22 tion must be made in open court, and not to a judge at chambers; and must be accompanied by an affidavit showing that the testimony which the party desires to take is material.18 It seem that the commission need not specify the exact place where the depositions are to be taken; but if it do, the commissioners should conform to it in that respect.19 Whether a party will or will not be required before the commission is issued to name the witnesses to be examined under it, depends upon the discretion of the court, to be exercised under the circumstances of each case.20 Before the issue of the commission, the proposed interrogatories should be filed " and served upon the opposite party or his attorney; " and the latter given a reasonable time, usually fixed by the court, within which to object to them and to file cross-interrogatories." If he omit to do so, the commission may be issued without further notice.24 The interrogatories are drawn up substantially as those for the examination of witnesses within the jurisdiction of the court.25 Objections to interrogatories or cross-interrogatories should be in the form of exceptions to them, and must be filed before the commission issues; or otherwise will be held waived. If the parties cannot agree as to their form or substance, a reference may be ordered to a master, whose report will be reviewed by the court. If there be any doubt as to the relevancy or propriety of an interrogatory, the ultimate decision thereon will be reserved until the hearing, and it will be allowed to stand and be answered. If there be no doubt as to its irrelevancy or impropriety, it will be stricken out before the commission issues.28 A commission must also name or designate the commissioner or commissioners.29 A woman may be a 17 Peters v. Provost, 1 Paine, 64. 18 Sutton v. Mandeville, 1 Cranch, C. C. 115; U. S. v. Parrott, 1 McAll 447. 19 Rhoades v. Selin, 4 Wash. 715. 20 Parker v. Nixon, Baldw. 291. 21 Cunningham v. Otis, 1 Gall. 166. 22 Rhoades v. Selin, 4 Wash. 715; Merrill v. Dawson, Hempst. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375. 23 Frevall v. Bache, 5 Cranch, C. C. 463; The Norway, 1 Ben. 493. Leave to cross-examine orally will rarely be given. Coates v. Merrick T. Co., 41 Fed. R. 73. 24 Cocker v. F. H. & B. Co., 1 Story, 169. 25 Rhoades v. Selin, 4 Wash. 715. 26 Cocker v. F. H. & B. Co., 1 Story, 169. 27 Cocker v. F. H. & B. Co., 1 Story, 169; Boudereau v. Montgomery, 4 Wash. 186. 28 Cocker v. F. H. & B. Co., 1 Story, 169. 29 Vanstophorst v. Maryland, 2 Dall. 401. A slight error in spelling the commissioner, even though she be the wife of the witness to be examined.30 The court may grant an order that exhibits annexed to a deposition already taken may be removed from the file and attached to a commission, provided that copies of them are left in their place." § 289. Proceedings under a dedimus potestatem.— If the application does not state when and where the commission is to be executed, the party at whose instance, or the commissioner to whom it is issued, should notify the adverse party or his solicitor before the depositions are taken.1 The notice should name the year as well as the day. When, however, a party, after notice of an opportunity to do so, has neglected to file cross-interrogatories, no further notice to him is necessary. The notice should be served personally, or else left at the house of the person upon whom it is made with a member of his family of sufficient intelligence. The person with whom it is left, however, need not be informed of its purport." Service by mail, unless actually received in time, is insufficient. An hour's notice of the time of taking a deposition in the place where the attorney to whom it is given dwells, has been held sufficient." The regulation of the proceedings under a commission is a matter in the discretion of the court issuing it. A commissioner is appointed by and represents the court; and is no more than is an arbitrator the representative of the party nominating him.' The authority given to a commissioner is special, and must be strictly construed.10 A commission issued to more than one commissioner's name will not vitiate 2 Knode v. Williamson, 17 Wall. 586. 