The omission of the affidavit to my bill v. Michie was from want of reflection and recollection. I know that in a suit at Common law where depositions are desired lest the witnesses should die before trial, an affidavit is always required and altho ours is a different case, yet it was not worth while to run any risk for want of a mere formality. I have therefore prepared an affidavit stating distinctly the case of every witness, which I shall send to the clerk to-day to file with the papers. but that will not make it a part of the record. the question then is whether it will be best to move the court at it’s next session, & before any advantage taken of the omission, to enter the affidavit nunc pro tunc, as an amendment of the record? or to say nothing about it on the presumption the adversary will not observe it. this last is never safe1 policy; and if we propose the amendment by an entry nunc pro tunc, perhaps it may be proper to enter with it a new2 confirmation of the order. all this I leave to yourself & mr Barber to do in it as you see best. I think however one thing certain; that the order to take the depositions is a merely interlocutory step from which there can be no appeal, & that the final decree is only on recieving & recording the depositions. in this view, the case being yet pending, the record may certainly be amended.—there is a just answer to the def’s objections against our taking depositions, which is that it is in his power to render them unnecessary as soon as he pleases, by bringing his suit if he intends one: and we may offer to suspend this proceeding now if he will instantly file his bill or declaration so that the depositions may be taken in chief at once. still all this is left to you