
    OTIS v. CLARK.
    November 23, 1838.
    
      Exceptions to the execution of a commission.
    
    The execution of a commission directed to take testimony abroad, will not be held to be irregular, on the ground that the agent of the defendant and other persons were present at the time of the examination of the witnesses, if they took no part in the proceeding.
    IN this case a commission had issued at the instance of the defendant, to take the depositions of witnesses in New York. The commission was returned executed, and the plaintiff filed exceptions to its execution, under the 90th rule of this court. (1 Miles 459.) The exceptions were as follows:
    1. One of the commissioners was attorney of the defendant.
    2. The agent of the defendant was present in the room at the time of the execution of the commission, and while the depositions were being taken.
    3. That other persons were present while the examination of the witnesses took place before the commissioners.
    
      Meredith, for the exceptions,
    cited Willing v. Coasequa, 1 Pet. C. C. R. 309. He said the practice as to the taking of depositions under a commission was adopted from chancery, and that in England all persons, but the commissioners and witness, were required to be absent from the room at the time of the examination. And the rule was the same in the Circuit Court of the United States.
    
      St. G. T. Campbell, contra.
   Per Curiam.—

The first exception is not sustained in point of fact. As to the other two they are dismissed, it not appearing that the agent of the defendant, or the other persons present, took part in putting the interrogatories, or in taking or reducing to writing the testimony of the witnesses.

Exceptions dismissed.  