
    Warner vs. Harvey.
    ALBANY,
    Oct. 1832.
    On a motion for a commission to examine witnesses, an affidavit of merits is necessary only when the party asks for a stay of proceedings until the return of the commission.
    On a motion for a commisssion to examine witnesses, it was objected that the defendant did not swear to a good and substantial defence, to which it was answered that the party did not ask for a stay of proceedings, and, that in such case, he need not swear to a defence.
   By the Court.

An affidavit of merits on an application of this kind is not necessary, unless the party asks for a stay of proceedings until the return of the commission.  