Majority
p. 514Rogers and others vs. Rogers. March, 22.
Headnote
On a rflotion for a commission to examine witnesses, where doubt is cast upon the bona fides of the application, the commission will not be granted upon the common affidavit. If, however, at a subsequent term, a prima facie case for a commission is made out, the motion will be granted.- Motion for a commission by the defendant. ' The plaintiffs made an affidavit, stating the general nature of the matter in controversy, and swearing that they did not believe that the witnesses sought to be examined by ,the defendant, could testify to any thing material to the defence of this cause.
By the Court,
Where doubt is cast upon the bona fides of" the application for a commission which is to operate as a stay, the motion will not be granted upon the common affidavit. 3 Johns. Cas. 137 . The motion in this case is continued over until the next term, when the defendant shall be at liberty to renew it on such additional affidavits as he shall be advised to present.
At a subsequent term, affidavits shewing a prima facie case for a commission were presented, and the motion was granted.