name be not written at length (1 Hill, 249). The annexing the papers together by wafers is sufficient. A tape and seal are not necessary (ib.) When a commission is directed to two, either or both of whom being authorized thereby to execute it, and the return is by only one of them, it will be presumed that he alone was present at its execution (ib.)

a. It will be presumed that the commissioner who took the testimony closed and sealed the package himself, and that he discharged his duty by doing all those things in the execution of the commission which he is not bound to certify specifically as done. And when the manner of the return is provided for by stipulation, it will be no objection to the reading of the depositions, that the direction on the return does not specify the clerk's residence (id.)

b. It cannot, however, be urged on the trial as an objection, that the depositions were not deposited in the post-office immediately after they were taken (23 Wend. 38).

c. Although there be nothing on the envelope, or elsewhere, showing that the commission was deposited as required by the statute, or that it was returned by mail, it will be presumed that the commission was so deposited and returned (Hall v. Barton, 25 Barb. 274).

d. If the packet containing the commission and return be transmitted by mail, the clerk to whom it is addressed must receive it from the post-office, and open and file it in his office. If delivered to an agent, he must deliver the packet to the clerk to whom it is directed, or to one of the judges of the court, who will receive and open it on the agent making affidavit that he received it from the hands of one of the commissioners, and that it has not been opened or altered since he received it.

e. If the agent be dead, or from sickness or other casualty be unable to deliver such packet personally, it may be received by the clerk or judge from the hands of any other person, upon such person making affidavit that he received the same from the agent, that the agent is dead or otherwise unable to deliver it, that it has not been opened or altered since such person received it, and that he believes it has not been opened or altered since it came from the hands of the commissioners.

f. Where a commission is returned by an agent, his affidavit, as prescribed by statute, that he received it from the hands of the commissioner, and that it has not been opened or altered since he received it, is indispensable, unless waived by consent. A commission returned by express, and unaccompanied by such affidavit, is inadmissible, although that method of returning it was expressly authorized by the commission (Dwinelle v. Howland, 1 Abb. 87).

g. The clerk or judge receiving and opening the commission, must immediately file the same in the office of the clerk of the court from which it issued, or, if the action be pending in the supreme court, in the office of the clerk of the county in which the action is triable (20 Johns. 357).

h. The parties, or their attorneys, may agree in writing on the manner in which the commission shall be returned; and on filing such agreement in the clerk's office, the attorney for the party suing out the commission may indorse on it a direction according to such agreement, and the commission shall be returned accordingly.

i. Where the direction as to the return of a commission required it to be inclosed in a wrapper and deposited in the post-office at Toronto by the commissioners, directed to W. B., Buffalo, and a certificate thereof indorsed upon the wrapper by the commissioners, and the commission was received from the post-office at Buffalo, post-marked "Toronto,"-held, that it was not requisite that the certificate on the wrapper should state that the commission was deposited in the post-office by the commissioners (Brumskill v. James, 11 N. Y. 294). In the foregoing case the certificate was, "We certify that within is contained the commission, interrogatories, exhibits, depositions, and the examinations, taken before us in a certain suit, where Thomas Brumskill is plainttiff, and William I. James is defendant."

a. Filing. The commission, return, depositions, and exhibits annexed, are required to be kept on file in the office of the clerk to whom they were addressed (unless otherwise directed by a special order of the court), when they are to be at all times open to the inspection of the parties, who are entitled to copies on payment of the fees allowed by law.

b. Reading on trial.-On the trial of the cause, the examination and depositions taken under the commission (or an exemplification thereof, where the originals are filed in any other county than that in which the cause is tried), may be offered and used in evidence by either party (Weber v. Kingsland, 8 Bosw. 416).

