SNOWDEN v. SNOWDEN.—1 BLAND. 523

been adduced to shew, that this legislative rule has become obso-
lete, or that another and equally efficacious parallel mode of pro-
ceeding had been in force, and is now in use. All the precedents,
I have seen, of commissions for taking answers abroad, are those
of adult defendants; in all of which the commission, as in Eng-
land, was directed to four commissioners. I have been referred
to no example of a commission to take the answer of an infant
defendant who resided in a foreign country or any other State of
our Union; nor have I met with any. But prior to and about the
year 1797, it was the practice, as well in cases of infant defend-
ants within, as of adult defendants out of the State, to send the
commission to four or at least a plurality of commissioners; and
hence the first legislative enactment, in relation to this matter,
1797, ch. 114, s. 5, cannot be regarded as in any sense leaving an
old and parallel practice in full force; since it was the practice in
all cases to send the commission to a plurality of commissioners.
The cases that have arisen since the passage of that Act, can there-
fore only be regarded as evidence of a departure from the legisla-
tive rule, and not as proof of a co-existing parallel practice. There
have been only four cases adduced as the shewing a departure
from the directions of the Act; and all of them are cases of com-
missions directed to one commissioner only, in the District of
Columbia, to take the answers of infants resident there. Loir v.
Dawson, MS. 20th September, 1818; Burgess v. The Bank of Co-
lumbia, MS. 13th April, 1820; Law v. Lair, MS. 6th December,
1824; Shaaf v. Taney, MS. 10 May. 1826. All of those cases mani-
festly appear to have passed sub silentio; and, I can readily conceive
how easily such a proceeding, which had become the established
mode of obtaining an answer from an infant defendant within this
State, should have been pursued as a correct way of getting an
answer from an infant defendant residing in Washington County
of the District of Columbia, which had formerly been a part of
this* State. Such precedents are generally considered to

be of the lowest class; but when adduced for the purpose of 558

within eighteen months, and the first decree is of course not final. The
reason of which might be, that there could be no certainty of the absent
defendant having seen the publication. The Act of 1799 makes the first
decree final, provided the subpoena is proved to be served. There is no
doubt a considerable difficulty in making this service and proof, where the
party is out of the State; but the complainant, in any case, has his choice
of the two modes of proceeding. The difficulty of serving the subpoena is
greater as to the infants. And the reason does not apply to them, for after
such service, the eighteen months is still allowed to them. The Act of 1795
allows the publication, which by the fourth section of the Act of 1799 ap-
plied to the infant defendants in this case. The order may be considered as
made under either Act, according as the subpoena might or might not be
served, and the service might have been directed with that view.