I am of opinion that the deposition having once been read on the trial of this cause, it is now too late to inquire whether it was taken regularly or not. It is presumed to have been properly taken, or it would not have been made use of on the former trial. I think there are some instances where a deposition taken by one commissioner may be read, as by the consent of parties, the special order of the chancellor, etc. It does not follow that the one now before the Court may not be of that description; and as the party may otherwise lose the testimony, we think it ought to be read.

NOTE. — See Knight v. Kennedy, 1 N.C. 37; Rutherford v. Nelson,2 N.C. 105; Collier v. Jeffreys, 3 N.C. 400. *Page 410