
    William E. Greene, plaintiff, vs. Nicholas D. Herder, impleaded, &c. defendant.
    1. On.an application, under the provisions of the Code, hy a party, for the examination of the adverse party as a witness in the action, he must present an affidavit stating, 1st. The nature of the action and the plaintiff’s demand. 2d. If the application be made by the defendant, then the nature of his defense; and, 3d. The name and residence of the proposed witness.
    2. Upon that affidavit the party may apply for such an order as is mentioned in section 3 of the statute in relation to the conditional examination of witnesses within this state, (2 JR. 8. 392,) and also for the summons provided for in section 10 of the same statute.
    3. The order so obtained should be served upon the attorneys of all the parties who have appeared, or, if the time for appearance has not yet expired, then upon the adverse parties themselves, who have not appeared; and the summons should also be served upon the proposed witness.
    4. In case the proposed witness fails to appear, the party who has procured the order and summons may, upon a proper affidavit, obtain a warrant directing the sheriff to apprehend such witness and bring him before the judge, (2 JR. 8. 401, § 60;) or, at his option, he may, on a proper affidavit and notice, have an order directing the pleading of the recusant witness to be stricken out. (Code, § 394.)
    (Before Babboüb, J. special term, at chambers,
    December 15,1865.
     