
    
      DOANE vs. FARROW.
    
    Notice of the taking of depositions out of the state is to be given as in case of depositions taken within.
    But, it is not necessary that the giving notice should appear by the return of the commissioner,it may be proved by affidavit.
    The day should be mentioned in the notice.
    Notice must be served on the party if present, otherwise on the attorney.
    Appeal from the court of the first district.
    Smith, for the defendant.
    Certain depositions taken at Mobile, in Alabama, under a commission issued out of the court below, at the instance of the plaintiff, being offered in evidence on the trial, were over-ruled, on the objection of the defendant’s counsel, for want of due notice of the execution of the commission : from which decision (amounting to a non-suit, there being no other evidence) the plaintiff has appealed.
    To the return to the commission was annexed, the copy of a notice, addressed to the defendant, and signed by John Manager, as commissioner, dated, Mobile, May 29th, 1820, apprising the defendant that the examination of witnesses, on the part of the plaintiff, would be proceeded in at a certain office in Mobile, between the hours of 10 o'clock, A. M., and 5 o'clock, P. M., and be continued, by adjourment, from day to day, until finished. At the foot of the notice, the defendant is invited to name one commissioner. No day is named in the notice to which the hours expressed might belong. On the back of the notice is the affidavit of a certain Neife, that he served it on Col. Harris, agent and partner of the defendant, at the Red Bluffs, on the opposite side of the bay of Mobile, on the 1st of June. The affidavit is made before J. Manager, as commissioner, on the 1st of June.
    East'n District.
    Jan. 1821.
    On the part of the plaintiff, it is contended that this was a sufficient notice ; but, that if not, another notice, specifying the time and place of executing it, had been served by the counsel of the plaintiff, on the counsel of the defendant, in New-Orleans, prior to the issuing of the commission. In proof of this, the affidavit of the plaintiff’s counsel was exhibited at the trial. No such notice is certified in the return to the commission. By this evidence of another notice, ("even if testimonial proof were admissible in lieu of the certificate of the commissioner, and in implied opposition to it of the notice relied on) it does not appear that it even named the commissioner on the part of the plaintiff. A counter affidavit of the defendant’s counsel states, that this notice addressed to him was refused for the reasons that the place of caption was at a distance, in another state; and that the defendant, or his agent, (one of whom probably, and the other certainly, because there resident) would be very near the spot, and would be the proper subject of such a notice. It appears too, that the defendant was not a resident of this state: that he was interested in a contract with the government, for building the fortifications on Mobile bay, likely to detain him there for a long period: and that “ Col. Harris, his agent and partner,” was actually resident with his family at Red Bluffs, opposite to Mobile.
    In this case, it is contended for the defendant, that the depositions must be rejected. In the first place, because the return to the commission, as a written proof, ought to contain within itself, without any deficiency, the evidence of its own authenticity and regularity.
    
