
    John Leonard and others v. Abraham Sutphen and others.
    A commission for the examination de bene esse of a non-resident infirm witness may be awarded before issue joined.
    The snbpena in this case was returned the first day of the present term, June term, 1849. At the time of the service of the subpena a notice was, also, served on the defendants of an application to bo made, on a day in this term more than ten days after the service of the subpena, for a commission for tbe examination of a witness 'de bene esse. Tbe affidavit upon which the commission was applied for stated that the witness resided out of the State, and was aged and infirm, and was a material witness in the cause.
    The question submitted to the court was, whether a commission could be awarded before issue joined in tbe cause.
   The Chancellor.

The “Act authorizing commissions and tbe taking of depositions,” Rev. Stat. 959, by the 1st section thereof, provides, that if a material witness reside out of the State, or, if in this State, he ancient or very infirm or about to go out of the State, a commission may he awarded to examine such witness de bene esse, upon interrogatories approved by the court; and, by the 10th section thereof, that the deposition taken under the commission shall be as competent evidence as if tbe witness bad been examined on the hearing; provided it appear to the satisfaction of the court that the witness reside or is gone out of the State, or is dead, or by reason of age or infirmity is not able to attend the court, but not otherwise. A commission for an examination de bene esse is within the language of the statute in the case made by the affidavit, and is, also, within the spirit of the statute. Non-residence, alone, of a material witness is a sufficient ground for a commission. If issue is joined in the cause a commission will be awarded for his examination abso-. lutely. And it would seem that by the statute non-residence, alone, is sufficient for a commission to take the examination de bene esse, and before issue joined.

In this case, the affidavit states, also, that the witness is aged 84 and is infirm. I see no reason why a commission should not go, before issue 'joined, to take his examination de bene esse.

Order accordingly.  