
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1804.
    Carloss v. Colclough.
    The court will not grant a commission to examine a- witness de bene esse, on the ground that he is the only witness having knowledge of a fact material to the defence; it not being stated that he was sick, or infirm. The practice of Che English Chancery, in this particular, has never been adopted by any court of law in this country.
    In the district court of Sumter, it was moved, before Grimke, J. an behalf of the defendant, that a commission should be granted to take the examination of Adjutant General Manning, 4e bene esse, 
      although it was not stated that he was sick, or infirm, but only, that he was the only witness who had knowledge of a fact, material to the defence; which was stated by affi lavit. The judge-grafted the motion, in order to have the propriety of such a practice inquired into more fully, and setth d by a full bench.
    On motion, in this court, to reverse the decision of the district court, Falconer, in support of the said decision, cited Lord Chol«mondely v. the Earl of Oxford, 4 Bro. G. G. 157. liankin v„Middleditch, 2 Bro. C. C. 640, and 3 P. Wms.-77-, to shew that-the practice was so in the court of chancery. And argued, that the same reasons which would influence a court of equity to grant such a privilege, ought to influence a court of law, where the witness is the only person privy to the matter, and as, by his unexpected deaths the party might be deprived of his testimony, and justice defeated.
    Richardson, contra.
    
   The court allowed the motion in this court to' prevail, and rever, sed the decision of the district court, on the ground, that such a' practice had never been adopted in any court of law in this country.

Note. Upon a suggestion merely, there being no affidavit, that if certain persons should die, their death would be prejudicial to the plaintiff’s title, a' commission issued to examine witnesses on the part of the plaintiff", although the defendant had not answered. Bagnold v. Green, 1 Dickens, 2. Carey’s Rep. 48, S. C.  