Matthews

Bartol, J,,

delivered the opinion of this Court:

The first question presented for our decision in this case, arises upon the motion in arrest of judgment; and is to be determined by an examination of the affidavit and warrant upon which the attachment was based.. Being a proceeding under the Act of Assembly, before a tribunal of special and limited jurisdiction, it must appear affirmatively on the face of the papers that the requirements of the statute have been substantially complied with, otherwise the Court granting the writ of attachment would be acting without jurisdiction and the proceeding would be void, Shivers vs. Wilson, 5 H. & J., 130 . Yerby vs. Lackland, 6 H. & J., 446 . Wever vs. Baltzell, 6 G. & J., 345 .

*265 The alleged defect disclosed on the face of this record, is in the jurat before the justice of the peace, upon which the warrant for the attachment was based; and is supposed to consist in this, that it appears on the face of the paper that the plaintiffs below both swore to and affirmed, the facts therein stated. It is conceded in the argument that the matters alleged are sufficient to justify the warrant for an attachment, and that it would have been sufficient under the statute if they had been verified either by oath or affirmation; but it is contended that when the party has both sworn to and affirmed, the same facts, the proceeding is fatally defective and ought to be declared void.

Looking at the jurat alone we find the justice has certified “that the party made oath according to law on the Holy Evangely,” and that being conscientiously scrupulous of taking an oath, he did solemnly, sincerely and truly declare and affirm,” &c.

It appearing therefore affirmatively that the party did actually make oath according to law, which is sufficient under the statute, the subsequent affirmation may be regarded as surplussago under the decision in the case of Wharton vs. Conger, 9 Smedes & Murshal's, 510; where, two affidavits appearing of the same facts, one of them was rejected as unnecessary and surplussage. The same rule would apply with equal force to an affidavit and an affirmation, as to two affidavits.

There can be no doubt in this case, that the oath was actually taken, because the certificate of the justice so states, and if there was any doubt or ambiguity in the certificate, the warrant to which it is annexed refers to it as, “the above oath;” and as both must be construed together, all doubt as to the oath having been actually taken is removed. Being of opinion that the jurat is sufficient, we concur with the Court below in overruling the motion in arrest of judgment.

First Exception. This exception presents the question of the admissibility of the testimony of Magnus Snodgrass, a *266 witness examined before the' commissioner Tormey, under the Act of 1828, ch. 165.

The appellants allege that the testimony was taken without “due notice.” The proof is that it was taken on Monday, the 8th day of March 1858, at 12' o’clock M. On the' Saturday before, notice in writing was given by the commissioner to Mr. Spencer, the appellants’ attorney, of the' intention to take the testimony' at the time n'am'ed; but in the written notice the case in which the testimony was-' proposed to be taken was wrongly entitled. If that error had misled the attorney, or, perhaps, if the question rested entirely on the sufficiency of the written notice alone, the-objection might be well taken. It appears, however, from1 the letter and affidavit of Mr. Spencer and the certificate' of the commissioner returned with the testimony, that Mr. Spencer knew “inferentially” the case to which the notico referred, and was informed of the name of the witness to be examined, and signified his intention to be present at the examination. We think, therefore, the notice actually received by Mr. Spencer was sufficient. The Act requires1 “due notice” to be given, agreeably to the rule of Court in which the case is pending. In the absence of proof as to the rule of Court, it must be assumed, where the Court has admitted the evidence,, that the notice given was in con-' formity with its rule. In our opinion the evidence of Snodgrass was properly admitted.

2nd Exception. We are also of opinion there was no error- in the ruling, of the Circuit Court in the second bill of exceptions. It appears from the testimony of the witness Tabb, and of McClure, that Tabb had resided in Maryland till July 1859, when he left it and went to Virginia’,, whence he had been shipping produce; he was examined before the commissioner in Baltimore on the 11th day of October 1859, and stated that he then claimed Maryland as his residence, but was going to Virginia that week, and, as far as he knew, intended to reside there. When the testimony was offered at the trial he was in Martinsburg, Vir *267 gmia, without any definite purpose of returning to Maryland. He was therefore out of the reach of the Court’s process, so that the plaintiffs could not enforce his attendance by summons. These facts are sufficient under the Act of 1828, to entitle the plaintiffs to read the deposition at the trial. See Rogers’ Lessee vs. Raborg & Redding, 2 G. & J., 54.

