The opinion of the Court was drawn up by
Shepley J.— The amendments appear to have befen for the same cause of action, and they might well be permitted. The witness, who was examined under a commission on inter-rogatories filed, was permitted to see the interrogatories before he was examined. It does not appear, that the commission contained any direction to the commissioner not to permit it, or that the clerk violated any order or rule of the Court in neglecting to enclose the commission under seal. There was no legal impediment to the reception of the testimony. It may be very proper for the Court, by rule or otherwise) to order, that commissions should be so issued as to prevent the evils supposed to arise from the execution of them as in this case.
If the charges of the plaintiff were for labor performed and materials found in making the sails, it might be proper to permit his books, accompanied by his oath, to be introduced to prove the items. But the plaintiff appears to have been permitted to testify to facts not entering into any items of charge as found in the books. That he was directed to deliver the sails on board of another vessel) the schooner Superior, and that he did so deliver them. And it appears also, that other persons assisted, both in making and delivering them. And the plaintiff appears to have been permitted to recover interest after six months upon proof) that .the usual term .of credit on the purchase of sails and rigging in- Boston was six months with interest after. One is entitled to have his rights determined by his own contract or by the law; and he cannot without proof be considered as agreeing to any usual time of credit. The plaintiff would be entitled to such interest only by proof *121of an agreement to pay it; or by proof of a demand of payment, anterior to the date of the writ.
The verdict is set aside, and a new trial granted.