
    Matter of Whitney, a non-resident debtor.
    A commission to examine witnesses residing out of the state will not be granted in a proceeding under the statute against an absconding, concealed and non-resi- ■ dent debtor, for the purpose of enabling the debtor to controvert the claims of creditors before the trustees, &c.
    Motion for a commission to examine a witness residing in another state. Proceedings were instituted before a supreme court commissioner on the application of Shaw, against Whitney, a non-resident debtor, and trustees appointed under the statute. (1 R. S. 764 et seq., 2d ed.) In his application, Shaw claimed that Whitney was indebted to him in the sum of $2500. The trustees gave the usual notice for the creditors of Whitney to deliver their demands to them by the 24th of May, 1842, (Id. p. 799, § 8,) and, on the 12th of that month, Whitney gave notice of this motion, intending to controvert the claim of Shaw. (Id. p. 798, § 7, subd. 8.) Whitney’s affidavit stated, among other things, that he had a good defence on the merits as advised &c., and that J. W. Garnsey, a resident of Tioga, Pennsylvania, was a material witness &c., without whose testimony he (Whitney) could not safely proceed to a hearing before the trustees &c. The officer before whom the proceeding was instituted made his report to this court in April, 1842.
    
      W. M. Pattison, for the motion.
    
      D. S. Dickinson, contra.
   By the Court,

Nelson, Ch. J.

The matter in controversy between these parties is not within the statute authorizing the award of a commission to examine witnesses residing out of the state, as there is no action pending in the court and no issue of fact joined. (2 R. S. 393, § 11.) The right to the commission depends altogether upon the statute, no such proceeding being known to the common law. (Tidd, 741; Francis v. Gilmore, 1 Bos. & Pul. 177; 1 Archb. 174.) This case is the same in principle as that of Wood v. Howard Ins. Co., (18 Wend. 646.)

Motion denied.  