#### Joseph Bryant *et al. versus*Commonwealth Insurance Company.

Where a commission issues to “any” magistrate (none being named) in another State, to take depositions of witnesses, none of whom are named, and the adverse party desires, that his agent (naming him) living at the place of caption, may have notice to attend the taking, it is reasonable that such notice should be given.

Where a commission issued from the clerk’s office, in vacation, to *“ any*” magistrate, (none being named,) to take the depositions of witnesses who were not named, and the party in whose favor the depositions were taken filed his in terrogatories, but the adverse party, knowing that the other was going to attend the taking, declined putting cross-interrogatories, and requested that his agent (naming him) at the place of caption should have notice to attend, and such notice was not given, it was *held,*that the depositions could not be received in evidence.

Assumpsit on a policy of insurance. A new trial having been ordered, (as appears by the report of the case in 6 Pick. 131,) the plaintiffs, upon the new trial, offered divers depositions taken in Norfolk, Virginia, under a pommission issued from the office of the clerk of this Court in October 1829. These depositions were objected to by the defendants, on the following grounds.

The interrogatories on the part of the plaintiffs were filed with the clerk in vacation, on the 3d of October, and notice thereof was duly given to the defendants’ attorney. On the 16th the defendants’- counsel made the following indorsement *494on the plaintiffs’ interrogatories: — “The defendants decline putting any interrogatories to the witnesses, who may be examined under this commission, more especially as it provides for the taking of depositions of persons unknown, and whose names are not stated, but request that the magistrates who may officiate in the execution of it should give due notice of the time and place for taking each deposition, to the agent and counsel for the defendants in Norfolk, Frederick Vincent esquire, counsellor at law, who will attend, or provide some suitable person to attend in their behalf.”

The plaintiffs’ counsel objected to the commission’s being sent with this indorsement, and the defendants’ counsel notified to them, that as they understood that Peters, one of the plaintiffs, was to take on the commission himself and superintend the execution of it, the defendants deemed it very important that they also should be represented on the spot, and that without such notice as they had requested, they insisted that the subject should be submitted to some one of the judges of this Court for his special directions thereon. It was accordingly arranged, that the directions of the chief justice should be obtained. On the day, however, that the commission was issued, (October 19th,) the plaintiffs’ counsel notified to the defendants’ counsel, that as, by the rules of the court, the clerk, in vacation, was1 competent to the disposition of this subject, they should obtain the commission from him without the indorsement made by the defendants. Within a few minutes after receiving this notice, the defendants’ counsel filed with the clerk a protest against the commission’s issuing without the indorsement, unless som proper commissioner were named by the Court, and unless also the names of all the witnesses to be examined under it were made known to the defendants.

The defendants opposed the introduction of the depositions taken under the commission, on two grounds : —

1. That they were not duly taken under the laws of the Commonwealth and the rules adopted by this Court ; —

2. That if within the strict rules, or rather if they were not taken in violation of any law or rule ot the Court, yet the request of the defendants was reasonable and just, under the cir cumstances, and should, in fairness and equity, in order to pre *495vent any undue advantage being taken as to the manner of executing the commission, have been complied with by the plaintiffs, and that the question of their admissibility being within the discretion of the Court, the Court, to prevent an actual oppression of the defendants, would exercise that discretion to reject the testimony.

The objections were overruled at the trial, but the question of the admissibility of the depositions was reserved for the whole Court.

The 11th Rule of this Court (16 Mass. R. 373) provides, that either party may, on application to the clerk in vacation, obtain a commission to take the depositions of witnesses without the State ; which commission shall be directed “ to any justice of the peace, notary public, or other officer legally empowered to take depositions,” unless the parties shall agree on commissioners. And the deposition shall be taken upon interrogatories to be filed by the party applying for the commission, and upon such cross-interrogatories as shall be filed by the adverse party, the whole of which interrogatories shall be annexed to the commission.

Orne and *F.*Dexter, for the defendants,

observed that when a deposition is taken under a commission upon interrogatories filed, it is understood that neither party will be present; so that although these depositions were within the letter, they were not within the spirit of the rule of court; and they cited *St.*1797, c. 35, § 6, which enacts, that depositions taken out of this Commonwealth before any justice of the peace, &c. may be admitted as evidence or rejected, at the discretion of the court, provided that if the adverse party or his attorney shall live within twenty miles of the place of caption, no deposition shall be admitted unless it shall appear that such adverse party or his attorney was notified of the time and place of caption. If these depositions, therefore, had been taken without a commission, Vincent must have been notified.

*Hubbard*and *Shaw,*for the plaintiffs.

The *Court*

granted a new trial, because tne evidence did not support the verdict; and they said that these depositions ought to have been rejected. They were taken within the letter of the rule, but certainly against the spirit of it. One of *496the plaintiffs was going to Norfolk to superintend the execution the commission, and this was known to the defendants The names of the deponents were not given. The defendants had an agent at Norfolk, and they requested that the taking of the depositions might be notified to him. He was pointed out to the plaintiffs, and, we think, justice required that such notice should be given. If the application had been made to a judge at chambers, instead of the clerk, it would have been ordered. The names of the witnesses should be given to the adverse party, where they are known ; and where they are not named, and the commission goes to *any*magistrate, and the adverse party desires to have notice given to his agent, it is reasonable that his request should be complied with. These depositions are not to be used at the next trial, unless by the agreement of the parties.1

1

 See Revised Stat. *c.*94, § 30 to 33; 6th and 7th rules of Supreme Judi cial Court.