30 KIPP v. HANNA.

had not answered. Whereupon they prayed a subpoena against
him; which was ordered accordingly.

The infant defendant Andrew Hanna, on the 3d of May, 1824,
put in his answer by guardian ad litem, in which he stated, that
he had been informed and believed, that his father had executed
the conveyance as set forth in the bill; but he averred, that it was
made for a valuable consideration, and at a time when he was
solvent, &c.

Under the commission which had been issued upon the order of
the 24th of April, 1823, the depositions of witnesses were taken,
and several instruments had been authenticated, all of which were
returned and filed on the 8th of June, 1824; and after the com-
mission had remained on file the time required', the plaintiffs en-
tered on the docket, a rule hearing next term; and the case was
accordingly brought before the court.

18th March, 1825.—BLAND, Chancellor.—The counsel for the
defendants insisted that the case was not in a situation to have
been set down for hearing; and therefore, that the rule hearing
was erroneously or improvidently entered upon the docket. And
they also objected, that the defendant Sarah, the wife of Alexander,
should not have been made to answer separately, but jointly with
her husband; of that, however, the Chancellor deems it unneces-
sary now to say any thing. It is obvious, that the case is not now
ready either for a reference to the auditor, or for a final hearing.

After which, the attention of the court was again called to the
case, with a request to reconsider this matter.

28th April, 1825.—BLAND, Chancellor.—The Chancellor has
again carefully looked over the papers, as requested by the plain-
tiffs' solicitor, and finds nothing to remove the objections taken to
the manner in which the commission was issued under which the
testimony has been taken. It appears that the defendant Andrew
Hanna, could not have given his consent to the order of the 24th
of April, 1823, either in person or by counsel; and therefore as to
him, and as to all the other defendants, not represented by the soli-
citor who assented to the issuing of that commission, it could only
have been issued in the regular mode of conducting adverse pro-
ceedings, which was not the case; and consequently, the testi-
mony, as taken, can be of no avail against any but the three defen-
dants, with the consent of whose solicitor it was taken, and the
case is not in a situation to have the bill taken pro confesso, against