
    Henry S. Mitchell a. d. b. n. of James D. Mitchell vs. Ann M. Mitchell, Adm’x of Joseph T. Mitchell.
    
      December 1843.
    The security of an administrator may, under circumstances, become a com.petent witness for his principal to maintain an action of law to recover' money due the intestaet’s estate ; although at one period the administrator may have been guilty of a devastavit in relation to the same claim.
    As where from lapse of time, after due notice having been given under the tes-tamentary act to creditors to assert their claims, they are presumed to havo been satisfied and none appeared to exist, and where the sole distributee of the deceased had released both the administrator and sureties from all claims, this obviates all objection on the ground of liability on the surety for the omission of the administrator.
    Where a bill of exceptions is sealed, the truth of the facts contained in it, can never afterwards be disputed.
    A release to an administrator and his sureties may be legally recorded in the orphans court of the county where letters of administration were granted, and a copy certified by the Register of Wills of the same county is competent evidence.
    An administrator in his settlement with a distributee may assign the choses in action of his intestate by parol.
    The Register of Wills is authorised and bound to record administration accounts proved and passed, and a copy u-nder his official seal is competent evidence;
    Where letter's of administration were granted in Í830, and an order of court notifying creditors to bring in their claims obtained and published in 1831, and an account proved and passed in 1832, by which it appeared that a number of creditors had been paid, it was held in- 1842, no unsatisfied creditors appearing in proof, that all the creditors of the estate were paid and discharged.
    The act of 1828, ch. 165, which authorises the taking of testimony in' civil cases, before commissioners to be appointed by the county courts,-manifestly contemplates a case where both the plaintiff and defendant are in existence’ and actually parties to the litigation upon the record at the time the notice" is given by the commissioners, and the deposition taken in pursuance thereof.
    So where a defendant is dead, and no new party having been made, a deposition taken is without authority under that act.
    Where commissioners are appointed under an Act of Assembly by the courts to take proof between parties, no rule of court can transfer powers to the commissioners, designed by the act to be exercised by the courts or the judges thereof.
    Acts of Assembly made relative to the administration of justice are to be liberally construed for the attainment ,of that important objoct.
    It is the province of courts of justice to expound laws and not to legislate.
    Appeal from Charles County Court.
    This was an action of Assumpsit, brought by the appellee against James B. Mitchell on the 22nd July 1833. Pending the action J. B. M. died, and his executrix Elizabeth A. Mitchell (who also died,) and the present appellant were successively made parties to the case. The defendants pleaded nonassumpsit and limitations on which pleas issues were joined.
    Before the trial the parties filed the following agreement:
    It is agreed in this cause that the attendance, in person, of William Carmichael, a witness on the part of the defendant, may be dispensed with at the trial of this cause, whenever the same may take place, and that in lieu thereof, certain letters from the said Carmichael to the late James B. Mitchell and Joseph T. Mitchell, on the subject of a receipt by him, and the payment over of certain moneys by him collected, to a certain Joseph T. Mitchell, on the order of said James B. Mitchell, may be used and read as evidence in the cause at the trial thereof. It is further agreed, that the plaintiff, as administratrix of Joseph T. Mitchell, give the necessary and usual notice required by law for creditors to present their claims against the estate of said Joseph T. Mitchell, and that the same was published in the Kent Enquirer, a newspaper published in Kent county, for the time and in the manner as the law directs, the evidence of which may be received from the paper herewith filed, marked exhibit A. It is further admitted, that the personal estate of Joseph T. Mitchell, was more than solvent, and that a large residuum was left for distribution among the reptesentatives and heirs at law, after the payment of all debts, which were presented for payment. The above letters are to 6e made subject to all legal exceptions as to their admissibility or competency, other than those now waived by this agreement.
    Thomas F. Bowie, for Defendant.
    William L. B re n't, for Plaintiff.-
    Exhibit Á — referred to in the aforegoing agreement:.
    Maryland, Kent County Orphans Court.
    
