Quynn v. Brooke

• Decision Date: 17 November 1864
• Parties: WILLIAM A. QUYNN v. WILLAM P. BROOKE, ADMINISTRATOR D. B. N.,--C. T. A., OF M. B. CARROLL.
• Court: Maryland Court of Appeals

22 Md. 288

WILLIAM A. QUYNN v. WILLAM P. BROOKE, ADMINISTRATOR D. B. N.,--C. T. A., OF M. B. CARROLL.

Court of Appeals of Maryland.

November 17, 1864

APPEAL from the Circuit Court for Prince George's County.

This was an action of Assumpsit, brought by the appellant against the appellee, on the 14th of October 1853. The declaration contained the usual counts in indebitatus assumpsit omitting the quantum meruit. Pleas nonassumpsit and limitations. The cause has twice before been considered by this Court on appeal. The case of the first appeal is reported in 10 Md. Rep., 197, and the second in 13 Md. Rep., 379. The single question presented by this appeal is, whether certain testimony taken de bene esse, in the manner set forth in the opinion of this Court, was properly excluded by the Court below (CRAIN, J.,) from the consideration of the jury.

The cause was argued before BOWIE, C. J., and BARTOL GOLDSBOROUGH, and COCHRAN, J. C. C. Magruder, Jr., for the appellant.

It will be contended that the commission and proof ought to have been admitted in evidence on the following grounds:

1st. Although there was a rule on the subject, the Court had power to pass a special order for the examination of the witness. Rules may be modified, varied, or suspended, when it appears that injustice will not be done to the opposite party. We do not know the reason why a special order was passed; the presumption is, that there were circumstances rendering this course necessary to prevent a failure of justice, as the order was passed " upon due cause shown to the Court." Carroll vs. Barber, 7 H. &amp J., 454. Act 1828, ch. 165. Williams vs. Banks, 5 Md. Rep., 201. Collins vs. Elliott, 1 H. & J., 1. State vs. Levy, 3 H & McH., 591.

2nd. The commissioner was duly qualified by taking the oath; that is all that concerns the parties. Recording the certificate is required to perpetuate the evidence of qualification in case of loss of the certificate itself. The requirement to record is merely directory to the clerk, and his failure of duty does not prejudice any party. There is no time specified within which the certificate must be recorded; this, however, was ordered to be done by the plaintiff, and if never recorded, it was not his fault. Young vs. State, 7 G. & J., 253, 264. Act 1828, sec. 5. Boteler & Belt vs. State, 8 G. & J., 383.

3rd. The admission of service and non-attendance by the defendant's counsel, are a waiver of objection, to the supposed irregularity. Carzenove, & c. vs. Vaughan, 1 Maule & Selwyn, 4. Ins. Co. vs. Glenn & Coates, 14 Md. Rep., 285. Boyd & Hanch vs. Ches. & Ohio Canal, 17 Md. Rep., 195. Benson vs. Davis' Adm'rs, 6 H. & J., 272.

Daniel Clark and T. G. Pratt, for the appellees.

It will be argued by the appellees, that the Court properly refused to permit the said deposition so taken to be read in evidence in the cause.

1st. Because Ed. W. Belt, the commissioner who took the deposition was not duly qualified,--and the parol evidence introduced for the purpose of proving the due qualification, was inadmissible. Act of 1828, ch. 165, sec. 5. Evans vs. Bonner, 2 H. & McH., 377. Ridgely vs. Howard, 3 H. & McH., 321. Flanagan's Lessee vs. Young, 2 H. & McH., 38. Abraham Lewis' Lessee vs. Waters, 3 H. & McH., 430. Gittings vs. Hall, 1 H. & J., 23. Lowes vs. Holbrook, Id., 153. Anon., 4 H. & McH., 159.

2nd. Because the filing of the certificate of qualification of the said commissioner was not a sufficient recording of the same as required by law, and the same was never recorded until the 6th of April 1857, after the return of the deposition. Byer vs. Entyre, 2 Gill, 150. Mitchell vs. Mitchell, 1 Gill, 67. Budd vs. Brooke, 3 Gill, 198. Jones vs. Jones, 2 H. & J., 281, and cases above referred to.

3rd. Because the Act of 1828, ch. 165, sec. 2, requires that the proof authorized to be taken under it shall be taken " after due notice to the other party or his attorney, agreeably to such rule as shall be made by said Courts respectively; " and the rule of the Court below, made in pursuance thereof prescribing the mode of taking depositions under this Act, provides, " that ten days notice shall be given to the adverse party," which notice shall be in writing, and signed by the person who is to take such deposition as commissioner, and by the party or person so designing to take such deposition; --only three days notice was given in this case, nor does the notice with sufficient precision designate the time, nor is it signed by the person designing to take the deposition. The rule of the Court is the law which must govern its action, by the express language of the Act, and the rule not being complied with in taking the said deposition, the evidence is clearly inadmissible. Act of 1828, ch. 165, sec. 2. Mitchell vs. Mitchell, 1 Gill, 67. Wall vs. Wall, 2 H. & G., 79. Dunbar vs. Conway, 11 G. & J., 92, and cases above referred to. Abercrombie vs. Riddle, 3 Md. Ch. Dec., 320. Gist vs. Drakeley, 2 Gill, 330. The Argo, 2 Wheat., 287. London Packet, 2 Wheat., 876. Wallace vs. Mease, 4 Yeates, 420.

