dissenting:
The point decided in International Coal Mining Co. v. Penna. R. R. Co., 214 Pa. 469, was that a rule of court which provides that a rule may “be entered by either party to take the depositions of witnesses without regard to the circumstances of their being aged, infirm or going witnesses, stipulating, however, eight days’ notice to the adverse part,” is contrary to law and void. Under that rule Justice Bkown said: “for no reason and with no necessity for taking the deposition of a witness in advance of a trial, either party to the action, upon a mere whim or caprice, may compel the examination of every one of his witnesses before a magistrate or notary public in advance of the trial, and require the opposite party, with his counsel, to appear as often as such an examination takes place.” The same objection cannot be made to the rule in question in the present case, for it expressly provides that depositions of witnesses, without regard to the circumstances of their being aged, infirm or going witnesses, “may be taken in advance of trial only upon an order of court upon notice and cause shown.” The plaintiff complied with this rule by filing a petition setting forth the cause, an answer was filed by the defendant, and, after hearing, the court made the order. This was not excepted to, nor is it assigned for *242error. Granting, however, for the sake of the argument, that the validity of the order can be inquired into upon an assignment alleging error in permitting the deposition to be read at the trial, I am unwilling to agree that the court exceeded its equitable powers in permitting the deposition to be taken at the place where the witness resided, which was more than 200 miles from the county seat. The practice of permitting the depositions of witnesses residing more than forty miles from the county seat has existed in Pennsylvania from early times, in most, if not all, of the courts of common pleas of the state. See 1 Tr. & H. Pr., sec. 597, 598, 614; Mitchell on Motions and Rules, 43; Wallace v. Mease, 4 Yeates, 520; Pennock v. Freeman, 1 Watts, 401, 411; Riegel v. Wilson, 60 Pa. 388, 392; Bibbey v. Metropolitan Life Ins. Co., 3 Pa. Dist. Rep. 234; Fuller v. Guernsey, 6 Luz. Leg. Reg. 152. In many courts this practice has been recognized by standing rule. “The rule most usual is that if the witness resides more than forty miles from the place of trial, it shall not be necessary to compel his personal attendance, but his deposition, if regularly taken, shall be read:” Sharswood, J., in Riegel v. Wilson, 60 Pa. 388. In some courts it has been held that a rule to take the testimony of such witnesses is grantable of course. But it is not necessary to go as far as that to sustain the order in the present case. Presumably the court, in making the order, had in view the nature of the case and the circumstances of the parties. And I respectfully urge that where the court, after hearing, permits the taking of the deposition of a witness residing outside the county, and beyond the forty miles limit, it is not reversible error unless abuse of discretion appear. If, therefore, the judgment of reversal is put upon the ground that the order of court under which the deposition was taken was invalid, I am unable to concur.
Beaver, J., joins in foregoing dissent.