Majority
p. 513Beall vs. Dey and others. March, 22.
Headnote
A commission to examine witnesses, with stay, &c. will issue, notwithstanding application is not made until fourth special term after issue joined.An attorney may swear to materiality of witnesses, without adding as advised by counsel.
Motion for a commission. It was objected that the affidavit was made by the attorney, and although he stated that the witnesses sought to be examined were material to the defence of the action, he did not add as advised by counsel; and it was also objected that laches were imputable to the defendant, the cause having been at issue since the 23d January last, and three special terms having since elapsed.
By the Court,
The advice of an attorney is the advice of counsel, within the meaning of this rule of practice. Here the affidavit is made by the attorney, and he states that the witnesses are material, which is sufficient. The delay in asking for the commission is not so great as to preclude the defendant from the effect of his motion. Let a commission issue, with stay of proceedings until the same can be executed and returned.