Opinion
(June Term, 1837.)
The provisions of the act of 1777 ( Rev. c. 115, s. 14,) requiring process to be returnable to the term next ensuing its teste, does not apply to commissions to take depositions which may be made returnable to any subsequent term.
Commissions to take testimony are issued at the instance, and for the benefit, of one of the parties, and he will usually make them returnable at the earliest day consistent with convenience. But if through laches or from a wish to delay the trial, he should not do so, the non-execution of the commission will be adjudged an insufficient reason for asking a continuance.
EJECTMENT, tried on the last Circuit at Buncombe, before PEARSON, Judge.
No counsel appeared for the lessors of the plaintiff in this Court.
A. M. Burton, for the defendant.
The lessors of the plaintiff having made out a title in the feme lessor, the defendant produced a bond from her, dated in the year 1795, before her marriage, with a condition to make him a title before the year 1799. He then proved that he went into possession of the premises in dispute in the year 1803, and continued that possession until the commencement of this action, in the year 1834.
To repel the presumption which the defendant sought to raise from these facts, the lessors of the plaintiff offered in evidence, the deposition of one Sarah Williams, in which it was proved, that the bond was made while the feme was under age: that she was married before she arrived at full age, and had immediately thereafter removed to the western country, where she had since resided; and that her coverture continued up to the time of taking the deposition. This deposition was objected to by the defendant, because it was not made returnable to the next term succeeding its date, but to the term next but one thereafter, leaving an intermediate term during which it was out, and unexecuted. This objection was overruled by the Court, and the deposition read to the jury.
His Honor instructed the jury, that although a deed might, in some cases, be presumed from long possession, this presumption might be repelled by evidence of infancy, coverture, non-residence, or the like; and that if they believed the facts deposed to by the witness sworn under the commission, they were not at liberty to presume that a deed had been executed to the defendant according to the condition of the bond to him.
A verdict was returned for the lessors of the plaintiff, and the defendant appealed.
— Upon the trial the defendant objected to the reception in evidence of the deposition of Sarah Williams, because the commission was not returnable to the term immediately succeeding that at which it bore teste, but to the next term thereafter. The Court is of opinion that this objection was properly overruled. The provisions in our act of 1777, ch. 115, sec. 14, do not apply to commissions. These are not embraced within the term "process," and were not intended or referred to in that section. In its most general acceptation, process comprehends all the proceedings between the parties to the suit, after the original, and before judgment, but usually it imports those writs which issue to bring persons before the Court, or to do execution. When used in the latter sense, it is divided into original, mesne, and final. The provisions in this section with respect to the term to which process is to be made returnable, are expressly confined to "original and mesne process;" they are made in the spirit of the common law, by which a cause is out of court, if in the case of mesne process a term be omitted between the teste and return; ( Parsons v. Lloyd, 3 Wils. 341;) and are extended by the legislature to original process, because with us it is generally a capias, and is therefore within the mischiefs requiring a like remedy. That commissions to take testimony were not intended in this section, is further manifested by the enactment, that such process shall be executed at least ten days before the beginning of the term to which it is returnable, and if made returnable or executed at any other time, or in any other manner, than by the act directed, it shall be adjudged void, upon the plea of the defendant. It cannot be questioned but that a commission may be executed at any moment before it is returnable, and its validity or invalidity cannot be brought before the Court by plea; and it is liable to objections either on the part of the plaintiff or of the defendant. The issuing of commissions is regulated by the 39th, 40th, and 41st sections of the same act, in which they are not spoken of as process, but as mere delegations of authority to examine witnesses; and neither these nor any subsequent acts on the subject provide when they shall be made returnable. There is no necessity, which requires that they shall be made returnable to the next term. They are issued at the instance and for the benefit of one of the parties, and he will usually make them returnable to the earliest day consistent with convenience. If through laches, or from a wish to delay the trial, he should not do so, the non-execution of the commission will be adjudged an insufficient reason for asking a continuance. A positive requisition, that they should be returned to the first term, would, in the case of distant witnesses, render it often difficult, and sometimes impossible, to procure their testimony. We believe that the defendant's counsel is correct in his construction of the act of 1797 ( Rev. c. 474, s. 5,) which declares it unnecessary, for a clerk to affix a seal to process within his county; and that the act applies to commissions as well as process properly so called; but we think that this construction is justified rather by the equity of the act, than by its words. If a seal be not necessary to a writ where personal liberty may be endangered, a fortiori, it shall not be demanded in one of a less important character. But however justified we may be in holding that commissions were in the purview of the legislature when they used the term "process" in this act, we cannot force them within the act of 1777, because of the word process, where it is obvious that commissions were not contemplated.
The other exception taken by the defendant to the charge of the judge, that upon the evidence set forth, the jury were not at liberty to presume a deed from the lessors of the plaintiff, is also unfounded. Referring to the opinion given at this term, in the case of Den on the demise of Matthews v. Smith, upon the subject of presumptions, we will remark only, that in the present case, the presumption relied on rests wholly on the possession taken in 1803, when Mrs. Duncan was actually under the disability of coverture, which disability continued up to the institution of this suit.
PER CURIAM. Judgment affirmed.