    
      November 30, 1830. On application of Ann M. Mitchell, administratrix of Joseph T. Mitchell,■ late of Kent county, deceased, it is ordered, that she give the notice required by law for creditors to exhibit their claims against the said deceased’s estate, and that the same be published once in each week for the space of three successive weeks, in the Enquirer, printed in Chestertown.
    
    In testimony that the foregoing is truly copied from the minutes of the proceedings of the orphans court of the county (Seal.) aforesaid, I have hereto set my hand and the seal of my'office affixed, this 30th day of November, 1830.
    Test, — F. Wilson, Register of Wills for Kent County.
    
    In compliance with the above order, this is to give notice, that the subscriber,- of Kent county, hath obtained from the orphans court of Kent county, in Maryland, letters of administration on the personal estate of Joseph T. Mitchell, late of Kent county, deceased. All persons having claims against the said deceased’s estate, are hereby warned to exhibit the same with vouchers thereof} to the subscriber, at or before the 30th day of May next, they may otherwise by law be excluded from all benefits of the said estate. Given under my hand, this 30th day of November, 1830. Ann M. Mitchell,
    
      December 3. Adrrdx of Joseph T. Mitchell, deceased.
    
    Letters referred to in the aforegoing agreement:
    CEÍTTÉtEViííLE, 26th March, 1828.
    
      Déür Sir, — Youf uficlfe, Joseph Mitchell, spoke to me when I was last in Kent county, as if he had supposed you had given "tee instructions to proceed by execution against Gerald Cour
      
      Bey. As I have received no instructions from you on this subject, I beg you will give me directions. G. Coursey paid me last fall $1,000, of which I paid $950 by your order, to Mr. Joseph T. Mitchell.
    
    I think it right to say to you on this subject, that I believe G. Coursey, by some indulgence, will pay your debt and save his property, but from the entire depressed state of the country, his property would now be sacrificed if sold by the sheriff, but being your agent in this business, I will promptly execute any orders you may send. I remain, very respectfully, yours,
    Wm. Carmichael.
    James D. Mitchell Dr. to Wm. Carmichael.
    1828. Jan. 5, To cash p’d Jos. T. Mitchell byyour order $950 Dec. 19, To ditto paid ditto per ditto 950
    To commission on $2000, at 5 per cent. 100
    $2,000
    
      Contra. ———
    1827. Ñov. 24, By cash from G. Coursey on judgments $1,000
    1828. Dec. 9, By ditto from do. on do. 1,000
    $2,000
    Centreville, 29th Jipril, 1829.
    
      Dear Sir, — I this day received yours of the 24th, and send you an extract from my books by which you will see the amount of monies received from G. Coursey and paid over to Mr. Joseph T. Mitchell. Í am, respectfully, yours,
    Wm. Carmichael.
    Centreville, I7i/t November, 1830.
    
      Dear Sir, — 'Pressing engagements and absence from home have prevented me from giving an earlier answer to yours of the 27th ultimo. I subjoin an account taken from my books, by which you will see the monies received and paid over to your uncle. After my last payment to him, I wrote him that a balance was due me from your father, which I neglected to deduct, and requested him to retain the same in his hands, but did not hear from him afterwards. This balance you can settle at your -convenience. I am, respectfully, yours,
    Wm. Carmichael.
    James D. Mitchell Dr. to Wm. Carmichael.
    1828. Jan. 5, To cash paid Joseph T. Mitchell, per your order $950 00
    Dec. 19, To do. do. per do. 950 00
    1829. Oct. 15, To do. do. per do. 950 00
    1830. Ap’r27, To do. do. per do. 300 00
    To do. do. by check on Bank of Baltimore 384 32
    To costs of three suits 19 50
    To commission, at 5 per cent. 187 01
    $3,740 83
    
      Contra.
    
