Sewell v. Gardner

Stewart, J., delivered the opinion of the Court. The first and second exceptions are taken to the admission of the commission, and evidence thereunder, introduced on the part of the plaintiff. Art. 37, sec. 15, of the Code, requires the depositions of non-resident witnesses to be taken under a commission, in the same manner as if issued from a Court of equity, and secs. 141, 142 and 143 of Art. 16, of the Code, provide for such commission to be issued to two persons, unless by consent, when it may he issued to one- — if issued to two, either one may execute the same. The 27th Rule off the Court of Common Pleas, cannot be construed to contravene these paramount provisions of the law.

At the January Term of the Court, the order of the plaintiff’s attorney was given, for the issuing of a commission in this case, to take testimony, and naming Thos. J. Hunt as commissioner, and interrogatories were filed therewith. Notice of this proceeding was admitted by defendant’s attorney on the 10th January, 1876. The defendant named no commissioner, and the commission issued upon the plaintiff’s order, to the said commissioner, and was returned with the- evidence taken thereunder, and filed in the Court of Common Pleas on ¹⁸³ the 8th February, 1876.

In March and April following, suggestions, affidavits and orders for the removal of the cause were filed ; the defendant filed amended pleas, and a demand for a bill of particulai’s. The cause was continued until September, 1877, when the trial took place. The defendant having had ample opportunity to have named a commissioner, if he desired, or to have made objections to the commission being issued to one; but not having done either and allowed the testimony taken thereunder to have remained on file without objection, during the long interval when the subsequent proceedings before referred to had occurred, we think it was then too late, to undertake to avail himself of the objection to the testimony, on account of there being but one commissioner.