
    Burwell McBride vs. Daniel H. Ellis.
    Interrogatories in a commission to examine witnesses, may "be objected to at the trial, though no specific objection was taken when they were crossed; and where the interrogatories in chief are ruled out, the cross-interrogatories must be ruled out also.
    BEFORE G-LOYER, J., AT BEAUFORT, SPRESTG TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action on the case for a libel, which consisted of an obituary, announcing the plaintiff’s death, and published in the Charleston Mercury. Several witnesses were examined by commission, and the following question was propounded by the plaintiff to Sarah A. Hill, Clara Miles, Paul and Ann Speights : ‘ If you knew said announcement to be false, or believed it to be so, in what sense did you understand it ? Did you understand the writer to mean that Mr. McBride was or was not a highly respected citizen ? that he was or was not a true and devoted member of the Baptist Church ? that his death would or would not be sorely felt by his Christian friends ? that the community would or would not thereby sustain an irreparable loss ? that few men had done more, or that few men had done less than Mr. McBride for the advancement of religion and the relief of the poor ?’
    “ The defendant reserving the right to except at the trial of this case, to any or all of the interrogatories in chief, propounded the following cross-interrogatory: ‘If you say you saw the obituary notice referred to, and answer that you understood the writer to mean that Mr. McBride was not a highly respected citizen; that he was not a true and devoted member of the Baptist Church; that his death would.not be sorely felt by his Christian friends; that the community would not thereby sustain an irreparable loss ; that few men had done less than he for the advancement of religion and the relief of the poor; please state why you understood the writer in this sense ?’
    “As the defendant had not specifically objected to the plaintiff’s direct interrogatory, I would have admitted the answers of the several witnesses to it; but as I had sustained an objection to the admissibility of a similar question propounded to 'John W. Hill, the objection . to this was also sustained.
    “ The defendant was allowed to withdraw his cross-interrogatory and the answers to it, because that interrogatory, in effect, must have elicited the same answers as the direct interrogatory, and if admitted, would have operated indirectly to admit the plaintiff’s direct interrogatory, and the answers of the several witnesses to it, which had been ruled out. Respecting the handwriting of the obituary, the evidence was voluminous and contradictory, and the examination of the witnesses was continued to a late hour in the evening; and it is probable that witnesses might not have seen so distinctly by the light of a candle as they could by the light of day; but it was not thought to be necessary to call the attention of the jury to a circumstance, which, if important, was manifest. The verdict was for the defendant.”
    The plaintiff appealed on the grounds :
    1. Because it is respectfully submitted that his Honor erred in not permitting to be read the answers .of witnesses examined by commission on the part of the plaintiff, to interrogatories to which no right of objection had been reserved by the defendant in his cross-interrogatories.-
    2. Because his Honor erred in permitting the defendant to withhold from the jury the answers of witnesses examined by commission to cross-interrogatories propounded by the defendant.
    
      3. Because his Honor erred in not charging the jury that (other things being equal,) the testimony of witnesses who spoke to handwriting after a careful scrutiny of the writing by daylight, was to be preferred to that of those who testified thereto after an imperfect examination of the writing at night, and by the light of a single candle.
    4. Because the charge by his Honor was in other respects contrary to law.
    5. Because the verdict of the jury was contrary to law and to the evidence.
    Wickling, for appellant.
    
      Tillinghast, contra.
   Curia, per

O’Neall, J.

In this case, the plaintiff’s attorney waived on the appeal the question, whether the answers of the witnesses to the interrogatories were competent ? We do not, therefore, enter into that question. We simply inquire under the first ground, Was the Judge below right, in allowing the defendant at the trial (under a general objection to all the questions for irrelevancy,) to object to the reading of the answers ? We think that he was. There is no law which requires that any objection should be stated to the interrogatories at the time they are crossed. It is a very convenient and advisable practice, that where the questions -are of that kind that an objection presents itself, it should be stated. But if not done, I do not perceive, how the Court, when the testimony is offered to be read, can receive illegal proof against the party who then objects to it. There is nothing in our Buies of Court directing the objection to be made when the interrogatories are crossed. Miller's Comp., 41st, 49th and 50th Bules? 1837. Nor is there anything in the Act authorizing the issuing of a commission. 23 § Act of ’99, 7 Stat. 298. 2d. There is no doubt that where parties join in a commission to take the examination of witnesses, and the commission is returned into Court, either party may move for publication, and neither can object to it, both having an interest in the evidence thus procured, aqd the Court having possession of it, will allow both parties the benefit of it. Pulaski, Jacks & Co. vs. Ward & Co., 2 Rich. 120. Under this rule, as in that case, if the interrogatories in chief could have been read, the plaintiff could have read the cross-interrogatories and the answers to them against the will of the defendant. But here the interrogatories of the plaintiff were ruled out, and it follows as a consequence, that the cross-interrogatories must also go.

The third, fourth, and fifth grounds, present no reasons why the case should go back. This Court does not pretend to control the discretion of the Judge in commenting on the facts. We have no doubt that here it was very properly exercised. Whether the defendant wrote the libel, was a question to be solved by the jury. How are we to say that the jury were in error in giving preponderance to the evidence in favor of the defendant.

The motion is dismissed.

Wardlaw, Whitner, Glover and Munro, JJ., concurred.

Motion dismissed.  