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
Page 28 U. S. 2
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. "
Page 28 U. S. 3
The commission
"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
Page 28 U. S. 4
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.
Page 28 U. S. 5
MR. JUSTICE THOMPSON delivered the opinion of the Court.
This case comes up on a writ of error to the Circuit Court of
the District of Columbia, and the questions for decision grow out
of bills of exception taken at the trial, and relate to the
admission of evidence offered on the part of the plaintiff and
objected to by the defendant.
The first objection was to and admission of the depositions
taken under a commission issued under a rule or order of the court
below, on the ground of a variance in the name of
Page 28 U. S. 6
the testator Meade, as set out in the commission, from that
stated in the title of the cause. The commission purports to be in
a cause between Richard M. Meade plaintiff, and Richard R. Keene
defendant, whereas the name of the plaintiff is Richard W. Meade.
The whole variance therefore consists in the use of M instead of W,
the middle letter in the plaintiff's name. This objection, we
think, was properly overruled. It was a mere clerical mistake in
making out the commission. The rule or order of the court for the
commission was in the right name, Richard W. Meade, and the oath
taken by the commissioners and administered to the clerk and the
witnesses who were examined, and all the proceedings under the
commission were in the cause according to its right title. It was a
mistake of the officer of the court which the court on motion might
have corrected on the return of the commission. It may be regarded
as mere matter of form, and which has not in any manner misled the
parties. And indeed it may well be questioned whether the defendant
was at liberty to raise this objection. It has been urged at the
bar that this was an
ex parte commission, taken out by the
plaintiff, and that the defendant has therefore waived nothing. But
the record now before this Court warrants no such conclusion. The
mode and manner of taking out the commission is governed and
regulated by the practice of the court below, and of which this
Court cannot judge. From the commission itself and the
interrogatories upon which the witnesses were examined, it would
appear to have been a joint commission. The commissioners are
required to examine all witnesses named or produced to the either
by the plaintiff or the defendant. And one of the interrogatories
put to the witnesses was do you know of any sum or sums of money
paid by the defendant to the plaintiff in money, bills, or
merchandises which are not credited in the amount now before you.
It can hardly be presumed that such an interrogatory would have
been put by the plaintiff. It was to elicit matter of defense, and
which concerned the defendant only. The motion for the commission,
having been made by the plaintiff, would not preclude the defendant
from afterwards
Page 28 U. S. 7
joining in it with the consent of the plaintiff. And if it is to
be viewed as a joint commission, the alleged mistake may be
considered as made by both parties, and not to be taken advantage
of by either; and besides, it may well be questioned whether the
middle letter formed any part of the Christian name of Meade. 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, Lit. 3, a. 1; Lord Ray. 563; 5 Johns. 84; 4 Johns. 119,
note a; and if so, the middle letter is immaterial, and a wrong
letter may be stricken out or disregarded.
The general objection to the testimony taken under the
commission on account of the alleged variance having been
overruled, the plaintiff's counsel read the deposition of F.
Rudolph, which in that part which went to prove the first item of
$250 in the plaintiff's account states that the defendant made the
entry on the plaintiff's rough cash book himself, writing his name
at full length at his request, not so much for the sake of the
receipt as in order for him to become acquainted with his signature
and the way of spelling his name. The witness fully proved the
actual payment of the money. But the defendant objected to such
parol proof, as written evidence of the payment existed and should
be produced. This objection we think not well founded. The entry of
the advance made by the defendant himself, under the circumstances
stated, cannot be considered better evidence, within the sense and
meaning of the rule on that subject, than proof of the actual
payment. The entry in the cash book did not change the nature of
the contract arising from the loan or operate as an extinguishment
of it as a bond or other sealed instrument would have done. If the
original entry had been produced, the handwriting of the defendant
must have been proved, a much more uncertain inquiry than the fact
of actual payment. It cannot be laid down as a universal rule that
where written evidence of a fact exists, all parol evidence of the
same fact must be excluded. Suppose the defendant had written a
letter to the plaintiff acknowledging the receipt of the
Page 28 U. S. 8
money, it certainly could not be pretended that the production
of this letter would be indispensable and exclude all parol
evidence of the advance. And yet it would be written evidence. The
entry made by the defendant in the cash book was not intended or
understood to be a receipt for the money, but made for a different
purpose, and even if a promissory note had been given as written
evidence of the loan, the action might have been brought for money
lent, and this proved by parol. The note must have been produced on
the trial; not however as the only competent evidence of the loan,
but to be cancelled, so as to prevent its being put into
circulation; a reason which does not in any manner apply to the
present case. This objection has been argued at the bar, as if the
court permitted the plaintiff to withdraw or expunge that part of
the deposition which related to the written acknowledgement in
order to let in the parol evidence. But this view of it is not
warranted by the bill of exceptions. This was offered to be done by
the plaintiff's counsel, but no such permission was given by the
court. The parol evidence was deemed admissible notwithstanding the
written entry of the advance. The parol evidence did not in any
manner vary or contradict the written entry, and no objection could
be made to it on that ground. Nor does the nonproduction of the
written entry afford any inference that, if produced, it would have
operated to the prejudice of the plaintiff. Nor can it in any
manner injure the defendant. The production of the written entry in
evidence would not protect the defendant from another action for
the same cause, as seemed to be supposed on the argument. The
charge would not be cancelled on the book, but remains the same as
before trial, and the defendant's protection against another action
depends on entirely different grounds.
