Curia, per
Savage, Ch. J.The act regulating the execution of commissions, (1 R. L. 520, s. 11,) requires that all exhibits produced to the commissioners, and proved by any witness, shall be annexed to the commission, and returned to the court, closed up and under the seals of twm or more of the commissioners. In Jackson v. Hobby, (20 John. 361,) Platt, J. who delivered the opinion of the court, says of this act, “ when a statute makes innovations on the common law rules of evidence, its positive requirements must be strictly complied with.” But in this ease, a literal compliance was impossible. The exhibit produced, was a record of Cayuga county ; not *445subject to the control of the party or commissioners. Every thing possible was done to identify the paper; and no doubt can exist that the same deed was produced in court, which was proved before the commissioners. We think the peculiar circumstances of this case form an exception to the rule, as laid down in Jackson v. Hobby. The nonsuit must, therefore, be set aside; and a new trial granted.
New trial granted.