    1827. Nov. 24, BycashfromG. Courseyon judg’ts $1,000 00
    1828. Dec. 8, By do. from do. 1,000 00
    1829. Sept. 12, By do. from do. 1,000 00
    1830. April 8, By do. from do. balance of jud’ts 720 72
    By costs of three suits 19 50
    • $3,740 22
    E. E. ■ Wm. Carmichael.
    No. 7, referred to in the aforegoing agreement:
    Richard Hall, use of James D. Mitchell, ex’r of France, vs. Gerland Coursey. Judgments, &c.
    Amounts of debt - $1,337 50
    Interest on same from 1st Jan. 1823 to 1st Jan. 1825 168 50
    1,498 00
    Int. paid as per endorsement on bonds, 175 57
    1,322 43
    Interest on same to ,24th November 1827 150 75
    Same, executor of same, vs. Same. Judgments.
    Amount of debt - 1,337 50
    Interest on same from 1st January 1823 to 24th November 1827, (393.33) 394 71
    
      Same, executor of same vs. Same. Judgments.
    Amount of debt ... 368 87
    Interest on same from 1st Jan. 1823 to 24th Nov. 1824108 75
    3.683 01
    Then paid W. C., attorney 1,000 00
    2.683 01
    Interest on same to 8th December 1828 166 64
    2,849 65
    Then paid W. C., attorney 1,000 00
    1,849 65
    Interest on same to 20th December 1828 3 69£
    1,853 34|-
    Credit then allowed by Joseph T. Mitchell 225 15
    1,628 i ol-
    Interest on same to 12th September 1829 es 52
    1,696 71¿
    Then paid W. C., attorney 1,000 00
    696 71£
    Interest on same to 8th April 1830 24 01
    Costs of judgments 6 55
    Costs of do. 6 55
    Costs of do. 6 40
    $740 22|
    E. E. Wm. Caemichael.
    
      Amount received by William Carmichael as by above statements:
    
    1827. Nov. 24, Cash - - - $1,000 00
    1828. Dec. 8, do. - - - 1,000 00
    1829. Sept. 12, do. ... 1,000 00
    1830. April 17, Paid W. C., by cash deposited in Bank of Baltimore,, the 8th 740 22
    $3,740 22
    
    
      
      Contra.
    
    1828. Jan. 5, Cash p’d Jos.T. Mitchell by your order $950 00
    1828. Dec. 9, To do. by do. 950 00
    1829. Oct. 15, To do. by do. 950 00
    18?0.Ap’l 27,To do. by do., 684 3?
    To commission on $3,740.22, at 5 pr.ct. 185 01
    To posts of suit on three judgments 19 50
    $3,738 83
    Centreville, April 30, 1830,
    
      Dear Sir, — According to my promise, I now send you a statement of the money collected from Mr. G. Coursey. J have an unsettled account with Mr. James D. Mitchell on acrcount of business transacted for his father; the balance due me is between $60 and $70. I intended to have retained to this amount, and to have rendered him an account, but it escaped me in the hurry of the moment, and as it is inconvenient for me to transact business with Mr. Mitchell, I beg you to have the goodness to reserve that sum for me, as J will rende.r Mr. M. the accounts.
    I have thought on Williamson'’s business since you left me, I have a judgment against him but not against you, and could only due the replevin bond, There are several cases, and it would greatly increase costs, hut I must be governed in this by yo,ur determination. I remain respectfully yours,
    Wm. Carmichíel,
    1st Exception. At the trial of this cause, the plaintiff to support issues on her part joined, offered in evidence to the jury the several promissory notes, and the due bill set forth in the declaration, and proved the same to have been signed in the proper hand-writing of James D. Mitchell, the defendant’s testator, and also proved the hand-writing of James W. Mitchell on the notes of 23rd Nov. 1820; but offered no evidence of the hand-writing of Elizabeth Mitchell, by whom the said dim bill purports to haye been assigned.
    
      $1,030. Six months after date, I promise to pay to Joseph T. Mitchell, or order, negotiable at the Bank of Maryland, one thousand and thirty dollars, for value received, this 20th October 1828. James D. Mitchell.
    $1,220. On the 8th July next, I promise to pay to Joseph T. Mitchell, or order, negotiable at the Bank of Maryland, twelve hundred aud twenty dollars, for value received.
    
      Baltimore, 20th October 1828. James D. Mitchell.
    $200. Baltimore, 23rd November 1829. On the first day of October 1830, I promise to pay to the order of James W. Mitchell, two hundred dollars, for value received.
    James D. Mitchell.
    On the back of the aforegoing promissory note is thus written, to wit, James W. Mitchell.
    
