wherein the party is restricted to return the commission, and in commissions of this nature, no restriction as to time is imposed, as it is in the case of ordinary commissions. But this latitude of returning the commission must not be converted to oppressive purposes, and if the commission be not executed and returned within a reasonable time, due allowance being made for the distance and other concurrent circumstances of time and place, the Court, upon application by motion, will, if it appear that unnecessary or wilful delay has been occasioned, interfere; and probably, in a gross case, it will so far interfere, as to make an order upon the party to expedite and return the commission by a limited time; and, in default, order publication to pass and let the cause proceed to a hearing.2 Where a commission is made returnable on.a general return day in term, the return is usually settled by the solicitors, or by the Court if they differ. The return in such cases, must be made to depend upon the distance of the place where the execution of the commission is to be had.3 With respect to the execution of a commission to examine witnesses abroad, it is in general similar to the manner in which a commission is executed in England; so that it is only necessary to refer the reader to what has before been written on the subject, and to point out a few particulars which cause a difference in the practice. In the first place it is to be observed, that as the witnesses are resident out of the jurisdiction of the Court, no compulsory process can be resorted to for the purpose of compelling their attendance to be examined; (except in the case of commissions directed to the Judges of the Courts in the East Indies, under the 13 Geo. III. c. 63, s. 44, before referred to, where the witnesses are amenable to the process of those Courts ;) therefore no subpœna can be issued for that purpose. All, therefore, that can be done is to summon the witnesses by notice or letter. Where the adverse party resides in England, it would, in most 1 Wake v. Frankling, 1 S. & S. 97. * Hind. 307. Ibid. See Coles v. Thompson, 1 Caines, 517; Hesketh v. Mulock, cited Graham Prac. (2d ed.) 601. In the Court of Chancery it seems, that where a commission to examine witnesses has not been returned, it will be necessary to make an application to the Court to extend the time for closing the proofs; otherwise, they can be closed, as in ordinary cases. Barrett v. Pardow, 1 Edw. Ch. 11. cases, be impossible to give him such notice of the time and place of executing a commission abroad as is essentially necessary to the regular execution of a commission to examine witnesses in England; such notice, therefore, is usually dispensed with, the Court, from the emergency of the occasion, substituting notice to the adverse party's Commissioners or to his agent, in lieu of notice to the party himself. For this purpose, the order for the commission, besides directing the adverse party, within a limited time, to join and strike Commissioners' names, directs him to name an agent in the place where the commission is to be executed, to whom notice of the execution of the commission is to be given, and orders, that service of the notice upon such agent shall be good service, and that in default of joining in commission or naming an agent, the commission shall, issue ex parte. Sometimes the order does not direct the adverse party to name an agent; in such case, it seems necessary that the party applying for the commission should make a subsequent application, by motion or petition at the Rolls, for an order as of course, that he may be at liberty to serve any one or two of the adverse party's Commissioners with notice of the execution of the commission. Where a commission had been issued to examine witnesses abroad, the plaintiff, after the Commissioners' names had been struck, moved that he might be at liberty to serve any one or two of the defendant's Commissioners with notice of the execution of it, when it was alleged on the other side that the rule of the Court was, that the plaintiff should serve such two of the defendant's Commissioners as the defendant should choose; but Lord Hardwicke ordered, that the plaintiff should be at liberty to serve any two of the defendant's Commissioners, observing, that the rule never could be as laid down, because it would be attended with this inconvenience, that, if the two particular Commissioners chosen by the defendant should happen to be absent from the place appointed 1 Ibid. 362. No notice of the time and place of executing a commission out of the State is necessary to be given to the opposite party in Maryland. Owings v. Norwood, 2 Har. & John. 96. But time should be given, to allow the opposite party to exhibit interrogatories. Ib. The services of copies of the interrogatories, which accompany a commission, on the adverse party, a sufficient time before the issuing of the commission, to enable him to file cross-interrogatories, is sufficient notice of the issuing of the commission, and of the time and place of executing it. Law v. Scott, 5 Har. & John. 438. for the execution of the commission, or either of them should be dead, it could not be executed.1 The label to the commission, in general, points out the person or persons to whom the notice of the commission is to be given.2 The examination and cross-examination of the witnesses under a commission to examine abroad, are subject to the same rules and regulations as examinations under commissions in England 3 or before the Examiner. The return must also be made in the same manner. Where any oaths other than the ordinary Christian oaths have been administered to the witnesses, the return must state in what manner the oaths have been administered, and of what religion such witnesses are.5 It may be noticed, in this place, that, under a commission to examine witnesses who cannot speak English, the usual and proper course is to take down the depositions from the interpreter in English. This, however, does not appear to be absolutely necessary, since, in some cases, examinations taken down in a foreign language have been recognized by the Court. If the depositions are taken down in the language of the witness, they must afterwards be translated, out of that language into English, by a person appointed by the Court for such purpose, who must be sworn to the truth of his translation, and must attend at the office for the purpose of making it, for the Court will not make an order for the record of the depositions to be delivered out, in order that they may be translated.8 The translation, after the truth has been sworn to, is annexed to the record, and an office copy made of it, which will be permitted 1 Anon. 3 Atk. 633. 