Majority
p. 534Meech vs. Calkins and others.
Headnote
In an action of debt on bond, the defendant moved for a commission to examine witnesses, with a stay of proceedings until its return, on an affidavit that he had “ a good and substantial defence to the hand" &c.: Held, that the affidavit was defective in not Eftating a defence on the mérito j and a stay of proceeding® was, for this reason, denied,D. Burwell, for the defendants, moved for a commission to examine witnesses residing out of the state, with a stay of proceedings until its return. The action was debt on bond, and the affidavit on which the motion was founded stated that the defendants had “ a good and substantial defence to the bond,” See.
R. W. Peckham, for the plaintiff, objected that the affidavit
p. 535
was defective in not alleging that the defendants had a defence on the merits.
By the Court,
The defendants may take a rule for a commission ; but they are not entitled to a stay of proceedings, the affidavit being clearly defective.
Ordered accordingly.[1]
(a) (a) See Warner v. Harvey, ( 9 Wend. 444 ;) Seymour's executors v. Strong, (19 id. 98;) also ante, p. 64, 5, note, and the cases there cited relating to the form of an affidavit of merits.