Page:Federal Reporter, 1st Series, Volume 10.djvu/15

 £ISCaOF?SCHE:ill V. BALTZKB. S �missions, The :idea •was that it was not known to the paiiles what the witnesses had testified to, the cOmmissioB; being executed without the presence of either party or sulicitorv JForiuerly the general mode in England of examining witnesses in equity was by interrjjgatoriias in writing exhibited by the party. Daniell, Ch, Pr.c. 23, § 9. : Ait the December term, 1861, (1 Black, 6,) a new praetice waa introduced by a nile made by the supreme court. The clause in raie 67 relating to taking testimony by agreement on oral interrogatories was repealed, and the rule was amended by adding to it provisions making oral examination the rule if either party desires it, and examination by written interrogatories the exception. �Under rule 67, as amended, if neither party gives notice to the other that he desires the evidence to be taken orally, then the testimony may be taken by commission, as formerly, even where the witnesses are within the reach of the subpœna of the court. But if either party gives notice to the other that he desires the evidence to be taken orally, then "all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be spe- cially appointed by the court;" the examination to take place on notice in the presence of parties and by counsel, and the witnesses to bo cross-examined and re-examined as nearly as may be in the mode used in common-law courts. At the close of the added provisions is this : �" Testimony may be taken by commission in the usual way, by written inter- rogatories and cross-interrogatories, on motion to the court in term time or to a judge in vacation, for special reasons satisfactory to tiie court or judge." �This refers to the former way — to the way, for which the n<iw way was substituted, in case either party should give notice of bis desire for an oral taking; and the notice so given was thus made subject to the power of the court, for special reasons, to annul the usual eliect of the notice. This last provision of taking testimony by commission in the usual way bas no reference to issuing a dedimus potestatem under section 866 of the Revised Statutes, formerly section 30 of the act of September 24, 1879, (1 St. at Large, 90.) It refers to the usual way before practiced in equity cases. �Depositions may be taken under a dedimus potestatem, under sec- tion 866, "according to common usuage," now, as at any time hith- erto, in a suit in equity. The words "common usage," in regard to a suit in equity, refer to the praetice in courts of equity. Under this ��� �