
    John Doe, ex dem. of Obediah Osten, plaintiff in error, vs. Richard Roe, cas. ejector, and Charles Carey, and Benjamin Green, tenants in possession.
    If one be unable to write, he is incompetent to act as a Commissioner in executing and returning'interrogatorios.
    Ejectment from Lee. Decision by Judge Allen, March Term, 1857.
    Upon the trial of this case, counsel for defendants moved to reject and exclude the depositions of Thomas Walker and Elizabeth Walker, on the ground that one of the Commissioners who executed the commission, and certified to the same, did not write his name, but made his mark.
    The Court granted the motion and ruled out the depositions, and plaintiff’s counsel excepted.
    McCoy & Hawkins, for plaintiff in error.
    Lyon, contra.
    
   By the Court

Lumpkin, J.

delivering the opinion.

Was the Court right in excluding the depositions of the Walkers,because one of the two Commissioners who executed and certified them, did not write his name, but made his mark ?

Had both of the Commissioners been unable to write, it is apparent that they could not have officiated in taking this testimony. The law requires two to act. If one of them be incompetent, it would seem that the Court was justified in rejecting the interrogatories. It is true, that there are men who can read writing who cannot write, and it does occasionally happen that one who can read and write, will sign by his mark. These are however, exceptional cases. And the presumption is the other way.

Judgment affirmed.  