      $200. Baltimore, 23rd November 1829. On the first day of June 1830,1 promise to pay to the order of James W. Mitchell, two hundred dollars, for value received.
    James D. Mitchell.
    On the back of the aforegoing promissory note is thus written, to wit, James W. Mitchell.
    And then, for the purpose of maintaining the issues joined on her part on the second and third pleas, on the pleas of limitations, and for the purpose of proving an acknowledgment of the said James B. Mitchell, within three years before the present suit was brought, of his indebtedness on said notes, and ■also to prove the hand-writing of Elizabeth Mitchell, to the assignment of the said bill, offered to swear to the jury William L. Brent, but the defendant produced an authenticated copy of the administration bond of the plaintiff on Joseph T. MitchelVs estate, dated 30th November 1830. Certified to be a true copy of the administration bond given by Jinn M. Mitchell, administratrix of Joseph T. Mitchell, as taken from the original bond now on file in his office, by the Register of Wills of Kent county. And proved that the said Wilham L. Brent was one of the plaintiff’s sureties in said bond, and objected to the competency of said witness, on the ground that he was liable for any detiastavitwhich the plaintiff might have committed in’ fhe administration of said estate as the plaintiff’s surety, and' that under fhe circumstances of this case, and in the present cause, said Witness had an interest in thé' result of this suit. This objection oh' the part of defendant to the competency of Said witness, the Court sustained, and thereupon,- the plaintiff, for the purpose of showing that said witness was competent to give the testimony for which he was Called, produced the' following papers, to Wit, the administrafión account of Ann M. Mitchell on Joseph T. Mitchell's estate, passed and sworn-to on the 12th’ of May 1832, which showed a balance düe the' estate, consisting óf negroés not divided $2,812, and which' was also certified1 tó be a- true copy taken’ from the records of his office, by the Register of Wills for Kent County,- under his official seal.
    And also read the agreement and exhibits in this Causé, filed’ 21st August 1841.- See ante:
    And also a certified copy of the release of Joseph T. Mitchellf Jr., the sole heir at law of Joseph T. Mitchell, who is admitted to have been of full age, and also the original release:
    Maryland, Kent County, Set. I hereby certify, that it appears from an administration account, passed by Anna M. Mitchell ¡ administratrix of Joseph T. Mitchell, late of Kent county, on the 12th May 1832, that after the payment of all just debts and claims due and owing by the said Joseph t. Mitchell, that there was a considerable balance due the éstate^ amounting to the sum of $2,812, and consisting of negroes undivided; and I also certify, that on the 1st May 1838, Joseph it. Mitchell, the sole child and heir at law of the’ Said Joseph t: Mitchell, deceased, appeared in open court, in the orphans c'ourt of the said Kent county, and the said court being satisfied that he was of legal age, filed, to be recorded in my office',- a release in the following words and figures, and which was accordingly recorded by order of the said courti Whereas, a settlement has takeii place between my mother, Mrs. Anna M. Mitchell, as administratrix of my deceased father, Joseph t. Mitchell,- and as my acting guardian, and I bav,e received from her full possession of my estate, real, pern sonal and mixed, it is my .desire to place .on record, the .evidence of su.ch full settlement and a full discharge ,of her sureties; this therefore is to certify, that I do acknowledge the receipt in full o.f all the share or portion of my said deceased father’s .estate, to which I am entitled, and I do hereby release, acquit and discharge the said Jinn M. Mitchell, and her sureties, and her and their executors or administrators, of and from all claim and demand therefor. Given under my hand and seal, this first day of May, eighteen hundred and thirty-eight. Joseph T. Mitchell, .(Seal.)
    
      Witness,rs-Samuel Covington.
    
