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436 DEALE v. ESTEP
In Maryland the forms of these writs are the same as in Eng-
land, they are always addressed to the party to answer or to tes-
tify; (h) and as in England they may be executed by any one, so
that the court be satisfied, by affidavit, that they have been
served, (i) Here as in England, the commission to take testi-
mony directs the commissioners 'to cause to come before them all
evidences as shall be named to them by either the plaintiff or
defendant.' Under this authority, which has been expressly re-
cognized by positive legislative enactment, (j) the commissioners
have always, when necessary, summoned the witnesses to come
before them; and on their failing to attend, there seems to have
teen 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 commission from a foreign tribunal, (k) 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 introduced a more
cheap and expeditious mode of proceeding. (!)
But, to clear away the difficulty which has been presented in
this ease, 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 subpaena as well as of
attachments.
It may be safely assumed, that where the Legislature has speci-
fically allowed to a sheriff a particular fee 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 list provincial act of Assembly by which officers' fees were
regulated, makes a clear distinction between a subpaena ad respon-
dendum, and a subpaena ad testificandum, by designating the first
specially; and then, in the same section, allowing to the secretory
a different fee for 'every subpaena and return.' But as the secretary
was then the register in Chancery, as well as the clerk to the
higher courts of common law, it may be supposed, that those last
(h) I Hart, Pra. Chan. 195; 2 Harr, Ent 772.—(i) Hoye v. Penn, 1 Bland, 29;
Taylor v. Gordon, 1 Bland, 132, note.—Showell v. Showell 1713.—Service of the
subpaena proved before Col. Williams.—Chancery Proceedings, lib. P. L. fol. B.—
(j) 1785, ch. 72, s. 16.—(k) Gibson s. Tilton, 1 Bland, 854; Bryson v. Petty, 1
Bland, 182, note; Contee v. Dawson, 2 Bland, 283; Maccubbin v. Matthews, 2
Bland, 262; Harris 9. Saunders, 10 Com. Law Hep. 373; Thurlt r. Faber, 18 Com.
Law Rep. 136; Turnbull 9. Moreton, 18 Com. Law Rep. 215; Clay v. Stephenson,
30 Com. Law Rep. 225.—(f) 1824, ch. 133*
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