
    McNEW’S EXECUTORS v. DAVID ROGERS.
    (S. C., Thomp. Cas., 32-33.)
    Knoxville,
    September Term, 1848.
    1. PRACTICE. Order to take depositions revived by revival of all previous orders.
    An order made at one term of a circuit court giving the parties leave to take depositions, g-enerally is revived by an order made at a subsequent term two- years thereafter reviving- all orders previously made, thoug-h between those terms several sj>ecial orders were made.
    2. SAME. Deposition of same witness taken more than once in circuit court.
    There is no practice in the circuit court that prohibits the taking- of a deposition of the same witness more than once; but i.f there were, an abortive attempt to take a deposition would not exclude one subsequently taken. [But notice must be given, and all formal ties complied with, such as filing new interrogatories, when taken upon interrogatories, as if the attempt to take the first deposition had not been made. Poster v. Smith, 2 Cold., 484.]
    3: DEPOSITIONS. Notice to take, waived by cross-examination.
    When it appears that a party attended and cross-examined a witness, it is not necessary to show a notice to take the deposition. [The party may appear in person or by ag-ent, and such presence when deposition taken waives the notice. Bedford v. Ingram, 5 Hay., 155, 164.]
    4. SAME. Notice to take, on one of. two days.
    A notice to take depositions on one of two days will not authorize the taking of them on the last day, unless the taking- is commenced on the first day and continued over until the second.
    It appears from tbe record in tbis cause, that at the January term, 1845, an order was made giving both parties leave to take depositions generally. At the January term, 1847, an order was made reviving all orders previously made. Between the said terms several special orders were made.
    Sneed and Rogers, for defendant.
   Greén, J.,

delivered the opinon of the court:

1. The order of 1845 was revived by the express words of the order of 1847, and therefore the depositions of J. C. Petre and Alvis Kincaid were taken in pursuance of an order of court. The argument that the order of January, 1847, revived only the special orders made in the cause, and did not apply to the general order of January, 1845, is not satisfactory. But it is said that there was notice shown. When it appears that the party attended and cross-examined the witnesses, it is not necessary to show a notice to take the depositions. Upon both these grounds the depositions of Petre and Kincaid were improperly rejected.

2. The depositions of White and Garnett were properly rejected. A notice to* take depositions on one of two' days •will not authorize the party to taire them on the last day, unless he commenced on the first and continued over until the second.

Supplemental opinion: The court knows of no< practice in the circuit court that prohibits a party from taking the deposition of the same witness more than once. But if such were the practice, an .abortive attempt to take the deposition would not be a ground for excluding one subsequently taken.

Judgment reversed and cause remanded for a new trial.  