3rd Exception. By agreement of .counsel a commission was issued to Reily and Clark of Winchester, “Virginia,” to take testimony of such witnesses as ‘ ’may be brought before them, without further notice, upon the interrogatories and cross-interrogatories which have been heretofore fded in the ease.”

When the commission was returned, besides the interrogatories and cross-interrogatories which had been filed in Court and sent with the commission, there appeared several additional interrogatories and the answers of the plaintiffs’ witnesses thereto, some of which were propounded by the commissioner and others by the plaintiffs at the time of taking of the testimony. The evidence thus taken under the commission had not been read or offered by the plaintiffs at the trial. But as this bill of exception states, tbe defendants offered the same as taken by the plaintiffs, and proceeded to read it to the jury. When he had read the interrogatories that had been filed in the cause and sent with the commission, and the answers of Barton one of the witnesses thereto, the plaintiffs’ counsel insisted that the defendants’ counsel should read the whole deposition, including all the testimony taken on the special interrogatories, or otherwise, which was objected to by the defendants’ counsel, hut the Court decided that if the defendants read the deposition, the whole deposition ought to he read to the jury, and the defendants excepted to this ruling of the Court.

We have thus stated at length the matters contained in this bill of exceptions, in order that the very question it presents may be more clearly understood.

*268 It may be added also, that after the return of the commission, the defendants’ counsel filed exceptions to the admissibility of the evidence taken in answer to questions not sent with the commission, and the Court in disposing of that exception said: “Exception sustained, no supplementary interrogatories ór questions would be regular unless the party against whom the answer is to be used had notice, or by bis assent, or by the terms of the commission, it was allowed.”

We take the rule thus stated by the Court to be correct; and as amounting to a decision excluding as irregular and inadmissible that portion of the testimony returned with the commission, which the Court afterwards required the defendants’ counsel to read to the jury.

The counsel of the appellee in support of this ruling by the Court, places bis argument, not on the ground that the evidence in question was legally admissible, but insists that the Court could not determine that question until the whole was read, because peradventure something might be disclosed showing that such additional questions bad been asked, with the knowledge and assent of the defendants; or that they bad waived objection thereto, and if that did not appear, the proper course for the defendants’ counsel would have been to ask the Court to withdraw or exclude the testimony from the consideration of the jury.

It will be seen, therefore, that the dispute before us is one rather of form than of substance, and involves the question as to the proper mode to be adopted by the defendants in availing themselves of their objection to the testimony, rather than an inquiry into the validity of the objection itself; and, as such, is a question of practice which we do not remember to have seen before distinctly presented or decided. We think, however, it is one easily solved.

Under the agreement for the commission, it is clear that all questions propounded to the witnesses, which bad not been before filed in Court, would be irregular, and properly subject to exception; and when the exception was *269 taken and sustained by tbe Court, it was equivalent to striking them from the commission. It is true, that by the decision of the Court, it was very properly left open for the appellee to avoid the objections patent on the face of the agreement and the commission, by showing facts that would remove or cause the irregularity. No such proof however was offered by the appellee, nor did it appear to the Court; and, without that, the admissibility of the evidence was to be determined per se, and being irregular and illegal, it was error for the Court to require it, or when objected to, to allow it to be read to the jury. See Farmers & Mechanics Bank of Carroll Co. vs. Allen, 18 Md. Rep., 475, 479.

4th, 7th, 8th, 11th and 13th Exceptions. These exceptions all present the same question of law, and may be considered together. In each of them we think the evidence offered by the appellees was inadmissible, and properly excluded by the Court; some part of it was liable to the objection of being mere hearsay. See Wolfe vs. Hauver, 1 Gill, 92 . What was not obnoxious to this objection, could have been admissible only for the purpose of impeaching certain witnesses who had testified in the cause on behalf of the appellees, by proving that they had on other occasions made statements at variance with their testimony

By the well settled rules of law, this mode of discrediting a witness is not allowed, unless a proper foundation be previously laid by interrogating the witness on the subject of the alleged variance, and affording him an opportunity for explanation. Franklin Bank vs. Penn. S. N. Co., 11 G. & J., 35 . Whiteford vs. Burkmeyer,1 Gill, 139. See also, Angus vs. Smith, 1 Moody & Mal., 473. (22 Eng. C. Law Rep., 360.)