      The right to cross-examine is fundamental, and indispensable to the defendant’s being placed on an equal footing with the adverse party; every preliminary proof of the perfect enjoyment of that right ought to appear on the face of the paper exhibiting the evidence, for the party who had obtained the commission. This will be rigorously required, because, emanating from the commissioner himself, at the time, and making a part of the very act of embodying the depositions, it is clearly the best evidence of such facts. Further, this mode of obtaining evidence ought to be thus strictly guarded, both from its manifest liability to abuse, and from the intrinsic imperfection of the nature of the evidence itself. Now, the right to cross-examine cannot, according to good faith, be adequately extended to the adverse party, without a reasonably antecedent notice to him, or to his agent, if known to be resident at, or near the place of caption, and especially, if that be situated in another state. The right to obtain evidence, by commission, at all, being founded, not on its own excellence as a mode, but solely on the equitable regard to the rights of the party obtaining it, which might otherwise be infringed, it ought to be exercised with an observance of every thing which equity can require for the rights of the adverse party. The notice therefore, ought, in all cases where the scene of caption is beyond the jurisdiction of the state where the cause is entertained, to be served on the party himself, or his agent, if conveniently practicable: it ought to have convenient certainty, as to the time and place of taking the depositions, and the name of the commissioner, if not already named or agreed on, who is selected to take them. It ought, perhaps, to proceed from the nominated commissioner himself, who certainly can, with the least liability to error, give the information it should contain: at least, before the interrogation of witnesses, proof of such notice ought always to be exhibited to his satisfaction ; which proof would then regularly appear along with the other parts of his proceeding in his certified return. To allow these facts to be made out, by other and inferior proof, would often be exposing a party to the strong temptation of seeking witnesses to bolster-up a favourable deposition, obtained perhaps by the omission of somewhat of the perfect fairness which equity would demand for the adverse party. This reasoning is supported by its analogy to the act of congress, and sundry decisions of the state courts. By the act of congress of 1789, (Grayson, Tit. Judiciary. sec. 30, p. 248) requiring, that in obtaining evidence by the depositions of distant witnesses, the notice, if any to the adverse party, should be certified by the commissioner in his return. In the supreme judicial court of Massachusetts, in the case of Bernes vs. Ball, & al. adms. (1 Mass. T. R. 75) a deposition taken under the order of the court was excluded, because it did not appear by the certificate of the justice who had taken it, that the adverse party, or his attorney, was notified or present: and the offer of testimonial proof of notice, and of the consent of the adverse party, that the deposition might be taken, ex parte, in the event of his absence, was rejected. In the court of appeal of Virginia, (2 Washington, 75, Collins, vs. Lowrig, & co.) it was decided, that whether a deposition have been taken, de bene esse, or in chief, notice must have been given to the adverse party, and must appear upon the record to have been given, else it will be erroneous. See too, 1 Harris & M'Henry, 172, 3. Thomas vs. Clagget, where a deposition was 
      rejected, because it did not appear that notice had been lodged with the clerk of the county to be recorded ; although it was proven that notice had been given to the defendant twenty days beforehand, of the day and place: and that the defendant had attended accordingly, and cross-examined; which case, though depending probably on a particular statute, is still an illustration of the strictness that should be observed, in guarding this mode of obtaining evidence. In Pennsylvania, (2 Sargent & Rawle, 478, Hamilton vs. M'Guire) it is decided that notice must be sufficiently antecedent to the taking of the deposition, to afford a reasonable time to the adverse party to avail himself of it. In Virginia, (4 Henry & Munf. 1, Coleman, ex. vs. Moodie) it was decided that a notice of the taking of a deposition served at the domicil of the adverse party, on his wife, during his absence from the commonwealth, which might have been served upon himself, was not a reasonable notice, and the deposition was rejected.
    Applying the principles of this reasoning, and these authorities, as a test, in the first place, of the notice certified in the return, it is deemed to be fatally defective; 1st, for unc
      ertainty in having assigned no day to which the specified hour could belong; and in the next place, assuming the day of the date for that purpose; then, for being unseasonable in being signified to the agent of the defendant, three days posterior to the appointed day of executing the commission.
    Can the alledged notice of the counsel of the plaintiff, to the counsel of the defendant in New-Orleans, prior to the issuing of the commission of the intention of another person, (not yet named) to take depositions at Mobile, supply the defect of a sufficient notice certified in the return ?
    It is contended on the part of the defendant, that it cannot,
