OPINION of the Court, by

— The court below made an order giving leave to the parties to take depositions before a single magistrate.

Under this order Gill took a deposition out ofttób: state before one magistrate, which on the trial of iftf *401cause was excluded upon the motion of the defendant’s counsel. And the only questions now made by the as-f.t.vu'unts of error are, whether the older of court justified taking the deposition ; and whether proof that the defendant consented to the order was admissible,

in order to take depositions out of the state, it is necessary to obtain the order of court for a commission directed to such commissioners, not exceeding five, as shall be nominated and agreed upon by the parties j or if nominated by one party only, three, at least, are necessary to «jxecute the commission.

But as the order in the present case does not come within the provisions of this law, it can only be extended to embrace this deposition under the presumption that the court would not have made such order without the consent of both parties in the joint nomination of some one to take the deposition.

Admitting that this order was made by the consent of the parties, and still there is nothing which could justify the inference that it was intended to operate out of the state ; so that proof that the defendant consented to the order, would have availed nothing in the cause. But such proof in supplying the record and judgment of the court, must be inadmissible on the soundest principles of law and propriety.

The judgment must be affirmed with costs.