Judge Sutherland,
who wrote the opinion in the case of Cook agt. Bidwell, held that there was nothing decided in that case dispensing with the necessity of an order for the examination of a party under that section, and that in all cases under section 391, the correct practice is to propose an affidavit setting forth that the cause is at issue, and that the party desires to examine his adversary as to matters material to the issue, and upon such an affidavit procure an order for his examination. That a simple notice to attend, or an ordinary subpoena was not sufficient.
Ingraham, P. J., and Gierke, J., concurred.