delivered the opinion of the court.
This case was submitted upon a re-argument. Its importance demanded from us a very careful consideration; and in our investigations we have been greatly assisted by the able and elaborate written, as well as oral arguments, of counsel. The error which is principally relied upon as cause of reversal^ consists in the admission of the deposition of Thomas Cargill, a witness in behalf of the petitioners.
The appellants contend, that this deposition should have been excluded for several reasons : 1st. Because it was taken before the answer of defendants was filed to the petition. 2d. Because it was taken by a person who had no authority to take depositions. 3d. Because it was taken without affidavit, or commission, or other lawful authority to take the same.
When this case was before the court on the first submission, it received from the late chief justice (Sharkey) a very thorough consideration and examination on the point of the sufficiency of Cargill’s deposition, and it almost seems useless to revive positions taken by him; but as the point presented is important in practice, we have done so.
On the 29th day of July, 1845, the appellees, claiming to be the heirs at law and distributees of William Cargill, deceased, filed their petition in the probate court of Hinds county, asking for distribution of his estate. To this petition the appellants, who were the administrators of the estate of William Cargill, were made defendants. At the August term of the probate court their answer was filed, denying that petitioners were the heirs at law and distributees.
On the day the petition was filed, a notice was served by the petitioners on the appellants, that on the 2d day of August, the deposition of Thomas Cargill would be taken, at the courthouse in Raymond, before Warren J. Jennings, to be read in evidence in behalf of the petitioners. On the day named in the notice, the deposition was taken in the presence of counsel *557for both parties ; and when so taken, was returned to the clerk of the probate court by Jennings, who, in taking it, purported to act as a justice of the peace. No commission was ever issued, empowering Jennings to take the deposition, nor was any affidavit made showing grounds, according to the statute, rendering it necessary and proper to take it.
By the principles of the common law/and according to the original practice of the courts of common law, depositions could never be taken de bene esse, without consent of parties. If disposed to insist upon his rights, a party could require the presence of witnesses in court, in order that he might cross-examine them in the presence of the jury. But as great practical inconvenience frequently resulted from a rigid adherence to these rules, the court uniformly exercised every legitimate power it possessed to induce parties to consent, by putting off the trial at the instance of the defendant, if the plaintiff would not give consent; and if the defendant refused, by declining to render judgment, as in case of nonsuit. Tidd’s Pr. 810, 811; 1 Stark. Ev. 320. In an anonymous case, in 2 Chitty’s R. 199, on a motion for a rule for leave to examine a witness on the affidavit of a physician, that it would endanger his life to attend the trial, the court refused the rule, saying the party must either apply to a court of equity, or get the facts admitted.
Also, in ,4 Taunton, R. 46, the court refused a similar motion, unless with the consent of both parties.
Where consent was obtained, the practice was, when a material witness resided, or was going, abroad, so that he could not attend the trial, for the party desiring his evidence to apply to the court in term time, or to a judge in vacation, on a proper affidavit for an order to have the witness examined de bene esse before one of the judges of the court, or before commissioners specially appointed and approved by the opposite party. Tidd’s Pr. 810. Depositions so taken could not be read without the production of the commission, unless they were of so long standing as to afford a presumption that the commission was lost. Baylie v. Wylie, 6 Esp. R. 85; Tidd’s Pr. 814.
To obviate the inconveniences qrising from the strict common *558law rale, requiring the consent of parties, a modification of the practice was obtained by act of parliament. In this State, the rigor of the common law rule has also been relaxed by several statutes. But in courts of law, unless by consent of parties, witnesses must still be examined before the jury, except in the instances, and according to the mode provided by the statute.
The first provision on this subject is contained in the circuit court law of June, 1822, (Hutch. Code, 861,) § 113, in which it is declared: “ When any witness shall be about to depart the country, or by age, sickness, or otherwise, shall be unable to attend the court, upon affidavit thereof in open court, or before the clerk in his office, or any judge &c., the clerk of the court in which any suit is or shall be depending, may, on request of either party, issue a commission for taking the deposition de bene esse, Sec., upon reasonable notice to the opposite party, of the time and place of taking the deposition.”
Section 114 of the same statute, provides, if any party in a suit at common law or in chancery, will make oath that he verily believes his defence, or a material part thereof, depends on the testimony of a single witness, the court, or the clerk in vacation may award a commission to take the deposition of such witness de bene esse, although not about to depart the country, nor under any disability, upon reasonable notice being given to the adverse party.