14 12 commissioner must be executed and returned by all of them," unless it is otherwise so provided in it; 12 and if any one else, except a judge in a foreign country whose laws do not permit a private individual to take testimony alone,13 join in its execution or return, the testimony taken under it will also be suppressed. A commission must be executed at the time and place named in it, or in the notice.15 It has been held that the witnesses under such a commission should be examined alone; and the parties are not allowed to be present either in person or by attorney, unless the court otherwise directs.16 The interrogatories may be shown the witness before he is called upon to give his testimony." He must be examined as to each interrogatory and cross-interrogatory; and if he improperly omits to answer any one of them; or if any one of them, an answer to which would be legal evidence, is not put to him, his whole deposition may be suppressed at the instance of the party who might be thereby injured.18 If, however, the deposition have been issued ex parte, the adverse party having omitted to file cross-interrogatories after an opportunity to do so has been given him, it has been said that as many, or as few, of these interrogatories as the party who filed them thinks proper may be put, provided that the general interrogatory is not omitted.19 If the cross-interrogatories are put, it makes no difference how soon after the direct interrogatories have been answered the witness is called upon to answer them.20 No additional interBoudereau v. Montgomery, 4 Wash. Wall. 586; Merrill v. Dawson, Hempst 186. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375. 11 Guppy v. Brown, 4 Dall. 410; Armstrong v. Brown, 1 Wash. 43; Munns v. Dupont, 3 Wash. C. C. 31. 12 The Griffin, 4 Blatchf. 203; Lons dale v. Brown, 3 Wash. 404. 17 North Carolina R. Co. v. Drew, 3 Woods, 691. 18 Ketland v. Bissett, 1 Wash. 144; Nelson v. U. S., Pet. C. C. 235; Win 13 Winthrop v. Union Ins. Co., 2 throp v. Union Ins. Co., 2 Wash. 7; Wash. 7. 14 Willings v. Consequa, Pet. C. C. 301; Barnet v. Day, 3 Wash. 243. 15 Rhoades v. Selin, 4 Wash. 715; Boudereau v. Montgomery, 4 Wash. 186; Knode v. Williamson, 17 Wall. 586; Buddicum v. Kirk, 3 Cranch, 293. As to waiver, see Gartside Coal Co. v. Maxwell, 20 Fed. R. 187. 16 Cunningham v. Otis, 1 Gall. 166. But see Knode v. Williamson, 17 Bell v. Davidson, 3 Wash. C. C. 328; Richardson v. Golden, 3 Wash. C. C. 109; Dodge v. Israel, 4 Wash. 323; Gilpins v. Consequa, Pet. C. C. 85; s. c., 3 Wash. 184. But see Gass v. Stinson, 3 Sumn. 98. 19 Merrill v. Dawson, Hempst. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375. 20 Gilpins v. Consequa, Pet. C. C. 85; s. c., 3 Wash. 184. 23 rogatories, however, can be filed with or put by or before the commissioner. Under extraordinary circumstances the examination of a witness not named in the commission might be permitted. The deposition may be taken down in writing either by the magistrate or by the deponent in the presence of the magistrate; but not by the counsel for either of the parties.24 If exhibits are referred to by the witness, they should be annexed to the deposition or identified by marks or reference.25 A paper referred to by a witness, but which is neither in his own power nor in that of the party making the objection, need not, however, be included in the deposition or thus identified.26 It has been held that the deposition need not be signed by the witness. A deposition prepared and signed some time before the oath is administered is improper and will be suppressed.28 The depositions should be attached to the commission, and, with them, a certificate by all the commissioners that they have complied with the requirements above described. The commission should then be sent or delivered to the clerk's office of the court unopened, and must there remain so till publication is allowed by order or consent.29 The fact that it was forwarded through the embassy mail-bag first to Washington, and thence to the clerk, does not invalidate the proceedings.30 The return, or certificate, of the commissioners should state that they were sworn, unless that ceremony has been waived, or they are officers qualified to administer an oath. The return should also state the time and place of taking the depositions; that each witness was sworn or 21 Cunningham v. Otis, 1 Gall. 166; Merrill v. Dawson, Hempst. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375. 22 The Infanta, Abbott's Adm. 263. 23 Stockwell v. U. S., 3 Cliff. 284; Keene v. Meade, 3 Pet. 1; S. C. sub nom. Meade v. Keane, 3 Cranch, C. C. 51. 24 U. S. v. Pings, 4 Fed. R. 714. But see Nicholls v. White, 1 Cranch, C. C. 59; Atkinson v. Glenn, 4 Cranch, C. C. 134. 25 Dodge v. Israel, 4 Wash. 323. 26 Winans v. New York & Erie R. Co., 21 How. 88. 27 Ketland v. Bissett, 1 Wash. 144. 28 Dodge v. Israel, 4 Wash. 323; North Carolina R. Co. v. Drew, 3 Woods, 691. 29 Boudereau v. Montgomery, 4 Wash. 186; Frevall v. Bach, 5 Cranch, C. C. 463; U. S. v. Price, 2 Wash. 356. 30 U. S. v. Fifty Boxes and Packages of Lace, 92 Fed. R. 601. 31 Frevall v. Bach, 5 Cranch, C. C. 463; Hoyt v. Hammekin, 14 How. 346. But see Gilpins v. Consequa, Pet. C. C. 85; s. C., 4 Wash. 184. 32 Rhoades v. Selin, 4 Wash. 715; Boudereau v. Montgomery, 4 Wash. 186. 35 36 33 34 affirmed, but not that he was cautioned; nor need it state the form of the oath. The return need not state in whose handwriting the depositions were taken down; nor, if the witness was an alien, whether or not he was examined by means of an interpreter; nor that it was subscribed by a sworn interpreter, when it states that the interpreter was sworn and every page is subscribed by a signature purporting to be that of the interpreter; nor, it has been held, need the answers, when an interpreter was used, be transmitted in the foreign language of the witness as well as in the translation. The certificate will be presumptive evidence of the facts therein stated in relation to the execution of the commission.38 Otherwise, proceedings under these commissions should conform substantially to those under commissions to examine witnesses within the jurisdiction of the court.39 Any objection to the form or manner of the proceedings can only be raised by a motion to suppress the deposition," which should be seasonably made before the case is called for trial; " provided that sufficient time within which to make such a motion remains between the return of the commission and the hearing. Should a foreign plaintiff refuse to testify before a commission when required so to do, the court may deny him relief in the suit.43 41 42 § 290. Letters rogatory.-When the witnesses whose testimony is desired are in a country whose laws do not permit of the execution of a commission issued from a foreign court, 33 Jones v. Oregon C. R. Co., 3 Saw. 523; Keene v. Meade, 3 Pet. 1; s. c. sub nom. Meade v. Keane, 3 Cranch, C. C. 51. 34 Keene v. Meade, 3 Pet. 1; s. c. sub nom. Meade v. Keane, 8 Cranch, C. C. 51; Jones v. Oregon C. R. Co., 3 Saw. 523. 39 Jones v. Oregon C. R. Co., 3 Saw. 523; U. S. v. Parrott, 1 McAll 447. See § 284. 40 Blackburn v. Crawfords, 3 Wall. 175; Winans v. New York & Erie R. Co., 21 How. 88; Doane v. Glenn, 21 Wall, 33; York Co. v. Central R. Co., 3 Wall. 107; Walker v. Parker, 5 35 Gilpins v. Consequa, Pet. C. C. Cranch, C. C. 639. 85; s. C., 3 Wash. 184. 36 U. S. v. Fifty Boxes and Packages of Lace, 92 Fed. R. 601, 603, 604. 37 Ibid. 38 Merrill v. Dawson, Hempst. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375; Boudereau v. Montgomery, 4 Wash. 186; Winter v. Simonton, 3 Cranch, C. C. 104. 41 Bibb v. Allen, 149 U. S. 481, 488. See Dickerson v. Matheson, 50 Fed. R. 73, 75; supra, § 287. 42 Sergeant v. Biddle, 4 Wheat. 508; Mechanics' Bank v. Seton, 1 Pet. 299; Buddicum v. Kirk, 3 Cranch, 293; Alsop v. Com. Ins. Co., 1 Sumn. 451. 43 Heath v. Erie R. Co., 9 Blatchf. 316. Cf. infra, § 290, note 2. |