Page:Federal Reporter, 1st Series, Volume 10.djvu/14

 2 FKDSBAL BKPOBTEB. �J. H. Choate, for plaintiff. �C. M. Da Costa, for defendants. �Blatchfoet), g. J. This is a suit in equity. Issue was ioinecl by the filing of a replication to the answer, December 1, 1879. On the fifth of February, 1881, the plaintiff's solicitors, not having before taken any testimony, served a notice in writing on the defendants . solicitors that the plaintiff ^ "doBires the evidence to be adduced in this cause to be taken orally,"and that witnesses would be esamined in the city of NewYorkojiFebrua,ry llth. Two witnesses forthe plain- tiff were examined orally under tiiis notice, thelast one in June, 1881. The time to take testimony bas been extended, and bas not expired. In May, 1881, the defendants' solicitors having been previously informed by the plaintiff's solicitors that the latter intended to have a commission issued to take in London, England,i.the deposition of the plaititiff, who resides in Londdri, gave notice in writing to the plaintiff's solicitors that the defendants' solicitors desired to cross- examine the plaintiff orally, and requested them to have the commis- sion executed during the ensuing July or September, when one of the defendants' solicitors would be in London and attend to the matter. To this notice no reply was ever received. One of the witnesses so examined in New York was the confidential manager of the plaintiff's business residing in London, and it appears that the plaintiff bas there legal advisers who havo been consulted coaceming the matters ift isBxie herein. �The plaintiff now applies for an order for a commission to examine himself on written interrogatories to be annexed to the commission, on an afiidavit showing that he expects to prove by bimself the ma- terial averments in the bill, or many of them. The defendants ask that if a commission to examine the plaintiff on written interrogato- ries be issued, the defendants have leave to cross-examine the plain- tiff orally thereunder. �By rule 67 in equity, as in force prior to the December term, 1861, testimony in suits in equity might be taken by commission on writ- ten interrogatories and cross-interrogatories, but by agreement it might be taken by oral interrogatories, under a commission. ihis applied even to testimony to be taken where a subpœna from the court could reach the witness. By rule 68 testimony might also be taken in the cause, after it was at issue, by deposition, according to the acts of congress. �Under rule 69 publication of the testimony taken under such com- missions might be ordered immediately upon the return of the com- ��� �