190 WINDER v. DIFFENDERFFER.

But although, as in England, the commissioners are, in some
respects, to be regarded as the court itself; (to) yet there is nothing
in our practice, or acts of assembly, which has clothed them
with any thing more than mere ministerial powers, for the purpose
of taking the examination under the commission. It is their duty
to propound the interrogatories 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 every thin^ irrele-
vant to the interrogatory; but nothing more. They have no autho-
rity whatever to decide finally upon the competency or credibility
of any witness presented to them for examination; nor can they
undertake absolutely to determine upon the relevancy of any inter-
rogatory, or the pertinency of any testimony to the points in issue
between the parties; 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 pro-
vince of the court to pass judgment upon all such matters. (x)

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
unnecessary verbosity, tautology, and scandal, the introduction of
which the ancient orders, regulating the English practice, so ear-
nestly and repeatedly endeavour to prevent, (y) By our public
mode of proceeding, we have been, relieved from all such embar-
rassments. It is wholly unnecessary, in any case, to file a long
formal set of interrogatories to be sent with the commission; unless
it should be sent to a distance, or into a foreign country, where the
party, or his solicitor cannot attend. But where the party, or his
solicitor, who understands the nature of the matters in issue, to
which the proofs are to be directed, can be present at the examina-
tion of the witnesses, as he always ought to be, the better and more
correct mode, instead of sorting the witnesses to whom the respec-
tive interrogatories apply, as directed by the English practice, (z)

lanced by the danger of perjury; but no instance has occurred, within my recollec-
tion, in which it has been intimated, that the proofs had been falsified, or even dis-
coloured by any party who had been thus, by a public examination, fully informed
of the testimony of his antagonist,

(w) Cooth v. Jackson, 6 Ves. 30.—(a;) Whitelocke v. Baker, 13 Ves. 515.—
(y) Beam's Orders, 25, 71, 184, 272, 311, 492,—(z) Whitelocke v. Baker, 13
Ves. 515.