2 Hind. 310. Ante, pp. 933, 934. 4 Ibid. p. 933. Under the New York Act of 17th of April, 1823, parties. and their counsel have a right to be present at the examination of witnesses and to cross-examine in all cases; and this as well upon commissions issued to examine witnesses out of the State as in other cases. Steer v. Steer, Hopk. 362. See Wiggins v. Pryor, 3 Porter, 431, cited ante, 936 note. For the practice in New Hampshire on this subject see Marston v. Brackett, 9 N. Hamp. 345, 346, cited ante, 889, note. ⚫ Omychund v. Barker, 1 Atk. 21, and ante, p. 948. Lord Belmore v. Anderson, 4 Bro. C. C. 90. 1 Newl. Ch. Pr. 279. Fauquier v. Tynte, 7 Ves. 292. See Gilpins v. Consequa, 1 Peters C. C. 85, cited ante, 947, note. to be read at the hearing; an order for that purpose having been previously obtained, which is usually applied for at the same time that the application is made for the appointment of a person to translate the depositions.1 Where a commission has been executed abroad, the person who takes it out and returns it ought to make affidavit that he received it from the Commissioners; 2 in an old case, however, leave was given to send and return a commission by the post; and in another, where the messenger who brought the commission from abroad, being detained in quarantine after his arrival in this country, sent it up by the coach to the solicitor in London, the seal being still unbroken, it was received.1 Where a commission for the examination of witnesses in Lisbon was executed, and forwarded with the depositions to England, but the ship in which they were sent was lost on the passage, the Court ordered the Commissioners, or any two of them, to transmit the drafts of the depositions, and to certify the circumstances of the return of the commission, but would not make any order for reading the drafts of the depositions, &c., at the hearing of the cause, until after the Commissioners had made their return and certificate.5 It seems that a commission to examine witnesses abroad will not be affected by an abatement of the suit; and that depositions taken under it (provided neither Commissioners nor the witnesses have received notice of the abatement) will be good evidence.6 The rule as to the costs of a commission to examine witnesses abroad is, that they are to be borne by the party obtaining it; but that if the opposite party examines under it in chief, he must bear his proportionate share. The costs of a solicitor attending the execution of a commission abroad will not be allowed in taxation.8 1 1 Newl. Ch. Pr. 279. Bourdillon v. Alleyne, 4 Bro. C. C. 100. 'Newland v. Horsman, 2 Ch. Ca. 74. See Winston v. Miller, 1 Stew. 508. ✦ Bourdieu v. Trial, 2 Fowl. Ex. Pr. 80. When a commission from the Court of Chancery to take testimony is returned, it is opened by the Chancellor or his registrar, and objections of every kind are taken and considered at the hearing of the cause. Strike v. M'Donald, 2 Harr. & Gill. 192. Burn v. Burn, 2 Cox, 426; see also Jones v. Donithorne, 1 Dick. 352. • Thompson's Case, 3 P. Wms. 195; Winter v. Dancie, Toth. 99. 'Jackson v. Strong, 13 Pri. 309. • Hamond v. Wordsworth, 1 Dick. 381. Letters Rogatory. Where the government of a foreign country, in which the witnesses proposed to be examined reside, refuses to allow the Commissioners to administer oaths to such witnesses, . or to allow the commission to be executed, unless it be done by some magistrate or judicial officer there, according to the laws of that country, letters rogatory must be issued.1 By these letters, the Court abroad is informed of the pendency of the cause, and the names of the foreign witnesses, and is requested to cause their depositions to be taken, in due course of law, for the furtherance of justice, with an offer, on the part of the tribunal making the request, to do the like for the other in a similar case. The writ or commission is usually accompanied by interrogatories, filed by the parties on each side, to which the answers of the witnesses are desired. The commission is executed by the Judge who receives it, either by calling the witness before himself, or by the intervention of a Commissioner for that purpose; and the original answers, duly signed and sworn to by the deponent, and properly authenticated, are returned with the commission to the Court from which it issued. A special application must be made to the Court, to obtain an order for letters rogatory, and they would, it seems, be issued in the first instance without sending a previous commission, upon satisfactory proof that the authorities abroad would not permit its execution.8 1 These letters are sometimes called requisitory. Nelson v. United States, 1 Peters C. C. 236. Commissioners are not allowed to administer an oath to witnesses in the Island of St. Croix. Lincoln v. Battelle, 6 Wendell, 476. So in Havana. Nelson v. United States, supra. And in Sweden. Gason v. Wordsworth, 2 Ves. Sen. 336. 1 Greenl. Ev. § 320. * 1 Hoff. Ch. Pr. 482. The following form may be found in 1 Peters C. C. 236, note (a): UNITED STATES OF AMERICA, District of , in the kingdom of , 88. The President of the United States, to any Judge or tribunal having jurisdiction of civil causes, in the city (or province) of Greeting: [L. S.] Whereas, a certain suit is pending in our Court, for the District ,] and of , in which A. B. is plaintiff [or claimant, against the ship C. D. is defendant, and it has been suggested to us that there are witnesses, residing within your jurisdiction, without whose testimony justice cannot completely be done between the said parties; We therefore request you, that in furtherance of justice, you will by the proper and usual process of your Court, cause such witness or witnesses, as shall be named or pointed out to you by the said parties, or either of them, to appear before you or some |