Majority
p. 107Sands ads. Bird and others.
Headnote
WOR.TMAN, for the defendant, moved to postpone the meeting of referees till the return of a witness from abroad, who was expected in two months.
p. 108
Pendletbn objected,
because, although the cause had been at issue for more than two years, no step had been taken by the defendant to obtain a commission ; and because, although a commission had been issued by the plaintiffs the 10th of January, 1798, to take the testimony of the same witness, then residing in England, the defendant refused to join in it.
The delay in the cause has been owing to the plaintiffs; nor Has the defendant ever put it off. The cause is now ready to come before the r.eferees, and this application is to be considered in the same light with the first application to put off a trial on account of absence of a material witness. It comes within the settled practice. The power given by the act to the defendant to take out a commission is in his favour, and an omission to do it cannot alter the ordinary practice,
Let the defendant have the effect of his motion to fhe extent of two months, unless the witness returns sooner.