#### Benjamin Scholes et al., Appellants, v. Abraham Ackerland et al., Appellees.

APPEAL PROM PEORIA.

Where a dedimus is directed to a commissioner, to take the testimony of Seymour Rank, and the deposition of Seigmund Rank is returned, the variance is fatal.

A defendant is not guilty of laches in moving to exclude such a deposition, where notice of such a motion is given more than six months before the cause was' reached for trial.

This was an action of assumpsit brought by appellees against appellants as common-carriers, owners of steamboat “ Mooastac,” for the loss of certain goods, shipped on board said boat at St. Louis for Peoria. Plea, non assumpsit, verdict for appellees for f84.58. On the 18th of April, 1851, appellees gave notice to take the deposition of Seymour Rank of Cincinnati. Commission issued May 1, 1851, to take the deposition of Seymour Rank. Interrogatories were propounded to him. The deposition of Seigmund Rank, and signed Seigmund Rank, is taken and returned with the commission. The testimony of this witness is the only evidence to prove the shipping of the goods from Cincinnati (where the goods were purchased) to St. Louis, or any thing relative to their identity, with those said to have been lost. On the 21st of August, 1851, appellants filed exceptions to the deposition of Seigmund Rank. The principal exception to the deposition being, that no notice had been given, or commission issued to take the deposition of this witness.

At May term, 1852, Kellogg, Judge, presiding, after the cause was called for trial, and, before the jury was sworn, the court overruled the exceptions to the deposition, and permitted it to be read in evidence on the trial. After the return of the verdict, *651the appellants entered a motion in arrest of judgment, and for a new trial. One of the reasons assigned for these motions, was the admission of the deposition of Seigmund Rank. There were other reasons assigned, but as they are not noticed in the opinion of the court, they will not be noticed here.

N. H. Purple, for appellants.

H. O. Merriman, for appellees.

Treat, C. J.

But one of the assignments of error need be considered. The plaintiffs notified the defendants that they would sue out a commission to take the testimony of Seymour Rank. Interrogatories were propounded by both parties, and attached to the commission. The commissioner returned the deposition of Seigmund Rank. In August, 1851, the defendants filed exceptions to the deposition; the chief ground of objection being that no notice had been given to take the testimony of the witness. At the May term, 1852, on the calling of the cause for trial, but before the jury was sworn, the exceptions were heard by the court and overruled. The conclusion of the court was erroneous. The dedimus directed the commissioner to take the testimony of one person, and under it the deposition of another person was taken. The special authority was not pursued. The names were essentially variant, and clearly indicated different individuals. The discrepancy cannot be disregarded on the principle of idem sonans. Nor were the defendants guilty of laches, in moving to exclude the deposition. They gave notice of the motion shortly after the deposition was returned, and more than six months before the cause was reached for trial. It was in the power of the plaintiffs to have called up the exceptions, and have had them disposed of. They could not therefore allege surprise.

The judgment is reversed, and the cause remanded.

Judsrment reversed.