The statute of the seventeenth day of April 1823, gives to the parties in every suit in this court, and their counsel, a right to be present at the examination of witnesses, and to cross examine the witnesses, as well before commissioners to take testimony, as before examiners. It is insisted by the counsel for the defendants, that this right is confined to examinations within the state, and that when a commission is issued, to examine witnesses out of the state, the parties must send written interrogatories with the commission, and that they have no right to attend the examination, or to put oral questions to the witnesses. In support of this distinction, some reasons are urged, which would have weight, if the court were at liberty, to institute a rule, upon this subject. But the statute makes no distinction between examinations out of the state, and those within it. It gives in clear and express terms, a right to attend and cross examine ; and the object of the legislature evidently, was, to abolish secret examinations of witnesses, in all cases.
The right to attend the examination and cross examine, having been refused in this case, these depositions must be suppressed. The error of the commissioners, was produced by the erroneous instructions of the defendants; but an excuse for those instructions, is given ; and in the circumstances of the case, it is reasonable, that the defendants should have another commission.