
    Bailey v. Brooks.
    1. Evidence. Depositions. Exception was taken in the court helow to the reading of certain depositions, on the ground that it was evident from the inspection of the papers themselves that they were not written by the Commissioner; the court below, on inspecting the writing and because the Commissioner certified that they were in his handwriting, overruled the exception. Held: There was no error in this.
    2. Same. Same. The Circuit Judge refused to hear the opinion of experts and decided upon his own inspection, the identity of handwriting arising on exception to a deposition. Held: No error in this.
    3. Same. Same. Exception before Justice of the Peace. Exception was taken to depositions before Justice of the Peace and sustained. Upon appeal to the Circuit Court, the exception was overruled and the deposition read. No question is made as to the correctness of this practice.
    4. Same. Commissioner for the State. Power to take Depositions. A Commissioner of Deeds, appointed by the Governor of this State to take acknowledgment of deeds, etc., in other States, is authorized by Code, sec. 190, to take depositions.
    
      5. Statute op Limitations. Non-residents, Administrators and JExecutors. A partnership debt assigned by one partner to the other members of the firm who were all non-residents, is subject to the bar of three years, in a suit against the administrator of the debtor dying after the assignment, though the assigning partner was, at the time of the assignment, a resident of Tennessee.
    •-6. Same. Plea before Justice of the Peace. A written plea of the statute of two years, put in before a Justice of the Peace, may be disregarded in the Circuit Court, and the cause tried on the matters in controversy and the three years’ statute applicable to the case.
    PROM KNOX.
    Appeal in Error, from the judgment of the Circuit Court of Knox county, October Term, 1871. E. T. Hall, J.
    Cocke & Henderson for plaintiff in error, said:
    This case was begun by a warrant sued out from the office of a justice of the peace for Knox county, March 15th, 1871, before whom, on the 14th April, 1871, pleadings were made up to an issue in writing. The single issue is the statute of two years and six months, in favor of the defendant. It was admitted by plaintiff’s counsel, that defendant “was duly qualified as the executor of the estate of John A. McMillan, deceased, on the 1st day' of June, 1868,” which is decisive of the issue in the defendant’s favor.
    Again, the following errors are alleged:
    1st. The depositions of Morehead and others were taken, while the cause was pending for trial before the justice of the peace. Defendant filed exceptions to the depositions, which were sustained by the justice. The plaintiff went to trial before the justice, without the ■depositions. After he appealed the case ■ into the Cir■cuit Court, he sought the action of the Circuit Court upon these same exceptions. Can the court grant an ^appeal from the action of the justice on exceptions? Does not the plaintiff’s action come too late?
    2d. The first exception is well taken. The commissioner recites that the depositions were reduced to writing by him; but is this certificate conclusive? If ' so, it would open a wide door to fraud.
    The question of the residence of the parties was immaterial to the issue joined, and cannot be made material by the platitude that the jury was sworn “to try the matters in controversy.” They were called to try the issue of fact agreed upon between the parties, which was the statute of two years and six months.
    Even if the plaintiff bad pleaded in his replication to the statute of two-and-a-half years, the non-residence of the plaintiff, he would not have been entitled to three years, because ¥m. E. Cocke, through whom the plaintiff claims, was barred, and his assignee can stand on no higher ground. A contrary doctrine would allow all domestic choses in action to be revived by an assignment to some convenient non-resident. The paper was over-due at the date of the several assignments.
    Webb & TayloR for defendants in error, who discussed :
    1st. Right of appeal from the action of Justice,sustaining exceptions to deposition. Code, 3140, and HaioMns v. McNamara, Adm’r, 1 Heis., 352.
    
      2d. Night of the plaintiff in error to contradict certificate of commissioner by the evidence of an expert. Wilson v. Smith, 5 Yer., (on page 407 of opinion.)
    3d. Eight of commissioner for the State to take depositions. MeOandless v. Polk & Walker, 10 Hum.,. 617, and Code, see. 190.
    4th. Evidence of the right of an assignee in bankruptcy to sue in State courts. James on Bankruptcy, page 62.
    5th. In the trial of cases in the Circuit Court, appealed from a justice of the peace, the jury should be sworn to try the matters of controversy, etc. Me-Olutchen v. Owen, 1 Tenn., 365, and 10 Yer., 250.
   Deaderick, J.,

delivered the opinion of' the Court*

This suit was begun March 15, 1871, by Brooks, assignee in bankruptcy of Geo. W. Howard & Co., of Baltimore, Md., before a justice of the peacé, against Bailey, as executor of McMillan, of the firm of Smith & McMillan, upon a note executed by them to Howard & Co., 16th August, 1861, for $363, payable at the counting-room of Howard & Co., at Baltimore.

William E. Cocke, who resided in Tennessee, was a partner in the firm óf Geo. W. Howard & Co., but sold out all his interest to Howard, Cole & • Co., the successors of Geo. W. Howard & Co., in 1867, including the note in controversy.

McMillan died in 1868, and Bailey was appointed his executor in June of that year.

Before the justice of the peace, McMillan’s executor pleaded, in writing, the statute of limitations of two years in favor of executors and administrators, and issue was taken upon this plea.

Several depositions were taken by plaintiff, but upon ■defendant’s exception they were excluded by the justice and judgment was rendered in favor of defendant, from which plaintiff appealed to the Circuit Court, and upon the trial there, judgment was rendered in favor of plaintiff. The depositions were allowed to be read in the Circuit Court, and this is complained of as error by the defendant.

The commissioner certified that the depositions were reduced to writing by him, and the exception taken was, that the depositions were not written by the commissioner, as was apparent from an inspection of the depositions and comparison of the body of them with the commissioner’s signature to the certificate; and defendant offered to prove by experts that the handwri-ing was different, but the court being of opinion that the certificate of the commissioner that he wrote the depositions, was more reliable than the opinion of witness founded upon the comparison of the signature only with the body of the depositions, refused to hear said evidence, and allowed the depositions to be read. Wo do not think there was any error in this — the Circuit Judge having the originals before him, to enable him to judge of them.

Another exception is, that the commissioner, who styles himself in his certificate “a, commissioner for the State of Tennessee, duly commissioned and sworn,” etc. is not an officer authorized under our laws to take depositions.

By sec. 190 of the Code, such a commissioner has power to take the acknowledgment of deeds, etc., and-also to take depositions and affidavits.

It satisfactorily appears that the assignors of the plaintiff, and the plaintiff were all residents of the State-of Maryland at the time of the assignment by Cocke of his interest in the assets of the firm of Howard & Co., and at the time of the death of McMillan, the qualification of his executor, and the institution of this suit before the magistrate. This being so, the statute of limitations of three years, and not that of two years, applied, and being a proceeding instituted before a justice of the peace; it was competent to the plaintiff to-show these facts by proof, and the written plea of the statute of limitations of two years, made an immaterial issue and did not preclude plaintiff from recovering,, if the facts proved showed he was entitled to a recovery.

The jury was sworn to try the matter in controversy, and not the particular and immaterial plea pleaded by the defendant, and the instructions of the court, that the jury were not to be confined to the evidence bearing on the written plea, but were to look to all the evidence in the cause and find accordingly,, was correct.

Upon the whole we are of opinion that the merits-of the case have been reached, and affirm the judgment.  