The 116th section of the statute, declares that the depositions of witnesses who are absent from, and reside out of the State, may be taken on the filing an affidavit of the materiality and absence, or non-residence of the witness, the filing of interrogatories and notice thereof, and the issuance of a commission by the clerk. By section 3 of the act of February 13, 1837, provision was made, that commissions might issue to take the depositions of absent witnesses residing beyond the limits of the State, without an affidavit of the non-residence, or materiality of such absent witness, provided interrogatories were filed and served upon the opposite party, or his attorney.
These, we believe, are the only statutes on the subject of depositions, which seem to bear upon the case before us. By recurring to them, it will be seen, that in every case enumerated *559-in the statute, a commission is required to issue ; and, except in the case of witnesses absent, and residing out of the State, an affidavit, setting forth the reasons for taking the deposition, is also required.
So essential to the' validity of depositions has this court deemed the issuance of a commission, that it has declared depositions irregular and insufficient, which were taken under a commission issued from the clerk’s office without the name of the commissioner being inserted at that time; and on motion, depositions so taken were excluded from the jury. Rupert v. Grant et al. 6 S. & M. 438. ' In the same case the court declared, that the party whose deposition was thus excluded, was not entitled to a new trial for that' cause, as it was his business to have prepared for trial, and it was his own laches that the commission was irregularly sued out. Ib. 438.
When it is-recollected, that by the common law, depositions de bene esse could not be taken and read without the consent of the opposing party, and that the statutes conferring this right are in derogation of the common law, and have prescribed the terms upon which it may be exercised, and fixed the manner of proceeding therein, it will- be readily conceded, that depositions taken without a compliance with the rules prescribed, are irregular and unauthorized, and consequently the party taking them cannot insist, as a matter of right, upon the privilege of reading them.
In the case before us, the deposition of Thomas Cargill was taken without any commission having issued authorizing Jennings to take the .same, and without any affidavit having been made setting forth the causes which rendered it necessary and proper to take it; as the witness was within the State, his deposition could only be legally taken without consent, by a compliance with the provisions of the statute relating to depositions de bene esse. In our opinion, the deposition was taken without authority, and the opposite party had a right to object to the reading of it, unless he expressly or impliedly waived the objections. It was contended in argument, that no commission in this case was necessary, because Jennings was a justice of the peace, and as such had authority ex officio to take depositions.
*560It is conceded, that there is no statute conferring this power upon justices of the peace; but it is said that the usage and practice in the State has conferred this power upon them.
We are aware, that in the court of chancery the practice is to read depositions taken before justices of the peace without commission; and Chancellor Buckner remarked upon one occasion, that they were as valid as if taken by a commissioner. S. & M. Ch. R. 37. How this practice first originated in the chancery court, or when it was first established, whether by an express but now forgotten rule of court, or by the silent acquiescence of the profession, in a practice deemed useful and convenient, we do not know. But we conceive that the usage of the chancery court in this particular will not justify a similar practice in the circuit or probate court; in neither of which courts, however, are we aware that such practice has generally obtained; nor if it had obtained, are we prepared to admit the legality of a praétice contravening the provisions of the statute.
There is a wide difference between the courts of law and chancery in the manner in which facts are established before them. In the court of chancery, all testimony, with very few exceptions, must be by deposition; and the witnesses cannot be heard orally in court. The chancellor has the right to prescribe the persons before whom, and the manner in which depositions shall be taken, where these rules do not conflict with the acts of the legislature. As the practice of taking depositions before justices of the peace to be read in the chancery court, does not seem to violate any statute, we presume that no objection can be made to it.
But the case is very different in a court of law. There all testimony of witnesses, as a general rule, can only be oral, and must be given in open court before the jury. Where the witnesses are living, those courts have no authority, without consent, to introduce depositions at all, except by the express provisions of the statute; and they have no power, in our opinion, to dispense with the requirements of the statutes in any case, unless by consent of parties. We do not believe, therefore, if the practice had prevailed, as was contended by counsel, in the courts of law, that it would be obligatory upon suitors in those courts.