    1st. Because the plaintiff has undertake, through his commissioner, to give personal notice to the defendant himself, and which has been annexed and certified in his return to the commission : shall he not be concluded by it ? Is it not an implied admission that he relied on no other notice, or if he had, that he had abandoned such reliance ? does it not show that he was aware of the duty, (especially under these circumstances) of giving personal notice to the defendant himself: that he was well aware of the residence of the defendant’s “ agent and partner,” and that, that “ agent and partner,” (if not the defendant himself, as is believed) was there, almost within call: and further, that he was not ignorant of the importance (to the regularity of his depositions) of making that notice appear in the certified return.
    The alleged notice to the counsel in New-Orleans, cannot supply the defects of that which was given by the the commissioner, and certified in his return; because, in the second place, the evidence of that notice to the counsel, if otherwise good, could not, upon the principles already contended for, competently appear by the certified return.
    In the next place; because in all cases where the party in the cause is resident out of the jurisdiction of the state where the cause is entertained, it is not enough to give notice to the attorney at law. This proposition rests firmly on the basis of the defendant’s whole argument ; which is, that this mode of obtaining evidence being intrinsically and peculiarly defective, and easily liable to abuse; and a benefit equitably extended to a party, only to avoid the loss of otherwise unattainable evidence, he is bound in resorting to so favourable an aid, to observe towards the opposite party, every thing which equity can require for him. But equity plainly requires, that he should, so far as possible, be afforded the opportunity of effectually cross-examining. Now, when the opposite party resides elsewhere than within the state, it is, especially, not to be presumed, that the attorney at law can obtain so intimate a knowledge of all the circumstances relating to the testimony sought, as to be able to cross-examine, with the advantage which a seasonable notice to his client would afford. Equity then exacts, in such case, more than notice to the attorney at law. The reasonableness of this position is supported by the case of Cahil, executor of Quin vs. Pintony, (4 Munf. 371) which directly decides, that, in the absence of the principal from the commonwealth, notice to the attorney at law is insufficient. But in the case before the court, not only was the principal not resident in the commonwealth, where the cause is entertained, but the place also where the depositions were to be taken, was in another state, and entirely beyond the sphere of his practice. Since then, as is evident, his professional duties in his own courts, forbade the presumption, that he could personally comply with the obvious purpose of the notice; to what imaginable end was it signified to him? Let it be remembered, that he was not the attorney, in fact, of his client; that, therefore, to have appointed a substitute was beyond his powers; and, as to the agency of transmitting this notice for the plaintiff, (if that be in view) and for which he could have no greater facilities than the plaintiff himself, it manifestly does not fall within the circle of his duties as the conductor of a suit at law. It could as well have been addressed through the post-office, directly to the defendant himself, or to his agent and partner; or, enclosed with the commission, and by the commissioner transmitted to the defendant, or his agent, in his vicinity. Thus the uncertainty, at least, of this notice, arising from the source of it, would have been somewhat diminished, since the act of the commissioner, forwarding such notice, would have implied, at once, his satisfaction of it and his acceptance of his trust.
    But, besides these objections to the alleged notice to the counsel of the defendant, it is further answered, that he declined accepting it; pointing out the defendant himself, or his agent, (in the vicinity of the place of caption) as the proper subject of such a notice.
    By this refusal, which certainly his professional duty did not forbid; the plaintiff, if, before he could have doubted, was now apprized of what he should do for the exact fulfilment of his duty in this respect; and this, too, in time to have fulfilled it; and not by being subjected to any onerous, or unusual, or circuitous task; but, by the natural, very equitable act of simply giving notice to the defendant himself, or to his agent; well known to the plaintiff as the real party, and with whom, alone, his alleged contract was made; whom, chiefly, he holds liable for its pretended violation; and who, also, was known to be resident almost within hail of the place of caption. Why did the plaintiff observe so careful a silence towards the defendant, especially when so conveniently situated for hearing ? Was his colourable notice, annexed to the return, a fulfilment of that perfect good faith which the law exacts from him whom it so equitably aids ? Whatever may have been the motive, the effect of this anti-dated, but post-delivered notice, annexed to the return, if good, would be to deprive the defendant of the privilege expressly reserved to him, of naming one commissioner. The very reservation of this right, apparent on the face of the notice, clearly implies the anticipation of some reciprocal communication between the parties, at the place of caption. It was a right of which the defendant could not regularly be deprived. Commissioners must be appointed, either by the agreement of the parties, or by the order of the court. In this instance the commisioners were not named by the court, nor has the defendant consented to an ex parte taking of the depositions. For this cause, also, the depositions have been irregularly taken, and therefore ought to be suppressed.
    
