
    Den ex dem. against Wood and others.
    The affidavit to show that a witness lives out of the state, and thereby to obtain a commission for the examination of such witness, need not be taken on notice.
    The commission may be opened by a judge in vacation.
    An order for the issuing of the commission, of itself, stays the proceedings.
    
      Wall, applied for a commission, to take the examination of a witness in this cause, and offered to read an affidavit.
    
      L. Q. C. Elmer, objected to the reading of the affidavit,., because it had not been taken or notice to plaintiff’s attorney.
   Ch. Justice.

No notice of the taking an affidavit, -to-prove the absence of a witness out of the state, to found an application for a commission need be given, to authorize the reading of the affidavit on the application. It does not stand on the same ground as an application to change the venue. The affidavit may be read.

Elmer, then objected, that the granting of the commission would delay the cause beyond the next circuit, which would be held before the commission could be returned to this court to be opened.

Ch. Justice. The commission may be opened by the-judge in vacation; and it is not necessary that it should be returned to the Supreme Court to be opened.

An order for the issuing of the commission of itself, stays the proceedings, unless there is something in the order,, authorizing the suit to proceed in the mean time.  