
    James C. Rupert vs. Reuben H. Grant et al.
    A commission which issues from the office of the circuit clerk, for the purpose of taking a deposition, which does not contain the name of any commissioner at the time it issued from the clerk’s office, will be irregular, and the deposition taken under it must be excluded.
    Where a deposition had been excluded from the jury on the ground that the commission under which it was taken was irregular in not having the name of the commissioner in it when it issued, the party who took the deposition cannot obtain a new trial on the ground of surprise, in the exclusion of the deposition, as that exclusion was owing to his own laches in irregularly suing out the commission.
    In an action against the indorser of a bill of exchange, it was proved that the . holder of the bill, after its maturity, received ten per cent, of its amount from the acceptor, and in consideration thereof agreed to wait until the drawer of the bill could be heard from, though the witness who testified to the agreement did not recollect that any definite time of payment of the balance due on the bill had been agreed on : Held, that’the indulgence granted to the acceptor until the drawer could be heard from, based upon a sufficient consideration, exonerated the indorser,
    On appeal from the circuit court of Noxubee county ; Hon. Hendley S. Bennett, judge.
    James O. Rupert sued Reuben H. Grant and Thomas D. Wooldridge, upon two bills of exchange drawn by Grant in favor of and indorsed by Wooldridge, upon and accepted by Andrews & Purvis. They were indorsed to H. B. Gwathney, who had indorsed them to the plaintiff. The defendants plead non assumpsit, and upon the trial the jury found for the plaintiff as against Grant, but found for the defendant Wooldridge.
    By the bill of exceptions it appears that the plaintiff proved demand and notice to the drawer and indorser, according to law. The defendant then read the deposition of Warren S. Andrews, taken on the 4th of April, 1843; who proved that Purvis & Andrews accepted the bills while in Gwathney’s possession, to whom they supposed they belonged ; that about the time of their maturity the witness called on Gwathney, and informed him that Purvis & Andrews would not be able to take them up, but that they were daily in expectation of hearing from the drawer, and expected to be put in funds by him to meet them; that on the 4th of January, 1840, Purvis & Andrews paid Gwathney ten percent, on the amount of the bills of exchange; what understanding there was between Gwathney and the witness in relation to the time of payment of the balance he did not recollect, but thinks it was indefinite further than the time it should be received from Grant. On cross-examination he stated, that there was no consideration given by Purvis & Andrews further than the ten per cent. He did not think there was any time fixed for the payment of the balance due on the bills; that Purvis & Andrews had never been putin possession of funds to meet the bills of exchange.
    On the 26th of March, 1844, a second deposition of Andrews was taken, which was read by the plaintiff. In this last deposition he states that Purvis & Andrews paid ten per cent, on the bills of exchange, but he did not recollect that any specified time was agreed by them and Gwathney for the payment of the balance due; that it had been a long time since the transaction took place, and if any specified time was agreed on he did not then recollect it; that the ten per cent, was paid as before stated, but that he had no recollection of any agreement between the parties for the payment of the balance in thirty days, or any specified time. On cross-examination he stated that he knew of no agreement between the holder of the bill and Purvis & Andrews, by which they were to be exempt from being sued or any remedies at law be suspended against them; that Purvis & Andrews were the accommodation acceptors of the drawer.
    The plaintiff then offered to read to the jury the deposition of H. B. Gwathney, which was objected to by the defendant’s counsel, because the names of the commissioners to take the deposition was not inserted by the clerk of the court, but the commission issued in blank and the name of the commissioners were filled np in Yirginia. On proof of these facts the court rejected the deposition.
    After the verdict as stated, the plaintiff moved for a new trial as to Wooldridge, on the grounds, 1. That the verdict was contrary to evidence. 2. That the plaintiff had been surprised by the deposition of Gwathney being ruled out. He accompanied the motion with an affidavit that he could prove by Gwathney that no time or indulgence had been at any time granted to the acceptors, and that Gwathney was never really the owner of the bills, but that they had been indorsed to him merely for collection, as the agent of the plaintiff; and that he had no knowledge at the time of the trial that the deposition had been irregularly taken; that Gwathney resided at Mobile. The court took the motion under advisement, and in vacation delivered an opinion overruling the motion. From that opinion the plaintiff below appealed.
    