      Livermore, for the plantiff.
    It appears, in the present cause, that the plaintiff is a citizen of Massachusetts, and the defendant a citizen of Virginia; neither of them having a permanent residence in this state. The defendant having business which required his presence sometimes in New-Orleans, and sometimes in Mobile, was arrested here, and liberated upon bail. Upon the return of the writ, an answer was filed by his attorney, and a commission taken out, addressed to J. T. Manager, authorising him to take the depositions of witnesses in Mobile. Afterwards the plaintiff’s attorney gave notice to the defendant’s attorney, that witnesses would be examined at a certain place in Mobile, on the 29th of May, and that the examination would be continued from day to day. The commission was opened on the 29th, but continued, by adjournment, to the 2d of June. On the 29th, the commissioner addressed a written notice to the defendant’s partner, the defendant being then in New-Orleans. This notice was served on the 1st of June.
    The defendant objects, that he had not due notice of the time of taking these depositions. The notice by the commissioner is said to be too uncertain. Although, we believe, that this was a notice of which the defendant’s agent might have availed himself, and ought to have done so; yet as we consider it to have been a work of superogation, and that the former notice given to the defendant’s attorney, was amply sufficient to satisfy the requisitions of the law, I shall not dwell upon this notice in Mobile. The uniform practice has been, to give notices of this description to the attorney in the cause, and not to the party. If this practice has originated in error, it is important to the bar, that the error should be corrected. If even doubts can exist upon this point of practice, it is desirable that the practice should be settled.
    It is contended, that the notice should be given by the commissioner, and not by the party or his attorney; that it should be given to the party and not to his attorney; and that the service of notice should appear by the return to the commission, and cannot be proved by affidavit.
    In support of these positions, the gentleman has cited the act of congress of 1789, for organizing the courts of the United States, two cases from Virginia reports, and one from Massachusetts. His other citations do not seem to bear upon the question. The practice of the courts of the United States is that of the common law courts of England. By the strictness of the common law, testimony must be taken in open court, in presence of the jury. The act of congress dispenses with the necessity of this examination, in cases where the witness resides more than one hundred miles from the place of trial, but prescribes certain formalities to be observed in taking depositions; and requires, that the observance of these formalities should appear by the certificate of the judge before whom the testimony is taken. The authority is given only to the judges of certain courts, and the act requires, that the deposition shall be reduced to writing by the judge, or by the witness in his presence, and that this shall also be certified. This certificate might as well be required in this case as the certificate of notice. These are all matters of positive regulation, and furnish no rule for the government of courts which do not derive their authority from the United States. Nor does the admissibility of depositions, as evidence in our courts, depend upon the statutes or laws of Virginia or Massachusetts. In the case cited from 1 Mass. Rep., the provisions of the statutes of that state, respecting depositions, do not appear; but we find, that of three judges, one was in favour of receiving the depositions, and two were against it. The cases cited from the Virginia reports, evidently depend upon the positive regulations of the statute laws of that state. The note of the case of Cahil, executor of Quin vs. Pintony is, that "notice of taking depositions is not sufficient if given to the attorney-at-law, in the absence of the principal from the commonwealth, but ought to be given to the agent or attorney in fact; or (if there be none) by publication in the manner prescribed by law." In the other case cited by the defendant's counsel, (Coleman vs. Moody) it is stated, that the notice was not considered reasonable, because advantage was taken of the temporary absence of the party, and the notice left with his wife, when the adverse party knew of his absence; when he might have given the notice previously, or without prejudice of the trial of the cause, have postponed the taking of the depositions until his return. The most that the gentlemen can make of these cases is, that the legislators of Virginia have taken a different view of the duties and authority of an attorney-at-law, from other legislators. It will be more material to examine our own laws for a solution of this question.
    The examination of witnesses in open court, is not a practice known to the ancient laws of this country. In civil law-courts, all testimony is reduced to writing in the form of depositions, and is taken before commissioners appointed for that purpose. By the act of April 10, 1805, ch. 26, sec. 19, (2 Martin's Dig. 178) it is provided, that “ the examination of all witnesses shall be taken in open court, or before such persons as the court may, in each case, authorise to take the same.” In the same section, particular provisions are made for the examination of aged and infirm persons, and of persons about to depart from the territory, and power is given to certain magistrates to take the depositions of such persons, and to compel their attendance, “ previous reasonable notice of the time and place of such examination having been given to the opposite party.” The same section afterwards provides, that “ if the party producing such depositions shall prove by affidavit, that notice was given to the adverse party, the same shall be good evidence.” By the act of February, 1813, ch. 12, sec. 29, it is enacted, that witnesses shall not be compelled to attend any court out of the parish where they reside, and the district courts are authorised to issue commissions to take the depositions of such witnesses; and such depositions, when recorded in the presence of the adverse party, or after timely notice given to him, shall be admitted as good evidence on the trial, (2 Martin’s Dig. 194.) The last statutory provision upon this subject, is contained in the act of January 28, 1817, sec. 7. This provides for all cases where evidence may be taken by depositions, that they may be taken before any justice of the peace, or other commissioner, “ after due notice given to the opposite party.”
    Nothing now seems, therefore, to be required by the laws of this state, than that the party shall have reasonable notice of the time and place of examining the witness. It is not required, that the notice shall proceed from the commissioner, and it may as well be given by the party; nor is it required, that the service of notice should be certified by the commissioner, but on the contrary, it may be proved by affidavit. Neither the act of congress, nor the rules established in Virginia and Massachusetts can effect a mere point of practice depending upon our own positive laws. The only question, therefore is, what is notice to the party. Is not notice to the attorney in the cause, notice to the party ?
    
