Opinion
Spring Sessions, 1866.
Scire Facias, on a judgment in the Superior Court for Sussex county, for three hundred dollars entered 1st of March, 1836, at the suit of John Hays use of James P. Lofland against James Johnson, with payment of interest endorsed thereon to February 27th, 1836.
Layton, for the plaintiff, proved the death of John A. Collins very recently, and then offered in evidence his deposition taken during his last illness, and since the last term of the court, on a commission de bene esse issued in vacation without any order of the court.
Moore, ( Cullen with him), for the defendant, objected to its admissibility. The sixteenth section of the sixth article of the constitution provides that when a civil cause is pending, the Superior Court shall have power to direct the examination of witnesses that are aged, very infirm, or going out the State, upon interrogatories de bene esse, to be read in case of the death, or departure of the witness out of the State before the trial, and under it no such commission could properly issue without an application to the court and a special order and direction from it for the issuing of it in any case.
Layton. Both the rule of the court, and the long and uniform practice under it, were to the contrary.
The Court, after advisement, so ruled, and the commission and deposition was admitted and read in evidence, and the plaintiff had a verdict.