
    J. H. Dogan, v. S. J. Ashby.
    V\ here the security on a note executes a release of all liability of the maker, to him, in case of a recovery, such release will render the maker a competent witness, in a suit upon such note against the surety.
    When the Court cannot perceive how any proper and reasonable construction of the testimony of a witness could conduct the jury to the conclusion they have attained, a new trial will be ordered.
    It is especially desirable, that in the absence of any valid objections, the clerk should, in the appointment of commissioners to examine an absent witness, see that such names are inserted, as will represent each party, in case such are named on each side.
    Tried before Mr. Justice Evans, at Union, Spring Term, 1847.
    Judge’s Report:
    This action was on a joint and several sealed note, signed by D. Thomas, and the defendant, Ashby. The note was for $ 1,603 47-100, dated 24th March, 1837. There was no doubt this note was given for judgments of Rice, M’Clure and Shelton, which the plaintiff had paid and taken an assignment; but there must have been some payments, as the note was for a less sum than the amount of the three judgments. The plea was payment. Thomas had removed to the West, and was examined as a witness. Ashby was security on the note, and executed a release of all liability of Thomas to him in the event of a recovery. Í thought the release made Thomas competent. He said the note was given for money paid by the plaintiff to Johnson, as sheriff, and other small debts. Upon these sums so paid, legal interest was counted, and 18 per cent extra interest was added; which made up the amount of the noté. Shortly after he gave the plaintiff in payment a note of Jeter’s for $1,250, of which $700 was to be credited on this note, and the balance to go to the judgments of Rice, M’Clure and Shelton, which had been settled for him by the plaintiff; that he paid the sums of $250 and $188 (these were credited on the note.) Thomas also said he gave the plaintiff a note of Stevenson for upwards of $700, to be credited on this note. The plaintiff afterwards produced ha note of $400, which he had given for interest on the note sued on, computed at 15 or 18 per cent, above legal interest, which the plaintiff said he had taken out of the Stevenson note. To this he said he objected, because Stevenson’s note had been given to be applied expressly to this note, in order to secure Ashby, his security. It appeared from the evidence, that the Stevenson’s note was for $726. It was due in 1844, and assigned to the plaintiff on the 13th September, 1842, on which day a credit was indorsed on the note sued on, for $101 41. Both Thomas and Ashby were solvent in 1837. Both of them have since left the country, and are insolvent now. The receipt given by Dogan for the judgments of Rice, TU’Clure and Shelton, bears date the same day as the note sued for.
    In my charge to the jury, I told them I thought that Thomas was mistaken in saying that the Jeter note was to be applied partly to this note ana partly to the judgments, for it was very clear the note had been given for the judgments. This circumstance, I thought, should weaken their confidence in the accuracy of Thomas’ recollection. It might be that the Jeter note was taken into the settlement, and this note given for the balance due on all the debts which Dogan had paid for Thomas, in which case there would be a balance in any event due to the plaintiff. If they could confide in Thomas, this note was clearly usurious, and the plaintiff could only recover his principal debt (deducting the usury,) without interest. This was, according to my computation, about the sum of $1358. If the $700 of Jeter’s note, the Stevenson note, and the payments of $250 and $188 were applied as payments, then the note was overpaid by more than $500. I thought the case depended on the confidence they could repose in Thomas. If they rejected his evidence altogether, they should find for the plaintiff the whole note and interest. If they rejected only what was clearly erroneous, then the plaintiff should have a verdict for something less than $200. They found for the defendant.
    In relation to the second ground, I have only to say, that after the commission was opened and read, some objection was made to it, because the examination was not attended by any of the plaintiff’s commissioners; and some other objections were made that he did not answer the Cross interrogatories. i thought the fir.'!: objection came loo late: and as to the last, it was brought to ¡he view oí i-hc jury as a circumstance effecting the credit of the witness; bat 1 was inclined to think the cross interrogatories were substantially answered in the answer to the principal questions put by the defendant.
    The plaintiff appealed.
    1st. Because his Honor erred in holding that the witness» Thomas., who was a co-obligor and principal in the note sued on, was made a competent witness for defendant by the release executed by defendant, Ashby, payment being pleaded by defemlan!'.
    2d. Because the commission and examination of witness. Daniel Thomas, was wholly irregular and illegal, and ought not. to have been received and submitted to the jury, although the objection to (he, same was not discovered and made until after the evidence was read.
    3d. Been,use the verdict was contrary to the law and justice, and cannot be sustained upon any rational view of the facts and evidence of the ease, even, if predicated upon tlie testimony of the witness, Thomas.
    Weight, for the molden.
    A. W. Thomson, contra.
    
