Coles v. Thomson — 1 Cai. 517

Majority

p. 653

Coles, Titford and Brooks against Thomson.

Headnote

Practice as to commissions. *•

Boyd moved for judgment, as in case of nonsuit, for not going to trial, on an affidavit, that the cause was at issue in September, 1802, noticed for trial in November following, and had not since been noticed.

An affidavit contra was read on the part of the plaintiff, stating, that on the 9th of last March a commission issued to London to examine witnesses on his behalf, which had not been returned, but was daily expected.

In the case of Juhel v. The United Insurance Company, October term, 1801, we held, that three months was a sufficient time (ante, 503, n. (a) for executing and returning a commission arrived in London. In Miller and Graham v. De Peyster and Charlton, January term, 1803, it was decided, that where a plaintiff has delayed his own cause by a commission, and it does not appear that due diligence has been used, the defendant may apply for a rule for nonsuit, and compel the plaintiff to stipulate, (see ante, 7, n. (a) or be nonsuited, as if no commission had issued. In the present case it does not appear that the plaintiff has used due diligence in causing his commission to be executed, as eight months elapsed between suing it out and the sittings. Unless, therefore, he stipulate, the motion must be granted.^[1]

Motion granted, nisi.

[1] [1] See Townsend v. N. Y. Ins. Co., ante, p. 4, note [1].