Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1866-02-28

ing" or "if they are accidentally uiursd ara r,s.
be sold to prevent further loss" the agent NAV az
viste from ms insrucons ., to the time price at
which they are to be sold. Here, however, smother
difficulty springs up that of determining whether
these latter apply to questions a. between tha
principal and agent in determining the duties and
obligations of the agent to the principal, as be-
tween the principal and third persons in determin-
ing the binding validity of the acts of the agents
1t is said the master of ship in of necessi
ty acquires suPernduced authority over the ship
and cargo, which does not belong TO his general
agency, and circumstances may arise under the ne
cessities Of which he would be authorized to sell
both ship and cargo, but it seems to US the better
opinion is this is incidental power pertaining to
his Office master of the ship, conferred upon him
by usage which may be exercised in cases of neces-
sity, and in no other instance we believe may an
agent assume power as distinct from, and indie
pendent of the power conferred as the power to sell
is from the power TO buy and ship, and by his acts
in the exercise of such assumed power bind his prin
cipal. sEE-f
We think Gordon had the power under the cir
cumstances, to take care of the wheat and to en-
ploy hands such other means as may have been
necessary to have il taken out Of the water and pre-
served, for the purpose of preventing total injury
total loss and to this extent his principals would
have been bound by his acts. But we are of the
opinion he did not have the power to sell the wheat
because of anything apparent in the record.
1t may be true that an agent may acquire such an
it, but such interest is shown to have existed IN
this instance Hence the principle does not apply.
Neither was the charge given with reference to any
such supposed interest," but given with reference
alone to the extraordinary powers which it was sup
posed the agent might rghtfully exercise under the
supposed emergency.
But another question is presented in this record
for our consideration. The defendant caused to be
taken and placed on file the deposition of one NJ
L. Grasty to the reading of which the plaintiff e1-
cepted.
Because the deposition of the some witness had
been previously taken by the defendants which had
been excepted to and excluded, and that this depo-
stion had been taken without the fling of any other
additional interrogatories or giving any notice OF
such having been filed subsequently to the rejection
of the original deposition, and because no notice
had been given to the plaintiffs OF the time and
| place of taking the same.
The record is sngulary defective, and Its lnspec-
| ton might serve as useful commentary upon the
prevailing carelessness which has everywhere crept
into our presence, the imperfect confused, and
| bungling manner in which records frequently
transcribed The caption and the deposition on its
face shows it was taken upon lnterrogatorles-Dut
| from whence they came, what they are by whom
whence, or where they were fled does not sppear
they do not accompany the deposition, nor are they
transmitted into the record nor does 1t appear, ex
cept from the exception ITSELF that any interrogato
ries have ever been filed in the cause, or that any
notice of such has ever been given. The caption re-
cites that it taken in Pope county, IN the State
of Illinois, on the 14th day of June, 1859, and the
certificate of the Justice of the Peace appended to
the deposition is dated on the oath day of October
| 1852 a period Of more than four months after it
purports to have been taken and although the read
ing of the deposition was expected to- because 1t had
not been filed in time the record fails to show when
it was filed, or when the exceptions were filed, but
| it does show that on the 25th of March, 1861 the
Clerk sustained the exceptions first above mention
ed from whose action the defendants appealed to the
Court, who overruled the exceptions and that the
| deposition was read.
If, from what has been stated, it can be said to
appear the deposition has in fact been taken upon
interrogatories filed in the cause and under the cir
cumstances as stated in the exceptions, we think
that the filing of interrogatories and giving notice
thereof under section 1856 of the Code is in lieu Of
the notice of the time and place of taking the depo
siton required by other sections of the Code; aud
when the deposition of the witness has been once
taken upon such nterrogatories, all the efficacy OF
such interrogatores and notice in giving the party
the right to take the deposition is exhausted, and
the party has right to retake the deposition for
any cause without refling the original fling adj
dtional interrogatories and giving the opposite par
ty the notice required by the section of the Code
before referred to, and, therefore, the exception
| should have been sustained. And if the deposition
was not taken upon interrogatories and in the man.
ner as stated in the exception then plaintiff excep
tons for want of notice, well taken, and should
| have been sustained We think the court erred in
everything the exceptions, and in permitting the
| deposition to be read.
The Judgment of the Circuit Court will be reyers-
ed and the cause remained for new trial.
HAWKINS, Judge.
Attest: j. g. FRAZER, Clerk.