
    Turnley vs. Evans.
    1. An affidavit stating that an individual is a transient person moving from place to place, and talked of moving out of the countrj”, is insufficient to authorize a clerk to issue a commission to take the deposition of such person.
    2. A party cannot be permitted to rely upon incompetent testimony, and when such testimony is rejected,claim anew trial on the ground of surprise.
    3. It is not a matter of course, that newly discovered testimony or testimony of which the party has been deprived by surprise, is a good ground for a new trial. It must also appear that if the rejected testimony or the newly discovered testimony had been before the jury, the result would have probably been different; and if the party does not therefore set forth in his bill of exceptions, the testimony so as to enable the court to judge in this respect, it will be presumed that the testimony would not have altered the result.
    Parmenias Turnley by his next friend, instituted an action on the case for a malicious prosecution against William Evans, in the circuit court of Jefferson county, on the 7th day of November, 1840. The defendant pleaded not guilty, and the cause was submitted to a jury on the issue at the April term, 1842, R. M. Anderson, judge, presiding. The plaintiff offered as evidence the deposition of Thompson Cowen. Cowen proved that defendant Evans, said he never had believed the plaintiff was guilty of the offence for which he had indicted him, ■find that he had prosecuted him in order to prevent him from being a witness in a given case.
    It appeared that Cowen resided in the county of Jefferson, and that plaintiff applied to the clerk of the court in vacation for a commission to take his deposition, and hied an affidavit therefor. This affidavit stated that Cowen with other witnesses were transient persons moving from place to place, and that each of them talked of moving from the country, and that af-fiant believed it very doubtful whether their personal attendance could be procured. Upon this affidavit the clerk granted a commission to take the deposition of Cowen and others. The deposition was taken upon live days notice, as directed in the order of the clerk, but the defendant did not attend for the purpose of cross-examining. Judge Anderson rejected this deposition as having been taken without warrant of law.
    The jury rendered a verdict in favor of the defendant. Thereupon he moved the court for a new trial, and filed an affidavit in support thereof. The affidavit states that affiant was surprised by the rejection of said deposition, that it wa's taken in good faith and with intent to give the legal notice, that the statements of witness were of great importance to him, and that he could procure his deposition in legal shape at the coming term &c. &c.
    The court however overruled the motion for a new trial, and rendered judgment on the verdict. The plaintiff’s bill of exceptions set forth the above facts, but none of the testimony submitted to the jury. He appealed in error to the supreme court.
    
      Hynds, for the plaintiff.
    See act of 1794, ch. 1, sec. 30-31; N. Sc C. 343, act of 1826, ch. 24: N. & C. 15S, act of 1817, ch. 189, sec. 2: N. & C. 245, 3 Wend. 418.
    Peck, for the defendant.
   Gkeen, J.

delivered the opinion of the court.

1. In this case the court rejected a deposition offered by the plaintiff, because the same had not been taken according to law. The deposition was taken by an order of the clerk on five days notice made in vacation, upon an affidavit stating, that the witnesses “are transient persons, moving from place to place,” and that “each of them talk of moving out of the country.”

The judgment of the court was certainly correct in rejecting the deposition. The clerk was not authorized to issue a commission to take it, either by the act of 1794, ch. 1, sec. 31, or by the act of 1817, ch. 189.

2. But it is said that the plaintiff was surprised by the rejection of this deposition, and therefore, a new trial, should have been granted. This is no case of surprise. A party cannot be permitted to rely upon incompetent testimony, and when that is rejected, say he was surprised that the judge decided the law correctly, and on that ground obtain a new trial. A party ought to expect that the court will administer the law, and should feel no surprise, if it should so happen.

3. But, for another reason, there should have been no new trial. The bill of exceptions does not set out the evidence in the cause, and we do not know but what several witnesses proved the same facts that the rejected deposition contains. It is not a matter of course for anew trial to be awarded, on account of newly discovered testimony, or testimony the benefit of which the party has been deprived of by surprise. It must also appear probable, from the whole case, that if the evidence in question had been before the jury, a different verdict would have been rendered.

In order therefore, for this court to judge of the probable influence of the testimony of this witness, it would be indispensable that it should see the whole evidence in the cause. The bill of exceptions exhibits no part of the testimony that was heard by the jury, and for that reason we cannot judge of the probable influence of this deposition, if the jury had heard it, and consequently, can not say the court erred in refusing a new trial.

The case would have been different had the deposition been improperly rejected. In that case, the error of the court would have deprived the party of testimony, to which, by law, he was entitled; and this court would not stop to enquire, how much additional weight it might have had with the jury, had it been received, but for the error of the court in rejecting it, would order a new trial.

Let the judgment be affirmed.  