issued by the defendant, or where both parties have joined in it (2 Johns. Cas. 70; 1 Caines' R. 115, 503), the plaintiff, after the lapse of a reasonable time, may move for leave to proceed to trial, notwithstanding the commission (23 Wend. 38; 2 Sand. 690; 3 Code Rep. 202). It may be resisted by the defendant on the ground that the delay of returning the commission has been occasioned by the plaintiff (2 Johns. 196; 2 Caines' R. 47).

a. If the plaintiff have leave to proceed, and proceeds to trial, the defendant may apply at the circuit to put off the trial (1 Caines' R. 503, note; 2 ib. 46; 2 Sand. 690; 3 Code Rep. 202; 18 Wend. 657). If, without leave of the court, the plaintiff go to trial, and the defendant appear and examine witnesses, it is a waiver of the commission (1 Caines' R. 73).

b. Where sufficient time has elapsed prima facie to have the return of a commission issued with a stay of proceedings, the stay will be vacated on motion of the adverse party; and, on the cause being called for trial, the party who issued the commission must establish the grounds, if any he has, for a further stay (Voss v. Fielden, 2 Sand. 690).

c. Commissioners.—The adverse party may object to the commissioners named in the moving papers (3 Johns. 251; 2 Wend. 62). The commission to examine a witness in a foreign state or county may be directed to a resident of this State (3 Caines' R. 105).

d. Interrogatories and directions for return of commission.-Interrogatories are to be annexed to the commission; they must be signed by counsel, and settled before a justice of the court (2 R. S. 394, § 14). A county judge has no power to settle interrogatories in an action in the supreme court (Erwin v. Voorhies, 26 Barb. 127).

e. To procure the settlement, serve a copy of the interrogatories, and a notice (of four days) of the time and place at which they will be presented for settlement, on the opposite attorney. The opposite party may propose cross-interrogatories, a copy of which must be served two days before the time of settlement of the interrogatories (see 1 Edw. Ch. R. 649).

f. Where parties join in a commission they should deliver their interrogatories simultaneously (Brush v. Vanderburgh, 1 Edw. Ch. R. 649).

g. At the time of settlement either party may except to the interrogatories of the other, and the judge shall decide on the exception. If an interrogatory is allowed to pass without exception, the answer to such interrogatory cannot be objected to at the trial, as incompetent evidence, provided it be fairly within the scope of the interrogatory (6 Cow. 404; 2 Wend. 65, 71, contra). Further questions may also be proposed, and if allowed, inserted among the interrogatories.

h. The settlement of interrogatories is equivalent to passing upon questions propounded to a witness when called to testify at the trial (Macdonald v. Garrison, 2 Hilton, 510).

. In settling the interrogatories the judge will, if required, disallow such as there is reasonable ground to suppose do not relate to the issues to be tried (Macdonald v. Garrison, 2 Hilton, 510; 9 Abb. 178; Blaisdell v. Raymond, 9 Abb. 178, note).

j. The interrogatories being settled and engrossed, the judge indorses his allowance, and directs the manner in which the commission, with the interrogatories annexed, shall be returned (2 R. S. 394, §§ 14, 15).

k. In the supreme court, the direction usually is, that it be returned by mail, addressed to the clerk of the county in which the trial is to be had, designating the name and residence of such clerk (2 Hill, 502).

7. Where the place of trial of an action was changed, and a commission was afterward issued and was directed to be returned to the clerk of the county originally named in the complaint as the place of trial, instead of the clerk of the county to which the trial was changed, it was held, that as it did not appear but that the place of trial was changed merely for the convenience of witnesses, the direction was proper (Whitney v. Wynkoop, 4 Abb.

able, or in the county adjoining that in which it is triable (Sturgess v. Weed, 13 How. 130; Newcombe v. Reed, 14 id. 100; Erwin v. Voorhies, 26 Barb. 127).

a. An order for a commission taken by default, is not a nullity because the motion papers do not disclose the name of the county in which the action is to be tried. If necessary to show the place of trial it can only be to show that the motion is made in the proper county (Blackman v. Van Inwagen, 5 How. 367).

b. The application is founded on an affidavit, stating that the cause is at issue, and the names of the witnesses, except where their names are unknown (2 Hall, 502); that he has fully and fairly stated the case to counsel (19 Wend. 98); and that the witnesses are material, as the party is advised, by said counsel after such statement, and verily believes, and are without the State (2 Johns. Cas. 68, 285; 1 Wend. 65; 7 Barb. 631). And if the defendant makes the application, and asks for a stay of proceedings until a return of the commission, but not otherwise (9 Wend. 444), he must swear to merits (1 Wend. 27; 4 Hill, 534; 2 Johns. Cas. 285).

