Parker v. Sedwick

Eccleston, J., delivered the opinion of this court. In this case a commission to take testimony was issued the 30th of April 1850, to three commissioners of Richmond, in Virginia. On the 3rd of May following, the attorney of the plaintiff gave to the attorney of the defendant, then in the city of Annapolis, the following notice: “Above is a copy of the interrogatories, which accompany the commission, in the case of S. H. Parker vs. J. C. Sedwick, issued from Calvert county court, to Samuel T. Pulliam, William Goddin and Edward C. Howard, of Richmond, Virginia. I further inform you that the testimony will be taken on Friday, the 10th inst., at Richmond.” It is admitted that this notice was not given in the name of, or as emanating from, the commissioners; that between Annapolis and Richmond there was a railway and daily mail; and that the defendant resided in Calvert county, in this State, about fifty miles from Annapolis.

The commission was executed at Richmond, on the 10th of May 1850, the witnesses being examined upon interroga ²⁸⁵ lories, copies of which are referred to in the notice to the defendant’s attorney. When the plaintiff offered to read to the jury the testimony taken under this commission, it was objected to as inadmissible, because the interrogatories did not appear to have been Sled, and the defendant notified thereof a sufficient time before the issuing of the commission to give him an opportunity of filing cross-interrogatories. The court sustained the objection, and this decision is the foundation of the first bill of exceptions. It has been several times decided that under a foreign commission, when interrogatories are filed time enough before the commission goes out to allow the opposite party an opportunity of filing cross-interrogatories, no notice need be given of the time and place when and where the commission is to be executed. 2 H. & J., 98 , 99, Owings vs. Norwood. 4 Gill, 318, Parker vs. Sedwick.

In Calvert vs. Coxe, 1 Gill, 97 , 216, a notice of the time and place of taking the testimony, given by the commissioners, was held sufficient. But we have met with no case where a notice of this sort, coming from an attorney, without any evidence of its being authorized or sanctioned by the commissioners, has been deemed available. It is very certain that neither a party or his attorney has authority to fix the time and place, so as to make it binding upon the opposite party, or upon the commissioners; for this right, from the language of the commission, as well as the nature of the duty which the commissioners are to perform, must be in them. And therefore any notice which does not come from them, or is not given with their consent and approbation, can have no binding effect upon the party on whom it is served.

In this instance the admission is, that the notice was served upon the defendant’s attorney, “but not in the name of, r.or as emanating from, the commissioners.” And indeed, from the shortness of the time between the issuing of the commission and the day of the notice, the attorney might very well have believed that the commissioners never had authorized the ²⁸⁶ notice. In the entire absence of any proof that it was given with their approbation, we think the notice was defective, and that the court were right in refusing to let the