
    Brackett against Dudley
    An affidavit s°„na f01™^ cienti if ,ifc shew the witness to be ma-a<^*j that he is out tion^of'^'the court. It need not add, that the party cannot P1"0®.®®^ to trial, without such evidence"
    Motion, for a commission, in behalf of the defendant, who made affidavit, “ that R. B. is a material witness for this deponent, in the above entitled cause, as he is advised hy counsel, and verily believes to be true : and that he cannotsafely proceed to the trial tkreof, without the testimony of the said R. £.” and that the witness resided out of the state, and where. And, because the affidavit did not state that the defendant could not safely proceed to trial, &c. as advi77 , , . sea by counsel, objection was taken. But,
   Per Curiam.

The affidavit shews enough, without this. & ’ - _ The statute is, that, “ if any material witness, in any action, &c. shall not reside in this státe, it shall be lawful for the Court, on affidavit or proof being made thereof, to the satisfaction of the Court, to grant the commission.” It is enough, to shew, by affidavit, that the witness is without the jurisdiction of the Court, and that he is material, which is sufficiently shewn here, and the advice of counsel is so far sworn to. That the party cannot safely proceed, &c. issurplusage.

Motion granted.  