NINETEENTH CONGRESS. Sess. II. Ch. 4. 1827.
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the application of either of the parties in the suit, cause, action, orproceeding, in which such commission shall have been issued, his, her,or their agent or agents, to issue a subpoena, or subpoenas, for such wit-ness or witnesses, residing or being within the said district or territory,as shall be named in the said commission, commanding such witness orwitnesses to appear and testily before the commissioner or commission-ers, in such commission named, at a time and place in the subpoena tobe stated, and if any witness, after being duly served with such subpoena,shall refuse or neglect to appear, or after appearing, shall refuse to testify,
(not being privileged from giving testimony,) such refusal or neglectbeing proved to the satisfaction of any judge of the court, whose clerkshall have issued such subpoena or subpoenas, he may thereupon proceedto enforce obedience to the process, or to punish the disobedience, inlike manner as any court of the United States may do in case of disobe-dience to process of subpoena ad testificandum, issued by such court;and the witness or witnesses, in such cases, shall be allowed thesame compensation as is allowed to witnesses attending the courtsof the United States : Provided, That no witness shall be required toattend at any place out of the county in which he may reside, nor morethan forty miles from his place of residence, to give his or her deposition,under this law.
Sec. 2. And be it further enacted , That whenever either of the partiesin such suit, cause, action, or proceeding, shall apply to any judge of acourt of the United States, in the district or territory of the United States ,in which the place for taking such testimony may be, for a subpoena ducestecum., commanding the witness, therein to be named, to appear and tes-tify before the said commissioner or commissioners, at the time and placein the said subpoena to be stated, and also to bring or carry with him or her,and produce to such commissioner or commissioners, any paper, writing,or written instrument, or book, or other document supposed to be in thepossession or power of such witness, such judge being satisfied, by theaffidavit of the person applying, or otherwise, that there is reason to be-lieve that such paper, writing, written instrument, book, or other docu-ment, is in the possession or power of the witness, and that the same, ifproduced, would be competent and material evidence for the party apply-ing therefor, may order the clerk of the court, of which he is a judge, toissue such subpoena duces tecum, accordingly, and if such witness, afterbeing duly served with such subpoena duces tecum, shall fail to produceany such paper, writing, written instrument, book, or other document,being in the possession or power of such witness, and described in such
that a copy of the interrogatories, and a written notice of the rule for a commission, and the names ofthe commissioners, were served on the opposite party or his attorney, according to one of the rules ofthe circuit court of Pennsylvania . Lessee of Rhoads and Snyder v . Selin, 4 Wash. C. C. R. 715.
It is no objection to a deposition, that a material part of the evidence comes out under the generalinterrogatory. Ibid.
A commission was issued under a rule to take depositions at Selinsgrove, and was endorsed <( com-mission to Selinsgrove.’ 5 It should appear, by the certificate of the commissioners, or otherwise, thatthe depositions were taken at the place indicated, or they cannot be read. Ibid.
Affidavits to be used as further proof, in causes of admiralty and maritime jurisdiction in the SupremeCourt , must be taken by commission. The London Packet, 2 Wheat. 371; 4 Cond. Rep. 162.
A deposition taken under a commission is fatally defective, if the general interrogatory, “Do youknow any thing further,” &c., is not answered. Richardson v. Golden, 3 Wash. C. C. R. 109.
If a commission issue to A. & B., or either of them, to take the depositions of witnesses, the depo-sitions of A. may be taken before B. Lonsdale u. Brown, 3 Wash. C. C. R. 404.
Evidence to establish heirship and pedigree, had been obtained under a commission issued for thatpurpose to France , in an action of ejectment, in which the plaintiffs had recovered the lots of ground forwhich the suit was instituted. In the course of that trial, a bill of exceptions was tendered by theplaintiffs and sealed by the court, in which the evidence contained in the commission was inserted.The commission, and the testimony obtained under it, were afterwards lost. In an action for mesneprofits brought by the plaintiffs in the ejectment, against the landlord of the defendant in the suit, whohad employed counsel to oppose the claims of the plaintiffs, but who was not a party to the suit onrecord ; it was held, by the Supreme Court , that the testimony, as copied into the bill of exceptions, waslegal and competent evidence of pedigree. Chirac v. Reinecker, 2 Peters, 613.
witness or wit-nesses, at anyplace within theUnited States ,or the territo-ries thereof, itshall be lawfulfor the clerk ofany court of theUnited States ,for the districtor territorywithin whichsuch place maybe, to issue asubpeena, orsubpeenas, forsuch witness orwitnessesnamed in saidcommission.
Proviso.