Bolte v. Van Rooten , 4 Johns. 130 ( 1809 )

Per Curiam.

There is a material difference between the facts in this case, and those in the case of Bailis v. Cochran. (2 Johns. Rep. 417.) In that case, the deposition had no caption or conclusion, by which it could appear before whom, and by what authority it was taken. f The commissioners signed their names under that of the witness, without even stating that they were commissioners. But in this case it is stated, that the witness was sworn and examined, by virtue of the commission directed to the commissioners, by name, and they then sign their names, at the bottom of the deposition, qua commissioners. This is giving authenticity to the proceeding. If the witness was sworn and examined under that commission, and that fact be certified by the commissioners, as acting commissioners, he must have been sworn and examined by them. There is no other meaning to be put upon the words. It is not a thing of inference, but equivalent to a direct averment of the fact. The commissioners do not certify, that the examination was reduced to writing by them, or at their instance ; but if he was sworn and examined by them, and they sign the instrument, it must be taken to be an examination reduced to writing under their direction, or by their own act. This is the conclusion of law, upon such a fact.

The defendant must, therefore, take nothing by his motion.

Motion denied.