Brandt v. Mickle

Robinson, J., delivered the opinion of this Court. The Act of 1828, ch. 165, conferred upon the County Courts, the appointment of commissioners in each county, to take depositions of witnesses in civil causes. The second section directs that the depositions so taken, shall be returned by the commissioner to the clerk of the Court in which it shall be intended to use them, and if such clerk shall be any other than that by which he was appointed, there shall be annexed to his return, a certificate by the clerk, under the seal of the Court, that he is such commissioner. The obvious design of the law, was to provide an efficient and convenient mode for the taken of depositions.

It not only provides for the appointment of commissioners in each county, but empowers them to take depositions in all causes, whether pending in the Courts of their respective counties, or in any other Court in the State. The power to act out of the county for which they are appointed is no where given, nor was it necessary to accomplish the manifest intention of the framers of the law.. Having conferred upon them the power to take depositions in their respective counties, in all causes pending ⁴⁴⁷ in said counties or elsewhere, every requirement of the law was gratified; and we arc not to presume, it was intended to impose upon suitors the unnecessary expense and inconvenience of sending commissioners into other counties, to perform a duty which it is admitted could bo discharged by the resident commissioner. It is our opinion, therefore, that the Act of 1828, did not confer upon the commissioner, appointed by the Circuit Court for Harford county, the power to take depositions in the city of Baltimore.

It does not appear by the record that the deposition was taken by consent. Notice, it is true, was served upon Mr. Scott, counsel for appellee, that the plaintiff would take the deposition of the notary, in Baltimore, on the 13th of July, at 10 o’clock, A. M., and it also appears that the hour was afterwards changed by consent to 4 o’clock, P. M. But it does not appear that the counsel for defendant agreed that the commissioner should take the depositions in Baltimore, or that he waived objections to the mode and manner in which it was taken. "What would have been the effect of a waiver of all objections on the part of the defendant, we deem unnecessary to decide. The plaintiff’s second prayer was properly refused.

The law is firmly established, that the contract of the endorser is such, that notice of a demand and refusal is essential, to entitle the holder to recover. The mus is upon the plaintiff, who claims exemption from the operation of this general rule. In this State, a transfer of all the maker’s property to the endorser, to indemnify him against loss for his liability, exempts the holder from the necessity of proving or making a demand. Duvall vs. Farmers’ Bank of Maryland, 9 G. & J., 31 .

In delivering the opinion of the Court in that case, Judge Ajrchejj admitted that if it were a new question, it might admit of some discussion, unless shown to be sufficient to meet the liability of the endorser; but inasmuch as it had been decided in other States, the Court felt and recognized the importance of uniformity of the law in regard to commercial paper. An examination of the authorities referred to in that case, will ⁴⁴⁸ show that the general doctrine of waiver, growing out of the transfer of all of the maker’s property to the endorser, is based upon the following reasons: First, that having secured all the maker’s property, for the express purpose of meeting his endorsements, he must be considered as having waived the condition of his liability, and engage with the maker on receiving all of the