1598 ARTICLE 35

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. 22. 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 commis-
sioners 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. 23.) Goodman v. Wineland, 61 Md. 456; Clark v. Callahan, 105 Md. 610.

In the absence of a showing to the contrary, it will be presumed that the Court ruled
correctly in admitting depositions taken under Secs. 21-23 and that the proceedings were
formal and regular. France v. Safe Dep. & Tr. Co., 176 Md. 307.

Depositions taken under this section, held, in the light of art. 16, secs. 296 and
297, to be admissible in evidence under a rule of the circuit court for Cecil County
providing for the filing of interrogatories with the clerk and the service of a copy
thereof upon the adverse party or his counsel. Turner v. Piercy, 40 Md. 219.

This section referred to in construing sec. 22—see notes thereto. Garrett v. Kerney,
107 Md. 514; Clark v. Callahan, 105 Md. 610.

This section contrasted with sec. 26—see notes thereto. Consolidated Ry. Co. v.
O'Dea, 91 Md. 512.

As to commissions to take testimony from other states, see sec. 41.

As to witnesses and testimony in equity, see art. 16, sec. 281, et seq.

See notes to sec. 26.

An. Code, 1924, sec. 17. 1912, sec. 17. 1904, sec. 17. 1888, sec. 16. 1888, ch. 545.

22. In addition to the mode prescribed in the preceding section, the
testimony of non-resident witnesses may be taken by either party to any
case in any court of this State, or before any justice of the peace of this
State, upon giving notice of not less than five days to the opposite party of
the time and place, when and where the testimony of such non-resident
witnesses is proposed to be taken, and the name of the commissioner, notary
public, or justice of the peace before whom the same is proposed to be taken,
together with the names of the witnesses proposed to be examined; and the
deposition of any such witnesses taken pursuant to such notice and duly
certified by the officer taking the same, under his hand and seal, shall be
admitted as evidence at the trial of the case as fully to all intents and pur-
poses as if the same had been taken under a commission as prescribed in
the preceding section. Depositions when taken under this section shall be
signed by the witnesses unless their signature shall be waived by consent
of the parties, and returned to the court in which the case is pending; and
shall be treated in all respects as if taken under a commission regularly
issued by said court, and shall be subject to the like exceptions as testimony
taken under commission. It shall be competent for the parties to any case
to dispense with formal notice of time and place and name of the officer
before whom such depositions are to be taken, and by agreement to provide
for the taking of such depositions; and the provisions of section 35 shall
be applicable to all depositions taken under this section.

Evidence taken under this section while the case is on trial, upheld; discretion of
court. Exception as to notice not passed on, as no rule of court or certificate on that
subject was in record. Rasst v. Morris, 135 Md. 254.

This section does not affect the classification of witnesses whose testimony may be
taken under sec. 21—see notes to sec. 21. Mitchell v. Slye, 137 Md. 103.

This section read in connection with sec. 21, applies to courts of law only, but when
taken in connection with sec. 23, applies to courts of equity also. Clark.v. Callahan,
105 Md. 610.

This section requires depositions to be signed by witnesses; separate certificates
at conclusion of entire testimony signed by each witness, held a sufficient signature.
Potomac Works v. Barber, 103 Md. 511.

When depositions are taken ex parte under this section, interrogatories should be
filed with notary, and returned with depositions. Agreement of counsel. Garrett v.
Kerney, 107 Md. 513.