
    Robert Copeland, use of the Union Bank of Tennessee, vs. Marcus D. Mears, et al.
    Where upon due notice and service of the interrogatories upon the opposite party, a commission to take depositions is sued out, and from any cause the depositions are not taken under it, it is competent for the party taking out the commission to have another commission issued, without new notice or inlerroga- ' tories to the other party; and the deposition taken under tills last cornmissicn, will be legal.
    Where a party- plaintiff suffers a “ non suit,” he cannot prosecute a writ of error to reverse the judgment, even though the decision of the court below, occasioning the non suit, were wrong.
    In error from the Yalobusha circuit court.
    Three cases, between the same parties, involving the same questions, were submitted to the court, at the same time. An analysis of one case will be sufficient.
    The plaintiff in error sued the defendants in an action of assumpsit upon a bill of exchange. The declaration was filed on the 30th of September, 1842.
    The defendants plead non assumpsit. Upon the trial, the plaintiff -offered to read the deposition of Hilary Briton Cenas, a notary public, residing in the city of New Orleans, who had protested the bill of exchange.
    His deposition was taken under a commission, dated the 18th of-September, A. D. 1843; the interrogatories, under which the deposition was taken, were served upon the defendants on the 11th of March, 1843. Upon the original interrogatories, was this indorsement: “ Copy of interrogatories and commission issued this 22d day of March, 1843. W. H. Brown, Clerk.” The defendant objected to the reading the deposition taken under the commission of September Í8, 1843, because of the issuance of the prior commission, and no new service of interrogatories; the record shows that the interrogatories under which the deposition was taken, were the same which had been served, and on which (he first commission had issued; the court sustained the objection of the defendants, and excluded the depositions; and the plaintiff excepted in due form, whereupon the bill of exceptions signed, recites, “ The plaintiff was compelled to take a nonsuit.”
    And the judgment of the court was given accordingly, and this writ of error prosecuted.
    
      A. C. Baine, for plaintiff in error.
    But two questions are made by the record..
    The first is whether a party can be compelled to take a non-suit.
    The second is whether a party, if he once give notice and sue out a commission upon interrogatories filed, can, if that be not returned by the commissioner, sue out another commission upon the same interrogatories, without a new execution, or rather re-execution of the notice.
    It is difficult to perceive on what principle's, comporting with justice and the rights of the parties, the decision of the court below was made. For, it seems to me, that the longer the plaintiff delayed to take out his commission, after giving notice of his intention of doing so, the better and fairer chance he gave' the defendants, and instead of having a right to complain, that they ought to have regarded the delay as a favor. But if the decision of the court stand, it at once binds the party giving notice to sue out his commission on the very day he gives notice that he will do so; or if he neglect to do so, he must re-execute his notice before he can safely take out a commission.
    But Avhat wrong is done the party notified, if the commission be not sued out for two, three, or nine months after he is notified it will be done ? or what injury results, or can by possibility result to him, if a dozen commissions be sued out on the same interrogatories, and none but the last be returned, and only notice given in the first. The whole object of the law is answered by one sufficient notice. There can be no imaginary reason given why a second notice on the same interrogatories should be given. Once a notice is, always a notice. This would seem sense, reason and justice.
   Mr. Justice Clayton,

delivered the opinion of the court.

One of the only two questions in this cause grows out of the rejection of a deposition upon the trial. ■

The plain tiff filed his interrogatories in the clerk’s office, and gave notice that he would, at a particular time, sue out a commission to take the testimony. A copy of the interrogatories was served on the defendants.- The commission was sued out, but from some cause the deposition was not taken under it, and returned to the office. Afterwards, without any new notice, or any farther interrogatories, another commission issued, under which the deposition was taken. Objection was made to the reading of it, upon the ground that no second commission could issue, unless there had, been another notice. The court sustained the objection, and ruled out the deposition.

We think that the 'deposition - was improperly excluded. There had been no change in the interrogatories, from the time they were first filed. The' defendants had an opportunity to file cross interrogatories, if they had desired to do so. We can see no reason which would prohibit the plaintiff from obtaining a second commission, if from any cause, the first proved unavailable. Where the practice is not to take the deposition upon interrogatories filed, but upon notice to take it on a particular day, at an appointed place, a different rule would prevail.

There is another point in the cause, however, which is fatal to the right of the plaintiff in error, to recover in this instance. Upon the exclusion of the deposition, he, to use the language of the bill of exceptions, “ thereupon took a nonsuit.”

It is an invariable rule that a writ of error will not lie to reverse a judgment of nonsuit, entered under such circumstances. Ewing v. Glidewell, 3 How. 332. United States v. Evans, 5 Cranch, 280. Trice v. Smith, 6 Yerger.

■ In the two last cases, a motion was made to set aside the nonsuit, which was overruled, and a writ of error then taken; but the judgments were affirmed. In all of them the non-suit was suffered, because of the rejection of testimony by the court.

We regret this result, but cannot avoid it, consistently with the established rules of law.

Judgment affirmed.  