      A. C. Baine, for appellant.
    1. In deciding the supposed preliminary point in this case upon the authority of the case of Smith v. The Natchez Steamboat Company, we think the court erred. The facts in that case are wholly inapplicable to this. There the defect in the deposition arose from the party’s own violation of law, in proceeding to take a deposition before he had complied Avith the precedent conditions of the law which authorized him to take it. Here the defect arose from the act of the clerk in issuing the commission. And if an error at all, it Avas the error of the clerk, and not of the party. The law gives the party no supervisory power over the clerk. It is his single and official duty. Upon its face it appeared to be Avell done, and it was only by proving acts Avhich falsified its face, that made it bad, if bad at all. And Ave respectfully suggest that parol proof, unaccompanied Avith any suggestion of fraud, was wholly incompetent for the purpose of contradicting the commission. There can be no reason, if this can be done, Avhy any record or exemplification of one, Avhen offered as evidence, may not be contradicted and made invalid bysimilar proof. This would certainly destroy and sweep away from any party all his just expectations at the moment of trial. This view, taken in connection with the first, seems to me to be sufficient to reverse the judgment of the court below. It is decided in Gilpins v. Consequa, Peters’s C. C. R., that “ those who execute a commission are appointed by the court, and although they may be named by their parties, they are not their agents.” See 1 Phillips’s Notes, 35.
    
    However the court may settle the law as to the right of the clerk to inclose a commission in blank, for the name of the commissioner, we think the judge erred in not granting a new trial for the reasons above stated. The course, however, is very convenient, and has generally been adopted in practice, and I have never heard of any evils that have actually accrued or are likely to accrue; and can therefore see no reason for the judgment of the court on this point.
    2. In relation to the merits, we think the proof entirely too slender to discharge the indorser. It establishes neither of the four requisites necessary to that purpose. First, a consideration for the promise to indulge. Second, a promise to indulge. Third, a promise not altogether indefinite. Fourth, that the surety has not assented. 4 How. 692. Here was ten per cent, paid, but there is not the slightest evidence that it was paid for a promise to indulge. The evidence is just as strong that it was altogether voluntary, indeed it is stronger. And there must be a preponderance of proof in all cases. And mere preponderance is insufficient to destroy .a right once admitted to exist. Preponderance of proof “ is insufficient in all cases where it falls short of fully disproving a legal right once admitted or established, or of rebutting a presumption of law.” 1 Starkie’s Ev. part 3, sec. 53. Now we think there is not even a preponderance of testimony here. But if there be, there is certainly not that full proof this law requires. And the same reasoning applies to the next point, “ the promise itself.” And so on to the rest, which the court will readily apply in the investigation of the cause.
    Granting the proof to be full, however, it is suggested on the authority of Buttit et al. v. Thatcher et al., 5 How. 694, that the rule of discharging a surety, upon a sufficient contract for delay, does not apply to an indorser. His contract is a separate, distinct and individual liability. His duty is plain, if the drawer does not take up the paper, it is his duty to do so immediately. And to hear him urging this defence, is to listen to his own violation of contract, as a reason for discharging him from its obligations. Again, if the proof ruled out be admitted, it will prove the contract — if made for delay, was made by an agent without authority, and therefore void.
    
      John D. Freeman, for appellees.
    By the agreement in this case the holder was disabled from suing the acceptors until the happening of a certain contingency.
    If a holder disables himself for a moment from suing, he releases all parties to the bill not privy to such grant of indulgence. Bayley on Bills, 191, note 90; H. 357, notes 20, 21, 358, note ti.
    
