one in which the moving defendant could examine his co-defendant as a witness on the trial. The court denied the motion. Merrifield v. Cooley, 4 Pr. R., 272.

Stay of Proceedings.

a. The defendant may obtain a stay of proceedings, to enable him to move for a commission. But where this is done after notice of trial, if the plaintiff in such case procure a vacatur of the order, he may take an inquest, without serving notice that the order is revoked; the defendant's course is to watch the cause, and when called, to move to put off the trial. 18 Wend., 657.

b. Defendant has twenty days after service of a reply, to move for a commission with a stay. 1 Sand., 717; 1 Code Rep., 96.

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

d. 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.

e. The order for a commission is not, per se, a stay of proceedings. 7 Wend. 520.

Commissioners.

f. The adverse party may object to the commissioners named in the moving papers. 3 Johns. R. 251; 2 Wend. 62,

g. 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.

Interrogatories and directions for return of commission.

h. Interrogatories are to be annexed to the commission; they must be signed by counsel, and settled before a justice of the court.

i. 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 for settlement of the interrogatories. See 1 Edw. Ch. R., 649.

j. At the time of settlement, either party may except to the interrogatories of the other, and the judge will 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.

k. The interrogatories being settled and engrossed, the judge endorses his allowance, and directs the manner in which the commission, with the interrogatories annexed, shall be returned.

1. 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.

Form of commission.

m. To the commission must 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. 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.

a. 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 Bank of Pennsylvania v. The Union Bank of N. Y., 1 Kernan, 203.

b. Further instructions are contained in the printed forms of commission sold by the law stationers.

The execution and return of the commission.

c. 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 depositions have been received in evidence, although the oaths to the witnesses were not administered by the commissioners; it appearing that they were prohibited from administering them, and that they were, in fact, administered by the local authorities. 6 Wend. 476.

d. 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.

e. Each interrogatory must be answered specifically; and it is not sufficient to say, "I have given an answer to this interrogatory in my answer to the interrogatory." 2 Code Rep. 64.

f. A deed or other exhibit proved under a commission, must be annexed to and returned with the commission. 20 Johns. R. 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. & 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 its 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 witnesses. Brumskill v. James, 1 Keruan, 294.

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

h. It will be presumed that the commissioner who took the testimony, closed and sealed the package himself, Ib.; 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.

i. 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.

j. 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 hauds of one of the commissioners, and that it has not been opened or altered since he received it.

a. 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.

b. 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 Abbott, 87.

c. 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 R., 357.

d. 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 endorse on it a direction according to such agreement, and the commission shall be returned accordingly.

e. Where the direction as to the return of a commission, required it to be enclosed in a wrapper and deposited in the post-office at Toronto by the commissioners, directed to W. B., Buffalo, and a certificate thereof endorsed 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, 1 Kernan, 294. In the foregoing case the certifi "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 plaintiff and William I. James, joined in this action with Eliza Englesum, is defendant. "

cate was,

f. The com mission, 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), where 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.

g. 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.

h. 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. Ib., 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.

i. 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. Commercial B'k of Pennsylvania v. The Union B'k of New York, 1 Kernan, 203.

j. If any part of the deposition is competent, the objection should be confined to that part which is not so. 16.

k. 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. Ib.

a. If any part of the evidence so given is incompetent or impertinent, such part may be excluded. Ib.

b. 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 afterwards testified to in answer to the interrogatories, is not error; it goes to the credibility of the evidence. Ib.

c. 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. Ib.

d. 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 depositions cannot, in general, be read in evidence. 4 Wash. C. C. Rep, 324; 25 Wend., 259. e. If a witness, after being examined on a commission, should come into the State, he may be examined on the trial. 17 Johns. R., 345.

f. If a stay of proceedings have been granted with the commission, the party obtaining it must use all diligence to have it returned within a reasonable time."

g. 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.

h. 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 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. R., 196; 2 Caines R., 47.

i. 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. S. C. R., 690; 3 Code Rep., 202. 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.

Second Commission.

j. The court will sometimes allow a second commission to issue. 17 Johns. R. 343; 2 Caines R., 47, 253; 1 ib., 345; 3 ib., 321.

k. 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.

1. An amendment of the pleadings does not render inadmissible a deposition previous v taken. (Vincent v. Conklin, 1 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, Iugraham, First J.

Amending return of Commissioners.

m. If a commission.be defectively executed. the court have 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.

Letters rogatory.

a. 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. Ib., 680.

Examination de bene esse.

b. 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, s. 390; and see 2 R. S., 4th ed., 636.

c. Where a party or 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.

d. 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 defence; 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 defence 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.

e. 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.

f. A summons may issue to compel the attendance of the witness, and which must be served in the same manner as a subpœna.

g. 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.

h. 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.

i. 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 appoint 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.

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

k. 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