' SNOWDEN v. SNOWDEN. 557

bound by the legislative rule thus laid down. But precedents have
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,(h)
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 therefore only be
regarded as evidence of a departure from the legislative rule, and
not as proof of a coexisting parallel practice. There have been
only four cases adduced as shewing a departure from the directions
of the act; and all of them are cases of commissions directed to
one commissioner only, in the District of Columbia, to take the
answers of infants resident there, (i) All of those cases manifestly
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

The act of 1799 makes the first decree final, provided the subpaena is proved to be
served. There is no doubt a considerable difficulty in making this sendee 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 subpaena 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 applied to the infant defendants in this
case. The order may be considered as made under either act, according as the sub-
paena might or might not be served, and the service might have been directed with
that view.

(h) 1797, ch. 114, s. 5.—(i) Low v. Dawson, MS. 30th September, 1818; Bur-
gess v. The Bank of Columbia, MS. 13th April 1820; Law v. Law, MS., 6th Decem-
ber 1824; Shaaf v. Taney, MS. 10th May 1826.