Boardman v. Ewing , 3 Stew. & P. 293 ( 1833 )

Lipscomb, C. J.

On the trial of this case, before the Circuit court, the plaintiff offered to read, in eyi-dence, the deposition of II. Westervelt,. taken under a commission issued for that purpose, founded on the following affidavit: ■

“John Boaidman, the .plaintiff in this suit, -being duly sworn, makei-h oath, and saith that the testimony of H. Wesiervelt, notary'public, residing in the city of New York, is mate rial to this deponent, on the trial of this cause ; and, he prays that a commission issue, to take the deposition of the said II. West-ervelt, to be read in evidence, on the trial.”

The sufficiency of this affidavit was objected to, on the ground, that it does not show, that the witness, H. Wester velt, resides out of the limits of this State; and the objection was sustained, by the court.

The law, under which the affidavit was made, and the commission issued, is in the following words — ■ “ When a person, who may be a witness in any cause, in any of the said courts, [the courts of the territory,] shall reside out of the limits of the said territory.: or, shall, by reason of age, or bodily infirmity, or any other cause, be incapable of attending, to give his or her testimony in court — oath thereof, being made, to any judge, justice, or clerk of the court, wherein such cause is depending; such judge, justice, or clerk, is hereby empowered to issue, or order the clerk of the court, wherein such cause is depending, to issue a commission,” &c.

It was objected to the affidavit, that the law only authorised a deposition to be'taken, on the ground of the non-residence of the witness; and, that the court could not judicially know, that the city of New York named in the plaintiff’s affidavit, is in the State of New York; and the case, ex parte Deybel,^a is relied on.

This case, was heard on the'return lo a writ of habeas corpus; Beybel, the prisoner, had been impressed as a seaman, under the 59 George 3, chap. 121, sec. 1. The statute provides, that a mariner, a subject of his majesty, found on board a vessel, within four leagues of the coast, between the North Fore-land and Beachy Head, or within -eight leagues of any other part of the coast, may be properly detained in custody. The return stated, that the prisoner was found within eight leagues of that part of the coast of Great Britain, called Suffolk; that is to say, within eight leagues of Orfordness, in the county of Suffolk : Bayley, Justice, said that, “the court could not judicially know, whether Orfordness, wrhich is averred to be a part of the county of Suffolk, may not be an isolated part of it, situated on the coast, between the North Foreland and Beachy head; and if so, there is nothing on this return to show, that the vessel was discovered within the limits mentioned, in the act of parliament. He stated, that, in these cases, when the subject was deprived of his liberty, the greatest' strictness was required. The other Judges concurred, and the prisoner was discharged.

In the case of Kearney v. King.^a it was ruled, that the court could not judicially know, that Dublin, named in a bill of exchange, was Dublin, in Ireland, without a special averment. But these cases are believed to be, in principle, materially different from the one under our consideration. In the first, the judge assigns as a reason for so much strictness, that it is a question involving the liberty of the subject, and, that, in such cases, the greatest strictness ought always to be required. The other case was one, that, from the rules of pleading, it was necessary, for the purpose of fixing the rates of exchange, to aver, that Dublin was in Ireland. It, may be laid down as .a rule, that whenever locality is essential to give jurisdiction, or .materially influences the matter in controversy, strict proof? would generally be required. But, when the question only relates to the remedy, more liberality would be indulged. ' This case is not one of jurisdiction-, nor is it one that would materially influence a right of recovery ; it is only a question of admissibility of testimony. The statute, does not ■'require that the place of the residence of the nonresident should be ascertained, by the oath of the party obtaining the commission. It is sufficient if he resides out of this state. Thestatuie doesnot even require that the oath should be in writing, but it is the practice to make and file an affidavit, and, perhaps, the practice ought to be sustained. I only allude to this circumstance, to show, that not much stress should be placed on the peculiar wording of the affidavit. If it shows, toa common intent, that the witness resides out of this State, it ought to be sufficient. Now if there even was a place called New York, in Alabama, as suggested, when the city of New York is named, th'ere can be no doubt as to the place meant; that city is too much distinguished to permit the mind to linger a moment; and to it the title would, at once, be appropriated.

We believe that the testimony ought to have been received. The judgment must be reversed, and the cause remanded.

a 4 Barn. & Aid.243.

a 2 Barn. & Ald. 301

a Toul.Dig. 891.