Majority
p. 161*Shuter against Hallett.
Headnote
If the defendant has joined in a con mission, the court will not, vn tho plaintiff’s application, vacate the rule by which it was granted, but will grant one to proceed to trial notwithstanding the commission.D. L. Ogden moved for a rule to vacate the rule for a commission which had issued in this cause in the spring of 1802. The facts, as appeared by affidavit, were these:
A commission had issued as above, in which the defendant had joined, but not being returned, another was sued out in November last, and as there were no hopes of the first being returned, the parties agreed that the testimony taken on. the second, which was on the same interrogatories, should be read in evidence on the trial. After this
p. 162
the cause was duly noticed, but the judge refused to let it come on, as the counsel for the defendant had joined in the commission.
The commission is as much the defendant’s as the plaintiff’s and he may take the benefit of it on trial. We cannot, therefore, vacate the rule, but the plaintiff may have one to proceed to trial notwithstanding the commission.[1]
Motion denied.[2]
Radcliff and Livingston, Justices, absent.
(a) (a) See Brain v. Rodelichs and Shivers, ante, 74. See Note [2] ante.
(b) (b) See Kirby v. Walhers, post, 503. Caines’ Prac. 428 — 430: inclusive.