Lahens and others vs. Fielden and others

Same Term. Before the same Justice. Lahens and others vs. Fielden and others. A master extraordinary in England has no power to take the oath of a person residing there, to an answer to a bill in chancery filed against such person in this state. An answer put in by a defendant residing out of the stale, must be sworn to before a judge of some court having a seal; who is actually a member of such court. And that fact must be certified by the clerk of the court. In Equity. This was a motion by the complainants to take the answer of one of the defendants off the files of the court; on the ground that it had not been properly sworn to by him. The defendant resided in England; and the answer put in by him had been sworn to before a master extraordinary of the English court of chancery. TV. W. Van Wagenan, for the complainants. M. Hoffman, for the defendants. [MAJORITY — Edmonds, J.] Edmonds, J. The 32d rule of this court in equity allows the answer of a person residing out of this state, to be sworn to in the manner prescribed by law for taking affidavits out of the state, which is, before a judge of a court having a seal. (2 R. S. 396, § 33.) Is a master extraordinary of the English court of chancery such an officer 1 He is appointed to act in the country, in the several counties more than twenty miles distant from London, by taking affidavits, recognizances, acknowledgments of deeds, &c. (2 Toml. Law Dict. 537.) The officer required by our statute must be something more than a commissioner of deeds, or clerk authorized to administer oaths; something more even, perhaps, than a master in ordinary or referee, who is sometimes authorized to adjudge matters in court. He must be a “member of the court;” for that must be certified by the clerk of the court, under its seal. That is not certified in this case. The clerk merely certifies that Mr. Miller is an officer of the court, not that he is a member of the court; which is necessary, under our statute. Motion granted.