inations, and reduce them into writing on parchment, and when you shall have so taken them, you are to send the same to us in our Chancery without delay wheresoever; it shall then be closed up, and under your seal distinctly and plainly set together, with the said interrogatories and this writ. And we further command you, that before you act in or be present at the swearing or examining any witness or witnesses, you do take the oath first specified in the schedule hereunto annexed.1 And we further command that all and every the clerk or clerks 2 employed in taking, writing, transcribing, or engrossing the deposition or depositions of witnesses to be examined by virtue of these presents shall, before he or they be permitted to act as clerk or clerks as aforesaid, or be present at such examination, severally take the oath last specified in the said schedule annexed, and we also give to you full power and authority to administer such oath to such clerk or clerks in manner aforesaid. Witness ourself at Westminster, the year of our reign. day of in the (Indorsement.) "By order of Court." LANGDALE." (Name and Address of Agent and Solicitor issuing Writ.) It appears from this form, that commissions are in all cases hereafter to be made returnable without delay, the effect of which is, that if the commission be made out in term time, it holds to the first return of the ensuing term: and if made out in the vacation to the last return of the subsequent term.8 By the 106th Order, "The Commissioner having taken the oath, is at the instance of any party entitled to examine witnesses, to sign and deliver to such party a notice in writing, specifying the time and place when and where he will proceed to examine witnesses, and such notice is to be duly served by the party who ob The rules of Chancery in New Jersey provide, that every person who shall be appointed an examiner of the Court of Chancery shall, before he enters upon the execution of his office, take, before the Chancellor or Clerk, an oath or affirmation impartially and justly to perform all the duties of the office, according to the best of his abilities and understanding. Rule III. § 1. See State v. Levy, 3 Har. & McHen. 591. It is not necessary in the United States that there should be a clerk to the commission. Beard v. Heide, 2 Harr. & John. 442. * Hind. 302. tains it upon the solicitors of all the other parties entitled to examine witnesses under the commission, and in case any such party has no solicitor, upon such party at least ten clear days before the day therein named for proceeding to examine witnesses." It appears from these Orders, that hereafter every commission will be for the benefit of all parties entitled to examine witnesses in the cause; and that the Commissioner will have full power both to examine and cross-examine witnesses on behalf of all parties. Moreover, the power of carrying the commission into execution, will not hereafter be confined to the party who has the carriage of the commission, but any party may obtain a notice from the Commissioners of the time and place where he will examine witnesses; and after service of such notice upon the other parties, such party may proceed to examine his own witnesses at the time and place appointed. The time and place of opening a commission having been appointed, the next thing to be done is to secure the attendance of the witnesses. This may be effected by summons from the Commissioners, unless it is supposed that the witness will not attend voluntarily, in which case a subpæna ad testificandum must be resorted to.1 The summons must be entitled in the cause, and has hitherto been in the following form: "Whereas we have received a commission issuing out of and under the seal of the High Court of Chancery, to us and to others therein named directed, for the examination of witnesses in a cause in the said Court depending between John Doe and others, plaintiffs, and Richard Roe and others, defendants; and whereas we are informed that you whose names are hereunder written are material witnesses for [the plaintiffs or the defendants]; we therefore, by virtue of the commission, will and require you and every of you, severally and personally, to be and appear before us, the said Commissioners, or any two or more of us, at the house of by the name or sign of on the in the situate in day of known instant, at the hour of noon, to testify the truth, according to the best of your knowledge, for and on behalf of the said [plaintiffs or defendants]; and you are then and there to attend, and not to depart 'See 78th Equity Rule of the United States Courts. until you have been examined on the part of the [plaintiffs or defendants]; and herein you are not to fail. Dated," &c.1 If the production of a document is required, a notice to produce it must be added to the summonses in the same form as the duces tecum clause in a subpoena. These summonses have hitherto been signed by two or more of the Commissioners, but it is presumed that hereafter the signature of the acting Commissioner will be sufficient. They must be directed to the witnesses by name, and served upon each witness by showing him the original summons, and leaving a copy with him a reasonable time before the execution of the commission, with one shilling conduct money. But if a witness resides at any great distance from the place where the commission is to be executed, his reasonable expenses must be paid or tendered to him, otherwise he is not bound to appear; nor, if he appears, is he bound to give evidence until his reasonable expenses are actually paid or tendered to him.3 No process of contempt lies upon a disobedience of this summons, no writ under seal being directed to the witness; and therefore it is that a summons should be served upon those witnesses only whose attendance can be depended upon.