c. Every objection to the competency or credibility of a witness so examined, or to the competency or relevancy of any question put to him, or of any answer given by him, may be made in the same manner and with the like effect as if the witness were personally examined at the trial. The objection to an interrogatory annexed to a commission, on the ground of its being leading, may be made when the answer of the witness is proposed to be read in evidence; especially when the interrogatories are annexed under a stipulation expressly saving all legal exceptions (Fleming v. Hollenback, 7 Barb. 271). And generally it is in time to take exceptions to interrogatories when the answers are offered in evidence on the trial (2 Wend. 65, 71; 6 Cow. 404, 416, contra). But the statute provision reserving to the parties every objection to the competency or relevancy of any question put to or answer given by a witness examined upon commission, is not applicable to a case in which the parties have stipulated upon the objections which are reserved, and thus by implication waiving all others (Moss v. Cloyes, 11 Barb. 101; and see Cope v. Sibley, 12 Barb. 521; Howard v. Orient Ins. Co. 9 Bosw. 645).

d. Where depositions taken on a commission are offered to be read on the trial, and the opposite party objects to them on the ground that the interrogatories are leading, the question whether the interrogatories and the answers thereto are admissible is one addressed to the discretion of the court (Cope v. Sibley, 12 Barb. 521; disapproving, Williams v. Eldridge, 1 Hill, 249; and see Hall v. Barton, 25 Barb. 274).

e. Where the attorneys indorsed on the interrogatories: "It is stipulated that the within interrogatories and cross-interrogatories are agreed upon, and that these stipulations have the same effect as the allowance of a judge, reserving all legal rights,"-held, that on the trial neither party could object to the reading of the depositions on the ground that the interrogatories were leading (Cope v. Sibley, 12 Barb. 521; and see Morse v. Cloyes, 11 Barb. 101).

f. When a commission has been returned and opened, so that its contents might, with reasonable diligence, have been known to the parties before the trial of the cause, a motion for the suppression or re execution of the commission, on the ground of its irregular or defective execution, must be made at chambers, and will not be entertained by the judge on the trial. The objec tions on the trial are limited to the competency of the witnesses, or the admis sibility of their testimony." This was pronounced as the rule of practice in the superior court (see 2 Abb. 271; and see Sheldon v. Wood, 2 Bosw. 269; Burrill v. Watertown B'k, 51 Barb. 106).

g. A motion at the trial to suppress the whole of a deposition on the ground that some of the interrogatories and parts of the deposition are improper, should be denied (Com. Bank of Penn. v. Union B'k of N. Y. 11 N. Y. 203). If any part of the deposition is competent, the objection should be confined to that part which is not so (ib.; see Champney v. Blanchard, 39 N. Y. 111).

h. If a direct interrogatory and the answer of the witness to it, are properly excluded by the court, cross-interrogatories and the answers thereto, which are dependent upon the direct interrogatory, should also be excluded (Fleming v. Hollenback, 7 Barb. 271).

i. An answer not responsive to an interrogatory, may be objected to by either party on the trial, and will thereupon be excluded (Lansing v. Coley, 13

Abb. 272). But under the general interrogatory, requiring a witness to state any thing known to him material to the issue or to the benefit of the party putting the interrogatory the witness may state a fact material to the issue, though it be to the detriment of such party (Van Ness v. Bush, 14 Abb. 33).

a. Where pertinent evidence is given in answer to the general interrogatory to which the attention of the opposing counsel was not called by the others, if he desires to cross-examine the witness as to such evidence, he should apply to the court for relief before the trial. It is not a ground for suppressing the whole deposition on the trial. If any part of the evidence so given is incompetent or impertinent, such part may be excluded. The refusal to suppress the deposition of a witness at the trial, where it was proved that the attorney of the party examining him, at the request of the witness, and before he was sworn, wrote down for him at his dictation the substance of what he afterward testified to in answer to the interrogatories, is not error; it goes to the credibility of the evidence. If the witness was imposed upon, or any fact was misstated, colored, or concealed, the court, on motion for that purpose, might set aside the deposition and order the commission to be executed anew, or grant other appropriate relief (id).

b. Where, on the return of a commission, it does not appear that the last general cross-interrogatory was put to and answered by the witness, the deposition cannot, in general be read in evidence (4 Wash. C. C. Rep. 324; 25 Wend. 259).