In our opinion the same rule governs when the testimony of the witness is taken under a commission, as where he is examined on the stand at the trial. Under this rule, in the opinion of this Court, the action of the Superior Court in these exceptions, ought to be affirmed.

*270 5th Exception. This exception was taken by the appellants, to the rejection of the deposition of Mrs. Margaret Rees. The deposition was objected to below (as appears by the bill of exceptions) on the ground “that Mrs. Rees was not a competent witness, from interest, and also because the answers to the interrogatories in her deposition were not admissible evidence,” The Court rejected the deposition on the ground “that she was estopped from giving testimony.” In the argument of the cause by the appellees, the objection made below to the competency of the witness on the ground of interest, was properly abandoned; but it was contended that the defendant being one of the justices before whom the acknowledgment was made, (of the deed of the 10th of July 1856,) was estopped by his official certificate from showing that he did not know the contents of the paper, or that he did not explain the same to Mrs. Rees. This is a question of some difficulty and it has been most carefully considered. In order that the-judgment of this Court may be clearly understood, it is necessary to state the manner in which the question of estoppel arises.

One of the issues before the jury was, whether the defendant Alfred Ross was a partner of S. D. Rees and Jacob Rees. To support the affirmative the appellees offered in evidence a deed made by S. D. Rees, and Margaret his wife, to David Rees, containing a recital “that Samuel D. Rees, Jacob Rees and Alfred Ross, are and have been for a number of years, co-partners in the milling business.” Alfred Ross not being a party to the deed, nor shown to have had any agency in its preparation, would of course not be bound by any recital it might contain. It appears, however, that the deed was acknowledged by the grantors before William D. North and Alfred Ross, two justices of the peace, who certify “that Mrs. Rees was privately examined by them, apart from her husband, and having said writing fully explained to her,” acknowledged the same, &c.; and it being proved that Alfred Ross the justice, and *271 the defendant, are the same person, it is contended that he is conclusively bound by his own official certificate, and cannot deny or disprove its truth, by showing that the deed was not read or explained to Mrs. Rees. •

In Copeland’s case, decided at June Term 1862, ( 18 Md. Rep., 305 ,) this Court had occasion to consider the force and effect of the certificate of the acknowledgment of a deed made by a justice in the performance of official duty, and although it was held in that case as between the parties litigant (where it was charged that the deed was obtained by fraud and duress of the parties claiming under it or their agents,) that the statements contained in the certificate were open to contradiction by proper and competent proof, yet it was also held that from considerations of public policy, the justice who took the acknowledgment was an incompetent witness to contradict or impeach his certificate.

The same principle, it seems to us, must apply where the certificate of the justice is offered in evidence against him in any cause where he is a party. The certificate is his official act done under the solemn sanction of his oath, in the performance of a duty imposed on him by law; and though under some circumstances it may he impeached by others, he is precluded from denying the truth of what he has officially certified.

In the argument of this point the ingenious counsel for the appellants contended, that the justices’ certificate imported no more than that the writing was explained to Mrs. Rees so far only as it affected her rights and interests in the property, and could not he taken as conclusively establishing the fact that the justices knew every part of its contents. But the effect of the certificate as evidence, from which it might be inferred that Ross had knowledge of all the contents of the deed, was a question for the jury. The particular question for us to decide, is, whether it was competent for Ross, in the face of his official certificate, to prove that the deed was not read or explained to Mrs. *272 Rees; and in our opinion it was not competent for him to do so, and for this reason the deposition was properly excluded.

In disposing of this exception we have assumed, that the justices’ certificate was made in the performance of official duty required of them by law. We understood the counsel on both sides to concede in the argument, that the acknowledgment was made in conformity with the laws of Virginia, regulating the execution of deeds by femes coverts.

6th, 9th and 10th Exceptions. Eor the reasons assigned in deciding the 5th exception, we think the ruling of.the Superior Court, as stated in these exceptions, ought to be affirmed.

