
    Walter Smith, Respondent, v. Star Company, Appellant.
    
      Deposition—commission to obtain evidence of justification of libel. ■
    
    Appeal from part of an order, entered on the 2oth day of March, .1909; denying a motion to return a commission issued to take testimony in the State of Florida to further examine the witnesses therein named.
   Imráham, J.:

This was an action for libel which charged the plaintiff with having killed-one Bradley while endeavoring to arrest the plaintiff for a violation of the law against killing birds in the State of Florida. The answer justifies the charge. Upon application of the defendant and on the consent of the plaintiff, a commission was issued to a commissioner in the State of Florida authorizing the examination on oath of certain witnesses therein named without written interrogatories. ' There was also issued a commission to examine certain witnesses named on behalf of the plaintiff and defendant in an action brought by the same plaintiff against Peter F. Collier and another, in an action to recover upon a similar .libel. Under the commission issued in this action the examination of the witnesses seems to. have been confined to the character of the plaintiff and his sons, rather than to a statement of the facts set up in the answer as justifying the libel. The plaintiff then moved to return the commission for a further examination of the witnesses. I think that this motion should have been granted. It is quite apparent that the execution of this commission was imperfect, and that it will be of no substantial use to the defendant on the trial. The appellant, however, has offered that if the plaintiff would stipulate to allow the depositions annexed to the commission issued in the action against Collier to be read as testimony in this action, that the appellant would be satisfied with an affirmance of the order appealed from, and this seems to bo a reasonable condition. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted, unless the plaintiff should stipulate to allow the depositions annexed to the commission in the action against Collier to be read as testimony in this action, in which case the order appealed from should be affirmed, without costs. McLaughlin, Laughlin, Clarke and Scott, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, unless plaintiff stipulates. as stated in opinion, in which case order affirmed, without costs. Settle order on notice.  