
    Meech vs. Calkins and others.
    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 was defective in not alleging that the defendants had a defence on the merits.
    
   By the Court,

Nelson, Ch. J.

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. 
      
       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.
     