
    
      DUNN vs. BLUNT.
    
    Appeal from the court of the third district.
    East’n. District.
    
      April 1817.
    A dedimus potestatem is not necessarily to be directed to a magistrate.
    When it is so directed, no proof is required of the commissioner being a magistrate.
   Mathews, J.

delivered the opinion of the court. This case comes up on a bill of exceptions to an opinion of the district court, in refusing to admit as evidence the deposition of a witness, taken in execution of a commission, which had previously issued, from the court to William Ragan, said to be a justice of the quorum of the county of Wilkinson, in the Mississippi territory.

The reason for rejecting the deposition is that it was unaccompanied with the certificate of the governor, or any other proper authority, attesting that the said Wm. Ragan is a justice of the quorum, altho’ the commission was directed to him as such.

We are of opinion that the district court erred, for two reasons. 1. Because it was not necessary that the commission should be directed to a justice of the quorum of the county or territory in which the witness was to be examined. 2. Because if it was, he is acknowleged as such by the commission. The act of our legislature, in 1813, with regard to the taking of depositions of witnesses, who reside out of the parish in which a suit is prosecuted, authorises a commission for that purpose to be directed to a magistrate or other person of the parish wherein the witness resides. It is the commission of the court, in which the suit is pending, that gives to the person, requested to execute the trust reposed in him, authority to examine the witness, and consequently the right of doing every thing necessary to a proper exercise of the power delegated. In this view of the subject, the circumstance of stating in the commission that the person to whom it was directed is a justice of the quorum, in the Mississippi territory, may be considered as surplusage.

But at all events, the court ought not to have required proof, of that which by its own act is admitted the true.

Carleton for the plaintiff, Ellery for the defendant.

It is, therefore ordered, adjudged and decreed that the cause be sent back to the district court, from which it came, to be again tried, with instructions to the said court to admit the said deposition of the witness Sellers, as evidence in the cause, if there be no other legal objection to it than what appears on the present bill of exceptions.  