c. The affidavit may be made by the attorney (7 Wend. 513); or any third person cognizant of the facts (1 Cow. 210); and when made by the attorney it need not state the advice of counsel as to the materiality of the witnesses (7 Wend. 513). The agent in fact of the plaintiff, acting under a letter of attorney, may make the affidavit without showing any excuse why it is not made by the party (1 Cow. 210; 2 Johns. Cas. 69; Johnson v. Lynch, 15 How. 200). The fact that the party applying for a commission is not a resident of the city of New York, and is absent therefrom, is a sufficient excuse for the making the affidavit in support of the application by the attorney instead of the party (Eaton v. North, 7 Barb. 631; Deshays v. Persee, 9 Abb. 289, note). Where no laches are imputable to a party applying for a commission, and there is nothing to cast suspicion upon the application, he is not bound to state what he expects to prove by the witness whose testimony he seeks to procure (id.)

d. The notice of motion should contain the names of the proposed commissioners.

e. If the motion is made by the plaintiff, it should be made as soon after issue joined as practicable (7 Wend. 513); and when by the defendant, it should be made before notice of trial; otherwise he must pay costs to that time (1 Johns. Cas. 391), unless it appear that he has used due diligence (1 Wend. 283; Brokaw v. Bridgman, 6 How. 114).

f. If the bona fides of the application is doubtful, the commission will not be ordered on the common affidavit (3 Johns. Cas. 137; 7 Wend. 514).

g. Stay of proceedings.—The defendant may obtain a stay of proceedings, to enable him to move for a commission, and he has twenty days after the cause is at issue to move for a commission with a stay (1 Sand. 717; 1 Code Rep. 96).

h. A commission with a stay will not be refused upon affidavit that the witnesses named are incompetent, but the court will leave the question as to their competency to be determined at the trial (11 Johns. 200).

i. The court will usually stay the proceedings until the return of the commission. The granting a stay is in the discretion of the court or judge to whom the application is made, and the court will not review the exercise of such discretion; but perhaps the court would review an order refusing to stay proceedings until the return of a commission (Thatcher v, Bennett, MS)

j. The order for a commission is not, per se, a stay of proceedings (7 Wend. 520). If a stay of proceedings has been granted with the commission, the party obtaining it must use all diligence to have it returned within a reasonable time. If issued by the plaintiff, the defendant, after the expiration of a reasonable time, may move the court for judgment, as in case of nonsuit, and compel the plaintiff to stipulate (1 Caines' R. 517; 23 Wend. 38; 2 Caines' R. 47).

k. Delay in procuring return.-Where the commission has been

issued by the defendant, or where both parties have joined in it (2 Johns. Cas. 70; 1 Caines' R. 115, 503), the plaintiff, after the lapse of a reasonable time, may move for leave to proceed to trial, notwithstanding the commission (23 Wend. 38; 2 Sand. 690; 3 Code Rep. 202). It may be resisted by the defendant on the ground that the delay of returning the commission has been occasioned by the plaintiff (2 Johns. 196; 2 Caines R. 47).

a. If the plaintiff have leave to proceed, and proceeds to trial, the defendant may apply at the circuit to put off the trial (1 Caines' R. 503, note; 2 ib. 46; 2 Sand. 690; 3 Code Rep. 202; 18 Wend. 657). If, without leave of the court, the plaintiff go to trial, and the defendant appear and examine witnesses, it is a waiver of the commission (1 Caines' R. 73).

b. Where sufficient time has elapsed prima facie to have the return of a commission issued with a stay of proceedings, the stay will be vacated on motion of the adverse party; and, on the cause being called for trial, the party who issued the commission must establish the grounds, if any he has, for a further stay (Voss v. Fielden, 2 Sand. 690).

c. Commissioners.-The adverse party may object to the commissioners named in the moving papers (3 Johns. 251; 2 Wend. 62). The commission to examine a witness in a foreign state or county may be directed to a resident of this State (3 Caines' R. 105).

d. Interrogatories and directions for return of commission. Interrogatories are to be annexed to the commission; they must be signed by counsel, and settled before a justice of the court (2 R. S. 394, § 14). A county judge has no power to settle interrogatories in an action in the supreme court (Erwin v. Voorhies, 26 Barb. 127).

