
    Daniel Huffman v. Hugh Barkley.
    Columbia,
    May, 1828.
    The Court niay, in its discretion, grant leave to examine by commission de bene esse, an attorney, who i& a witness in a cause, but whose attendance at Court is prevented by his duties on another Circuit.
    This was a motion to rescind an order made by Mr. Justice Gantt, at Fairfield, Spring Term, 1828. The case had been continued on the application of the defendant; and, subsequently, the plaintiff moved for leave to examine by commission, Mr. Farrar, a gentleman of the bar, practising in another circuit, but within one hundred miles of Fairfield Court-House. His Honor granted the motion, on the ground that the testimony of the witness could not otherwise be obtained, but with great difficulty and expense, and at an inconvenience to the administration of the justice of the country ; and that as a continuance had been granted, the Court had a right to impose such eqhitable terms as the exigency of the case called for.
    The defendant appealed on the ground that the order was unauthorized by law.
    1>e Saussure, for the motion.
    Clarke, contra.
    
   Nott, J.

delivered the opinion of the Court.

The Court, in this case, concur in opinion with the presiding Judge. In the case of English v. English, 2 McCord, 238, it was held, that the testimony of a President of the Branch Bank could not be taken by commission. But that was on the ground that his duties were not of such a nature as to prevent his personal attendance at Court. It is indeed said, in that case, that n@ witness residing in the State could be examined de bene esse, by the Common Law.” But that was laying down the proposition in terms rather too broad. Our Courts were always in the habit of examining, de bene esse, aged and infirm persons, and others whose public duties necessarily prevented their personal attendance as witnesses. Attorneys being officers of Court, have always been considered as coming within the rule, where the Courts were sitting at the same time.

Motion refused.  