Matthews

Bartol, J,, delivered the opinion of this Court: The first question presented for our decision in this case, arises upon the motion in arrest of judgment; and is to be determined by an examination of the affidavit and warrant upon which the attachment was based.. Being a proceeding under the Act of Assembly, before a tribunal of special and limited jurisdiction, it must appear affirmatively on the face of the papers that the requirements of the statute have been substantially complied with, otherwise the Court granting the writ of attachment would be acting without jurisdiction and the proceeding would be void, Shivers vs. Wilson, 5 H. & J., 130 . Yerby vs. Lackland, 6 H. & J., 446 . Wever vs. Baltzell, 6 G. & J., 345 . ²⁶⁵ The alleged defect disclosed on the face of this record, is in the jurat before the justice of the peace, upon which the warrant for the attachment was based; and is supposed to consist in this, that it appears on the face of the paper that the plaintiffs below both swore to and affirmed, the facts therein stated.

It is conceded in the argument that the matters alleged are sufficient to justify the warrant for an attachment, and that it would have been sufficient under the statute if they had been verified either by oath or affirmation; but it is contended that when the party has both sworn to and affirmed, the same facts, the proceeding is fatally defective and ought to be declared void. Looking at the jurat alone we find the justice has certified “that the party made oath according to law on the Holy Evangely,” and that being conscientiously scrupulous of taking an oath, he did solemnly, sincerely and truly declare and affirm,” &c. It appearing therefore affirmatively that the party did actually make oath according to law, which is sufficient under the statute, the subsequent affirmation may be regarded as surplussago under the decision in the case of Wharton vs. Conger, 9 Smedes & Murshal's, 510; where, two affidavits appearing of the same facts, one of them was rejected as unnecessary and surplussage. The same rule would apply with equal force to an affidavit and an affirmation, as to two affidavits.

There can be no doubt in this case, that the oath was actually taken, because the certificate of the justice so states, and if there was any doubt or ambiguity in the certificate, the warrant to which it is annexed refers to it as, “the above oath;” and as both must be construed together, all doubt as to the oath having been actually taken is removed. Being of opinion that the jurat is sufficient, we concur with the Court below in overruling the motion in arrest of judgment. First Exception. This exception presents the question of the admissibility of the testimony of Magnus Snodgrass, a ²⁶⁶ witness examined before the' commissioner Tormey, under the Act of 1828, ch. 165.

The appellants allege that the testimony was taken without “due notice.” The proof is that it was taken on Monday, the 8th day of March 1858, at 12' o’clock M. On the' Saturday before, notice in writing was given by the commissioner to Mr. Spencer, the appellants’ attorney, of the' intention to take the testimony' at the time n'am'ed; but in the written notice the case in which the testimony was-' proposed to be taken was wrongly entitled. If that error had misled the attorney, or, perhaps, if the question rested entirely on the sufficiency of the written notice alone, the-objection might be well taken. It appears, however, from1 the letter and affidavit of Mr. Spencer and the certificate' of the commissioner returned with the testimony, that Mr. Spencer knew “inferentially” the case to which the notico referred, and was informed of the name of the witness to be examined, and signified his intention to be present at the examination. We think, therefore, the notice actually received by Mr. Spencer was sufficient.

The Act requires1 “due notice” to be given, agreeably to the rule of Court in which the case is pending. In the absence of proof as to the rule of Court, it must be assumed, where the Court has admitted the evidence,, that the notice given was in con-' formity with its rule. In our opinion the evidence of Snodgrass was properly admitted. 2nd Exception. We are also of opinion there was no error- in the ruling, of the Circuit Court in the second bill of exceptions.

It appears from the testimony of the witness Tabb, and of McClure, that Tabb had resided in Maryland till July 1859, when he left it and went to Virginia’,, whence he had been shipping produce; he was examined before the commissioner in Baltimore on the 11th day of October 1859, and stated that he then claimed Maryland as his residence, but was going to Virginia that week, and, as far as he knew, intended to reside there. When the testimony was offered at the trial he was in Martinsburg, Vir ²⁶⁷ gmia, without any definite purpose of returning to Maryland. He was therefore out of the reach of the Court’s process, so that the plaintiffs could not enforce his attendance by summons. These facts are sufficient under the Act of 1828, to entitle the plaintiffs to read the deposition at the trial.

See Rogers’ Lessee vs. Raborg & Redding, 2 G. & J., 54. 3rd Exception. By agreement of .counsel a commission was issued to Reily and Clark of Winchester, “Virginia,” to take testimony of such witnesses as ‘ ’may be brought before them, without further notice, upon the interrogatories and cross-interrogatories which have been heretofore fded in the ease.” When the commission was returned, besides the interrogatories and cross-interrogatories which had been filed in Court and sent with the commission, there appeared several additional interrogatories and the answers of the plaintiffs’ witnesses thereto, some of which were propounded by the commissioner and others by the plaintiffs at the time of taking of the testimony. The evidence thus taken under the commission had not been read or offered by the plaintiffs at the trial. But as this bill of exception states, tbe defendants offered the same as taken by the plaintiffs, and proceeded to read it to the jury.

