tice is so given, shall, if he intends to join in the com 3. Notice of mission, give notice to the adverse party four days exjoining in the clusive, before the time when the commission may isting the com- sue, of his intent to join in the commission; and if he commission, and of nomina missioners. shall agree to the commissioners nominated by the other party, he shall at the same time give notice thereof, and a commission shall issue to them accordingly; but if he shall not agree to the commissioners so nominated, he shall at the same time nominate three commissioners, and the names and additions of the commissioners so nominated by each party shall be furnished to the clerk, who is to issue the commission, who shall in his discretion select one commissioner from each of the nominations of the parties, and shall in the presence of the parties, or their solicitors, (if they shall elect to attend for the purpose,) put the names of all the other commissioners on separate slips of paper, as near as may be alike, close them, so as to conceal the writing, and draw one therefrom, and the person named in the paper so drawn shall be the third commissioner, and such clerk shall issue a commission to the persons so selected, and drawn as commissioners What accordingly. That the three commissioners nained in petent to exe- any such commission, or any two of them, shall be aumission, and thorized to execute the same; that the said commistheir compen- sioners be allowed in the taxation of costs, five dollars for each day's attendance in executing such commission, including going and returning from the place where the commission is to be executed, computing a day for every twenty-five miles, and that no expenses beyond the said five dollars a day be allowed them. number com cute the com sation. inst. at 10 the notice of 5. Form of: Please to take notice, that at tion. o'clock in the forenoon of the same day, I shall apply the applica to Edm. Elmendorf, Esq. the clerk of the court, at his chambers in to issue a commission for the examination of witnesses in this cause on the part of the complainant, and that I nominate A. B. C. D. and E. F. all of the town of Esquires, as three commissioners, to whom the said commission To G. H. Esq. ? Sol'r for def't. day of April, 1818. E. F. Sol'r for complainant. If the opposite party will not join in the commission, the clerk will issue the commission to the persons named in the notice, but if the party intends to join in the commission, then he must, on receipt of the notice, give notice to the adverse party four days exclusive before the time when the commission may issue, of his intent to join in the commission; and if he shall agree to the commissioners nominated by the other party, he shall at the same time give notice thereof in the following form: Form of notice of joining in the commission. In Chancery. C. D. Defendant, Between and 6. Form of the notice of Sir, A. B. Complainant. Please to take notice, that I shall join in the comJoining in the mission to be directed to A. B. C. D. and E. F. all of commission. 7. Interroga tories, &c. to the county of Duchess, Esquires, of which you have given me notice, and that I agree to the commissioners nominated by you. Dated the day of April, 1818. G. H. Sol'r for defendant. Your's, &c. p't.} To E. .F Esq. Interrogatories to accompany the commission. By the 25th rule of court, the interrogatories, as accompany the well direct as cross, which either party shall exhibit, commission. together with such instructions as either party may interrogatories choose to give the commissioners, relative to the execution of the commission, shall accompany the commission, when sent to the commissioners, and the party who shall sue out the commission shall have the carriage thereof, but if he shall neglect to proceed to the execution thereof, or unnecessarily delay the same, the other party may proceed thereon, and cause the same to be executed and returned. 8. Copies of By the 68th rule of court, copies of all interrogatoto be adminis-ries to be administered to witnesses by either party, nesses to be shall be furnished to the opposite party before the ex tered to wit furnished to the opposite aminations thereon, that is to say, copies of all direct party. interrogatories shall be furnished six days before forwarding the commission, and copies of the cross interrogatories shall be furnished two days before forwarding it. (a) Form of the commission to examine witnesses. The people of the state of New-York, by the Grace of God free and independent, To Greeting: the commis. Know ye, that we in confidence of your pru- 9. Form of dence and fidelity have appointed you, and by these sion. presents, do give unto you full power and authority, diligently to examine all witnesses whatsoever, upon certain interrogatories to be exhibited to you as well on the part of A. B. complainant, as on the part of C. D. defendant. And therefore we command you, any three or two of you, that at certain days and places to be appointed by you for that purpose, you do cause the said witnesses to come before you, and then and there examine each of them apart, upon the said interrogatories, on their respective corporal oaths first taken before you, any three or two of you, and that you do take such their examinations, and reduce them into writing; and when you shall have so taken them, you are to send the same to us in our Chancery without delay, wheresoever it shall then be, closed up and under your seals, or the seals of three or two of you, distinctly and plainly set forth, together with the said interrogatories and this writ. And we further command you, and every of you, that before you act in, or be present at the swearing or examining any witness or witnesses, you do severally take the oath (a) Rule 68. 10. Oath to 1e taken by first specified in the schedule hereunto annexed; and we do give you, or any three or two of you, full power and authority, jointly or severally to administer such oath, to the rest, or any of you; and we do further command, that all and every the clerk or clerks, employed in taking, writing, transcribing or engrossing the deposition or depositions of witnesses to be examined by virtue of these presents, shall, before he or they be permitted to act as clerk or clerks as aforesaid, or to be present at such an examination, severally take the oath last specified in the said schedule annexed: And we do give you, or any of you, full power and authority, jointly and severally, to administer such oath to such clerk or clerks. Witness, James Kent, Esq. Chancellor, at the city of New-York, on the day of April, in the year of our Lord one thousand eight hundred and eighteen, and in the our Independence. G. H. Solicitor. year of Edm. Elmendorf, clerk. The form of the interrogatories is the same as when the examination is taken before an examiner in Chancery. See ante, p. 132. The commission, it will be seen, refers to the schedule containing the form of the oath, to be taken by them before they proceed to the examinations, and the form of the oath taken by their clerk, who is a person to be employed by them, to take down the testimony or answer of the witnesses to the interrogatories. Oath taken by the Commissioners. You shall, according to the best of your skill and the commi knowledge, truly, faithfully, and without partiality to sioners. |