* A subpæna ad testificandum before Commissioners is in the same form as a subpæna ad testificandum before the Examiner,5 save that instead of commanding the attendance of the witness before the Examiner it commands his attendance "before A. B. and others, Commissioners, appointed for the examination of witnesses in our Chancery, at such time and place as the bearer hereof shall, by notice in writing, appoint." 6 The regulations as to suing out the writ, and for serving it, and the notice accompanying it, are the same as those already pointed out with reference to a subpœna ad testificandum before the Ex 1 Hind. 336. ? Ibid. * Ibid. 337. Ibid. It is suggested, in the same work, that the Court, in aid of the Commissioner's summons, might, upon disobedience to it, so far interpose as to make an order for the witness to attend at the examination for the purpose of being examined, &c.; but this seems to be doubtful; and the safest way, when there is any doubt of the witness's attendance, is to serve him with a subpœna. Ante, p. 900, 901. • Ord. May, 1845, Appx. aminer. It must also be accompanied by a similar notice of the time and place of attendance. If the witness, having been duly served with the subpæna and notice, neglects or refuses to appear, or having appeared, refuses to give evidence or sign his deposition, &c., an order may be obtained for the witness's attendance, at his own expense, to be sworn and examined before the Commissioner within four days, or that he may stand committed, &c., in the same manner that such an order is obtained upon a witness making default in his attendance before the Examiner; 2 and the same compulsory line of process may then be gone through to enforce obedience to the order.3 If a witness, served with a subpœna duces tecum, refuses to produce the document mentioned in the subpæna, upon being required to do so by the Commissioners, an application may be made to the Court by motion, when, if the witness shows no sufficient ground for withholding the production, an order will be made that he attend again before the Commissioners, and produce it, and pay the plaintiff the costs occasioned by his previous refusal.5 The Commissioner and witnesses having met at the time and place appointed by the notice for the execution of the commission, the commission, which till that time must remain sealed, may be opened and read by the Commissioner to see his authority.6 Although two Commissioners are hereafter to be appointed in every case, yet it seems that as the second is only to act when the first is incapacitated, there will be no necessity for both to attend upon the opening of the commission. 1 Ante, p. 901. * Ante, p. 902; Hind. 339, 340. Ante, p. 903; Hind. 339, 340. Commissioners may summon a witness to attend before them; and the Court will compel the witness to do so; but a commission should be issued so as to have the examination at a reasonable distance from the residence of the witness. Maccubbin v. Matthews, 2 Bland, 250. See 78th Equity Rule of the United States Courts, by which it is provided that witnesses may be summoned to appear before the commission by subpoena in the usual form, which may be issued in blank by the Clerk, and filled up by the party praying the same, or by the Commissioner. See Rule XIII. § 5, of the New Jersey Chancery Rules. 4 ✦ Bradshaw v. Bradshaw, 1 Russ. & M. 358. Commissioners are entitled to demand the production of the document by the witness, although there is no interrogatory as to the fact of his having it in his possession. 5 Bradshaw v. Bradshaw, ubi supra. • Hind. 342. The 107th Order of May, 1845, directs that "All depositions of witnesses are to be taken and expressed in the first person of the deponent." By the 108th, "If the examination of witnesses cannot be completed in one day, and the circumstances of the case permit, the Commissioner is to proceed de die in diem during six hours of each day between the hours of eight in the morning and six in the afternoon, until the witnesses for all parties are fully examined; nevertheless, the Commissioner may, if in his opinion the circumstances of the case require an adjournment, adjourn the proceedings from time to time, and from place to place, in such manner as he thinks proper, but he is in all cases to enter on the depositions any adjournment, and where such adjournment is from place to place or otherwise than de die in diem, the cause or reason of such adjournment, and he is also to enter on the depositions the hours of the day on which he commences and concludes the examination of witnesses on each day, and the true cause of his not proceeding for the full time of six hours on each day, if such should be the case." 1 By the 109th Order, "When the examination of witnesses is completed, the Commissioner is to seal up the depositions, and is to transmit the same sealed up with the commission to the Record and Writ Clerk's Office." Under these Orders the Commissioner is empowered to adjourn the proceedings; a similar power has always existed in the Commissioners, if they agreed in the necessity of making an adjournment.2 The fair course of proceeding, however, is not to adjourn without necessity; the examination should be completed as far as it can be done uno actu, that there may be as little opportunity as possible to divulge the depositions; 3 and it seems that formerly if the plaintiff or his Commissioners abused the carriage of the commission by making unnecessary adjournments, or an irregular examination of witnesses, such a proceeding entitled a defendant to have a commission of his own and the carriage of it.1 As soon as the commission has been opened and read, both parties must, if they intend to examine witnesses, exhibit their inter 1 See Hunter v. Fletcher, 5 Rand. 126; Edgell v. Lowell, 4 Vermont, 412. Brown v. Vermuden, 1 Cha. Ca. 282; Hind. 352. 2 Hind. 353. • Ibid. |