SECTION III. Examination of Witnesses — by Commission.1 A COMMISSION to examine witnesses in England cannot be obtained before the cause is at issue: unless it be in one of those cases in which the Court authorizes such a commission to examine witnesses de bene esse, which will be noticed in the next section. In cases, also, where the bill has been exhibited for the purpose of perpetuating testimony, and the defendant is in contempt to an attachment for want of an answer, the Court has allowed the plaintiff to have a commission to examine his witnesses.2 With respect to the time within which a commission may be obtained, the practice is now regulated by the Orders of May, 1845, the 95th of which directs, that "Immediately after the replication is filed, the plaintiff, if he thinks fit, may give notice to all other parties entitled to examine witnesses in the cause, of his intention to sue out a commission for that purpose, and the plaintiff, if he gives such notice within two days after the filing of the replication, or before any defendant has given notice of his intention to sue out a commission, is to have the carriage of the commission." 3 In reference to the taking of depositions either at home or abroad, many cases will be found collected in note (42) to 2 Phil. Ev. (Cowen & Hill's notes,) pp. 32 to 41. See also 1 Greenl. Ev. § 320 to 325. To entitle depositions to be read in evidence, the rules of Court and statutes respecting them must be strictly complied with. Wallace v. Mease, 4 Yeates, 520; Bell v. Morrison, 1 Peters, S. C. 351; Winooski Turnp. Co. v. Ridley, 8 Vermont, 404; Bradstreet v. Baldwin, 11 Mass. 229; The Argo, 2 Wheat. 287; Evans v. Eaton, 7 Wheat. 356; Sanders v. Howe, 1 Chip. 363; Collins v. Elliot, 1 Har. & John. 1; Den v. Farley, 1 South. 124; Hendricks v. Craig, 2 ib. 567; Worsham v. Gove, 4 Porter, 441; Wiggins v. Pryor, 3 Porter, 430; Shepherd v. Thompson, 4 New Hamp. 213; Welles v. Fish, 3 Pick. 74; Burroughs v. Booth, 1 Chip. 106. 2 Lancaster v. Lancaster, 6 Sim. 439; see also Coveny v. Athill, 1 Dick. 355. By 67th Equity Rule of the Supreme Court of the United States, after a cause is at issue, commissions to take testimony may be taken out in vacation as well as in term, jointly by both parties, or severally by either party, upon interrogatories filed by the party taking out the same, in the Clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories before the issuing of the commission; and if no cross-interrogatories are filed at the ex-* piration of the time, the commission may issue ex parte; and since the amendment of this rule, March 17, 1862, testimony may still be taken on commission, in the We have before seen, that publication now passes without rule or order at a certain fixed period, generally two months from the filing of the replication; and it does not seem that the mere fact of suing out a commission will by itself in any manner delay the time at which publication would otherwise pass. It certainly is in the power of any party who examines witnesses to apply to the Master for an order to enlarge the time of publication, but the Master in granting or refusing such an application, will probably be guided by the consideration, whether the party applying has used proper diligence in obtaining the commission, and in proceeding under it. So that it is necessary for any plaintiff or defendant who is desirous of examining witnesses by commission, to be careful to obtain the writ sufficiently soon after replication, otherwise he will run the risk of the time for publication arriving before he has completed his examination. We have next to consider the persons to whom commissions may be directed, and the manner in which they are selected.1 With respect to this subject, the 94th Order of May, 1845, directs that "Commissions to examine witnesses within the jurisdiction of the Court are to be directed to two Commissioners only, and unless the Court otherwise orders, are to be made returnable without delay; and the Commissioners are to be either barristers or solicitors not concerned in the cause; and each one of such two Commissioners is to have all such power and authority to examine witnesses as have heretofore been vested in the acting Commissioners named in the commissions to examine witnesses which have heretofore been issued; but the Commissioner first named in the commismissions to be hereafter issued is alone to act in the execution of any commission, unless he is by illness or other sufficient cause incapacitated from acting therein; in which case the Commissioner secondly named is alone to act in the execution of such commission." usual way, by written interrogatories and cross-interrogatories, on motion to the Court in term time, or to a Judge in vacation, for special reasons satisfactory to the Court or Judge. By the 67th Equity Rule of the Courts of the United States, the Commissioner or Commissioners to take depositions, shall in all cases be named by the Court, or by a Judge thereof. But this rule has been so amended as to allow the presiding Judge of any Court exercising jurisdiction, either in term time or in vacation, to vest in the Clerk of said Court, general power to name Commissioners to take testimony in like manner that the Court or Judge thereof could do by the said 67th Rule. The 99th Order directs, that "If any question arises as to the Commissioner who is to be first named, or as to the party who is to have the carriage of the commission, the Master is to determine such question, and to name the party who is to have the carriage of the commission." A commission to examine witnesses has not hitherto been ob- · tained without an order, which, however, may be procured either by motion of course, or by petition at the Rolls. The Orders of 1845 do not seem to dispense with the necessity of an order being obtained for a commission, although they do not in terms allude to the necessity of one hereafter being obtained. The form of the order has been, "that the plaintiff, [or, if the order be obtained by the defendant, the defendant,] may have a commission for the examination of his witnesses in the cause. And that the defendant's [or plaintiff's] solicitor do, in four days after notice thereof, join and strike Commissioners' names with the plaintiff's [or defendant's] solicitor, in default