
    Edward S. Howe & others vs. William S. Pierson.
    Allowing a new answer to be filed at the trial, after the plaintiff's evidence is in, is no ground of exception.
    The admission of the depositions of several witnesses, taken out of the State under one commission, one caption and one set of interrogatories, is no ground of exception.
    Action of contract for money paid. At the trial in the court of common pleas, before Aiken, J., the plaintiffs contended that the defendant’s answer admitted all their allegations, and that there was no issue to the jury, but the judge overruled this objection. The plaintiffs then opened their case, and examined their principal witness, in cross-examining whom the defendants introduced new matter of defence, not previously introduced or opened by the plaintiffs. The judge, upon the objection of the plaintiffs, refused to admit this testimony. The defendant then asked leave to file a new answer, and was allowed to do so upon terms’; and the case proceeded, and the remainder of the trial was upon the amended answer.
    The defendant offered the depositions of four witnesses taken out of the State by virtue of one commission, under one caption and upon one set of interrogatories, filed by the defendant, and to be answered by all the four. To this form of commission, caption and mode of putting interrogatories the plaintiffs objected. But the judge overruled the objection and admitted the depositions. The jury returned a verdict for the defendant, and the plaintiffs alleged exceptions.
    
      W. Gaston, (A. Chwchill with him,) for the plaintiffs.
    1. Leave to file an amended answer should not have been granted after Ihe plaintiffs had put in their whole case.
    2. The depositions should have been taken separately, so that either could be used without another, and the plaintiffs be enabled to object to the questions as to any one witness.
    
      I. Waterhouse, for the defendant,
    was stopped by the court.
   By the Court.

1. The new answer allowed by the judge in his discretion to be filed created a new case, and if the parties were not desirous of any continuance, postponement or new trial, the same jury having heard the evidence, it was not necessary to repeat it.

2. The admission of any depositions taken out óf the State, after sufficient notice, before a person authorized to take them, may be admitted by the presiding judge in his discretion. Rev. Sts. c. 94, § 33. And it is the uniform practice to take several depositions under the same commission and upon one set of interrogatories. Exceptions overruled.  