    Maryland, Kent county, .¡let. Be it remembered, that on this first day of May, eighteen hundred and .thirty-eight, .before
    me the subscriber, a justice.of the peace of the State of Maryr land for Kent county, personally appeared the within named Joseph T. Mitchell, and acknowledged the foregoing receipt and release as his act and deed, and to b,e discharged for the purposes therein mentioned. Acknowledged before,
    Samuel Covington.
    I hereby certify, that the above is a true copy of the original release, now on .record in my office. In testimony .(Seal.) whereof, I have hereto subscribed my name and affixed the public seal of my o.ffice, this 11th day of August, 1841, James F. Browne,
    
      Register of Wills for Kent County, Md,
    
    Whereas, a settlement has taken place between my mother, Mrs. JlnnM. Mitchell, as administratrix of my deceased father, Joseph T. Mitchell, and as my acting guardian, and I have .received from her fill possession,of my .estate, .real, personal .and mixed, and .it is my desire to place ,qn.record the evidence .of such full settlement, and a full discharge,of-her sureties; this therefore ¡is to certify, that I do acknowledge the receipt in full of all the share or portion of my said deceased father’s .estate, to which I am entitled, and I do hereby release, acquit .and discharge the said .Juna M. Mitchell, and her sureties, and ■her and their ;heirs, executors or administrators, of and from all claim and demand therefor. Given under my hand and seal, this first day of May, eighteen hundred and thirty-eight.
    Joseph T. Mitchell, (Seal.)
    
      Witness, — Samuel Covington.
    
    
      On the back of the aforegoing is thus endorsed: “Filed May 1st, 1838. Recorded in Liber B book, vouchers No. 5-, folio 328. J. F. Browne, Register Wills.”
    
    And also the following assignment of the plaintiff, of the choses in action in the present suit, to the said Joseph T. Mitchell, Jr.
    
    
      Know all men by these presents, That I, Jinn M. Mitchell, administratrix of all and singular the goods and chatties, &c., of my late husband, Joseph T. Mitchell, having paid all the creditors of the said, the late Joseph T. Mitchell, do hereby assign, transfer and set-over to Joseph T. Mitchell, the sole child and distributee of my said husband, deceased, by way of distribution, all the choses in action and evidences of debt, filed in the Charles county court of the State of Maryland, in a suit brought by me, as administratrix of the said Joseph T. Mitchell, deceased, against James D. Mitchell, and now pending against the executrix (or administratrix,) of the said James 1). Mitchell. Witness my hand and seal, this 17th day of August, 1831. Ann M. Mitchell, (Seal.)
    From which said papers, and the facts in evidence as aforesaid, the said plaintiff contended and insisted before court, that the said witness was released from all liability on said bond, and that he was in consequence of said release, a competent witness in the present suit, which opinion the court, (C. Dorsev, A. J.) gave, and permitted the said witness to be sworn to the jury for the purpose aforesaid; to which opinion of the court, and to their permitting the said witness to be sworn to the jury as a competent witness in this cause, the defendant excepted.
    2nd Exception. In addition to the evidence in the previous bills of exceptions, which is made a part of this, the defendant in support of the issues on his part joined, gave in evidence to the jury, that Elizabeth Mitchell, the administratrix of James D. Mitchell, who was a party to this suit previous to her death, ■departed this life during August court eighteen hundred and forty-one; then gave in evidence to the jury, that letters of administration de bonis non was granted by the orphans court court of Charles county to defendant, on the 14th September, 1841; and then offered to read in evidence to the jury the deposition of Richard B. Mitchell, as follows:
    At the request of Henry S. Mitchell, the following notice and deposition was recorded this 23rd day of March, Anno Domini 1842.
    
      To Mrs. Ann M. Mitchell, or her attorney:
    
    You will please take notice, that I shall on the 25th day of the present month, between the hours of 10 o’clock A. M. and 2 o’clock P. M. of the same day, at Myrtle Grove, the ¡residence of Mr. Henry S. Mitchell, in Charles county, Maryland, at the request of said Henry S. Mitchell, then and there proceed to .take the deposition of Mr. Richard B. Mitchell, who is now dangerously ill at said place, and not expected to live, to be read as evidence in the trial of the cause now depending in Charles county court, in which Ann M. Mitchell, administratrix of Joseph T. Mitchell, is plaintiff, and Elizabeth A. Mitchell, executrix of James D. Mitchell, is defendant.
    
