Townsend v. New-York Insurance — 1 Cai. 4

Majority

p. 7

Townsend against The New-York Insurance Company.

Headnote

If notice of applying for a commission specify names of commissioners, and the party served do not then object, he is concluded. ■

Queers, whether costs should not follow on applications for time ?

Motion for a commission to examine.'

This cause had been once deferred, for want of testi

p. 8

[*5] many, to acquire which a ^commission had issued.

The defendants, afterwards, but previous to the last circuit, gave notice to the plaintiff that they should, on affidavits, (the copies of which were.annexed,) move for a commission to examine witnesses, and specified the names of the commissioners. At the time of serving this notice, the defendants offered to stipulate not to delay the cause. The plaintiff did not assent to join in the commission, and, in a few days, gave the regular notice for trial. At the circuit an application was made to postpone the cause, on the usual affidavit of the want of that testimony, to obtain which, the commission noticed was to be sued out. The plaintiff’s counsel objecting, he had till the next day to produce an affidavit of a former delay. Not doing this, -the cause stood over of course.

Hoffman now moved for the commission.

Hamilton objected to its being directed to the commissioners named.

The commissioners having been named in the notice of the motion, and the plaintiff having neither joined nor objected, is now concluded.^[1]

(a) (a) The objections should be made by affidavit, stating the facts on which grounded. Biays v. Merrihew, 3 Johns. Rep. 261 .

p. 9

Hamilton

then argued against the application, because it was uncertain how long it would tie up the cause, and. the defendants had not entered into any stipulation.

It is unnecessary, for they take the commission at their peril; let it issue.^[2]

Hamilton asked for the costs of the circuit.

The Court ordered them, and seemed to think that in all cases of delay, costs should follow.

On payment of costs of the circuit, motion granted.

[1] [1] When party applying for commission must pay costs. La Farge v. Luce, 2 Wend. 242 . Jones v. Ives, 1 Wend. 283 . Burr v. Skinner, 1 J. 0 . 291. When a commission will stay proceedings, and when stay will be vacated. Beall v. Day, 1 Wend. 513 . McVicar v. Woolcot, 3 Cai. R. 321 . Nichol v. Col. Ins. Co., 1 Id. 345 . Pell v. Bunker, 2 Id. 46. Ferris v. Smith, 2 Id. 253. Shuter v. Hallet, 1 Id. 115. Kirby v. Watkins, 1 Id. 503. Coles v. Thompson, 1 Id. 511. Brain v. Rodelies, 1 Id. 73. Burr v. Skinner, 1 J. C. 391. Rush v. Cobbet, 2 Id. 70. Maynard v. Chapin, 1 Wend. 520 . Bourherean v. La Guen, 2 J. R. 196. Bank of Charleston v. Hurlbut, 1 Sand. 717. 1 Code Rep. 128 , S. C. Voss v. Fielden, 2 Sand. 690.