e. Upon the deposition of a witness taken on commission being offered in evidence at the trial, the defendants objected on the ground that two crossinterrogatories, one embracing nineteen questions and the other five, were unanswered in part, but in what respect they were unanswered was not specifically stated. After the deposition had been received and read, the same objection was renewed and exception taken,-held, that it would be an unjustifiable exercise of discretion to suppress the entire deposition upon such a vague and indefinite objection, and that the refusal to do so was no ground for a new trial. It is only when the officer neglects to put the interrogatories as settled, or when the witness refuses to answer, that the deposition will be suppressed on the ground of the commission having been imperfectly executed. Where a witness has not been impeached, nor any foundation laid for his impeachment, by showing contradictory statements made by him as to a material fact, and he has not been interrogated as to what he said in a particular conversation, proof of declarations made by him on that occasion, in the absence of the party by whom he is called, cannot be received (Valton v. Nat. Loan Fund Life Assur. Soc. 20 N. Y. 34). Where the taking of a deposition having been commenced, it was adjourned after four or five interrogatories were answered, upon the witness refusing to answer further because of vertigo and consequent confusion of mind; and subsequently the witness appeared again with his counsel, and the examination being commenced from the beginning, the witness read his answer from a paper he brought, which had been prepared by himself and counsel, and was in his counsel's handwriting,- held, upon motion, that the deposition must be suppressed. It seems that in such a case the answers taken upon the first examination should not have been disregarded by the commissioner, but that the proceedings should have been stated by him as they took place, and both examinations should have been included in the deposition returned (Creamer v. Jackson, 4 Abb. 413).

d. If a witness, after being examined on a commission, should come into the State, he may be examined on the trial (17 Johns. 345).

e. Second commission.-The court will sometimes allow a second commission to issue (17 Johns. 343; 2 Caines' R. 47, 253; 1 ib. 345; 3 ib. 321; 2 Sand. 689, 690).

f. After the testimony of a witness has been taken upon a commission, and the commission returned, the party cannot have a new commission to re-examine the witness, merely on the expectation that he may now swear more definitely than before, in the absence of any suggestion that the witness has made

a mistake, or that new evidence has been discovered. More especially will such an application be refused when the only other witness, who was cognizant of the fact to which the witness is sought to be examined, is dead (Raney V. Weed, 1 Barb. 220).

a. An amendment of the pleadings does not render inadmissible a deposition previously taken (Vincent v. Conklin, 1 E. D. Smith, 204). The plaintiff's case rested principally on a deposition taken under a commission. After the taking the deposition the pleadings were amended in form, but the issues between the parties were not in substance changed,-held, that the deposition was admissible in evidence. "If either party wished further to examine the witness, a motion should have been made for a further commission, and if not, and the testimony was inapplicable to the new issue, a motion to suppress the deposition would have been proper; but we are not prepared to hold that a mere technical amendment of proceedings renders void all previous depositions which may have been taken in a cause" (ib.; Ingraham, First J.)

b. Amending return of commissioners.-If a commission be defectively executed, the court has power to order it to be returned to have the defect amended, and it is not necessary to issue a new commission (1 Code Rep. N. S. 289; Sheldon v. Wood, 2 Bosw. 269).

c. Costs of a commission.-Costs of a commission do not include the charges of a solicitor employed abroad (Dunham v. Sherman, 19 How. 572 ; 11 Abb. 152).

d. Letters rogatory.—The superior court held that it was inexpedient to grant the process of that court to compel the attendance of witnesses to be examined under a commission from a foreign country, the case not being provided for by statute (In Re the petition of Jay, 5 Sand. 647); but the supreme court granted the process required (b. 680; see Laws 1867, ch. 68.)

Examination of witnesses and parties de bene esse.

e. In what cases.--The examination of witnesses (and parties) de bene esse, is provided for by 2 R. S. 391 to 393, amended by Laws of 1851, p. 871; Laws of 1852, p. 471; and Code, § 390. Where a party or a witness, whose testimony may be considered material on either side, is about leaving the State, and there is no probability of his returning in time to appear at the trial, or is so sick or infirm as to be unable to attend, either party may apply to a judge for leave to take his testimony de bene esse, that is, conditionally, to be used only in case the personal attendance of such witness at the trial cannot be procured.

f. This application may be made at any stage of the cause (7 Cow. 489), on an affidavit stating:

