Irving v. Irving, 3 N.C. 1, 2 Hayw. 1 (1797)

Sept. 1797 · North Carolina Superior Court

3 N.C. 1, 2 Hayw. 1

Newbern,

September, 1797.

IRVING vs. IRVING.

rjpHIS was a bill in equity for an injunction to stay the ó .' ju- -*- dant from proceeding at law, and a commission bad issued to Maryland to take the answer of the defendant, the reading of which was now opposed by Mr. Martin, because the commi'-sion for taking the answer had issued with a blank for the name oí the commissioner, and had been filledupby the defendant or his conn-selafter it went from the office of the clerk and ruaste.: — He ten-tended that the commissioner should have been named, and approved of by the court before the commission issued. And be cited the case of-vs. Mooring, in this court, where the answer was referred for impertinence and the court declared that no commission ought to issue for the future to a commissioner not previously approved of by the court.

Badger e contra,

cited several cases in this court, as also aid Taylor and others, where the answer had been taken by commission filled upas in the present case and had been received by the court.

Per curiam,

Wieliams and Haywood, Judges.

The practice of taking an answer upon a commission filled op by the defendant with the name of a commissioner is a dangerous one j as the defendant may name a man who will certify an answer as sworn to when in truth it was not. Such abuses have been committed with respect to commissioners to take testimony. Tut as this answer was taken before the Chief Justice of one of the districts of Maryland, and as the practice has been to receive answers taken before persons authorised by the laws of the country where taken to administer oaths, it is better to adhere to that practice than now to alter it.

Let the answer be read.