¶1The opinion of the court was delivered October 11, 1852, by
¶2— It seems to have been settled, that the former owner of a note, who has transferred it by delivery, without indorsement, is a witness for the maker, to prove that the plain*46tiff received it in trust for the use of the witness, and that the maker has paid the amount in full, to the party entitled in equity to receive it. 9 Barr, 81; lb. 334.
¶3An erasure, or interlineation, in a deposition, which is shown to have existed at the time the commission was returned to, and opened by the prothonotary, will be presumed to have been made with the knowledge and' consent of the witness, at the time his testimony was taken. The decision of the court below, in accordance with this presumption, is the determination of a question of fact, which will not be reversed on a writ of error, except where the paper-book shows that clear and undoubted evidence, tending to repel the presumption, was laid before the court.
¶4Where a commission is returned by a person of the same name with the commissioner to whom it was directed, there is a presumption of identity, and the decision of the court below, on that question, will not be reversed here, except under circumstances already indicated, in what has been said respecting an erasure, or interlineation. An answer, which notes all the material circumstances, relative to the plaintiff’s right to the note on which the action is founded, is responsive to an interrogatory, requesting the witness to “state all that he knows about the note.” If the answer contains a detail of facts, which the opposite party did not anticipate, and touching which he was not prepared to file cross-interrogatories, the objection lies to the form of the interrogatory, and not to the extent of the answer.
¶5An objection to the form of an interrogatory, comes too late, after the party objecting has joined in the commission, and filed cross-interrogatories.
¶6If injustice is likely to arise, from the manner of executing a commission to take testimony, the court below, in a proper case, will, on application, suppress the depositions, or award a new commission. An objection of this kind, which is delayed until the time of the trial, and then urged, not for the purpose of obtaining in a proper manner, the material testimony in the case, but where the effect is to exclude it entirely, and to obtain a verdict in its absence, should be viewed with disfavor by the courts.
¶7.The errors assigned are not sustained, and the judgment is to be aflirmed
¶8Judgment affirmed. •