*561On the trial of issues sent from the probate to the circuit court, the statute has provided, that the “ power of the circuit court, and proceedings relative thereto, shall be as in other cases respecting the trial of issues.” How. & H. Dig. 472. A deposition, therefore, which would be excluded in that court on the trial of any other issue pending therein, should for the like cause be excluded on the trial of an issue from the probate court. In fact, the very object in view in sending an issue from the probate to the circuit court, is to have it tried by a jury, according to the rules of practice and proceeding in that court; otherwise the legislature would have provided for the trial of such issues directly in the court of probates. We are satisfied, therefore, that Jennings, in his capacity of justice of the peace, had no authority ex officio and without commission, to take this depo-sitiom
But it is said, however this may be, the party had waived his right to object; and, therefore, his motion to exclude should not have been sustained. There is no express waiver of objections; was there any by implication ? It is argued, that attending and cross-examining the witnesses, amounted to a waiver. We do not think so. If a party without notice attends and cross-examines a witness, that is a waiver of notice; but we do not think it can be construed into a waiver of such fundamental objections as the want of a commission, and the failure to make the affidavit required by law. Having been notified that the deposition would be taken before Jennings, the defendants had a right to presume that the requirements of the law had been complied with; and the petitioners, proceeding to take it, took it at their peril, as if was their business to have seen that all the law required of them was done.
But it is said, the objection ought to have been made in the probate court, and the party was taken by surprise by the failure to make it there. If the case had been tried in the probate court, and on that trial this deposition had been read without objection, there would be much force in this argument. It is true, this court has held, that if a deposition in the circuit court be read at one trial without objection, a party is not thereby precluded from objecting to it on another trial. 1 How. R. 479.
*562We might possibly hold that this rule should not apply where a deposition had been read without objection in one court, and was afterwards offered on a trial in a different court, to which the case was transferred. But the argument is completely answered by the fact that the case was not tried in the probate court, nor the deposition read therein, before the issue was made up and sent to the circuit court. This will appear from an inspection of the record. In fact, it appears that the right to object to this deposition was reserved in the probate court, when the issue was sent to the circuit court. In the record of the order sending the issue to the circuit court, an entry is made in the following language: “ It is ordered and decreed, that the parties in this cause may read and refer to the pleadings and proofs in this cause; subject, however, to all just exceptions as to the competency of the witnesses, or the legality of the depositions, of the matters contained in the depositions.” It is said, this is only a reservation of objections to the competency of the witnesses, and the legality of the matters contained in the depositions. We do not think so. It is a reservation of objections to the legality of the depositions, as well as the mat-' ters contained in the depositions. The ambiguity that may appear in the entry, proceeds evidently from a clerical misprision in omitting a conjunction before the words “ of the matters contained in the deposition.” Any other construction would require us to reject an important part of the language contained in the entry. The objection to the deposition, in our opinion, was, therefore, well taken, and ought to have been sustained by the court; and it was erroneous to overrule it, and permit the deposition to be read.
But it is argued, if even this be true, yet we should affirm the judgment, because the other evidence fully warranted the verdict of the jury. We have carefully examined the evidence, which is very voluminous. The deposition of Thomas Cargill was material, direct, positive, and, if believed by the jury, conclusive on the issues presented to them. Being of this character, we must presume it had an important influence in the formation of their verdict; at any rate, it was well calculated to have ;such effect, and we are, therefore, unable to say that it did not. *563The other evidence in the record, consisting of many facts and circumstances of an apparently contradictory and irreconcilable character, renders it a case peculiarly fit for the determination of a jury; and, in view of the whole case, we do not feel ourselves at liberty to affirm the judgment. We do not think it such a case as would warrant us in sustaining the verdict notwithstanding the error of the. court in admitting illegal testimony.
We believe it is the true rule, wherever the record contains conflicting evidence, and on the trial material, important, and relevant testimony, which may have influenced the jury in forming their verdict, has been improperly admitted, to remand the cause for a new trial, unless we are clearly satisfied that the preponderance of the remaining, evidence is so strong in favor of the verdict, that we would'have granted a new trial, if the case on that evidence alone had come before us, and the verdict had been different.
The proper question, in our opinion, is not whether on the evidence legally admitted, this court would render a similar verdict to that contained in the record; but, would it set aside a different verdict rendered on the same evidence ?
Entertaining this view of the law, we think it our duty to reverse the judgment, and remand the cause for a new trial of the issues.
A petition for re-argument was filed in this case by the counsel for appellees, but refused by the court.