EVIDENCE. 1383

sion shall issue, and the commissioners shall be appointed and qualified,
interrogatories be proposed or exhibited, the commissions be executed and
returned; and the depositions taken in pursuance thereof shall be pub-
lished in the same manner and form as heretofore has been the practice
in the case of a commission from a court of equity for the examination
of witnesses residing and living out of this State; and the depositions
which shall be duly taken in virtue of any such commission, or copies
thereof duly attested, shall be admitted as evidence at the trial of the cause
or the proceeding for which the same may have been taken.

Issue of commission; notice; waiver.

There are two modes of giving notice of execution of a foreign commission:
first, actual notice given directly by commissioner; second, constructive notice by
filing interrogatories in clerk's office before commission goes out. Time of filing
interrogatories. Hatton v. McClish, 6 Md. 407. And for other cases involving suf-
ficiency of notice of taking of depositions, and time of filing interrogatories, see
Parker v. Sedwick, 5 Md. 281; Young v. Mackall, 4 Md. 362; Stockton v. Frey, 4
Gill, 424; Parker v. Sedwick, 4 Gill, 318; Calvert v. Coxe, 1 Gill, 95; Law v. Scott,
5 H. & J. 438; Snavely v. McPherson, 5 H & J. 150; Boreing v. Singery, 2 H. & J.
455; De Sobry v. Laistre, 2 H. & J. 191; Owings v. Norwood, 2 H. & J. 96. (For other
cases not referring to the statute, see Md. Digest.)

While this section (in connection with art. 16, secs. 282 and 283), requires the
commission to issue to two commissioners unless the parties agree to contrary, if
defendant receives notice of name of plaintiff's commissioner, his neglect to name
another commissioner, is a waiver of his right to have two commissioners. Billingslea
v. Smith, 77 Md. 516; Sewell v. Gardner, 48 Md. 182. And as to a waiver of irregu-
larities in the issue of a commission, see Cherry v. Baker, 17 Md. 75. Cf. Brandt v.
Mickle, 28 Md. 447.

Execution of commission.

The depositions must show on their face that they were taken on the day and at
the place designated in the notice. Young v. Mackall, 4 Md. 362; Young v. Mackall,
3 Md. Ch. 404; Collins v. Elliott, 1 H. & J. 1.

Where the return of the commission shows that commissioners took oath before
A. B., the presumption is that latter had authority to administer oath. Snavely v.
McPherson, 5 H. & J. 155. And see Wilson v. Mitchell, 3 H. & J. 91; State v. Levy
3 H. & McH. 591.

The authority to commissioners to take testimony is special and must be pursued.
The commissioners named in the commission alone must act, and no other questions
than those sent out with commission must be asked. Maryland Ins. Co. v. Bossiere,
9 G. & J. 157; Chappeau v. Middleton, 1 H. & G. 159; Young v. Mackall, 4 Md. 362.

It is not necessary that the commissioners should appoint a clerk. Beard v. Heide,
2 H. & J. 442.

There is no express provision in this section requiring witnesses to sign their
deposition—see notes to sec. 17. Potomac Works v. Barber, 103 Md. 511.

Where testimony is taken under this section, unless a question is objected to as
leading at the taking of testimony, such objection cannot be made at hearing, and
this is true although the objector was not represented at the taking of the testi-
mony. Doggett v. Tatham, 116 Md. 151.

Generally.

Where a non-resident is temporarily in Maryland, her testimony may be taken
before a notary public under this section. See notes to sec. 17. Mitchell v. Slye, 137
Md. 103.

Depositions taken under this section may be used upon a second trial. Woodruff
v. Munroe, 33 Md. 155; Consolidated Ry. Co. v. O'Dea, 91 Md. 514.

The return of a commission held sufficient, although the signatures of the com-
missioners were not accompanied by their seals on the return itself, but only on the
cover enclosing it. State v. Levy, 3 H. & McH. 591.

This section is not applicable to non-resident parties except in the discretion of
the court upon satisfactory proof of permanent inability to attend court in person.
(See sec. 18.) Goodman v. Wineland, 61 Md. 456; Clark v. Callahan, 105 Md. 610.