¶1 It is argued, that the judgment in this case he reversed, 1st, on the ground of surprise, fidly, -Because the deposition of John Lindsey was improperly excluded.
¶2 Upon the first ground, this Court cannot act j if is matter addressed to the discretion of the Judge below, over which we have no control. As to the second ground, we concur in the opinion of the Judge, that the deposition ought to be rejected. Notice to take it ought to have been served on the parties, or on their agent. It does not appear that Caleb Lindsey was either their general agent, or agent to receive notice to take this, or any other deposition, except that of John Lindsey, de bene esse, under a rule made in Sampson Superior Court while the cause was there. This rule was special, and contemplated the taking of a deposition of another character, and at a different time and place from the one offered.
¶3 Per Curiam. — Judgment affirmed.