of the evidence unless the Commissioner rules that such evidence is not admissible on any ground. (d) Record of the Testimony: The party whose evidence is to be taken shall furnish a competent and disinterested reporter to take down the evidence and transcribe the same. The reporter shall be sworn by the Commissioner to well and truly take down and transcribe the questions propounded to and the answers given by the witnesses, and to do all other things required of him by the Commissioner. The reporter shall be under the control and jurisdiction of the Commissioner. (e) Return of Transcript of Testimony: Unless otherwise ordered by the Commissioner, the reporter shall enclose the transcript of the testimony and the exhibits in a packet and transmit the same to the Clerk of the United States Court of Claims, Washington 6, D. C., within 30 days after the conclusion of the trial session at which such testimony was taken. In the event the transcript is not filed within 30 days, or within the time otherwise ordered by the Commissioner, a rule may be issued against the party whose evidence was taken to show cause (1) why the petition or counterclaim should not be dismissed; or (2) why proof should not be considered closed and findings of fact made on the evidence theretofore produced and filed with the Clerk. (f) Deferred Completion of Examinations; Death of Witness: When a time has been set for the production of all or a specified portion of the evidence and the examination or cross-examination of a witness is postponed at the request of a party, such party may be required, in the discretion of the Commissioner, to pay all fees and necessary travel and subsistence expenses which are incurred by witnesses as a result of such postponement. The Commissioner's conclusion in such matter shall be noted in the transcript of the evidence. Should a witness die or otherwise become incapacitated before completion of his testimony, the extent to which the testimony so far given by him shall be used and considered shall be determined by the Commissioner. (g) Exclusion of Proposed Witnesses: On his own motion or on the motion of either party, the Commissioner may exclude from the courtroom all persons other than parties whom either expects or intends to call as witnesses in the case. Unless such motion is made at the beginning of the first trial session, the Commissioner may treat the delay in making such motion as grounds for denying the motion. If any witness remains within hearing of the proceedings after such exclusion has been ordered, that fact shall be noted of record in taking his testimony and he may be punished as for a contempt as provided in Rule 44 (f). This rule shall not apply to a person acting in an advisory capacity to counsel for either party. (h) Affirmation: Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. RULE 42. PROOF OF OFFICIAL RECORD (a) Authentication of Copy: An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office. (b) Proof of Lack of Record: A written statement signed by an officer having the custody of an official record, or by his deputy, that after diligent search no record or entry of a specified tenor is found to exist in the records of his office, accompanied by a certificate as above provided, is admissible as evidence that the records of his office contain no such record or entry. (c) Other Proof: This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by any applicable statute or by the rules of evidence at common law. RULE 43. EXCEPTIONS UNNECESSARY Except as provided in Rule 46, formal exceptions to rulings or orders of a Commissioner are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the Commissioner the action which he desires the Commissioner to take or his objection to the action of the Commissioner and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him. RULE 44. SUBPOENA (a) For Attendance of Witnesses; Form; Issuance: Every subpoena shall be issued by the Clerk under the seal of the Court, shall state the name of the Court and the title of the action and command each person to whom it is directed to attend and give testimony at a time and place therein specified. The Clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. (b) For Production of Documentary Evidence: A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein; but the Court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things. Where the place of trial to which the witness is summoned to appear is outside Washington, D. C., and the objecting party does not have sufficient time to file the motion and have the same acted upon before the date at which the witness is directed to appear, the motion may be filed with and acted upon by the Commissioner who is presiding at such trial. Where circumstances require, the Court or the Commissioner may act upon such a motion at any time after a copy has been served upon the opposite party. (c) Service: A subpoena may be served by the Bailiff, by a United States Marshal, or his deputy, or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by tendering to him the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered. The party at whose instance a subpoena is issued shall be responsible for the payment of witness fees and mileage as well as fees and mileage of the officer who serves the subpoena. The failure to make payment of such charges on demand may be deemed by the Court as sufficient grounds for striking the testimony of such witness. (d) Subpoena for Taking Depositions; Place of Examination: (1) Proof of service of a notice to take a deposition as provided in Rules 32 (a) and 33 (a) constitutes a sufficient authorization for the issuance by the Clerk of a subpoena for the persons named or described therein. The subpoena may command the person to whom it is directed to produce designated books, papers, documents, or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 29 (b), but in that event the subpoena will be subject to the provisions of subdivision (b) of Rule 32 and subdivision (b) of this Rule 44. (2) A witness may be required to attend an examination upon deposition only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by order of the Court or of the Commissioner. (e) Subpoena for a Hearing or Trial: (1) At the request of any party subpoenas for attendance at a hearing or trial shall be issued by the Clerk. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within 100 miles (by the shortest usual means of travel) of the place of the hearing or trial specified in the subpoena; but the Court, upon proper application and cause shown, may authorize the service of a subpoena at any other place. (2) A subpoena directed to a witness in a foreign country shall issue under the circumstances and in the manner and be served as provided in 28 U. S. C. 1781-1785. (f) Contempt: Failure by any person without adequate excuse to obey a subpoena served upon him may be reported to the Court by the Commissioner and may be deemed contempt of the Court. (g) Subpoenas by Commissioner: Upon application to the Clerk, subpoenas bearing the seal of the Court and the signature of the Clerk, with the remainder blank, will be issued to a Com |