
    Charles Hallock and others v. Martin Caruthers and others.
    Service of interrogatories to be propounded to a witness under a commission, may be either on the adverse party, or his counsel. No written notification to either is required. C. P.426. Act 25th March, 1828, chap. 83, § 7.
    Appeal from the Parish Court of New Orleans, Maurian, J.
   Martin, J.

The plaintiffs and appellants have placed this case before us on a bill of exceptions to the opinion of the court, rejecting the deposition of witnesses taken under a commission, on the ground that the interrogatories had been served on the defendants.

Our learned brother in the Parish Court was of opinion, that such a service was not the proper one, and ought to have been made on the attorney of the defendants. In support of this proposition, he urged :

1st. That the defendants had an attorney on record. ,

2d. That the invariable practice is, to communicate the interrogatories to the attorney of the adverse party.

3d. That no instance is recollected of a contrary practice; that the court appealed to all the gentlemen of the bar present, and, among them, to the counsel of the plaintiff; and that none of them could state any instance of a contrary practice.

Durrell, for the appellants.

L. C. Duncan, for the defendants.

4th. That the Code of Practice, art. 438, seems to contemplate a communication to ihe attorney or a notification to the party; and that, if a notification to the party is now relied on, a written one ought to have been shown, for a notification is essentially written. Civil Code, art. 3522, No. 23.

5th. That courts of justice must discountenance any practice which might surprise the adverse party.

6th. That the plaintiffs refused a continuance offered them by the court.

The counsel for the appellants has drawn cur attention to the Code of Practice, which required interrogatories to be served on the adverse' party. Art. 426. The act of 25th March, 1828, authorizes them to be served on the adverse party, or his or their counsel.

In our opinion, the Judge erred. The Code of Practice, and the Act of 1828, by which it was amended, authorize the service of interrogatories on the adverse party. The opinion of the Parish Court assumes, that the law may be controlled by the practice of the members of the bar ; this it is impossible for us to admit.

It is, therefore, ordered and decreed, that the judgment be annulled and reversed, the nonsuit set aside,-and the case remanded for further proceedings, with directions to the Judge to admit the depositions rejected, if there be no other ground of opposition thereto, than the service of the interrogatories on the defendants, they paying the costs of this appeal.  