¶1The examination of witnesses heretofore has been by consent. However, let a commission go, at the peril of the party prosecuting. The defendant, Small, is allowed to go at large, without any bond not to depart (1 Harrison’s Ch. P. 202), so that the sheriff may have it in his power to bring him in at the next Term on this same writ, he still being supposed to be in the custody of the sheriff.
¶2Note.—In this case, at the suggestion of the Chancellor, the title of the interrogatories were amended so as to stand in the name of the State of Delaware vs. Stogdon Small.
¶3In a previous case of attachment for contempt, viz : Tatem and Canby vs. Joshua Gilpin and Thomas Gilpin, in which the interrogatories were entitled in the name of fie parties (Ridgely’s notes, 1817, p. 229) the Chancellor makes this note, viz : “ Quere.—Is the title of these interrogatories right ? Ought they not to have been,—The State vs. Joshua Gilpin and Thomas Gilpin. Motions and affidavits for attachments in civil suits are proceedings on the civil side of the Court, until the attachments issue and are to be entitled with the names of the parties. Bnt as soon as the attachments issue the proceedings are on the criminal side. United States vs. Wayne, Wallace’s C. C. Rep. 134. See Tidd’s Prac. 142 : 3 T. R. 133, 263 : 2 T. R. 643 : 6 T. R. 640: 7 T. R. 439, the cases cited in Wallace.”