II. The only authority by which the Court could order the taking of the said deposition, was the special power given by the Act of 1828, ch. 165, sec. 2. Where a statute confers a special authority upon a Court, and, as here, directs that the Court shall prescribe by a rule of Court the manner in which that authority is to be exercised, the rule when passed becomes a part of the statute, and the statute is to be construed as if the rule had been incorporated in it. Bradstreet vs. Baldwin, 11 Cowp., 30. Winoviskie Turnpike Co. vs. Ridley, 8 Vermont, 404. Bell vs. Morrison, 1 Peters, 351. Frye vs. Parker, 2 Pick., 65. Williams vs. Banks, 5 Md. Rep., 199. Young vs. Mackall, 4 Md. Rep., 362. Collins vs. Elliott, 1 H. & J., 2. Shrivers vs. Wilson, 5 H. & J., 133. Commissioners of Poor vs. Gains, 3 Brevard, 396. Bascom vs. Bascom, Wright, 632. Sanders vs. Howe, 1 Miss., 363.

It will be further argued that the order of the Court, under which the said deposition was taken, having stated it should be " used in the contingency provided for in the Act of Assembly," the Court was proceding therefore under the 2nd section of the Act, and not under the 1st section, because the 1st section does not provide for any contingency. In ordering the taking of the deposition to be " used in the contingency provided for in the Act of Assembly," it had no authority to pass a special order under the first section of the Act, prescribing such notice as the Court might think fit in the exercise of its discretion to fix. Wall vs. Wall, 2 H. & G., 79. Abercrombie vs. Riddle, 3 Md. Ch. Dec., 320.

The appellee will further insist, that the order of the Court does not embrace the cases provided for in the third section of the Act of 1828, ch. 165, and even if it could be so construed, the notice is still insufficient, because the " reasonable notice," which must be given to the party against whom such deposition is to be used, by the Act of 1832, ch. 111, sec. 2, " shall be at least ten days previous notice." The deposition is further inadmissible under the third section, because it does not appear by the return to be signed by the deponent, nor has the same after its return been recorded by the clerk. Act of 1828, ch. 165, sec. 3. Act of 1832, ch. 111, sec. 2.

The appellee's counsel also cited the Acts of 1779, ch. 78, sec. 6., and 1723, ch. 8 sec. 4; and Marshall vs. Harwood, 9 Md. Rep., 83. Harris vs. State, 14 Md. Rep., 238. Washington vs. Hodgkins, 12 G. & J., 353.

OPINION

BARTOL J.

At the trial of this cause in the Circuit Court, the plaintiff, now appellant, offered in evidence the testimony of Miss S. M. Worthington, taken by a commission under the Act of 1828, ch. 165, which, being objected to by the defendant, was rejected; and the single question presented by this appeal is, whether the testimony taken under the commission ought to have been admitted. The objections to its admissibility urged by the appellee, may be considered under two general propositions. 1st. That the commissioner was not duly qualified. 2nd. That the testimony was taken without due and sufficient notice.

It appears by the bill of exceptions, that Edward W. Belt, by whom the deposition in this case was taken and returned, was duly appointed by the Circuit Court for Prince George's County, a commissioner to perpetuate testimony under the Act of 1828, ch. 165. This is evidenced by the production of the order. The objection here taken is to the want of competent and sufficient proof of his qualification, by taking the oath prescribed by the 5th section of the Act. That section requires that the oath shall be taken before some judge or justice, and a certificate thereof shall be recorded among the records of the County. The evidence of Mullikin, deputy clerk, is that he administered in open Court to Mr. Belt, the oath of his office in the words of the Act of Assembly, prescribing the same, (the Act of 1828, ch. 165,) and filed on the day of the date thereof, in the rough bundle of the papers of the office of the clerk of the Court, his certificate of qualification, where it has remained ever since, and which was not otherwise recorded. Then follows the certificate, as follows:

Prince George's County, Set. " Be it remembered this 14th day of November 1854, personally appeared Edward W. Belt before the subscriber, in open Court, and took the oath prescribed by the Act of 1828, chapter 165, as one of the commissioners appointed by the Circuit Court for Prince George's County, to take testimony in civil cases pending in said Court. Sworn to in open Court this 14th day of November 1854, before OWEN NORFOLK, Clk."

The witness afterwards states that the certificate was...