The plaintiff, being a non-resident of the State, asks for a commission to examine himself and others as witnesses on his behalf.
Prior to the amendments of the Code, in April, 1859, it was held that this examination of a non-resident party under a commission could not be had, unless the opposite party had given notice of his intended examination at the trial. But section 399 has been amended to obviate this objection, and the notice of intended examination of a party is no longer required. A party may now be examined the same as any other witness (except in certain specified cases), and without previous notice; and if he resides out of the jurisdiction of the court, he may be examined by a commission issued and executed in the usual manner.
The motion for a commission is therefore granted; costs to abide event.