    It is a general principle, that notice to an agent is notice to his principal, provided the notice came to the agent in the course of the business for which he is employed, 3 Atk. 646, 13 Ves. jr. 120, 2 Bin. 574, 609. In Anderson vs. the Highland Turnpike Co. 16 Johns. 86 ; Spencer, C. J., says, that any matter in pays which may be done by or to a party, may be done by or to his agent. This is a general rule of law which is peculiar to no one system of jurisprudence, but is common to all, being the dictate of reason. The principle applies with great force to the case of an attorney employed to manage a cause. He is retained for his skill and knowlege, to represent and defend his client in every thing respecting the conducting, prosecuting, or defending of the case.
    After issue joined, no communication is considered to take place between the opposite parties, but only between the attornies of those parties, and between the attornies and their respective clients. Such we find to be the rule expressly laid down in the Curia Philipica, p. 1. sec. 12, n. 11. Despues de contestada la causa por el procurador, á él se ha de citar para todos los definas autos de ella, y no al señor del pleyto: tanto, que la citacion hecha al señor no vale, ne ser de momento,” &c. Here we find, that after issue joined, all notices in the cause are to be served upon the attorney, and not upon the party; yet, in contemplation of law, the service is upon the party, represented by his attorney. We find this construction of notice to a party in a cause given by one of the most enlightened state tribunals in the United States. By the 28th rule of practice of the court of chancery in New-York, it is required, that notice of the examination of witnesses shall be given to the adverse party. Blake’s Chanc. Prac. App. 7. The form of the notice under this rule, we find in the body of the same book, p. 142. The notice is to the solicitor, and not to the plaintiff or defendant. The same course is pursued in the English courts. The notice is given to the attorney or solicitor.
    The right of cross-examination is not denied. But by whom is this right to be exercised ? when witnesses are examined in court, the cross-examination is not by the plaintiff or defendant, but by the counsel. There is no difference in principle between testimony taken in court, and out of court. The presence of the party is not necessary upon the trial, because he is represented by his attorney. When a cause is alleged for trial, the absence of the attorney, for an unforseen and necessary cause, would be a good reason for a continuance, although the party might be present in court. The reason is this, that the attorney alone is considered, in law, to have the competent skill and knowlege for managing the cause. If the attorney be able to attend, the absence of his client, from whatever cause, would be no ground for a continuance. The same reasons will apply to the execution of commissions. Let us suppose, that, in the present case, the defendant had left New-Orleans, after the answer filed, and had remained in Mobile, that the plaintiff’s attorney had taken a commission, that he had given no notice of it to the defendant’s attorney, but had given notice to the defendant himself at Mobile. Would this have been considered sufficient? Would not the defendant have had a right to say, that the attorney whom he had employed here, was most competent to direct the course of examination of witnesses in a cause to be tried here ? It cannot, however, be pretended, that there is a necessity of giving notice to the defendant, and to his attorney. The authority cited from the Curia Philipica, shows that the notice must be to the attorney.
    
