1600 ARTICLE 35

An. Code, 1924, sec. 21. 1912, sec. 21. 1904, sec. 21. 1888, sec. 19. 1828, ch. 165, sec: 2.

26. Either party in any action depending in said courts, after due
notice to the other party or his attorney, agreeably to such rule as shall be
made by the said courts, respectively, may take the deposition of any wit-
ness before any of the said commissioners, to be used as testimony on the
trial of such action, in case only of the death of such witness, or on proof to
the satisfaction of the court of the inability of the party to procure the at-
tendance of such witness at the time of trial and the probable continuance of
said inability until and at the next term, before the court shall permit such
testimony to be used; and the opposite party shall be entitled to cross-
examine any witness whose deposition shall be so taken, or to examine him
or her on notice, before the same or any other commissioner.

Where testimony is taken under this section but the witness testifies at the trial,
the depositions no longer have any validity and cannot be used upon a second trial
in case witness is not present. Purpose of this section; this section contrasted with
sec. 21. Consolidated Ry. Co. v. O'Dea, 91 Md. 512. And see Darnell v. Goodwin,
1 H. & J. 282; Wilmer v. Placide, 137 Md. 109.

Where a rule of court passed in conformity with this section provides that "reason-
able notice" of the taking of testimony shall be given and such notice is given, the
fact that the rule does not prescribe a definite notice is not material. A defect in
the notice is waived if the opposing counsel appears and cross-examines the witnesses.
Waters v. Waters, 35 Md. 546; Williams v. Banks, 5 Md. 200. Cf. Brandt v. Mickle,
28 Md. 447.

The refusal to admit testimony de bene esse, upheld, as there was nothing in the
record to show that the witness was dead or unable to attend; lower court presumed
to have acted correctly. Evidence inadmissible. Wilmer v. Placide, 137 Md. 109.

Where a standing rule of the court requires a certain notice to be given of the tak-
ing 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 notice is given by com-
missioner and the depositions taken. Where defendant is dead and no new party has
been made, depositions are improperly 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 deposi-
tion de bene esse. Patterson v. Maryland. Ins. Co., 3 H. & J. 74.
As to testimony de bene esse in equity, see art. 16, sec. 289.

Cited but not construed in Bielski v. Rising, 163 Md. 495.

See notes to secs. 29 and 34.

An. Code, 1924, sec. 22. 1912, sec. 22. 1904, sec. 22. 1888, sec. 20. 1828, ch. 165, sec. 2.

27. 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. 24.

An. Code, 1924, sec. 23. 1912, sec. 23. 1904, sec. 23. 1888, sec. 21. 1828, ch. 165, sec. 2.

28. 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.

An. Code, 1924, sec. 24. 1912, sec. 24. 1904, sec. 24. 1888, sec. 22. 1779, ch. 8, sec. 2.
1828, ch. 165, sec. 3. 1832, ch. 111, sec. 2.

29. Any person may have the deposition of any witness who may have
knowledge of any fact, in proving which such person may apprehend him-
self 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