    When a new credit is given, the party holding takes it upon himself; and in no case when the holder gives time for payment to the maker is the indorser liable. 1 Bay, 177, 178; 16 Johns. 70; 9 Cowen, 194.
    The jury found a verdict discharging Wooldridge, the indorser, and the plaintiff moves for a new trial, which was refused, and this is the error assigned. The evidence, when properly understood, is not conflicting, but even if it were, it is the province of a jury to decide on such cases, and the court will not disturb' the verdict unless the same is clearly contrary to law. Graham on New Trials, 326, et seq.
    
    The deposition of Gwathney was properly ruled out for irregularity in taking the same. 1 How. 495. In order to get a new trial on the ground of surprise, the surprise must be such as care and prudence could not provide against. The slightest negligence will defeat the application. Graham on New Trials, 174. The defect of the deposition was the neglect of the plaintiff, and he cannot set up his own neglect for a new trial; besides, Gwathney is liable to Rupert as last indorser to Rupert, and his interest is to make Wooldridge liable in order to avoid the payment of the bill himself. Hence his evidence could not be heard and the affidavit for new trial is insufficient, inasmuch as it sets up no newly discovered evidencé. 15 Johns. 293.
   Mr. Justice Thacher

delivered the opinion of the court.

Appeal from the circuit court of Noxubee county.

Rupert instituted an action against Grant, as drawer, and Wooldridge as indorser, of two bills of exchange. Yerdict and judgment against Grant and in favor of Wooldridge.

The. material facts disclosed by means of a motion for a new trial are that the deposition of Gwathney, an indorser of the bills of exchange, was ruled out of the evidence, and that the jury based their verdict as to Wooldridge upon the supposition that Andrews, whose depositions were read upon the trial, proved that Gwathney, who was the holder of the bills at their maturity, gave time to the acceptors of the bills after their maturity, and without the consent of the defendants.

The deposition of Gwathney, procured by the plaintiff, was proved not to have contained the name of any commissioner at the time itissued from the circuit.court. This was irregular, as thecommissionerderives his authority by the special appointment of the court, and is thereby constituted an officer of the court to the extent of his commission. H. & H. 603, sec. 16. Doe ex dem. Martin v. King's Heirs. 3 H. 141. The’deposition was therefore properly ruled out. The action of the circuit court.in reference to this deposition was not a good ground for a new trial on the score of the party’s surprise. He should have been prepared for trial, and it was his own laches that the commission was irregularly sent out. The clerk of the circuit court was subject to his directions so far as in accordance with the statute. Smith v. The Nutchez Steamboat Co. 1 H. 495.

Two depositions were taken from Andrews. One, taken on the 4th day of April, 1843, was offered in evidence by the defendants ; and the other, taken on the 26th day of March, 1844, was offered in evidence by the plaintiff. The first deposition of Andrews establishes, that, at about the time of the maturity of the bills, he called upon Gwathney, then their holder, and informed him that the acceptors would not be able to take them up, but that they were in daily expectation of hearing from the drawer, and expected to receive from him the funds by which to meet the bills; that on the 4th day of January, 1840, the acceptors paid Gwathney ten per cent, on the amount of the bills; that he did not recollect what understanding was had with Gwathney “ in relation to the time for the balance, but thinks it was indefinite further than the time it should be received from ” the drawer; and that he has no recollection of any definite time of payment having been agreed upon. The second deposition contains the same statement in regard, to the payment of the ten per cent, on the amount of the bills, and states that the witness has no recollection of any “specified time ” having been agreed upon for the payment of the balance due on the bills.

There is no discrepancy in the two depositions in regard to the facts, although the second is not as full as the first. Both of them establish that no particular extent of time was agreed upon for delay in the payment; but the first establishes the fact that a delay was granted, at least until something could be heard from the drawer, but how much longer was left indefinite. There seems to have been enough to warrant the jury in their finding for the indorser. There was a promise upon a consideration; that promise of indulgence was definite, at least to a certain extent, and was granted without the assent of the indorser. The circumstances seem amply to warrant the view adopted by the court below in declining to grant a new trial, and to warrant the opinion of this court as previously promulgated. Newell & Pierce v. Hamer et al. 4 H. 692.

J ud guien t affi rmed.  