
    William A. Stone, Administrator of John Martin, deceased, vs. Matthew B. Cannon.
    Where three persons were named as commissioners to take a deposition, and only two of the three named in the commission joined in taking the deposition, it was held, that the deposition was admissible in evidence under the statute (H. & H. 603, § 17), which requires that depositions shall be certified by the commissioner or commissioners, or a majority of them.
    
    In error from the circuit court of Lawrence county; Hon. Stanhope Posey, judge.
    William A. Stone, administrator of John Martin, deceased, sued Matthew B. Cannon, in assumpsit, for services rendered. On the trial, the deposition of Sterling Lanier, of the city of Macon, in the state of Georgia, taken under commission addressed to James Smith, William Solomon, and George M. Logan, was offered in evidence by the plaintiff. The deposition was certified to as follows:
    “ Answered, and sworn and subscribed to before us, as commissioners, at Macon, this 6th day of August, A. D. 1844, and given under our hands and seals.
    James Smith, Commissioner. [seal.]
    Geo. M. Logan, Commissioner, [seal.]”
    The court below rejected it as incompetent evidence, and the plaintiff excepted.
    It is not necessary to notice the other matters in the record; the jury found for the defendant, and the plaintiff sued out this writ of error.
    
      J. F. Foute, for plaintiff in error,
    contended that the deposition was sufficiently certified by a majority of the commissioners, and cited H. & H. 603, § 17.
    
      Vannerson, for defendant in error,
    contended that the commission being directed to all, must be executed by all. 6 S. & M. 438.
   Mr. Justice Clayton

delivered the opinion of the court.

On the trial of this cause in the court below, a deposition was rejected, because it had been taken by only two of the three commissioners named in the commission.

The statute directs that all depositions taken by virtue thereof, shall be sworn or affirmed to, by the witness or witnesses named in the commission, and examined, and shall be certified by the commissioner or commissioners, or a majority of them. H. & H. 603, § 17.

We think that this authorized the two commissioners to take the deposition, and that it was erroneous to reject it.

Judgment reversed, and new trial awarded.  