SALMON v. CLAGETT.—3 BLAND. 183

produced by another suit being then depending in this Court be-
tween this plaintiff and the defendant Thomas CJagett, Upon
which a commission was prayed, &c. Whereupon, it was ordered,
that a commission issue as prayed, returnable to the first day of
the then nest July Term; reserving to the defendants the right to
call for a final hearing during that term.

At July Term, 1830, the case standing ready for final hearing
was opened and argued by a solicitor on the part of the plaintiff;
when it was objected, on the part of the defendants, that there was
no proof to sustain the allegations and exhibits of the bill, that
certain notes for goods sold had been given by the defendant
Thomas Clagett; or of the notes which had been lent by Salmon
to Thomas Clagett. Whereupon, the plaintiff by his petition on
oath, stated, that owing to an oversight and misapprehension of
his solicitors, produced by their attention being called off to
another cause then depending here between himself and Thomas
Clagett, the testimony in relation to those notes then exhibited
*with his petition had not been taken; and he therefore
prayed that a commission might be issued for that purpose. 167

BLAND, C., 21st July, 1830.—Ordered, that this case stand con-
tinued to the next term: and that the plaintiff have a commission
to take testimony as prayed: Provided, that the testimony be
taken, and the commission returned on or before the first day of
September next. And it is further ordered, that all the costs and
expense of the said commission and of executing the same be borne
by the plaintiff.

After the commission thus granted had been returned, the plain-
tiff by his petition on oath, set forth, that the deposition of
Charles Smithen, a witness competent and proper, had not been
taken, by whom he expects to prove, that certain promissory notes
given by the defendants, and also certain notes given by Thomas
Clagett, one of the defendants, were given for goods, &c.; and
also, that certain responsibilities were assumed and notes given by
the plaintiff to the creditors of Thomas Clagett; that there were
certain documents, in the City of Baltimore, which it was deemed
important for the witness to prove; and that the petitioner had
used all reasonable diligence to have the witness before the com-
missioners; but could not do so, because he had gone beyond the
jurisdiction of this Court; and had only come again into this
State, since the return of the commission. Upon which he prayed
for a commission, &e. This petition was submitted on the part of
the defendants with a mere denial of the plaintiff's right to a
petition.