e. To procure the settlement, serve a copy of the interrogatories, and a notice (of four days) of the time and place at which they will be presented for settlement, on the opposite attorney. The opposite party may propose cross-interrogatories, a copy of which must be served two days before the time of settlement of the interrogatories (see 1 Edw. Ch. R. 649).

f. Where parties join in a commission they should deliver their interrogatories simultaneously (Brush v. Vanderburgh, 1 Edw. Ch. R. 649).

g. At the time of settlement either party may except to the interrogatories of the other, and the judge shall decide on the exception. If an interrogatory is allowed to pass without exception, the answer to such interrogatory cannot be objected to at the trial, as incompetent evidence, provided it be fairly within the scope of the interrogatory (6 Cow. 404; 2 Wend. 65, 71, contra). Further questions may also be proposed, and if allowed, inserted among the interrogatories.

h. The settlement of interrogatories is equivalent to passing upon questions propounded to a witness when called to testify at the trial (Macdonald v. Garrison, 2 Hilton, 510).

i. In settling the interrogatories the judge will, if required, disallow such as there is reasonable ground to suppose do not relate to the issues to be tried (Macdonald v. Garrison, 2 Hilton, 510; 9 Abb. 178; Blaisdell v. Raymond, I Abb. 178, note).

j. The interrogatories being settled and engrossed, the judge indorses his allowance, and directs the manner in which the commission, with the interrogatories annexed, shall be returned (2 R. S. 394, §§ 14, 15).

k. In the supreme court, the direction usually is, that it be returned by mail, addressed to the clerk of the county in which the trial is to be had, designating the name and residence of such clerk (2 Hill, 502).

7. Where the place of trial of an action was changed, and a commission was afterward issued and was directed to be returned to the clerk of the county originally named in the complaint as the place of trial, instead of the clerk of the county to which the trial was changed, it was held, that as it did not appear but that the place of trial was changed merely for the convenience of witnesses, the direction was proper (Whitney v. Wynkoop, 4 Abb.

a. Form of commission.-To the commission should be annexed a copy of the sixteenth section of article 2, title iii., chap. vii., part iii., of the revised statutes (which contains instructions to the commissioners for executing the commission), together with any other particular directions that special circumstances may render necessary (Smith v. Randall, 3 Hill, 395). This provision is directory only, if the body of the commission contain the direction, although no directions are indorsed, it is sufficient (Hall v. Barton, 25 Barb. 274). These provisions do not apply to commissions issued by justices of the peace (id.) If the commission be correctly executed, the court will presume that a copy of the said sixteenth section was annexed, until the contrary is shown (1 Hill, 249). The direction as to the manner of returning a commission must be signed by the officer settling the interrogatories, or the deposition cannot be read in evidence (Crawford v. Loper, 25 Barb. 449).

b. If any deeds or writings are to be proved, they, or copies thereof, should be annexed to the interrogatories, for the purpose of reference, description, and identification, producing the original on the examination of the witness. It is not indispensable that the original be annexed to the interrogatories (Commercial B'k of Pa. v. Union B'k of N. Y. 11 N. Y. 203). Nor has the court the power to order the original instrument to be annexed to the commission (Butler v. Lee, 32 Barb. 75; 19 How. 384).

c Where by mistake the name of C. instead of K. was inserted in the caption of the commission, the name of K. being on the commission and the commission being executed by K.,-held, the error might be disregarded (Hall v. Barton, 25 Barb. 274).

d. Further instructions are contained in the printed forms of commissions sold by the law stationers.

e The witnesses to be examined should be named in the commission; and this is a rule which is only departed from under very special circumstances, and never when, by reasonable diligence, the names of the witnesses can be ascertained (Wright v. Jessup, 3 Duer, 642; see McMahon v. Allen, 18 Abb. 292). Where, by mistake, a witness intended to be examined was not rightly named in the commission, but the commissioners, notwithstanding such mistake, examined the witness,-held, that the deposition was extra-judicial, and could not be read in evidence (Brown v. Southworth, 9 Paige, 352).

f. The commission should be sealed with the seal of the court out of which it issued (Whitney v. Wynkoop, 4 Abb. 370; Tracy v. Suydam, 30 Barb. 110; Ford v. Williams, 24 N. Y. 359).

g. The court will not depart from the usual method of issuing commissions to take testimony in foreign countries, unless important advantages to be gained by some other mode are shown (3 Bradf. Surr. R. 249).

