Ross v. Buhler , 2 Mart. (N.S.) 312 ( 1824 )

Martin, J.

delivered the opinion of the court. The defendants and appellans in this case, having need of the testimony of the district judge, prayed him to give it. The judge was of opinion that he could not do so,and a bill of exceptions was taken.

We think he did not err-the Spanish law expressly forbids this. Part. 3, tit. 16, l. 19.

There may, however, be a different mode of practice, which, by taking off the reason of the rule, perhaps destroys it in jury cases. If the judge, when he tries the facts, must weigh the evidence, he must do so impartially. This perhaps he cannot be easily supposed to do; when he is to weigh his testimony against that of another. When, however, not he, but a jury, is to try an issue of facts, it would seem the reason in some degree fails. Yet eogent ones present themselves; in a court composed of one judge only, who is to ad minister the oath? it cannot be done by any but a member of the court, and he is the only one He is to determine on his campetency-to determine on the absence of evidence, if a non suit be prayed.

East'n District. March, 1824. Watts & Lobdell for the plaintifts, Workman for the defendant.

It seems to us smile legislative provision is necessary in a case like this. Otherwise, the party cannot attain his right.

Justice requires that this case be remanded, in order that the defendants may be afforded the means of obtaining the evidence they are in want of.

It is therefore ordered, adjudged and decreed, that the judgment of the district court be annulled, avoided and reversed, and that the case be remanded for further proceedings, as if no trial was had-the cost of this appeal to be borne by the appellees.