974 EVIDENCE. [ART. 35

Where a standing rule of the court requires a certain notice to be given of
the taking of testimony, it Is not competent for the court to decrease such
notice by special order. Quynn v. Carroll, 22 Md. 294.

This section contemplates a case where both plaintiff and defendant are
in existence and parties to the litigation upon the record at the time the
notice Is given by the commissioner and the depositions taken. Where the
defendant Is dead and no new party has been made, depositions are improp-
erly taken and are not admissible in evidence. Mitchell v. Mitchell, 1 Gill, 83.

A voluntary affidavit or protest of the captain of a vessel, held not to be a
deposition de bene ease. Patterson v. Maryland Ins. Co., 3 H. & J. 74.

See notes to sections 24 and 29.

As to testimony de bene ease in equity, see art. 16, sec. 260.

1904, art. 35, sec. 22. 1888, art. 35, sec. 20. 1860, art. 37, sec. 19.
1828, ch. 165, sec. 2.

22. All depositions and examinations taken by such commissioner
shall be certified and returned by the commissioner taking them, under
his hand, to the clerk of the court in which it shall be intended to
use them; and if such court shall be any other than that by which
such commissioner was appointed, there shall be annexed to his return
a certificate by the clerk, under the seal of the court, that he is
commissioner.

See notes to sec. 19.

Ibid. sec. 23. 1888, art. 35, sec. 21. 1860, art. 37, sec. 20.
1828, ch. 165, sec. 2.

23. All depositions so taken and returned shall be subject to the
same exceptions and objections as the testimony of the same witness
would be if examined in open court and shall have the same effect and
validity.

Ibid. sec. 24. 1888, art. 35, sec. 22. 1860, art. 37, sec. 21. 1779, ch. 8,
sec. 2. 1828, ch. 165, sec. 3. 1832, ch. 111, sec. 2.

24. Any person may have the deposition of any witness who may
have knowledge of any fact, in proving which such person may appre-
hend himself to be interested, taken before any of said commissioners
upon ten days' notice to each party against whom such depositions
shall be intended to be used, or to his agent, attorney or guardian if
such party be a minor if within this State, and the court in which
the same is offered in evidence shall be satisfied that such notice has
been given before such deposition is permitted to be offered in evidence.
The act of 1779, ch. 8, held to relate only to witnesses who were residents
of the state at the time when their depositions were taken, but who after-
wards left the state or died before the trial. Shane v. Clarke, 3 H. &
McH. 100.

As to notice of the taking of depositions, see notes to sections 19 and 21.

Ibid. sec. 25. 1888, art. 35, sec. 23. 1860, art. 37, sec. 22.
1832, ch. 111, sec. 1.

25. If any minor be interested in any depositions to be taken under
the preceding section and has no guardian the court by whom the com-
missioners were appointed before whom it is proposed to take such
depositions, or the judge thereof, upon application of the plaintiff, his
agent, attorney or guardian shall appoint a guardian for the purpose.