Majority
Headnote
After a second, commission has issued, with leave to go to trial notwithstanding, the court, on special circumstances, since discovered, will vacate the rule as to going to trial, and allow a further time for tiie return.• In this cause a commission had issued to examine a witness in France. Pending this, a letter was received, giving information that be was then a prisoner in England. At tbe next term an application was made for a second commission to be transmitted to England, wbieb, after an ineffectual opposition, was granted, but not to prevent bringing on tbe cause at tbe circuit. Previous to this another letter was received, specifying the witness to be in confinement in a town near Liverpool, and evincing that bis testimony was almost conclusive on tbe question.
Bogert, on these facts, and stating that the commission had been sent, without a knowledge of the exact spot where the witness was, moved to vacate that part of the last rule permitting the plaintiff to go to trial at the next circuit, and to allow eight months from the time 'the commission issued for its return.
Ordered accordingly.