Nathaniel Williams, et al., Exc'rs of Hannah K. Chase, vs. Daniel B. Banks, 5 Md. 198

Mason, J., delivered the opinion óf this court'.- As there is no question made upon the pleadings in thik case, we deem it unnecessary to' refer to them. On the 8th of December 1848, the county court, upon application of the defendants', ordered the testimony of William' Chase Barney to be taken' under the act of 1828, ch. 165, before one of the commissioners of that court, on the 12th day of December 1848, to be used de bene esse, provided a copy of the order be duly served on the plaintiff or his attorney.

The' order was regularly served', and Barney’s testimony was taken by the commissioner on the 16th day of December 1848, and (as appears by the commissioner’s return,)' iri. the presence of the attorney of the plaintiff.- On the 20th December 1848, the commission was reopened., and the witness was cross-examined by the plaintiff. At the trial, the plaintiff offered in evidence the promissory note upon which suit was brought, and proved the signature of Mrs. Chase thereto, and the endorsement thereon to be in the hand writing of the payee, and then rested his case.

The defendants then offered to read to the jury the deposition of William Chase Barney, already referred to, but the plaintiff objected to its admissibility, and the court sustained ábe objectie-n and rejected the testimony. The admissibility of this testimony is the only question involved in this appeal, and the sole ground upon which its inadmissibility is based, consists in the circumstance that the order of the court directed the deposition to be taken on the 12th dap of December, whereas the return of the commissioner shows that the deposition was not taken in fact until the 3 6th of December.

A strict compliance with the requirements of the statute, as well as the order of the court, is necessary to the validity of this proceeding, all of which should appear in the commissioner’s return. Therefore, under ordinary circumstances, the departure by the commissioner from the order of the court, as to the time of taking the deposition, would vitiate his proceedings and render the deposition inadmissible as evidence in the cause. Young and Wife, vs. Mackall, 4 Md. Rep., 362.

The formalities required in taking testimony under a commission, as to time, place, &c., are required chiefly for the protection of the adverse party, and to secure to him the right -to participate in the examination of the witnesses, if he chooses to do so. But if, on the other hand, he thinks proper to waive his right to a strict compliance with the directions of the commission, and agrees to its execution in an informal way, he cannot afterwards object to the proceeding upon the ground of its irregularity in this respect.

The question here is, does the fact of the plaintiff’s presence by his counsel, and the cross-examination by him of the witness, amount to an assent to the informal execution of the commission? We think it does, and that he cannot afterwards object to an irregularity in the proceeding of the commissioner, which he .virtually sanctioned and agreed to by his presence and eon-duct. In the case of Harris vs. Wall, 7 Howard, 693, a ease relied on by the appellee, it appears that the counsel, though present when the testimony was taken, declined to take any

part in the proceedings, and it would appear from the reasoning of the court, if he had participated, as in this ease, it would have amounted to a waiver of the irregularity. We think therefore that the presence of the counsel, and his cross-examination of the witnesses, was equivalent to an agreement to waive any irregularity as to the time and place when or where the deposition is executed. Jackson vs. Kent, 7 Cowen, 59. Talbott vs. Bradford, 2 Bibb, 316. Stewart vs. Ross, 2 Dallas, 157. 1 Peters, 307. Judgment reversed and procedendo awarded.