12th Exception. We think there was no error in the instruction given to the jury as to the legal effect of Holmes’ testimony. The question whether the defendant Ross was or was not a partner of S. D. Rees & Co., was one for the jury to decide upon the evidence; the declaration of Ross himself made to the appellees, to the effect that he was not a partner, could not be received as any evidence to disprove the fact of partnership. Nor could the notice that he would not be responsible for the debts of the partnership operate to discharge him from liability for any debts then existing; provided the jury should find that he was actually a partner. This we understand to be substantially the ruling of the Court from which this exception was taken. If the jury should find that all the appellees’ claim against S. D. Rees & Co., originated after the 1st day of June 1856, then the appellants could not be injured by the Court’s instruction.

14th and, 15th Exceptions. These exceptions were taken by the appellants to the rejection of their seventh, eighth, ninth and tenth prayers, and to the granting of the second, fourth and fifth prayers of the appellees.

The appellants’ prayers will first be considered:

The 1th and 10th present the question of the effect of *273 the notice given to the plaintiffs "bf the defendant Alfred ítoss on the first day of June 1856, “that he was not a partner of S. D. Rees & Co., and would not be responsible for their debts.” By tlio tenth prayer this notice, if found by the jury, is relied on as a conclusive defence to the plaintiffs’ demand against Alfred Eoss on account of any advances made to the firm after that date. The seventh prayer pr'esents substantially the same proposition, for the other fact incorporated therein, “that A. Eoss did riot receive any part of the profits of the concern,” does hot in any manner vary the question. It was well argued by the appellees’ counsel that there may have been in fact no profits for him to receive, although he may have been a part-he'r and entitled to a share of the profits. One objection to the tenth prayer argued by the appellees’ counsel, was that it ought to have submitted in terms to the jury, as the basis on which it rests, to find that A. Ross was a partner of S. D. Rees & Co., because unless they should SO find, the instruction asked as to the effect of the notice would be inapplicable. We think this objection is not well taken. It is true the theory of the prayer assumes that Eoss w'as a partner; hut as that is an assumption of a fact in favor of the appellees, and insisted on by them as the ground of their action, they cannot be beard to complain of its assumption by the appellants as the basis of their prayer.- The real question presented by these prayers, is, whether the legal effect of the notice is to discharge Ross from liability for the debts of S. D. Rees & Co. afterwards contracted with the plaintiffs, although, he may have been rind continued a partner.

It seems to be well settled that one partner may exempt himself from future liability by giving express previous notice to a third person that he will be no longer bound for notes or drafts drawn by his co-partners in the name of the firm. See Galway vs. Matthews & Smithson, 1 Camp, N. P. Rep., 403. Same case 10 East, 264. Wallis vs. Dyson, 1 Starkie R., 164. Vice vs. Fleming, 1 Young & Jervis, 227. *274 Leavitt vs. Peck, 3 Conn. R., 124. Collyer on Partnership, Book 3, ch. 1, p. 214. Lindley on Partnership, 267, 268. (102 Law Lib., 251, 252.) These authorities would seem to be conclusive in favor of tlie proposition contended for by the appellants.

In the case of Vice vs. Fleming, Alexander, C. B., said: “This question turns entirely upon the construction of the notice, which is in effect that the defendant had sold his interest in the mine to certain persons, who for the future would be liable for all supplies to the mine, and that he, the defendant, would on that account be no longer responsible. It is clear that the defendant might by an absolute notice have discharged himself from all future liability, whether he continued or ceased to be a partner; but this is a representation only that the security of other persons was to be substituted in his stead. Then what construction is to be put upon this notice ? It should have been left to the jury as was done in the case of Wallis vs. Dyson, to say whether it amounted to a notice that he would not be answerable for any goods subsequently supplied." All the judges concurred in that opinion. In that case the terms of the notice being ambiguous, it was held that its purport and effect must be decided by the jury.' Here the notice according to Holmes’ testimony, was that the defendant would not be responsible for the debts' of S. D. Rees & Co. This brings the case within the decision of Galway vs. Matthews & Smithson, and if believed by the jury, would exempt the defendant from liability for debts subsequently contracted, unless the plaintiffs could prove some act of adoption by Ross afterwards, or that he derived some benefit from advances subsequently made to the firm. The seventh and tenth prayers of the appellants ought to have been granted.

