Coles v. Thompson — 2 Cai. 47

Majority

p. 46

Coles, Titford and Brookes, against Thompson.

Headnote

Commission.

The court had, the last term, ( 1 Caines’ Rep. 517 ,) denied a motion for judgment as in case of nonsuit for not pro-ceeeding to trial, on the plaintiffs’ stipulating to try at the last sittings for the city and county of New-York, nine months having elapsed since issuing the commission in the cause. The plaintiffs not having proceeded agreeably to that stipulation,

Boyd moved again for judgment as in case of nonsuit.

Mknro, contra,

read an affidavit stating the commission

p. 47

to have been mislaid by the defendant’s commissioner, to have been found, and was shortly expected to be returned.

The motion must be refused; but the plaintiff must pay costs and stipulate anew. (See vol. 1, p. 7, m. (a) and p. 503, n. (a)

Motion denied on costs and stipulating.