By the second bill of exceptions, several objections appear to
have been taken to the reading of the depositions. These relate
principally to the proceedings before the commissioners.
1. It is objected that the commissioners have not certified in
whose handwriting the depositions were taken down.
Page 28 U. S. 9
We are not aware of any practice in the execution and return of
a commission requiring such a certificate. And all that the
commission requires is that the commissioners, having reduced the
depositions taken by them to writing, should send the same, with
the commission under their hands and seals, to the judges of the
circuit court. But it is immaterial in whose handwriting the
depositions are, and it cannot be required that they should certify
any immaterial fact.
2. The second exception is that the commissioners have not
certified that they had appointed a clerk and administered to him
the oath required by the commission.
This exception does not appear to be sustained in point of
fact.
The commission directs the commissioners to administer the
annexed oath to the person whom they shall appoint as clerk. And
they certify that they had administered the oath annexed to the
commission to James McCann, the clerk they were going to employ for
the execution of the same. This certificate admits of no other
reasonable interpretation than that the person named was the one
appointed by them as clerk, and it states in terms that the
prescribed oath was administered to him. The inference from the
certificate is irresistible that the person employed as the clerk
was the one to whom the oath was administered. And this is all the
commission required. If employed as clerk, it follows of course
that he must have been appointed as such. If objections like this
are to set aside testimony taken under a commission, but very few
returns will stand the test.
3. The third exception is that the witnesses were not required
to testify all their knowledge and remembrance of anything that
related to the said cause.
The commission does not prescribe the form of oath, but directs
generally that the witnesses produced should be examined upon their
corporal oaths, to be administered by the commissioners, touching
their knowledge or remembrance of anything that may relate to the
cause aforesaid.
The commissioners do not certify what oath was administered
Page 28 U. S. 10
to the witnesses. But. by way of caption to the interrogatories
state that in compliance with our duty, we shall examine the
witnesses upon the following interrogatories, which we deem
necessary first to establish. This form of expression may not be
very accurate or intelligible. It may probably arise from what is
required of the commissioners by their own oath, which is to
examine the witnesses upon the interrogatories now or which may
hereafter, before the said commission is closed, be produced to and
left with the commissioners by either of the said parties. The
interrogatories which followed this caption were probably those
which the commissioners had before them when the examination
commenced, and if so it was proper for them first to examine the
witnesses upon those interrogatories, leaving the examination open
to such other interrogatories as might be submitted to them before
the commission closed. But whatever might be the reason for this
particular form of expression, it is not perceived that it warrants
any conclusion that a proper oath was not administered to the
witnesses. It cannot be presumed that these interrogatories were
framed by the commissioners. It would be against the usual course
of taking testimony on a commission, and in the absence of any
evidence to the contrary, we must assume that these interrogatories
were framed by the parties in the ordinary course of such
proceedings. And if this was a joint commission, as there is
reasonable grounds to conclude it was, the interrogatories put to
the witnesses did require them to testify as to all their knowledge
of anything that related to the cause, or at all events to whatever
the parties supposed related to it. And the commissioners expressly
certify in their return that the witnesses produced and examined
were sworn. The form of the oath administered to the witnesses is
not set out in the return, nor is it necessary that it should be,
and there is nothing from which the Court can infer that the proper
oath was not administered.
There is therefore no well founded objection taken to the
execution of this commission, and the depositions were properly
Page 28 U. S. 11
admitted in evidence. The judgment of the court below is
accordingly
Affirmed.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Columbia holden in and for the County of Washington and was argued
by counsel, on consideration whereof it is considered, ordered, and
adjudged by this Court that the judgment of the said circuit court
in this cause be and the same is hereby affirmed with costs and
damages at the rate of six percentum per annum.
