The Western Metropolis

¶1Where it appeared by affidavits filed by the appellant, who was claimai t below, in a collision case, that it was probable that two witnesses for the libellant received, before testifying, a promise from him for the payment of a sum of money in the event that the case should be decided in his favor,'and that the appellant ascertained the fact after the appeal, the court ordered a commission, under the 12tb rule, to take the testimony of such witnesses relative to said agreement.

¶2On motion. — John Low, Jr., had libelled the steamer Western Metropolis, in the District Court at New York, for damages sustained by a collision between that steamer and the schooner Triumph, owned by the libellant.

¶3The District and Circuit Courts decreed in his favor, and the owner of the steamer appealed to this court.

¶4Mr. Hubley Ashton, counsel of the appellant,

¶5now filed an afiidavit of'that party, stating that since the taking and perfecting of the appeal he had learned that two of the witnesses for the schooner in the District Court, the master and the mate of that vessel, had received from the libellant, John Low, Jr., before giving their testimony, an agreement for the payment of a sum of money on the contingency and in the event that the case should be decided in favor of the libellant and he should receive the damages claimed.

¶6On this affidavit a motion was made, on behalf of the appellant, that a commission be issued under the 12th rule of this court,* to take the testimony of the master and mate of the Triumph as to the alleged agreement.

¶7• _ The application, it was contended, was brought by the affidavit of the appellant within th# rule laid down in the case of The Mabey.†

¶8On the hearing of the motion, Mr. E. G. Benedict, for the *390appellee,

¶9filed counter-affidavits of Low and the-witnesses,, denying- that the agreement referred to was given for the purpose of influencing the testimony of the witnesses, but merely for the purpose of securing their attendance and compensating them for the time and money expended in' attending to give their evidence.