—The deposition was irregularly taken, and therefore properly rejected. Let the rule be discharged.
Holbrook v. Martin, 1 N.C. 515, 1 Cam. & Nor. 515 (1804)
June 1804
·
North Carolina Court of Conference
1 N.C. 515, 1 Cam. & Nor. 515
Holbrook & Wife vs. John Martin.
The plaintiff, after the writ issued, and before it was returned, took out a commission to take testimony. This commission was issued by the clerk, at the request of the plaintiff, without any order of Court, or of a Judge. After the writ bad been served on defendant, plaintiff gave him due notice, and went, on to examine a witness; the deposition was properly taken according to the notice, certified and returned. Afterwards, issue was joined, and the cause came on for trial, when this deposition was offered in evidence. It was also offered to be proved, that the witness, at the time of taking his deposition, was aged, *516infirm, and like to die; and although living at the time of the trial, was unable to attend the court through infirmity; and that one of the witnesses mentioned in the notice, had actually died by old age, before the day appointed for taking the depositions.
It also appeared of record, that the following order was made by the court of Salibury District, long before the issuing the writ in this case, to wit: " that commissions to take testimony is "sue when required by either party, in all suits. " in this court, and that reasonable notice be “ given, &c.”
The Court rejected the parole evidence as inadmissible, and the deposition was refused to be read. In consequence of which the plaintiff suffered a nonsuit.
The plaintiff moved to set aside the nonsuit, on the ground that the deposition was improper; rejected, and thereupon the case was ordered this Court.