delivered the opinion of the court.
The petitioner, alleging himself to be the heir at law of Corbin Lee, deceased, instituted the present suit against the
An exception to the jurisdiction of the District Court, having been, we think, correctly overruled, the defendant answered to the ^merits, and among other matters, not now necessary to mention, specially denied the heirship of the plaintiffs. In order to establish the fact of heirship, a commission was issued, addressed to Stevenson Archer, Henry G-. Waters, or some other magistrate of Harford county, state of Maryland, as commissioners.
On the trial in the District Court, certain depositions of witnesses, taken under that commission, were offered in evidence, and rejected; and the'case is before this court, upon a bill of exceptions, taken to the opinion of the judge in that particular.
The ground upon which the depositions were rejected, appears from the bill of exceptions, to have been that the proems verbal required by law, to attest the jurat of the witness, should have constituted one consecutive act; should appear to have been done simultaneously, or immediately after the oath had been administered and reduced to writing, whereas, this appears to have been done on a subsequent day, and, if allowed, might be extended to a,ny length of time; and on the further ground, that the certificate is informal, not directly, but by way of recital, and evidently executed by an improper and partial commissioner.
It appears from the return to the commission, that several witnesses were examined on. oath; that the acting commissioner commenced the examination on the 25th of January, 1836, continued it on the 26th, and the commission was finally closed, and the proces verbal bears date the 28th of the same month. In the caption, the commissioner merely certifies under his signature, that in virtue of the annexed commission, he had summoned several witnesses to appear before him, and that he had administered an oath to them seperately, and that he had proceeded to take their answers to; the several interrogatories. On closing the commission
The last objection, to wit: that the commission was evidently executed by an improper and partial commissioner, J J 1 1 r , appears to be founded on a statement made by him, and appended to his prochs verbal, that “ he did not think it necessary to multiply testimony, else it would be no J r J J * . matter to find ten or fifteen respectable witnesses that would testify to the same facts, &c. If he only meant to say that the fact sought to be proved, was as well established by the oath of four witnesses, as it would be by ten or fifteen others, it was certainly a very harmless opinion. His opinion, as to the sufficiency of the evidence, could not possibly have any influence in the decision of the cause, for his prochs verbal is only intended to satisfy the court, that the depositions of the witnesses have been regularly taken, and they alone are to be received in evidence. The commission issued by the . ... i-ii . . District Court in this case, authorized the commissioners to examine all witnesses whatever, without naming any in particular. The commissioner perhaps thought himself obliged to state why he did not proceed to examine any others than those specially named in the interrogatories; at any rate, we
It is, therefore, ordered, adjudged and decreed, that the judgment of the District Court, be annulled, avoided and reversed; that the case be reinstated and remanded for a new trial, with instructions to the judge, not to reject the depositions in question on the grounds set forth in the Bill of Exceptions, and that the appellee pay the costs of the appeal.