h. The execution and return of the commission.-Want of diligence on the part of a plaintiff in obtaining a return to a commission entitles the defendant to move for a nonsuit (Coles v. Thompson, Col. & C. Cas. 330); see ante, p. 615 j.

i. The court will intend that the oath was publicly administered when the commissioners certify that they administered the oath; and such oath will be deemed to apply to the interrogatories on both sides (23 Wend. 38); and it need not appear by the return that the oath was publicly administered (1 Hill, 249). And a deposition has been received in evidence, although the oath to the witness was not administered by the commissioners, it appearing that they were prohibited from administering it, and that it was, in fact, administered by the local authorities (6 Wend. 476). But where it appeared by the return that the witnesses had been sworn "to make true answers to the interrogatories read to them," instead of being sworn "to tell the truth, the whole truth, and nothing but the truth," as the statute requires, it was held that the oath administered was insufficient, and the testimony taken under the commission not properly receivable in evidence (Whitney v. Wynkoop, 4 Abb. 370).

j. The absence of the return which the statute requires the commissioner

to indorse upon the commission, though it may be a good reason for not allowing the deposition to be read on the trial, is not ground for suppressing the deposition upon motion. The defect may be cured by sending back the commission to the commissioner to amend his return (Creamer v. Jackson, 4 Abb. 413).

a. It is immaterial in whose handwriting the depositions are; the commissioners may employ a clerk (3 Peters, 8), although they are not bound to do so (2 Har. & Johns. 442).

b. On the execution of a commission, the parties have a right to appear by counsel (Union B'k of Sandusky v. Torrey, 2 Abb. 269; and see 8 Blackf. 443).

c. Cross-interrogatories cannot be withdrawn on the execution of the commission, unless by the consent of the adverse party (2 Abb. 269). Subsequently it was held that it is not a valid objection that cross-interrogatories in a commission, offered in evidence, are not all answered, where it appears that some of them, in whole or in part, are answered by reference to previous answers, the latter being full and explicit (McCarty v. Edwards, 24 How. 237; see, however, 2 Code, Rep. 64; 5 Duer, 626).

d. Under a commission for the examination of a foreign witness who cannot speak English, the deposition must nevertheless be taken in English, by means of an interpreter (Belmore v. Anderson, 2 Cox Chan. Cas. 288).

e. A deed or other exhibit, proved under a commission, must be annexed to and returned with the commission (20 Johns. 361), except it be in the custody of the law; then a copy is sufficient, and the exhibit may be produced on the trial, separate from the commission (6 Cow. 144). And where notes offered in evidence, as proved by a witness examined on commission, were attached to and returned with his deposition, were marked A. and B., and had the names of the witness and the commissioners written upon them, and the witness in the deposition described the notes, to which he testified by dates, amounts, &c., corresponding with those of the notes offered, and stated they were produced to him on his examination, marked A. and B., and that he wrote his name upon them, and the commissioners in their return certified that the notes attached to the deposition were produced to the witness on his examination, and he signed his name thereon in their presence,—held, that the notes offered in evidence were sufficiently identified as those testified to by the witness (Brumskill v. James, 11 N. Y. 294). Witnesses may be examined under a commission in respect to an original paper, by annexing a copy thereof to the interrogatories, and producing the original upon the examination and having it identified by the witness. The original need not be annexed to the interrogatories (Comm. B'k of Penn. v. Union B'k of N. Y. 11 N. Y. 203). Where an exhibit proved before a commissioner was a bill of sale executed by J. M. and wife, and the commissioner certified that the same was produced and shown to the said J. M., a witness sworn and examined, and by him deposed unto,-held the certificate was sufficient (Hall v. Barton, 25 Barb. 274).

f. Where the return was written on the deposition, and the deposition, commission, &c., were all annexed together in such a manner that the return could not be separated from the commission and the evidence,-held a substantial compliance with the statute (Hall v. Barton, 25 Barb. 274; McCleary v. Edwards, 21 id. 239). And in Pendell v. Coon (20 N. Y. 134), the court of appeals held that the return need not be indorsed on the commission itself, nor upon a paper containing the depositions annexed or any part thereof; but that where it is necessary by reason of the paper containing the deposi tions being filled thereby, to annex an additional sheet of paper, the return may be upon such additional sheet.

g. The deposition of a witness examined on interrogatories is admissible, although it appears on his examination he referred to papers which he refused to allow the commissioner to see (Steinkeller v. Newton, 2 M. & Rob, 372).

h. The signature of a commissioner will be judicially noticed, though his