
    
      MANN & BERNARD vs. HUNT & SMITH.
    
    Fall 1809,
    First District.
    Persons applying for a commission must disclose the facts intended to be proven.
    The defendants moved for a commission to examine witnesses abroad on their affidavit, setting forth the names of the witnesses and the materiality of their testimony.
    
      Brown and Livingston for the plaintiffs.
    The affidavit ought to have gone further and set forth the facts intended to be proven, in order that the court might judge of the importance of the testimony.
    
      
      Alexander for the defendants.
    It has hitherto been the practice to grant commissions without requiring such a disclosure as the plaintiff’s counsel calls for. It may be dangerous to make it, as an opportunity may thereby be afforded to the adverse party to tamper with the witnesses, and perhaps falsify testimony.
   By the Court,

Mathews, J. & Lewis, J.

It does not appear to us that there has been any established practice in this court, authorizing or dispensing with what is asked by the plaintiffs. It will certainly cut off a great source of delay if we require that the party applying for a commission to examine witnesses abroad should disclose on oath the facts intended to be proven, that we may judge of their materiality, and the adverse party be offered the opportunity of admitting them. Neither do we conceive any danger in witnesses being tampered with, or testimony fabricated. If the party against whom the testimony is used is surprised by it, the court must indulge him with the opportunity to introduce such counter testimony as he may state on oath to be within his reach.  