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.