
    NAPIER vs. WELLS.
    This was an action of covenant, in which the plaintiffhad taken out the bond for the purpose of proving it by the subscribing witness abroad. The deposition was returned with the bond annexed ; and now Grundy moved, that he might have the bond for purpose of sending it to another state, where his witness lived, in order, that he might prove it was not his deed.
    On what terms a defendant is entitled to a deed on which suit is brought against him, for the purpose of a witness, whose deposition,respecting it, he wishes to obtain.
   Overton, j.

Said the motion was proper, but must be allowed on terms, as was done in the case of Hendrick vs. Hendrick, on the equity side of this court. The clerk must take a copy, and if the bond is not returned at the next term, it shall operate as a confession of the plaintiffs declaration, or if returned, and it should be defaced, obliterated, or altered in any manner it should have the same effect.

NOTE.-It cannot be perceived in this case why an affidavit should be necessary, other than the usual one, shewing that the witnesses of the defendant lived abroad. The defendant as well as the plaintiff is entitled as of course, to all the means which this court can afford, to enable him to make his defence, and this he cannot do without the bond, where the witnesses live out of the state, and so it was considered in the case alluded to above.

Whiteside for plaintiff.

Powel j. and Humphreys, j. Thought there should be an affidavit to authorise it.  