      It is unnecessary to point out all the inconveniences which would flow from the doctrines of the district court. If this decision is to be maintained, there can be no use in arresting a transient person, unless the whole evidence of the debt be in writing, or can be had from witnesses, whose attendance in court may be compelled. The rule to be settled must be general. If, therefore, a person, having no fixed place of residence, is arrested in New-Orleans, upon a debt contracted in Virginia, or upon a contract made here in the presence only of persons who have left the state, he may be released upon bail, and his creditor will have no security. The defendant may leave the state immediately, and no commission can be executed, because no notice can be served upon him. If, in such a case, the plaintiff and attorney should take a commission, and should give notice to the defendant's attorney, of the time and place of executing it, the latter might say, as is done here, that he could not, or would not attend to it, and that notice must be given to his client. The answer of the court must be, that he has undertaken the management of the cause, that it is his duty to attend to it, that his authority to act for his client, is presumed to be sufficient, and that the attorney for the opposite party is not bound to look further.
    This is the answer which, I presume, the court would give upon the statement made in the counter affidavit of the defendant’s attorney. But I conceive that this is not a case in which counter affidavits can be received. When the law allows any matter to be proved by affidavit, there can be no counter affidavit. Upon an affidavit for a continuance, the matters sworn to must be taken to be true, so in all other matters to be proved by affidavit. The affidavit of the defendant’s counsel, ought not, therefore, to have been received, and should be disregarded.
    The notice was not given before the commission issued, as is stated in the defendant’s argument; but was given afterwards, and so appears by the record. The commission was directed to the person who executed it, and nothing judicially appears of the reservation of any right to join another commissioner. However, no point was made upon this in the court below. The only question there decided was, that notice to the attorney was not sufficient. This is conceived to be the only question for this court. If the cause be remanded, any other objections to the reading of the depositions will be open to the defendant; and if any new objections are made, the plaintiff should be allowed the opportunity of rebutting them by evidence.
    As to the notice given by the commissioner, it was merely an act of his own, and intended for the benefit and satisfaction of the defendant. It was not advised by the plaintiff's attorney, nor can it affect the notice previously given here. On the part of the defendant, the whole course of conduct appears to have been a trick. The witnesses were transient persons, not resident in Mobile, and a hope was entertained that the payment of the debt, justly due by the defendant, might be avoided, if these depositions could be suppressed.
   Porter, J.

