Franklin v. United Insurance

*Per Curiam. Though the defendants account for their delay, in making this application, yet they do not state with certainty that there is a substantial defence ; or that they are informed, and believe any to exist. Where a party asks for delay, he ought to state positively that he has a defence on the merits ; and that he seeks only the requisite proof. The defendants ask for a commission, for the double purpose of ascertaining or discovering whether a defence really exists, and if it does, to obtain the requisite proof to support it. The affidavit does not state probable grounds to induce a belief that the vessel could have continued her voyage. The commission appears to be intended for general inquiry, to fish for facts. If it should be granted, it would become a precedent that would lead to abuse. The motion must be denied ; but the defendants will be at liberty to take out a commission, if they choose, without any stay of proceedings in the case. Buie refused.(a) Footnotes [a] (a) See Graham’s Practice, 2d ed. 592, 593. See note (5) to Franklin v. The United Insurance Company, supra, p. 68.