178 WINDER v. DIFFENDERFFER.—2 BLAND.

until all the testimony within their reach can be taken, Forum
Rom. 129; 1785, ch, 72, s. 14; or another commission, for any such
purpose, may be at once obtained to any other place, where the
requisite testimony may be had. (Z)

* But although, as in England, the commissioners are, in
190 some respects, to be regarded as the Court itself, Cooth v.
Jackson, 6 Ves. 30; yet there is nothing in our practice, or Acts of
Assembly, which has clothed them with anything more than mere
ministerial powers, for the purpose of taking the examination
under the commission. It is their duty to propound the interrog-
atories as written and handed to them by the respective parties,
or their solicitors; and to take down all that the witness declares
in answer thereto, rejecting everything irrelevant to the .interrog-
atory; but nothing more. They have no authority whatever to
decide finally upon the competency or credibility of any witness
presented to them for examination; nor can they undertake abso-
lutely to determine upon the relevancy of any interrogatory, or the
pertinency of any testimony to the points in issue between the par-
ties; because, although the commissioners are not bound to divest
themselves entirely of all discretion as to what is or is not-legal
evidence; it is yet finally and exclusively the province of the Court
to pass judgment upon all such matters. Whitclocke v. Baker, 13
Ves. 515.

It is evidently as a consequence of the rule which requires the
testimony of the witnesses to be taken in secret, that the English
practice has rendered it necessary to have all the interrogatories
delivered to the commissioners before the examination is begun:
and hence, it is almost impossible to avoid that senseless and un-

(l) These observations may seem to be at variance with that general rule
of law, by which all our Courts of justice are governed, in all cases, fay
which each party has thrown upon him the burthen of supporting his own
case, and of meeting that of his adversary without knowing, before hand,
by what evidence the case of his adversary was to be established, or his own
opposed. Wigram on Discovery. 93; Willan v. Willan. 19 Ves. 591; The King
v. Holland. 4 T. E. 691. That rule however, operates only so far as to protect
a party from being compelled to set forth the proofs and circumstances he
means to offer in support of his own case at the trial. But in Courts of
common law nothing is more frequent, than, after a witness has been exam-
ined, to call another to discredit or contradict what the previous witness had
testified. The only difference between that mode of proceeding, and this,
under a commission, is, that, under a commission, time may be allowed to
send for and take the opposing testimony; but. that, in a Court of common
law. such testimony must be introduced during the trial and without delay.
It might seem, that the removal of the mischief of surprise, by a public
examination, would be more than counterbalanced by the danger of perjury:
but no instance has occurred, within my recollection, in which it has been
intimated, that the proofs had been falsified, or even discolored by any party
who had been thus, by a public examination, fully informed of the testimony
of his antagonist.