1. The nature of the action, the plaintiff's demand;

2. If the application be made by the defendant, the nature of his defense; 3. The name and residence of the witness;

4. That the testimony of such witness is material and necessary for the party making such application, in the prosecution or defense of such suit, as the case may be; and

5. That such witness is about to depart from this State, or that he is so sick or infirm as to afford reasonable grounds for apprehension that he will not be able to attend the trial.

g. The time fixed for the examination, must not exceed twenty days from the date of the order, and may be as much shorter as the exigencies of the case may require, and the residence of the adverse party or his attorney will allow, in order to afford opportunity to attend such examination.

h. A summons may issue to compel the attendance of the witness, and must be served in the same manner as a subpoena (See 1 Bosw. 611).

i. Or the judge may, in his discretion, make an order, requiring the adverse party to show cause, on a day in such order to be named, why such testimony should not be taken by a referee, to be appointed by him; and in such order shall direct the time and mode of the service thereof. Such an order

is an order out of court, and without notice, and in actions in the supreme court, may be made by any judge of the court in any part of the State (Bank of Silver Creek v. Browning, 16 Abb. 272).

a. An order requiring the adverse party to attend the examination of a witness de bene esse, in an action in the supreme court, may be made by any judge of the court in any part of the State (Bank of Silver Creek v. Browning, 16 Abb. 272).

b. At the time specified in the order, the opposite party may show cause against proceeding in the examination, by proof that the witness is not about to depart from this State, or that he is not sick or infirm, or that the application for his examination is made collusively, to avoid his being examined on the trial of the cause; and upon any such cause being shown, the application may be dismissed.

c. If no sufficient cause be shown, then, on proof of service of the order and a copy of the affidavit upon which it was granted, the party may either proceed to examine the witness and take his deposition-in which shall be inserted any answer or declaration of the witness which either of the parties shall require to be included therein-or if the order was to show cause why the testimony should not be taken by a referee, the judge may apppoint a referee to take such testimony, who shall take, certify and file the same, in the same manner and with the like effect as is provided for the examination of a witness by a judge of the court.

d. In taking a deposition, it is not necessary for the judge himself to write down the examination of the witness; it is sufficient that he administers the proper oath, and then, after the witness has been examined in his presence, and the examination has been written down by counsel, that he reads it over to the witness before the signing and certifying thereof (McDonald v. Garri son, 9 Abb. 34; 18 How. 249).

e. The witness must be interrogated to every fact to be deposed to, as on a trial (7 Cow. 60).

f. The statute regulating the taking of depositions de bene esse, and requiring the officer to insert therein every answer of the witness examined which either party shall require to be included, is complied with by confining the direction to answers, leaving the officer to exclude questions in his opinion illegal or irrelevant; and a party is not empowered by the statute to go into a course of irrelevant inquiry, and have answers thereto included in the deposition (Gibson v. Pearsall, 1 E. D. Smith, 90). "The defendant insists that the deposition of Vanderslice was improperly admitted, on the ground that an officer taking the examination of a witness de bene esse, is bound by statute to receive and take down every answer to questions proposed; and that, in this case, the judge before whom the deposition was taken refused to allow a question presented by the defendant's counsel on cross-examination to be put to the witness at all. The statute is very explicit in its terms, requiring the officer to insert in the deposition every answer or declaration of the witness examined, which either party shall require to be included therein. It is, in my judgment, unreasonable and very unfortunate, if the proper construction of this statute permits a party who has a witness under examination, to make that the occasion for going into every species of irrelevant inquiry into matters having no possible connection with the controversy; and the abuses to which such a construction may lead seem to me too obvious to require enumeration" (b.; Woodruff, J.)

g. The deposition being finished, must be carefully read over to, and subscribed by the witness, certified by the judge or referee taking it, and filed in the clerk's office within ten days thereafter; but where a deposition, taken de bene esse, is not filed within ten days, as directed by the statute, the court may order it to be filed nunc pro tunc (Burdell v. Burdell, 11 N. Y. Leg. Obs. 189; 1 Duer, 625; Bank of Silver Creek v. Browning, 16 Abb. 279; see Vrooman v. King, 2 Trans. App. 112).

h. If a witness, on being summoned to attend for the purpose of being ex