Bredon and gill a appeal from the judgement of commissioner of excise to  commissioner of appeal who allow d the former deposition to be read and well  and prohibition deny d there be judgement against Bredon before the  commissioner of excise that he shall forfeit for keep a private storehouse  upon the statute car he appeal to the commissioner of appeal there they offer  to read and will allow for evidence the deposition take by the clerk before  the commissioner of excise sir Barth shower move for a prohibition to the  commissioner of appeal upon a suggestion that they ought to adjudge upon the  party S confession or evidence of witness upon oath and not upon write  deposition take before the commissioner of excise for by the statute the same  word be use for the commissioner of appeal as for the commissioner of excise  where it be leave at large the rule of the commonlaw must be the measure  either by jury or by witness a witness may revoke this true be may die also  but that always go in advantage of the criminal who be suppose to be innocent  in case of settlement and bastardchildren the session always examine anew the  commissioner of excise be not command nor compellable to put they into write  then this hard if the commissioner of appeal be bind to take they as they  transmit they what if they put some into write and not all there ought to be  some general rule for all case in the court of delegate and chancery they be  original take as deposition in write they do not general speak examine viva  voice as the commissioner of excise do there be appeal in the country there  they never use to transmit deposition in the case of excise to the  quartersession they examine the collector gaugers c indeed it be not necessary  upon a writ of error to examine witness again because they have be more  solemnly examine by a jury your lordship grant a prohibition in the case of  release of a legacy prove by one witness though they have a jurisdiction of  the subject matter yet if they err in the manner of proceed as if they will  examine without oath a prohibition lie Comberbach a mandamus lie to justice to  discharge poor prisoner to sign poor S rate c if they exceed their authority  they be prohibitable as well as if they bad no authority at all when the court  of chancery exceed its jurisdiction it become inferior Northi ad idem where a  final appeal be give by Act of parliament this upon fact as well as law if the  first judgement be give by default or by surprise shall the party be deprive  of his cross examination before the commissioner of appeal AttorneyGeileral  contra this be not to be resemble to a proceed at common Comberbach er p law  though there be no such thing as reexamining fact at the commonlaw but this  more like proceed in the civil law where appeal be more usual if there be any  particular grievance the commissioner of appeal be to examine that but not  else the mischief will be great if the defendant S witness may be instruct to  supply their evidence I do not doubt but the commissioner of appeal may  examine viva voice but the question be if they have not a election the matter  be within their jurisdiction then this court will trust they with the method  of their proceed if not contrary to law in the case of the release of a legacy  prove by one witness it have be much controvert in our book whether the  spiritual court may be prohibit for why shall they be bind to admit that for  evidence which by their law be none they have conusance of the matter in dr  bury S case the judgement give by this court be reverse for this court ought  not to examine the proceed of the visitor where he have jurisdiction sergeant  gold and Cooper ad idem Cooper say the nature of a appeal imply that the  superior jurisdiction shall judge whether the inferior do the appellant right  as his case appear then not as it may be represent No better way of transmit  evidence than by write holt Ch I how do the commonlaw require where the trial  be not by jury that the deposition shall not be take in write in chancery the  evidence be suppose to be deliver viva voice in court in judgement of law and  commit to write for a memorial thereof though now the course be alter for  convenience and do before the examiner if this be the method where trial be by  witness why may not they judge here on deposition in write how shall it appear  that the party be aggrieve by the judgement of the inferior court unless they  have go contrary to evidence which can appear unless the deposition be  transmit so that this very fair this not proper in the nature of a appeal to  try de Comberbach to make new in attaint you can give no other evidence than  be give to the petit jury notam sir Barth shower say that be because of the  punishment c but there they be examine de to make new any other collateral  matter as reject of evidence c may proper be examine upon the appeal near  gravamen if they exceed their authority trespass may lie as in the case of  terry and Huntington Hardress where lowwines be adjudge strongwater the  judgement be void as to the case of a legacy when the defendant plead payment  if it be true the spiritual court have nothing more to do for those court have  no other jurisdiction than what the law of England have allow d and therefore  in the case of short and friend ante a prohibition be allow d where they will  not admit of proof by one witness but it be otherwise of thing original  spiritual as if a will in write be revoke by a nuncupative will if they  require two witness we will not prohibit they rookbi and Turton justice agree  with holt and eyres to stick fast