TITLE CXIX. RENEWAL OF A COMMISSION FOR THE EXAMINATION OF AND THE CAUSES TO BE ALLEGED, IN ORDER TO OBTAIN SUCH RENEWAL. renewal. I. SOMETIMES commissioners, invited to undertake the execu- Causes of tion of a commission, are unable to find leisure to accept the office. II. Sometimes they take upon themselves the task of executing the commission, but cannot, for reasonable and sufficient causes', affecting themselves or the principal party, complete the same, within the time specified by the judge'. III. Sometimes the proceedings under the commission, though complete, cannot be transmitted to the court by the day assigned for their return 3. 3 IV. If these causes are alleged by the party obtaining the com- Term probatory enmission, and in confirmation thereof the said commissioners, by larged. their letters, or in some other way, state such impediments to have arisen, the judge renews the commission, and the term probatory is enlarged '. V. Unless the adverse party states that these allegations are not true, and lays before the court proof thereof. VI. If, however, such adverse party fails in proof, not only Failure of 1 For instance, by reason of an appeal from the commissioners, see part 2. tit. 274, § 2, 3, 4.—Oughton. 2 Supposing the commissioners to be unable to complete the process within the term specially assigned, or within the extended term of the prorogation, (within which period the commission was to be transmitted to the judge,) such legal causes being alleged, the commission is renewed.Oughton. 3 In that case the commission is not wont to be renewed; but on the day assigned for the transmission, the proctor alleges, that he sent the commission for the examination of witnesses, obtained on behalf of his party, to the persons specified therein, and that he believes the same to be executed, but it has not yet come to his hands. Whereupon the judge, at his petition, is accustomed to decree an extension of the term probatory till some stated court day; as is explained in the formularies of the acts of court.—Oughton. Equally effective. See tit. 49, § 7.-Oughton. 5 As stated above in tit. 111, § 3.-Oughton. proof. Proof com plete. Discretion of the judge. must he be condemned in the expences of the process, but restitution will also be obtained by the other party'. VII. If, on the contrary, such adverse party makes good his proof, he will obtain his expences, and the renewal of the commission will not be allowed. VIII. Observe here, that the cases are almost without number, on which may be grounded a claim for the renewal of the commission, and the extension of the term probatory. IX. As, for instance, pestilential disease; war; attendance at court; a compromise of the suit; imprisonment of the party; poverty; and other cases 2; all of which are left at the discretion of the judge; with the exception of those in which it is expressly provided by law that restitution shall not be given 3. If witnesses TITLE CXX. COMMISSION FOR THE EXAMINATION OF WITNESSES 4, ADDRESSED TO AN ECCLESIASTICAL JUDGE POSSESSING INDEPENDENT JURIS- I. SOMETIMES it happens, that divers witnesses, whether for live out of the plaintiff or defendant, live out of the province of Can the pro vince. terbury, so that they cannot be compelled to appear before any judge of the archbishop's court, to give evidence; be It is otherwise thus put: "But the other party will also obtain restitution, (at the lapse of the term probatory,) and the renewal of the commission."-MSS. Oughton. 2 See observations on tit. 100, note 9, § 11—19. Oughton. 3 It is sometimes written, "that the renewal shall not be granted, notwithstanding the lapse of the term probatory."-MSS. Oughton. * This commission is generally called, a commission "sub mutuæ vicissitudinis obtentu."-Ed. 5 See the Provinc. Constitut. tit. De Judiciis, ch. Item omnes, § Et ut in præmissis. And infra, verb. Mandatis.-Oughton. • Here a MS. adds: "The same may be observed of the bishops of the province of Canterbury. They have no power to bring before them any witnesses dwelling out of their diocese, though they may live within the province of Canterbury; the same applies to their surrogates or officials. A commission, or requisition must, in this case, be granted to another judge, (sub mutua vicissitudinis obtentu), under the plea of mutual convenience and benefit."-Oughton. 1 cause no one is obliged to appear before a judge not his own2 (coram non suo judice). In which case, the party intending to avail himself of the evidence of these witnesses, should apply to the court, and state 3 tition for II. "I allege that M, N, and O, 3 are witnesses necessary to Form of pemy client, to prove the contents of the libel, or some other docu- commisment given in by my party, and that such witnesses live in such sion. a diocese out of the province of Canterbury, on which account they cannot be compelled to appear in this court to give evidence; and I offer myself ready and prepared to confirm this statement on oath, according to the information delivered to me by my client, which I believe to be true; whereupon I petition, that a commission may be decreed, grounded on the plea sub mutuæ vicissitudinis obtentu et in juris subsidium,' (i. e. on the mutual convenience to the different ecclesiastical jurisdictions, and in the mutual support of each other's authority,) to the right reverend To whom father in God, M. bishop of that diocese in which the witnesses dwell; and to N. his vicar-general in spirituals and official principal, conjointly and separately; and that they be applied to, in aid of the law, and for the mutual benefit of the ecclesiastical courts generally, to cause the said witnesses to appear before him (the said bishop,) or his official, on such a day, at such a When explace', to give evidence in the cause. And I petition, that the ecuted. powers of this court may be committed to them conjointly and 1 And for this further reason; the commission itself has no force or effect beyond the limits of the jurisdiction of the judge who granted it.