      January 24th 1842. James Brawner, Commissioner.
    
    Service admitted this 24th day of January, at -J past 4 o’clk P. M., for what it is worth. Wm. L. Brent,
    
      At Washington city, District ColumbiaP
    
    A-n-n M. Mitc-hell, Adm’x of J. T. Mitchell, vs. E. A. Mitchell, Ex’x of J. D. Mitchell. Interrogatories to R. B. Mitchell, on the ,pait of the defendant.
    Interrogatory 1st, 2nd and 3rd.
    Charles County, Set. At the instance of Mr. Henry S. Mitchell, the undersigned, a commissioner appointed by the Honorable the judges of this court, under an act of Assembly passed at December session 1828, cb. 165, in accordance with a previous notice served on William L. Brent, Esq., attorney for Mrs. Atm M. Mitchell, as will appear by reference to said within notice, herewith returned, did attend zt.Myrtle.Grove, residence of Mr. Henry S. Mitchell, on the 25th January 1842, ¡between the hours .of 10 o’clock A. M. and 2 oclock P. M., and proceeded to take the deposition of Mr. Richard B_. Mitchell, who being sworn on the IJoly Eyangely of Almighty God, Ao ¡the interrogatories propounded, answers as follows,-:
    To the.-first interrogatory, yes. .2nd apd 3rd, &c.
    Taken .and -subacrihed by ¡me,
    ,Jamea Shawnee, Commissioner,.
    
    Taken by James .Brawner, a commissioner appointed and ,duly qualified by the judges of Charles county court, to ¡take ■depositions, in pursuance ,of the Act ,of Assembly passed at December session 1828.
    The-plaintiff then gave .in evidence to the court, that -said RickardB. .Mitchell died ,on the 26th.January 1842, and that be was expected to die for a week previous -to the taking -of •said deposition. The plaintiff then gave in ..evidence, that a.t the time said deposition was taken, the death of Elizabeth .Mitchell, the first administratrix of James D,. .Mitchell, was not .suggested on the record; and further gave .in evidence, that William 'L- Brent, the.attorney, upon whom the notice,of the .commission was served, resided in WasMngto.n city,-thirty.miles .distant fro.m the place w.here the said deposition was taken. The defendant then gave ip .evidence, that Frederick B,. .Stone, who served the notice on said Brent, returned on horseback, and in time to be present at the time said deposition was taken. And the plaintiff further gave in evidence, that the said .plaintiff resided in the city .of Baltimore, in Maryland, at the-time said notice was given; and further gave in evidence, that the present defendant Henry S. Mitchell did not appear to the present .cause until August-court 1842.
    The defendant then read in-evidence-the following rule of ..court, made in pursuance of the Act of Assembly passed at ¡December session 1828: “In pursuance of the directions of the .act of the General Assembly of the State-of Maryland, passed .at the December session .1828,.ch. 165, we, the judges of the .county court.for the couuty-oi.Charles, do hereby appoint James 
      Brawner, senior, John Hughes and Geórge H. Parnham, commissioners to take the depositions of witnesses in the cases therein provided, and that in' all cases when they act as such, they shall first serve, or cause'to be served on the party against whom such deposition or depositions are intended to be used, or his attorney, a written notice containing the name of the person or persons whose deposition or depositions are intended to be taken, and the time and place, when and where it is to be taken, at least eight days before said day, exclusive of the day of issuing and serving such notice, and also in all cases when a real eausfi exists, the parties or party interested upon making it appear to the satisfaction of the commissioner or commissioners, that his witness is very old, sick, or about to leave the country, it shall or may be discretionary to take the deposition or depositions of such witness, on giving such notice less than eight days as they may think reasonable, all circumstances considered, so that the party interested, his guardian, agent, trustee or attorney, maj have a convenient time to attend; and if such party and his attorney, &c., cannot be found, then by leaving said notice at his last place of abode, a copy of which, certified by the commissioner or commissioners, and attested to be served as herein provided, shall be returned by the said commissioner or commissioners, as the case may be, to the clerk of the county court, with the deposition or' depositions so taken; and the court do allow the said commissioners the sum of four dollars to each commissioner for each day they may act as such’. J. Stephen,
    