When he had read the interrogatories that had been filed in the cause and sent with the commission, and the answers of Barton one of the witnesses thereto, the plaintiffs’ counsel insisted that the defendants’ counsel should read the whole deposition, including all the testimony taken on the special interrogatories, or otherwise, which was objected to by the defendants’ counsel, hut the Court decided that if the defendants read the deposition, the whole deposition ought to he read to the jury, and the defendants excepted to this ruling of the Court. We have thus stated at length the matters contained in this bill of exceptions, in order that the very question it presents may be more clearly understood. ²⁶⁸ It may be added also, that after the return of the commission, the defendants’ counsel filed exceptions to the admissibility of the evidence taken in answer to questions not sent with the commission, and the Court in disposing of that exception said: “Exception sustained, no supplementary interrogatories ór questions would be regular unless the party against whom the answer is to be used had notice, or by bis assent, or by the terms of the commission, it was allowed.” We take the rule thus stated by the Court to be correct; and as amounting to a decision excluding as irregular and inadmissible that portion of the testimony returned with the commission, which the Court afterwards required the defendants’ counsel to read to the jury. The counsel of the appellee in support of this ruling by the Court, places bis argument, not on the ground that the evidence in question was legally admissible, but insists that the Court could not determine that question until the whole was read, because peradventure something might be disclosed showing that such additional questions bad been asked, with the knowledge and assent of the defendants; or that they bad waived objection thereto, and if that did not appear, the proper course for the defendants’ counsel would have been to ask the Court to withdraw or exclude the testimony from the consideration of the jury. It will be seen, therefore, that the dispute before us is one rather of form than of substance, and involves the question as to the proper mode to be adopted by the defendants in availing themselves of their objection to the testimony, rather than an inquiry into the validity of the objection itself; and, as such, is a question of practice which we do not remember to have seen before distinctly presented or decided.

We think, however, it is one easily solved. Under the agreement for the commission, it is clear that all questions propounded to the witnesses, which bad not been before filed in Court, would be irregular, and properly subject to exception; and when the exception was ²⁶⁹ taken and sustained by tbe Court, it was equivalent to striking them from the commission. It is true, that by the decision of the Court, it was very properly left open for the appellee to avoid the objections patent on the face of the agreement and the commission, by showing facts that would remove or cause the irregularity. No such proof however was offered by the appellee, nor did it appear to the Court; and, without that, the admissibility of the evidence was to be determined per se, and being irregular and illegal, it was error for the Court to require it, or when objected to, to allow it to be read to the jury.

See Farmers & Mechanics Bank of Carroll Co. vs. Allen, 18 Md. Rep., 475, 479. 4th, 7th, 8th, 11th and 13th Exceptions. These exceptions all present the same question of law, and may be considered together. In each of them we think the evidence offered by the appellees was inadmissible, and properly excluded by the Court; some part of it was liable to the objection of being mere hearsay. See Wolfe vs. Hauver, 1 Gill, 92 .

What was not obnoxious to this objection, could have been admissible only for the purpose of impeaching certain witnesses who had testified in the cause on behalf of the appellees, by proving that they had on other occasions made statements at variance with their testimony By the well settled rules of law, this mode of discrediting a witness is not allowed, unless a proper foundation be previously laid by interrogating the witness on the subject of the alleged variance, and affording him an opportunity for explanation. Franklin Bank vs. Penn. S. N. Co., 11 G. & J., 35 . Whiteford vs. Burkmeyer,1 Gill, 139.

See also, Angus vs. Smith, 1 Moody & Mal., 473. (22 Eng. C. Law Rep., 360.) In our opinion the same rule governs when the testimony of the witness is taken under a commission, as where he is examined on the stand at the trial. Under this rule, in the opinion of this Court, the action of the Superior Court in these exceptions, ought to be affirmed. ²⁷⁰ 5th Exception.

This exception was taken by the appellants, to the rejection of the deposition of Mrs. Margaret Rees. The deposition was objected to below (as appears by the bill of exceptions) on the ground “that Mrs. Rees was not a competent witness, from interest, and also because the answers to the interrogatories in her deposition were not admissible evidence,” The Court rejected the deposition on the ground “that she was estopped from giving testimony.” In the argument of the cause by the appellees, the objection made below to the competency of the witness on the ground of interest, was properly abandoned; but it was contended that the defendant being one of the justices before whom the acknowledgment was made, (of the deed of the 10th of July 1856,) was estopped by his official certificate from showing that he did not know the contents of the paper, or that he did not explain the same to Mrs. Rees. This is a question of some difficulty and it has been most carefully considered. In order that the-judgment of this Court may be clearly understood, it is necessary to state the manner in which the question of estoppel arises.

One of the issues before the jury was, whether the defendant Alfred Ross was a partner of S. D. Rees and Jacob Rees. To support the affirmative the appellees offered in evidence a deed made by S. D. Rees, and Margaret his wife, to David Rees, containing a recital “that Samuel D. Rees, Jacob Rees and Alfred Ross, are and have been for a number of years, co-partners in the milling business.” Alfred Ross not being a party to the deed, nor shown to have had any agency in its preparation, would of course not be bound by any recital it might contain. It appears, however, that the deed was acknowledged by the grantors before William D. North and Alfred Ross, two justices of the peace, who certify “that Mrs. Rees was privately examined by them, apart from her husband, and having said writing fully explained to her,” acknowledged the same,