238 LINGAN v. HENDERSON.

Whereupon it is prayed, that the administratrix of Henderson
may be compelled to pay the amount of the purchase money for
the land, with interest; or if the sale should not be admitted or
proved, that the heirs of Henderson may be compelled to re-convey
the land to such of the plaintiffs as are entitled thereto; and that
the plaintiffs may have such further and other relief as to the court
shall seem meet and consistent with equity. And forasmuch as the
defendants were all of them non-residents, the plaintiffs prayed an
order of publication, which was passed. accordingly, directing the
defendants to be warned to appear on or before the 29th day of
May then next.

The plaintiffs, by their bill, filed on the 15th of December, 1821,
in this case, alleged, that Henry Waring, of Washington county, in
the District of Columbia, was the only person by whom they
expected to be able to prove their claim; that he was then advanced
in iife, and if deprived of his testimony, they were apprehensive
that they would not be able to establish their claim. They, there-
fore, prayed, that a commission might be issued to perpetuate his
testimony, and that it might be issued to James Dunlop, jun'r, John
Marbury, J. J. Stull, and Joseph Brewer, and for such other relief, &c.
Annexed to this bill there was an affidavit of the truth of the facts
stated in it, made before an assistant judge of the Circuit Court
of the United States for the District of Columbia; and a certificate
of the Secretary of State, that he was at the time an assistant judge.

15th December, 1821.—JOHNSON, Chancellor.—Issue the com-
mission as pray ed. (a)

The testimony of the witness was taken and returned accord-
ingly; but as the testimony of this same witness was^fterwards
regularly taken, it is unnecessary here to take any further notice
of this examination de bene esse.

The defendants David English and wife, on the 8th of May,
1822, filed their answer, which sets out in these words: " The
answer of Damd English, and Lydia English his wife, formerly
Lydia Henderson, administratrix of John Henderson, to the bill of
complaint of Janet Lingan and others. The said defendant saving

(a) RYMER v. DULANY—1787.—Petition for a commission de bene esse, stating
that the petitioners, the plaintiffs, were in want of the testimony of Abraham Cream,
of Frederick county, who was a material witness for the petitioners in the said cause,
and who was about eighty years of age, and sick and impotent. Granted.—Chan.

Pro. lib. s. h. h. lett. C. fol, 296.