-Oughton. 2 i. e. an incompetent, or unfit judge, says Conset. One who has no jurisdiction in the place where the witness lives.—Ed. 3 Some ancient MS. adds: "But the party applying for such a commission is not bound, of necessity, to give the names of his witnesses; although, for the most part, the practice is to give them."—Oughton. Namely, concerning the truth of such allegation, according to the best of the applicant's information (as stated above). But now the oath of the proctor is not considered requisite. The practice at present is, for him merely to make a declaration.-Oughton. Sub mutuæ vicissitudinis obtentu.-Ed. • Because the said archbishop, similarly circumstanced, might, in his turn, be desirous of committing the examination of his witnesses to the judge of the province in which such witnesses live.-Oughton. 1. An ancient MS. adds, as follows: "For unless certain days and places were named in the commission for its execution, the adverse party could not be present at its execution; greatly to the prejudice of his cause." 2. How the arrangements are now made, as to place and time, may be seen, by referring to the observations in tit. 111, note 6, § 1-4. Oughton. directed. Grant of commission. Prorogation extended. severally, as far as in you lies, in order to their receiving and examining the said witnesses; with a requisition that they prorogue the commission, if found necessary, to any other day and place; and that they be requested to certify and transmit their acts and depositions, and the whole of their proceedings in the business, to this court by such a day; and, further, I pray, that the proctor of the adverse party may be admonished to be then present', if he considers his interest to be affected. III. Judge: "We decree, as required; and we also admonish the said proctor to be present, as required." IV. In order to prevent the term probatory lapsing before the transmission of this commission, the prorogation of the term probatory should be applied for 2, and should be decreed, to extend to the court day next following the day assigned for the transmission of the aforesaid commission. TITLE CXXI. THE MODE OF EXECUTING A COMMISSION FOR THE EXA- ADDRESSED TO AN ECCLESIASTICAL JUDGE POSSESSING INDEPENDENT JURIS DICTION. Commis sion, how drawn up. To whom I. SUCH Commission should be drawn up in the manner, to the effect mentioned in the preceding title. and II. And it should be presented to the bishop, or his official; presented. and all the proceedings should be in the presence of the adverse party, if he appears, or in pain of his contumacy, if he does not; Mode of as is explained in the title * "On the manner of executing a comexecution. mission (in partibus) for the examination of witnesses, and on the production of such witnesses." See also the four following titles. 1 Namely, at the time and place of the execution of the commission.— Oughton. 2 As in tit. 111, § 2, at its conclusion. Also see § 3. of the same title.Oughton. 3 See tit. 120, § 2, 3.-Oughton. 4 The titles here referred to, in order, are from 112 to 116.-Oughton. 99 tified. III. Such commission should be certified in the manner ex- How cerplained in the title, "On the exhibition of a commission for the examination of witnesses, before the judge granting the same '.' IV. It is further to be remarked, that if the witnesses required to give evidence, and to appear before the bishop named in the said commission, or before his official, refuse to appear, such bishop, or his official, may compel them, and may excommunicate the contumacious (certify their contumacy to his Majesty in chancery.-Ed.) 2 V. But, in citing such witnesses, and in issuing out a com- Compulpulsory against them, the fact should be stated, that the suit is sory. pending in another court, before the judge who granted the commission; and that the bishop, or his official, issues the decree, at the request of such judge, and in aid of his ecclesiastical jurisdiction. PUBLICATION OF DEPOSITIONS. TITLE CXXII. THE PUBLICATION OF THE DEPOSITIONS OF WITNESSES, AND THE PROTEST OF THE ADVERSE PROCTOR, WHEN HE INTENDS TO Offer tion. I. WHEN the proctor believes, that he has sufficiently proved Publicathe case of his client, and does not intend to produce any more witnesses, he should say, II. "I pray publication of the depositions of the witnesses Publicaproduced on behalf of my client: and I pray a decree for copies tion to be given to the parties'. prayed. 1 See titles 117, 118.-Oughton. 2 Excommunication is no longer the legal punishment of contumacy.-Ed. 3 1. After the lapse of the term probatory, or before, if the proctor of the plaintiff or defendant does not intend to produce more witnesses, or to proceed in the examination, he petitions the judge to publish the depositions of T |