EVIDENCE 1597

Commissions to Take Testimony Out of This State.

An. Code, 1924, sec. 16. 1912, sec. 16. 1904, sec. 16. 1888, sec. 15. 1773, ch. 7, sec. 7.

1843, ch. 348. 1884, ch. 82.

21. The several courts of law and any of the judges thereof in recess,
upon written application to be filed in the cause made to them by a party
to or interested in a suit, action or other proceeding therein depending,
either original or on appeal from a justice of the peace, and the orphans'
court of this State, in any proceeding pending before them, and on being
satisfied, by affidavit or otherwise that there are material and competent
witnesses in such cause residing or living out of this State, or who, for
any reason cannot be brought before them, may direct the respective clerks
of such court, or the register of wills, as the case may be, to issue a com-
mission for taking the depositions of such witnesses; and such commis-
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 interroga-
tories. Hatton v. McClish, 6 Md. 407. And for other cases involving sufficiency 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. 294 and 295), requires the com-
mission 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 com-
missioner, 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 irregularities 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 dep-
osition—see notes to sec. 22. 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 testimony.
Doggett v. Tatham, 116 Md. 151.