
    W. H. Gooday, v. Jacob Corlies and J. M. Commander.
    
      Actual notice for the space often days, of the application for a commission to examine a witness, accompanied by a copy of the interrogatories, shall be given to the adverse party, or his attorney, before the commission shall be issued by the Clerk; and, if the service be not personal, it should at least appear that the notice and copy of interrogatories had, in fact, come to his knowledge ten days before the commission issued. Leaving a copy, in analogy to the service of process, is not sufficient in this branch of practice.
    Every Clerk, before issuing a commission to examine a witness, should be careful to asc.rtain that the proper notice has been given, that the opposite party, or his attorney, may, if he tkink proper, resist the application before him.
    Tried before Mr. Justice Butler, at Charleston, May, 1846.
    Trespass for entering plaintiff’s store, and taking goods from his possession.
    The plaintiff had charge of a store in Georgetown, and as it seemed was doing business for one Crawford, living beyond the limits of the State. The defendant, Corlies, procured an attachment to be taken out against Crawford, as tin absent debtor, and put it in the hands of Commander, as Sheriff, to have it executed. Before the sheriff came to the store, Corlies had a consultation with Gooday, in which he had intimated his purpose of having the goods in the store attached. In a short time afterwards, the sheriff and his deputy came with the attachment, and by way of executing it, demanded the keys of the store, and the possession of the goods. The plaintiff claimed to be creditor in possession, and objected to shutting up the store. Something was said about a compromise— when defendant, Corlies, said ho thought it could be settled, but remarked, that the attachment might as well be executed; said so after the sheriff had intimated his purpose of seizing the goods. lie said, however, to the sheriff, you know your duty, and go on and execute it. And under these circumstan-stances, the store was closed for a day or two. In consequence of the proceedings, the goods were sold at auction, and after-wards the proceeds were paid over to plaintiff as creditor in possession.
    The first question in the case was, whether a trespass had been committed by Corlies''' His Honor said that if be had ¿one nothing more than instruct the sheriff to do his duty, and had not instruct ed him in the illegal mode pursued of performing it, he was not a trespasser; and that he could only be a trespasser upon the ground of taking a part with the sheriff in shutting up the store against the plaintiff’s consent. The evidence of a trespass was very slight. As it regarded the sheriff, he instructed the jury that he had been guilty of a trespass: in acting thus, he should have served a copy of the attachment on the plaintiff as garnishee, claiming to be creditor in possession, and should not have seized the goods into his hands in the first instance. There was every reason to suppose, that the sheriff had no evil intent in what he did— and the jury found a verdict of 810 against him, and 81,000 against Corlies.
    His Honor was so much surprised, as to ask whether it was not also 10 or 8100.
    The following statement may be necessary to explain the first grouríd of appeal. Mr. Hurlbut had been employed by the defendant, Corlies, to defend the action, and some time afterwards, he entered into copartnership with Mr. Carew, and when he left the State, was doing business as one of the firm. The plaintiff’s counsel filed his interrogatories in the clerk’s office after Mr. Hurlbut had left the State—and left, as it was understood, a notice at the office of Carew & Hurl-but. Mr. Pressley, who had been but recently employed in the case, and was then not well acquainted with its facts, objected to the evidence, taken by commission, being read, on the ground, that the notice should have been served on Mr. Hurlbut or the defendant, who was also beyond the limits of the State. His Plonor overruled his objection, and the evidence was read.
    The defendant appealed on the annexed grounds.
    1st. That the commission admitted in evidence in this case, was inadmissible, because no notice of the issuing of said commission was served on the defendant or his attorney.
    2d. Because there was no evidence to show, that the defendant, Corlies, took any part in the alleged trespass.
    3d. Because it being clearly proved, that the defendant, Corlies, and the plaintiff, Gooday, were on friendly terms both before and after the said trespass, and no ill motive being either proved or pretended, no vindictive damages should have been found by the jury, and that by so doing, they have altogether exceeded the limits of the discretion confided to them by the law.
    4th. That the verdict was in other respects, contrary to law and evidence.
    Pressley, for the motion.
    Hunt, contra.
    
   Withers J.

delivered the opinion of the Court.

We shall express no opinion of any of the grounds of appeal, except the first, to wit: “that the commission admitted in evidence in this case was inadmissible, because no notice of the issuing of said commission was served on the defendant or his attorney.”

By the Act of 1839, regulating the office of clerks, the condition on which a commission may go for the examination of a witness, is expressed in the following words: “provided that ten days notice of such application,” (that is, for the issuing of a commission,) “with a copy of the interrogatories propounded, be served upon the opposite party, or attorney, who shall have leave to resist such application on cause shown.” We consider the true interpretation of this clause to be, that actual notice for the space of ten days, of the application for a commission, accompanied by a copy of the interrogatories, shall be given to the adverse party or his attorney, before the commission should be issued, by the clerk; and if the service be not personal, on the one or the other, it should at least appear that the notice and copy of interrogatories had in fact come to his knowledge ten days before the paper is issued. No light for the purposes of the present inquiry can be derived from the statutory provisions relating to the service of process, for the leaving a copy in such case, is made effectual service, so as to make ihe defendant a party in Court only by virtue of express enactment. And since the party applying for a commission seeks the convenience and benefit of a proceeding advantageous to himself and the other party, is thus deprived of the opportunity (usually considered of consequence, and favored with some care and solicitude by the law,) of cross examining his adversary’s witness, viva voce, in reference to previous developments of the case, there seems no hardship in requiring of the moving party, a full and perfect compliance with the terms of the provision already7 cited, in their more obvious import.

To this interpretation there does not seem to have been a conformity in the manner of the notice adopted in the case under consideration. Admitting that after the association of Hurlbut & Carew, they had become the attorneys of the defendant, (which we need not determine) it does not appear that they7 or either of them had been personally served, or had actual notice, for ten days, of the application for the commission and also possession of a copy of the interrogatories. Upon this subject we do not feel warranted, in view of the terms of the Act, in holding that a copy7 left at a lawyer’s office or at the party’s residence, shall be considered as a service in this branch of practice, for actual notice being the object, and personal service being required, the course referred to does not necessarily imply the one or the other.

Every clerk, before issuing the commission, ought to be careful to ascertain that the proper notice has been given, not only because it may save all the trouble and expense of an appeal to this Court and other serious inconveniences, but also because it is manifestly contemplated that, notice being given, objections may be made to the issuing of the commission before him.

Upon the ground herein discussed, it is ordered that the motion for a new trial be granted.  