   Withers J.

delivered the opinion of the Court.

This Court concur with the Circuit Judge in the opinion, that the release given by the defendant, Ashby, to the witness, Thomas, rendered him competent to give testimony in this cause. But upon the third ground, we think the case ought to lie tried again, for wc cannot perceive how any proper and reasonable cons ruci ion of the testimony of Thomas could conduct the jury to the conclusion they have attained. It may be that the plaintiff has been paid all he is by law entitled to recover, but, we do not think there is evidence enough adduced in this case, in an intelligible form, to warrant that conclusion. In this wo but correspond with the impression of the Circuit Judge. When wc look to the transaction on which the note sued upon was founded, as the same is disclosed by the case of Dogan v. Ashby and others, (1 Richardson, 36,) wc cannot understand how the note of Jeter, which Thomas says was rendered to the plain!.Ui' after the date of the note now in suit, could be applicable, in whole or in pari, to the object of reimbursing the plaintiff, for tbe judgments which be had procured from Shebon, Lice and M'Ciure. It seems (from the case above cited,) that by the very note row sued upon, those judgments were satisfied on the 24th March, 1837. If the fact be, that the note of Jeter was given at the time or bo.Sore the. satisfaction of die said judgments and partly for that end, then it is to be observed that the witness, Thomas, docs not say so; and the judgments having becti paid, it is at present notin! elligible how another satisfaction, wholly or in port, should have been made. We mean, however, to conclude nothing upon the facts;, but to suggest consideration.;:; that lead us to desire that another jury should pass upon them. Although we are not prepared to say that wo should send this ease back upon any objections which arc urged against the commission issued and used in this case, yet it is regarded ns a fit occasion to make some remarks, for the benefit of clerks of the Court os’Common Pleas. It is to be observed, 1 hat by íhe 17!h sec! ion of! lie A ct of Assembly, concerning She clerk’s duties, (Acts of 1839, p. 112,) the clerk is to empower any tico oí three or more commissioners, by a declimus issued under the seal of (he Court, to examine a witness. This proceeding is substituted for the supervision of the Court itself, added by the diligence of rival counsel, over the examination of a wi.'ness, and the process is placed (so far as preliminaries are concerned.) under the discretion of the clerk. It is quite material that every care should be taken to secure to each party every possible means, within the scope of the plan prescribed, of eliciting full and perfect answers to every question on cither side, by persons capabic of understanding them, competent to reduce them t o writing, and representing each party to the cause in such examination. It is manliest that the three or more persons to whom this very considerable function is to be delegated, are to be selected by the clerk according to the scheme of the section aforesaid, though the nomination should be made by the parties of course. And this is well; for it may often happen that very good objections may be urged to some of the commissioners named on the one side or the other, as that one may want capacity, another may not be properly indifferent or unbiassed between the parties, and so forth. Such questions, it appears to me, are for the judgment of the clerk, and should always be considered when urged. But it is especially desirable, that, in the absence of any valid objection, the clerk should see that commissioners’ names should be inserted who may represent each party, in case such are named on each side. In many cases this may be very essential to the fate of the cause, in any case would be more satisfactory, for ex parte proceedings should be avoided as far as practicable. We may borrow an illustration from this case. Complaint is made by the plaintiff that his cross interrogatories have been slightly regarded by commissioners and witness, and are imperfectly answered; (and probably some members of this Court would, in the absence of other grounds more generally satisfactory for a new trial, be inclined to lend ear to the complaint;) and the plaintiff further complained, that tne name of his commissioner, nominated on his cross interrogatories filed, was not inserted in the commission. If this had been done, who can say that the cause would have existed for the former complaint? It is not perceived, in case no valid objection was urged on the other side against this commissioner, why his name was omitted.

The motion is granted without prejudice.  