430 DEALE v. ESTEP.—3 BLAND.

but to the witness himself, and might be served by any one. But
if a witness failed or refused to attend, or to testify: and the Court
was satisfied by a certificate of the commissioners, and an affidavit
of the fact, that the writ had been served, an attachment might be
issued, directed to the sheriff, commanding him to attach the wit-
ness, who, on being taken by the sheriff, might as on an attach-
ment consequent upon a subpoena ad respondendum, be brought
before the Court by a special messenger. Forum Rom. 118: 1
Harr. Pra. Chan. 445; 2 Foel. Exch. Pra. 89; Wardel v. Dent, 1
Dick. 334; Hennegal v. Erance. 12 Ves. 201.

* In Maryland the forms of these writs are the same as in
436 England, they are always addressed to the party to answer
or to testify; 1 Harr. Pra. Chaw. 195; 2 Hurr. Ent. 772; and as in
England they may be executed by any one, so that the Court be
satisfied, by affidavit, that they have been served. Hoye v. Penn.
I Bland, 29; Taylor v. Gordon, I Bland, 132, note; Showell v. Show-
ell, 1712; service of the subpoena proved before Col. Williams, Chaw-
eery Proceedings, lib. P. L. fol 8. Here, as in England, the com-
mission to take testimony directs the commissioners " to cause to
come before them all such evidences as shall be named to them by
either the plain tiff or defendant." Under this authority, which
has been, expressly recognized by positive legislative enactment,
1785, ch. 72, s. 16, the commissioners have always, when necessary,
summoned the witnesses to come before them; and on their failing
to attend, there seems to have been no doubt, at any time, that
they might, on their contumacy being shewn to the Court, be
forced by attachment to attend and testify, even under a commis-
sion from a foreign tribunal. Gibson v. Tilton, 1 Bland. 354; Bry-
son v. Petty, 1 Bland, 182, note; Contee v. Dawson, 2 Bland, 283;
Maccubin v. Matthews, 2 Bland, 252; Harris v. Saunders, 10 Com.
Law Rep. 373: Thurit v. Faber, 18 Cow. Laic Rep. 136; Turnbull v.
Moreton, 18 Com. Law Sep. 215; Clay v. Stephenson, 30 Com. Law
Rep. 225. And although the Legislature has provided a new and
additional form of compelling the attendance of witnesses before
commissioners authorized to take evidence, they have not intro-
duced a more cheap and expeditious mode of proceeding. 1824,
ch. 133.

But, to clear away the difficulty which has been presented in
this case, it will be necessary to ascertain how far the sheriffs of
the several counties can be considered as the executive officers of
this Court for the purpose of serving writs of subpoena as well as
of attachments.

It may be safely assumed, that where the Legislature has speci-
fically allowed to a sheriff a particular lee for the execution of any
process, that such allowance of a fee may be considered as a vir-
tual declaration, that it is his official duty to execute such process.
The last Provincial Act of Assembly by which officers' fees were