
    MURRAY vs. WINTER & HARMAN.
    A ded.pot. `will issue, tho' the party cannot name the witness.
    Livingston
    moved for a dedimus protestatem, stating that the bill of exchange, on which the suit was brought, was drawn and delivered for the special purpose of taking up another, which had not been taken up: so that the consideration for which it was given had failed. The deponent swearing he believed he would be able to prove, from the books of the original holder, the clerks of the bankrupt, or the bankrupt himself, if allowable, that the bill was endorsed to the plaintiff after the bankruptcy.
    Alexander, contra.
    A feeling commission is never allowed. A party shall not be put to the certain inconveniency of the dela which the granting of the commission will occasion, on the probable expectation of his opponent being able to make certain proof. The witness must be named. Here we have no person named, but the bankrupt, and he cannot testify.
    
      Livingston in reply.
    The defendant has set forth the fact when he intends to prove-a fact which the plaintiff has an opportunity of admitting. The defendant states the sources from which he expects to draw the evidence-the books of the original holder: if no entry appear there, suspicion will arise that the bill was delivered after the bankruptcy. The clerks of the late bankrupt are sufficiently described; the defendant not being possessed of their names. The bankrupt~himself, if he have a discharge from his creditors, may be heard. The deponent, being at a distance from the scene of action, cannot with safety swear mQre positively. It wou'd be to put his conscienceto too severe a trial, to require him to swear further. The existence of sufficient grounds of belief is sufficient.
   Ded. Pot. ordered.  