      November nth, 1829.- Edmund Key,
    J. R. Plater.
    The plaintiff then objected to the reading of said deposition in evidence to the jury, because said deposition had not been taken in pursuance of said Act of Assembly and supplement thereto, because the said Henry S. Mitchell, the administrator' de bonis non, was not a party to the record, which objection the' court (C. Dorsey, A. J.) sustained; to w’hich opinion of the court the defendant excepted.
    The defendant appealed.-
    
      The cause was argued before Stephen, Archer, Dorsey and Chambers, J.
    jBy T. F. Bowie for the appellant, and
    By R. J. Brent for the appellee.
   Stephen, J.,

delivered the opinion of this court.

Two exceptions were taken to the opinion of the court below in this case, both of which relate to questions of evidence.In the first exception, the witness produced to give evidence for the plaintiff being incompetent, by reason of interest, certain paper writings or documentary proofs were offered in evidence, for the purpose of restoring his competency, which being held by the court sufficient for that purpose, the defendant excepted. Much of the argument urged by the appellant’s counsel is rendered unavailing by certain admissions and facts stated in the bill of exceptions and the operation of law upon-those facts and admissions. In 2 Tidd’s Practice, 913, the following principle of law is stated in relation to the legal effect and eonclusiveness of a bill of exceptions; “when the bill of exceptions is sealed, the truth of the facts contained in it, can never afterwards be disputed; for this principle, Show. P. G. 120, is referred to. The ground upon ■which the witness produced by the plaintiff was contended to be incompetent, being his liability for any devastavit of the plaintiff, as her surety in the administration of her husband’s estate, one of the proofs produced to obviate that objection, was a release executed by Joseph T. Mitchell, who is stated in the bill of exceptions to be the sole heir at law of his father Joseph T. Mitchell, and who is expressly admitted in said bill of exceptions to have been of full age at the time it was executed; a certified copy of said release was also produced, authenticated by the signature and seal of the Register of Wills for Kent county. This release contained an express acknowledgment that he had received his full share of his father’s estate, and released the administratrix and her sureties from all responsibility therefor. This release was moreover executed after a lapse of eight years from the time letters of administration were granted, and was acknowledged before a justice of the peace of Kent county, according to law, and was on the same day duly admitted to record. The administration bond, which was given in evidence by the defendant, to shew the incompetency of the plaintiff’s witness, fully evinces that letters of administration were obtained from the orphans court of Kent county; and, consequently, proves that the acknowledgement was legally made, before a person competent to take it. There is nothing, therefore, in the objection raised by the counsel for the appellant, that it did not appear that the acknowledgment was made before a justice of the peace, in the county where the letters were obtained, and that therefore the release was not legally recorded, so as to make a copy of it admissible in evidence. In 2 Harr. & Gill’s Rep. 57, this court, when speaking upon a similar subject, say: “they were recorded in the office of the Register of Wills of Prince George’s county, where George Briscoe died, and where, of course, letters of administration were taken out on his estate, having been previously acknowledged before the said Register. So in 6 Harr. & John. Rep. 234, this court say, “where an instrument of writing is required by law to be recorded, the enrolment of it is evidence of all circumstances necessary to give it validity. But this evidence is not conclusive, it is only prima facie, and like all prima facie evidence, may be rebutted.” The condition of the administration bond given in evidence by the defendant, speaks of Ann Mitchell, as the administratrix of Joseph T. Mitchell, late of Kent county, deceased; and where of course, as this court say in 2 Harr. & Gill, 57, letters of administration were taken on his estate. No sufficient proof was adduced in the court below to impeach the release or to impair its validity: the written assignment made of the choses in action in August 1841, was not sufficient to invalidate it upon the ground of fraud, as they might have been transferred by parol when the release was executed; and the written assignment subsequently made, might have been intended, as more authentic and better evidence of that fact. As further proof of the competency of the witness to testify in the cause, the plaintiff offered in evidence a eopy of her administration account, which is stated in the bill of exceptions to have been passed by the court on the 12tb of May 1832, and is certified by the Register to be a true copy, taken from the records of his office, and is authenticated by the seal of his office annexed. The admissibility of this account was objected to upon the ground that the Register had no authority by law to record it, and that therefore a eopy was not evidence. We think that such an objection was entirely groundless and untenable; that the Register was not only authorised, but bound by law to record it, for the purpose of shewing to creditors and others interested in the estate, how and in what manner the assets had been administered. By the act of 1798, ch. 101, sub-ch. 15, sec. 9, it js enacted that, “the Register of Wills in each county already, or hereafter to be appointed, agreeably to the Constitution, shall diligently attend each meeting of the orphans court in his county, and under their direction, make full and fair entries of their proceedings;” among which proceedings are manifestly intended to be embraced, all administration accounts passed and settled under the sanction of such courts. This account, in which a number of creditors appear to have been paid, was passed by the orphans court, after notice had been given agreeably to the order of said court for creditors to exhibit their claims for payment, in the year 1832, more than ten years prior to the trial of this case in the court below, and considerably more than twelve months after the said notice had been published according to said order. After such a lapse of time, it was we think fair to presume, that there were no outstanding claims of creditors to be satisfied, when this case was tried in the court below, and that the witness was not on that account incompetent to testify. The administration bond offered in evidence by the defendant, bearing date on the 30th day of November, in the year 1830, and the cause was tried in Charles county court at the August term 1842, a period of nearly twelve years had therefore elapsed from the date of the letters, before the trial in this cause took place. In the absence, therefore, of any proof of indebtedness, it is, we think, fair to infer, that they were all satisfied and discharged at the time the surety in the bond was offered as a witness. In 5 Gill & John. Rep. 344, this court say: “it appears then, that a period of about eleven years had expired, from the time letters of administration were taken out upon his estate, before the mortgage was executed;” and this court have said in the case of Allender and Riston, 2 Gill & John. 86, “in the case now before this court, it no where appears that there were any debts remaining due and unpaid at the time of the mortgage, or if there were, that the defendants knew of them;” and to use the language of Mr. Justice Ashhurst, in 4 Term Rep. 645, “if the creditors will lie by, and not assert their rights, it is reasonable for a third person to suppose that all the debts are satisfied.” Under this view of the case, we think that the opinion of the court below in the first bill of exceptions was correct, and that all objection to the competency of the witness was sufficiently removed.