delivered the opinion of the court. On the trial of this cause in the court below, the plaintiff offered in evidence certain depositions, taken by virtue of a commission directed to one J. Manager, of Mobile. The defendant opposed their introduction, and after argument, the court sustained the objection, and gave judgment as of non-suit in the cause.

The plaintiff filed a bill of exceptions to the opinion, and took an appeal.

The objections now urged to the reading of these depositions are; 1. That the return to the commission, as a written proof, ought to contain within itself, without any deficiency, the evidence of its own authenticity and regularity. That the notice given by the commissioner to the defendant’s partner, is defective, in not stating on what day the witness would be examined; and, that the other notice, served on defendant’s attorney, should be wholly disregarded ; the law requiring it to be given to the party himself.

On this subject, as well as all others where we have the advantage of statutory regulations of our own legislature, it is unnecessary to look into authorities drawn from other and different sources, and it is only when the language of the statute is obscure, or when its provisions are inadequate, or fall short of the case to be acted on, that we can, with propriety, call to our aid, the opinion of other tribunals; or, that we can correctly resort to legal analogies as the basis of our decision.

On examining the first objection made by the defendant, we find, that in the different acts passed on the subject of taking depositions, 2 Martin’s Dig. 178, n. 16, & 194, n. 10; also, an act to amend the several acts, enacted to organise the courts of this state, sec. 7, passed the 28th of January, 1817, it is provided, that the testimony of witnesses may be taken under a commission, and may be read in evidence after previous reasonable notice of the time and place of taking them, being given to the opposite party. And by the first act passed on the subject, permission is not only given to prove the fact of this notice, by evidence, other than the commissioner’s return, but a different manner of establishing it, is actually prescribed. The words of the statute are, “ If the party producing the deposition shall prove by affidavit, that notice was given to the adverse party,” &c. &c. then the said deposition may be read. So far then, from it being indispensable, that the commission shall contain, within itself, proof of the opposite party being duly notified, the expressions are positive, that it shall be proved by other evidence, and in a case where the testimony is taken under this act, there can be no doubt, but proof by affidavit, is the best evidence which can be produced.

It is true, that the provisions of the statute just referred to, extend only to the taking of testimony de bene esse, where the witnesses reside within the limits of the state; and that the subsequent acts of our legislature already cited, do not prescribe in what manner service of the notice on the adverse party shall be established, so as to authorise the reading of the depositions taken under them. But as notice is required, it, of course, becomes necessary, that it shall be proved. The question recurs, in what manner; we think in the same manner as when the witnesses reside within the state, and their depositions are taken under the authority of the act whose provisions have been already quoted. It would be, indeed, strange, if we were obliged to have two rules on this subject: that when the witnesses live within the limits of the state, and their testimony is taken under commission, the fact of the opposite party being notified, must appear by affidavit; when taken abroad, by the certificate of the commissioner.

The act of congress cited by defendant’s counsel, cannot affect us in forming a conclusion on this subject. It is a particular law, prescribing the practice to be pursued in the courts of the United States. It expressly provides, that proof of notice to the adverse party, shall be given by the commissioner. Our own statute says, it shall be made appear by affidavit. We need not ask, reasoning from analogy, which of these laws we are to resort to, or which of their provisions we are called on to adopt and make our own.

The cases to which the court have been referred to, in 2 Henry & M'Harris, 172; and 2 Washington, 75, have been looked into. The first turns, as it is expressly stated in the report, on a statute of Maryland. The latter was decided on the ground, that the depositions offered on the trial, in the court below, had been objected to, and that it did not appear in the appellate court, from any thing in the record, that notice had been given to the party against whom the depositions were read.

If our statute had not prescribed a rule which we can safely follow, and we were now called on, in the absence of any authority, to establish one, we should feel great reluctance to adopt that pressed on us by the defendant, as correct. If the commissioner, as is contended, should have proof furnished to him before he examines the witnesses, that notice was given to the opposite party, and that it is then his duty to certify that proof back to this court, this would not be so good evidence of the fact, as the affidavit of a witness who served it. Should it, on the other hand, be required, that the commissioner must give the notice himself, or direct it to be given, this, in many cases, would produce the greatest inconvenience, as the party may live at a great distance from the place where the witnesses reside, and the testimony has to be taken. Nor is there any good reason why this mode should be pursued; the proof can be got as safely and as certainly from those who served the notice, as it can be in the manner contended for. As the party whom it is necessary to notify, must, at all events, have reasonable previous information, when the testimony is to be taken. It cannot, in any way, affect his interests. Why then require particular species of proof, which, without attaining any essential object, would cramp and impede the administration of justice?

We conclude, therefore, that it is not necessary that it should appear by the return of the commissioner, that notice is given to the adverse party; and we are of opinion, that the fact may be established, as it has been done in this case, by affidavit.

The next objection taken by the defendant, viz. the want of a particular day on which the testimony would be taken, being inserted in the notice received from the commissioner, is correct. There can be no doubt, that a notification, which professes to be given (as the law requires it should be) with the intention of informing the adverse party of the time and place of doing a certain act, and yet fails to state the day on which that act is to be performed, must, on every principle of good sense, as well as law, be considered as defective and illegal.