thereof, that the plaintiff [or defendant] may have such commission directed to his own Com missioners." As the practice of joining in commission, and striking Commissioners' names, is abolished by the Orders of 1845, the order for a commission, if any be hereafter necessary, must be different in form to that above stated. Under the Orders of 1845, unless all the parties entitled to examine witnesses agree in the Commissioners to be appointed, and the order in which they are to be named, the whole question is to be settled by the Master. It will not, therefore, be necessary to state in detail the previous practice in striking Commissioners' names and joining in commission, further than that it was the rule for the party suing out the commission to give an opportunity to the opposite party to join therein. In such a case the plaintiff and the defendant, or each set of defendants joining in the commission, used to name four Commissioners, the whole number was then reduced by each party alternately striking out names until there remained two Commissioners for the plaintiff and two for the defendant, or for each set of defendants.1 We have seen that now, under the 94th Order, the Commissioners must be either barristers or solicitors not concerned in the cause, but no further restriction is put upon the character of the persons to be appointed. Before this Order it was a rule that the 1 Hind. 298, 303; 1 Harr. ed. New. 244. Commissioners should have been indifferent persons. A solicitor in the cause could not be a Commissioner; and the policy which excluded solicitor extended also to solicitor's clerks.2 Solicitors' clerks are not mentioned in the 94th Order, probably because now no person is eligible unless either a barrister or solicitor. 3 The common exceptions to commissioners are stated to be these, viz. "that he is of kindred allied to the party for whom he is named; that he is master to the party, his landlord, or partner; that he hath a suit in Law with the party adverse to him for whom the Commissioner is named; or is of counsel; or is attorney, or solicitor, or follower of the cause on one side; that the party is indebted to him; or any other apparent cause of partiality or siding with either party.' It is said, in a book of authority, that "after Commissioners are struck, if it be discovered that one or more of the Commissioners is or are nearly allied, of counsel, solicitor, master, or partner with the plaintiff or defendant, or any apparent cause of partiality or siding with either party can be shown, the Court, upon motion, or the Master of the Rolls, upon petition, will order the opposite party to name Commissioners de novo, in the place of one or more of them so complained against, or that the commission issue ex parte; because, though the Commissioners are named by the party, yet that is but by way of proposal to the Court, for they are the ministers of the Court, and therefore must be impartial." 6 It may also be remarked, that the policy which excludes partial persons from being Commissioner extends also to exclude them from taking any part in a commission; therefore, where the clerk of a solicitor in the cause has been employed as clerk to the Commissioners, the depositions under the commission have been suppressed.7 1 1 Fricker v. Moore, Bunb. 289; Selwyn's Case, 2 Dick, 563. Cooke v. Wilson, 4 Mad. 380. * See Heacock v. Stoddard, 1 Tyler, 344, and Chandler v. Brainard, 14 Pick. 285, cited in note (3). A deposition taken before an uncle of a party to a suit was held inadmissible in New Hampshire. Bean v. Quimby, 5 N. Hamp. 94. * See Smith v. Smith, 2 Greenl. 408; Coffin v. Jones, 13 Pick. 441; Wood v. Cole, 13 Pick. 279. Prac. Reg. 121; Lord Mostyn v. Spencer, 6 Beav. 135. Under the provision, that no person interested shall draw up a deposition to be used in a cause, &c., a son-in-law of a party was held not disqualified in Heacock v. Stoddard, 1 Tyler, 344. See also Chandler v. Brainard, 14 Pick. 285. Newton v. Foot, 2 Dick. 793; Newte v. Foot, 2 Ch. R. 393, S. C. semble ; Cook v. Wilson, 4 Mad. 380; and see Sayer v. Wagstaff, 5 Beav. 462. It is said that if a Commissioner refuses to act, the suitor has no remedy by action against him; it is therefore important, before any person is named as a Commissioner, that the person naming him should ascertain whether he is willing to act. A Commissioner refusing to act might, in all probability, be proceeded against for a contempt of the Court, if without excuse, but doubtless they will not punish a person for it unless his reasonable expenses be allowed.2 As under the present practice one Commissioner is alone to act in the commission, it is obvious that he must be considered in all respects as the officer of the Court whose duty it is to act indifferently to each side; but even before the Orders of 1845, when Commissioners for each side were appointed, it was declared by Lord Eldon, that for Commissioners to consider themselves as acting for one side only, though a very common, is a very gross mistake. They are to act impartially, but, to a certain extent, on both sides; they have under their particular care the interest of the party appointing them.* The 103d Order of May, 1845, has directed, that "The form of a commission to be hereafter issued for the examination of witnesses is to be as follows, with such (if any) variations as the circumstances of the case require. "VICTORIA, &c. "To A. B. and C. D. greeting. "Know ye, that we in confidence of your prudence and fidelity have appointed you, and by these presents do give unto each of you full power and authority diligently to examine all witnesses whatsoever upon certain interrogatories to be exhibited to you in a cause wherein E. F. is complainant, and G. H. and others are defendants; and therefore we command that one of you do at certain days and places to be appointed for that purpose, cause the said witnesses to come before you, and then and there examine each of them apart upon the said interrogatories, either on their respective corporal oaths first taken before you upon the Holy Evangelists, or, in the case of Quakers, upon their solemn affirmation and declaration, or in such other solemn manner as is or may be authorized by law, and that you do take such their exam 1 Hind. 360. See also Blundell v. Gladstone, 9 Sim. 455. 2 Ibid. |