We think, also, that there was no error in the opinion of the court below in the second exception. The defendant in the suit was dead, and no new party had been made when the notice was given and the deposition was taken by the commissioner. The act of 1828, ch. 165, under which the deposition was taken, manifestly contemplates a case where both plaintiff and defendant are in existence, and actually parties to the litigation upon the record at the time the notice is given by the commissioner, and the deposition is taken in pursuance thereof. The language of the 2nd section of the act is, “that either party, in any action depending in the said courts, after due notice to the other party or his attorney, agreeably to such rule as shall be made by said courts respectively, may take the deposition of any witness before any one of the said commissioners, to be used as testimony on the trial of such action.” The defendant in this case being dead, and no new party having been made, the deposition was taken without legal warrant or authority, according to the provisions of this act, and was, therefore, properly rejected by the court. We wish it to be understood, that in deciding the question as to the admissibilty of the deposition offered in evidence in this case, we have been governed exclusively by what we deem the true construction of the Act of Assembly under which it was taken; and we do not wish to be understood as giving any sanction to the rule of court upon that subject, adverted to in the course of the argument, and which rule we, think confers a power upon the commissioners, which was intended by the legislature to be exclusively exercised by the courts, or the judges thereof. It is true, that Acts of Assembly made relative to the administration of justice, are to be liberally construed for the attainment of that important object, but it is the province of courts of justice to expound laws, and not to legislate; that is a duty which belongs to a different department of the government. We think that there is no error in the judgment of the court below, and that the same ought to be affirmed.

JUDGMENT AFFIRMED.  