at this term delivered the opinion of the court. The appellees having sued out a scire facias against the appellant, as special bail of Charles Cappeau, in the usual form, without setting out the issuing and return of ca. sa. the appellant pleaded nul fiel record; and also that his principal died, before any ca. sa. returned. On the first plea an issue was joined, and judgment given thereon by the court against the appellant. The appellees in their replication simply trraversed the fact, alleged in the second plea, (without setting. forth the ca. sa. which had issued and been returned, the time when, &c.) and tendered an issue to the country, in which the appellant joined. The verdict and judgment being rendered against the appellant, he seeks a reversal by this court. First. On the ground that the appellees’ replication to the second plea concludes to the country, instead of concluding with a verification, which it should have done. If this objection were well founded, it cannot avail the appellant here; his remedy should have been by demurrer in the court below;-the defect, if it existed, js cured by verdict. But there is ho such defect as that complained of. The replication contains no new matter, which the appellees had a right to demand an opportunity of answering; but is a direct and naked denial of all the matters contained in the plea, and could technically conclude in no other way than by tendering an issue to the country.

The second ground of reversal is, that this replication is erroneous in not setting out the ca. sa, with the time of its issuing and return, and that the issue joined upon it is an immaterial issue; and that instead of a final judgment upon the verdict, a repleader should have been awarded. That surely cannot be an immaterial issue which decides the whole matters in controversy between the parties. Such was the issue to which exceptions are now taken. The issue being material, no judgment of repleader could have been given. Admitting, that upon the authority of the case of Fortune vs. Manucaptors of *159Davis, Carth. 8, recognised by Justice Sutler in Chandler vs. Roberts and another bail of White, 1 Dougl. 58, the replication ought to have set out the ca. sa. and return, (although a different precedent appears in 2 Harr. Ent. 472); yet the omission to do so, in the present case, is mere informality in pleading, which is only had on demurrer. But if it be matter of substance, it is remedied by the verdict, which the jury could not possibly have given, unless the issuing and return of the ca. sa. had been in evidence before them. And by this form of the issue, the rights of the appellant, though somewhat modified, in truth sustain no diminution. If the ca. sa, and its return, had been formally stated in the replication, the appellant might, by a plea of nut tiel record, have put their verity to issue before the court. He accomplishes, in effect, the same object, when on the trial he objects to their going in evidence to the jury. The question presented for the decision of the court, becomes in both cases precisely the same.

The objections to the pleadings being disposed of, it only remains to be inquired, whether the court erred in rejecting the testimony returned with the commission? We think they did. not. The power conferred on a commissioner to take testimony, is strictly personal, and on its faithful execution the most, important interests of the parties may depend. To ensure, such fidelity, oaths, to be taken by the commissioner, and the person by him to be employed as clerk, are annéxed to the commission. Especial confidence also is presumed to he reposed in the person appointed. Upon no principle of reason or law, therefore, can the testimony returned with the commission be admissible. The person by whom it was taken held no share in the confidence of the parties or of the court; he; received from them no delegation of authority; and even if he had, having’ failed to take the requisite oath, his proceedings are a .nullity. For this singular attempt to transfer a strictly personal trust, the record in thi,s case furnishes neither solution nor apology.

JUDGMENT AFFIRMED, (a.)