Kingsbury v. Kimball

32 Pa. 518

• Court: Supreme Court of Pennsylvania
• Decided: July 1, 1859
• Status: Published

Opinion

The opinion of the court was delivered by

Strong, J. —

The commission was joint. It empowered John G. Hinckley or Watson Hinckley, and Austin Smith, to take the deposition. Under the commission, no others had a right to take it. But it was taken, and returned by John G. Hinckley and Abraham Dixon. This was not in accordance with the commission. That designated Austin Smith, and either John G. Hinckley or Watson Hinckley, jointly with him. Looking to the commission then, John G. Hinckley and Abraham Dixon had no authority.

Nor does the subsequent agreement of the parties help the matter, or cure the error. The deposition was not taken either in accordance with the agreement, or the commission. The agreement was, that Abraham Dixon and Watson Hinckley should be joint commissioners. But the deposition was not taken by them. There was error, therefore, in receiving it. It was indispensable, that it should have been taken under the commission, or under the agreement. It was taken under neither.

We see nothing in the other error assigned. -

Judgment reversed, and a venire de novo awarded.