8th. The eighth prayer will be considered in connexion with the appellees’ second.

9th. In the opinion of this Court the appellants cannot complain of the rejection of their ninth prayer. By con *275 ceding the third prayer of the appellees, they admitted that the confession of judgment by S. D. Rees and Jacob Rees, entered of record in the canso without entry of release, was evidence from which the jury might find a verdict against Ross for the amount sworn to in the affidavit of attachment. This concession precludes the appellants from insisting on the proposition stated in their ninth prayer. Pettigrew vs. Barnum, et al., 14 Md. Rep., 442 . Baugher, et al., vs. Willkis’ Exc’rs, 16 Md. Rep., 37 , 46.

The eighth prayer of the appellants and the second prayer of the appellees, raise the question of the appellees’ right to a credit upon the claim sued on, for the note of $3500 mentioned in the prayers. The eighth prayer is objectionable in form as it assumes the fact that the note had been sued on by Buckley and Shipley, instead of leaving that fact to the jury, and for that reason the action of the Superior Court in rejecting it will be affirmed. Apart from tbat formal objection we are of opinion that the facts therein stated, if found by the jury, are sufficient to entitle the appellants to the credit claimed.

In the case of Glenn vs. Smith, 2 G. & J., 493, 508 , the general rule was stated to bo, ‘ ‘that the acceptance of a security or undertaking of equal degree, is of itself no extinguishment of the former debt. Tims the acceptance by a creditor from his debtor of his promissory note, for an antecedent simple contract debt, does not extinguish the original debt, (both being of equal degree in the eye of tbe law,) if it remains in the hands of the creditor unpaid, and he can produce it to be cancelled or show it to be lost. But lie will not be suffered to recover on the original cause of action, unless he can show the note to have been lost or produces it at the trial to be cancelled.” See also Morrison vs. Welty, 18 Md. Rep., 176 , anti oases there cited.

Under that rule it is not enough, that the plaintiffs should * ‘be in possession of the note and in readiness to deliver it up at the trial table” as stated in the second prayer of the appellees. It ought to have been actually *276 produced so that it migdit be impounded in Court for can» cellation or be cancelled. We think, therefore, the Court .erred in granting the appellees’ second prayer.

We do not concur in the view presented by the appellees’ counsel, that the concession of the third prayer precludes the appellants from claiming-the credit mentioned. The third prayer admitted the judgment to be evidence from which the jury might find a verdict for the whole amount of the claim sued on, but it did not concede that the judgment was conclusive evidence. It was therefore competent for the appellants notwithstanding any thing contained in the third prayer to claim any credit to which they might show themselves entitled by proof,

Th.ere was no error in granting the appellees’ fourth prayer, the general rule of construction therein stated is correct. The point of the instruction is contained, in the last clause of the prayer, which relieves it from all objection on account of any alleged vagueness and uncertainty that might mislead the jury.

The fifth prayer of the appellees is fatally defective and ought not to have been granted. It assumes that the appellees’ claim against S. D. Rees & Co., was established without the intervention of the jury, whose province it was to pass upon it.

While this defect in the prayer is conceded by the appellees’ counsel, they contend that it is cured by the acquiescence of the appellants in the granting of the sixth prayer, in which it is alleged the same fact is assumed. Without expressing any opinion upon the sufficiency of this answer to the objection, it is sufficient for us to say that we do not so construe the sixth prayer. It requires the jury •to find as a part of its hypothesis that the indebtedness of S. D. Rees & Co., to the plaintiffs, was to such ap amount as to require the whole of said $1200 towards its satisfaction. This, in our opinion, submitted to the jury, though perhaps not in a very clear or artistic form, the question of indebtedness from S. D. Rees & Co. to the plaintiffs.- It *277 Is difficult to understand how the jury could find that such indebtedness equalled a certain amount, without first determining, as a preliminary question involved in the inquiry, the fact of some indebtedness actually existing.

(Decided Oct. 30th, 1863.)

The ruling of the Superior Court is affirmed on the motion in arrest of judgment, and on the 1st, 2nd, 4th, 5th, 6th, 7th, 8th, 9th, 10, 11th, 12th and 13th exceptions, .and reversed on the 3rd, 14th and 15th exceptions.

Judgment reversed, and procedendo ordered.