It now only remains to consider, whether service of notice on the attorney is good, and if it is not, whether the circumstance of the defendant being absent from the state, does not take it out of the ordinary rule.

The plaintiff insists, that such service is good, and independent of the general rule relied on by him, that notice to the agent is notice to the principal, for whatever relates to the business for which that agent is employed, he has cited Curia Philipica, juicio civil, 1, sec. 12, n. 11, to prove, that in all cases after issue joined, notices of the various acts necessary to carry on a cause to final judgment, must be made on the attorney, and not on the party. Whatever may have been the general rule on that subject in Spain, it is not believed, as it will be hereafter shewn, that it extended to the act of giving notice when testimony was to be taken under a commission. But waving that question for the moment, our statutes already cited, have certainly introduced a different regulation here, as in every act passed on the subject, it is required, that notice should be given to the party.

But if the person whom it is thus necessary to notify, leaves the state, or conceals himself, ought not these circumstances, or either of them, authorise service on the attorney ? We think they ought. The statute must have a reasonable construction. It certainly was not the intention of the legislature to require notice to the party, when, from his own act, it becomes impossible to serve it on him. Nor could it have been their intention, that because it became thus impossible, by reason of his absence, or concealment, that therefore the cause was never to be tried. Yet, this may, and in many cases will be the consequence, if the act is literally pursued ; for it is plain, that if service, in all cases, must be made on the party, then it will be in the power of either plaintiff or defendant, at their pleasure, to prevent the cause in which they are engaged from being terminated, and thus entirely frustrate the ends of justice. A construction, leading to such consequences, should be avoided, if possible. Nothing could induce this court to adopt it, but the will of the legislature unequivocally expressed. In the language of the supreme court of the United States, “ When the literal expressions of the law lead to absurd, unjust, or inconvenient consequences, such a construction should be given as to avoid these consequences, if from the whole purview of the law, and giving effect to the words used, it may be fairly done.” 2 Cranch. 386, 399.

We adopt this construction the more readily in this case, because the general law on this subject in Spain, was the same as that contained in the acts of our legislature, already referred to. When the testimony of witnesses residing out of the jurisdiction of the court who tried the cause, was taken then by virtue of a commission, directed to another judge, the rule was to cite the opposite party, if absent; however, notice to his attorney was good, Febrero addicionada, par. 2, lib. 3, cap. 7, no. 326. Our statute only re-enacts the general law, and leaves the exception untouched.

An authority has been read from 4 Mumford, to shew that when the principal is absent from the commonwealth, that service on the attorney-at-law is not good, that it ought to be given to the agent or attorney, in fact, or if there is none, by publication in the manner prescribed by law. This is a decision under a particular statute. See Revised Code, Virginia Laws, vol. 2, p. 521, sec. 21, in a country where the law has provided a remedy by publication, for the absence of the party, the very evil which is one of the principal reasons that induces this court to hold the service on the attorney good. We have already seen what is the practice in Spain, in regard to taking testimony in this way, and we have no doubt, that both reason and authority require us to sanction and enforce it here.

We conclude therefore, that notice to take depositions, must, in all cases, be given to the parties, if they are in the state. And that if they are absent, or cannot, after reasonable diligence, be found, that service may be made on the attorney.

Applying this rule to the case now before the court, we find that both plaintiff and defendant are citizens of other and different states, and it has been proved, that at the time notice was given to the attorney, the defendant did not reside in this state, but was in Mobile, state of Alabama. Under these circumstances, we are of opinion that notice was legally and regularly given to the attorney, and that the plaintiff is entitled to derive the same benefit from it, as if served on the defendant himself.

It is therefore ordered, adjudged, and decreed, that the judgment of the district court be annulled, avoided, and reversed, and that the cause be remanded, with directions to the judge, to receive in evidence, the testimony taken under a commission, directed to John Manager, of Mobile, unless some other legal objection is made to its introduction, besides the want of due and regular notice to the defendant. It is further ordered, adjudged, and decreed, that the appellee pay the costs of this appeal.  