Majority
p. 105Sands ads. Bird and others.
Headnote
WORTHMAN for defendant moved to postpone the meeting of referees till the return of a witnefs from abroad who was expected in two months.Pendleton objected, because, although the cause had been at issue for more than two years, no step had been taken by the defendant to get out a commission; and because, although a commission had 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 plaintiffs; nor has the defendant ever put it off. The cause is now ready to come before the referees, and this application is to be con-fidered 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 defendant to take out a commission is in his favor, and an omission to do it cannot alter the ordinary practice.
Let the defendant have the effect of his motion to the extent of two months unlefs the witnefs returns sooner.