delivered the opinion of the rPhe' appellants applied in the court below tor a commission to take testimony, which was refused. To a rule taken on the judge, to shew cause why he would no; grant an appeal from this refusal, he has answered, that he did not consider it such a judgment as an appeal lay from—that it merely presented ground for a bill of exceptions.

This case is peculiarly circumstanced. Th* settlement of an insolvent estate often occasions *17great delay. Yéars may pass away before th re is a final judgment. In the mean time, the witness whose testimony is wanted, may die, or remove to an unknown place. The injury may then be one which could not be corrected after a definitive judgment. We think the appeal should have been granted ? and the rule must be made absoluta