 1 (1830)
Keene v. Meade
28 U.S. (3 Pet.) 1
A commission was issued in the name of Richard M. Meade, the name of the defendant being Richard W. Meade. This is a clerical error in making out the commission, and does not affect the execution of the commission.
It may well be questioned whether the middle letter of a name forms any part of the Christian name of a party. It is said the law knows only of one Christian name, and there are adjudged cases strongly countenancing, if not fully establishing, that the entire omission of a middle letter is not a misnomer or variance.
A witness, the clerk of the plaintiff, examined under a commission, stated the payment of a sum of money to have been made by him to the defendant, and that the defendant, at his request, made an entry in the plaintiff's rough cash book, writing his name at full length and stating the sum paid to him, not so much for the sake of the receipt as in order for him, the witness, to become acquainted with his signature and the way of spelling his name. It is not necessary to produce the book in which the entry was made, and parol evidence of the payment of the money is legal. It cannot be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact is excluded.
It is not known that there is any practice in the execution or return of a commission requiring a certificate in whose handwriting the depositions returned with the commission were taken down. All that the commission requires is
that the commissioners, having reduced the depositions taken by them to writing, should send them with the commission under their hands and seals to the
judges of the court out of which the commission issued. But it is immaterial in whose handwriting the depositions are, and it cannot be required that they should certify any immaterial fact.
A certificate by the commissioners, that A.B., whom they were going to employ as a clerk, had been sworn, admits of no other reasonable interpretation than that A.B. was the person appointed by them as clerk.
It is not necessary to return with the commission the form of the oath administered by the commissioners to the witnesses. When the commissioners certify the witnesses were sworn, and the interrogatories annexed to the commission were all put to them, it is presumed that they were sworn and examined as to all their knowledge of the facts.
In the circuit court, the testator of the defendant in error, Richard W. Meade, instituted an action against Richard R. Keene, the plaintiff in error, for money lent and advanced to him in Spain, where Mr. Meade, at the time of the loan, resided and carried on business as a merchant. In order to establish the claims of the plaintiff below, a commission was issued to Cadiz, and under the same certain depositions were taken which were returned with the commission. The commission was directed to the commissioners in a case stated to be depending in the court in which Richard M. Meade was plaintiff and Richard R. Keene defendant, and it was returned to the court under the hands and seals of the commissioners, who certified that the "execution of the commission appears in a certain schedule annexed."
In the schedule annexed to the commission was also the following certificate under the hands of the commissioners.
"We the undersigned, appointed commissioners to examine evidences in a cause depending in the Circuit Court of the County of Washington in the District of Columbia between Richard W. Meade, plaintiff, and Richard R. Keene, defendant, do hereby certify that we have severally taken the oath into the hands of each other prescribed in the herein annexed commission, and we further certify that we have likewise administered the oath prescribed by the same herein annexed commission to Mr. James McCann, the clerk we are going to employ for the execution of the same. "
"required the commissioners, or a majority of them, to cause to come before them all such evidences as shall be named or produced to them by either the plaintiff or defendant, and to examine them on oath touching their knowledge or remembrance of anything relating to the cause."
The record does not show that any interrogatories were annexed to the commission.
The commissioners also certify as to the execution of the commission in the following words:
"We the undersigned do certify that in compliance with our duty, we shall examine the witnesses upon the following interrogatories, which we deem necessary first to establish."
Interrogatories returned with the commission were then administered to the witnesses, and the separate answers to each written and returned.
Frederick Rudolph, who was the clerk and bookkeeper of Mr. Meade, testified as to one of the items of the account
"that on the defendant's receiving $250, the defendant himself made the entry thereof in the rough cash book, writing his name at full length, probably at my own request, not so much for the sake of the receipt as in order for me to become acquainted with his signature and the way of spelling his name."
On the trial of the cause, the counsel for the defendant objected to the reading of the commission on the ground of a variance in the name of the plaintiff in the commission, the plaintiff being called Richard M. Meade instead of Richard W. Meade. This objection was overruled by the court; the defendant's counsel also objected to the deposition of F. Rudolph so far as the same went to prove the item of $250 in the plaintiff's account, alleging as the ground of the objection that as there was a written acknowledgement made by the defendant, the writing should be produced, and the same could not be proved by parol. The plaintiff by his counsel offered to withdraw, and stated that he withdrew and waived that part of the deposition which went to prove the existence of a written acknowledgement or receipt, and he relied only on the proof of the actual payment of the amount
paid by the witness. The court overruled the objection and permitted the evidence to be read.
The defendant by his counsel also objected to the reading of the depositions returned with the commission, because the commissioners had not certified in whose handwriting the depositions were taken down nor that they had appointed a clerk nor administered the oath to their clerk as required by the said commission, nor that the said witnesses were required to testify all their knowledge or remembrance of anything that may relate to the said cause, nor that they were sworn so to do, but were examined on particular interrogatories propounded by the commissioners themselves. But the court overruled the objections and permitted the depositions to be read in evidence to the jury, &c.
The defendant's counsel excepted to the opinion of the court on the objections made to the evidence, and the court sealed a bill of exceptions, upon which the defendant prosecuted this writ of error.