
    *Den against Farley.
    Buie for commission examine nesses discharged, because the necessary affidavits and proofs were not filed, 
    
    AT November term, 1817, on. motion of M’Donald, for ,, i xir --x defendant, a rule was entered for a commission to take the depositions of sundry witnesses, living in the , J state of Pennsylvania.
    
    Mr. P. StocJcton,
    
    moved, to discharge this rule, because no no^c-e bad been previously given, that the defendant intended to apply for it; because it was not taken in time, the cause having been noticed for trial at the October Circuit; and because no evidence was laid before the court as the foundation of the rule.
    
      M’Donald.
    
    This cause was at issue in September, and was noticed for the October Circuit; the defendant could not therefore obtain his rule, earlier than he did, viz. at the November term, at bar. It was then moved in the presence of the plaintiff’s attorney, and was granted, upon a full statement of such facts as .were necessary to authorize it. If it be now discharged, the party, who has left NewJerseyi and lives in Pennsylvania, will be without remedy, and forced into his trial, at the next circuit, without evidence.
    Mr. Stockton.
    
    The attorney of plaintiff, did not observe the application for the rule, or it would have been objected to.
    By the G. Justice and Rossell J.
    The rule was granted improvidently, without the necessary evidence to justify it, and must be discharged.
    
      Southard J.
    Doubted the propriety of discharging the rule, in consequence of the situation into which it would throw the party.
    
      
      
         Wilson vs. Cornell, ante 117. Stokes vs. Gaw, 2 Har. 451. Anonymous, 7 Hal. 94. Leonard vs. Sutphen, 3 Hal. Ch. 545.
      
    
   Rule discharged.  