ART. 70.] WITNESSES AND Evidence.

to the issue, or to answer any bill of discovery only which may be
filed by the second court after the appearance court, in cases and
under circumstances where they might be compelled to produce said
original books or writings or answer such bill of discovery by the
ordinary rules of proceeding in chancery; and if a plaintiff shall
fail to comply with any such cider to produce such books or writ-
ings, or answer such bill of discovery, it shall be lawful for the said
courts on motion to give the like judgment for the defendant as in
cases of nonsuit; and if a defendant shall fail to comply with such
order to produce books or writings, or to answer any bill for dis-
covery only, it shall be lawful for the court on motion as aforesaid,
to give judgment against him by default; provided, that any plain-
tiff or defendant may, in compliance with any rule for producing
extracts of such books or papers, bring into court the original books
or papers.

753

19. At the trial of any suit instituted upon the bond of any
clerk or register for neglect of duty, it shall be the duty of the
clerk or register, when required, to exhibit to the court his dockets,
records and fee books, and the measure of damages shall be the
sum or sums he has charged for services he has not performed,
unless special damage has been suffered by some person, and if so
the jury shall in addition allow for such special damagc.

COMMISSIONS TO TAKE TESTIMONY IN THIS State.

Id s 70.
1825, r 208, s 2.
Clerks and
registers when
to produce fee
books.

20, Either party in any action depending in the Circuit Courts
for the counties and the courts of civil jurisdiction in the city of
Baltimore, after due notice to the other party or his attorney, agree-
ably to such rule as shall be made by the said courts respectively,
may take the deposition of any witness before any of the commis-
sioners appointed by said court to take testimony as prescribed in
article LIX of this Code, subtitle Commissioners to take Testimony
at Law, to be used as testimony on the trial of such action, in case
only of the death of such witness, or on proof to the satisfaction
of the court of the inability of the party to procure the attendance
of such witness at the time of trial, and the probable continuance
of said inability until and at the next term, before the court shall
permit such testimony to be used, and the opposite party shall be
entitled to cross-examine any witness whose deposition shall be so
taken, or to examine him or her on notice, before the same or any
other commissioner.

Art 37, s 18
1848, c 165, s 2.
Commission to
take testimony
to be used on
trial of action
pending, where
witness unable
to attend
20 Md 248 ,
35 Md 531

21. All depositions and examinations taken by such commis-
sioner shall be certified and returned by the commissioner taking
them, under his hand, to the clerk of the court in which it shall be
intended to use them; and if such court shall be any other than
that by which such commissioner was appointed, there shall be an-
nexed to his return a certificate by the clerk, under the seal of the
court, that he is commissioner.
48

Id s 19
1828, c 165, s 2.
Ho w such depo-
sitions to be
certified and,
returned