
    Brisban ads. Hoyt.
    On a motion for a commission, the affidavit must state the party has a" defence on the merits.
    Motion for a commission to examine witnesses. The affidavit on which the motion was founded did not state that the defendant had a good and substantial defence on the merits, as advised by counsel. It detailed the probable testimony of the witness, but not in a sufficiently explicit manner to enable the court to judge that it would amount to a good defence.
    
      
      Chandler, for defendant.
    
      Brown, for plaintiff.
   By the Court,

Savage, C. J.

The motion is denied, with costs. Where the effect of a rule granting a commission is to stay the proceedings, the affidavit must state the party has a defence on the merits. (2 Johns. Cas. 285.)  