By the Court.
Benning, J.delivering the opinion.
[1.] It is not to be presumed, in the absence of proof, that' any man is a law breaker. It is therefore not to be presumed,, in the absence of proof, that one of the plaintiffs in this ease-was present when the commission to examine Edmonson and' Burnett was executed.
It was however argued for the defendant in error, that there-*624was evidence to show one of the plaintiffs to have been present, and so, to ■ rebut this presumption. That evidence, as it was-contended, consisted in the fact that the caption of the interrogatories was in the hand-writing of one of the plaintiffs. Rut, as we think, this fact makes at least as much for as against the presumption. If one of the plaintiffs wrote the caption when present at the execution of the commission, why did he-stop at the caption and not go on and write the answers too ?
We know not of any law which requires the commissioners to write down the answers of the witness with their own hand. If they may use the hand of another person, why may not that hand be the hand of the witness himself ? If the hand used be-the witness’ own, we can be sure of one thing, and that is, that what we get is the very language of the witness himself.
We think, therefore, that the interrogatories and answers of’ JSdmonson should have been admitted to the Jury j and so, we-have to order a new trial.
The presence of the witness, Rurnett, at the trial, was reason enough for excluding from the Jury his examination under the commission.
As to the other point, we merely say, that even if, as to it, the Court below erred, the error, was one which could operate only in favor of the plaintiffs in error. We are far, however, from intimating that we thinly the Court did err as to that point.