Majority
p. 134*John Crary agt. William Oliver. April Term, 1846.
Headnote
Where defendant served a supreme court commissioner’s order staying plaintiff’s proceedings after notice of trial, in order to move to change the venue, and plaintiff disregarded it and went on and took an inquest; held,, that the inquest was regular. Defendant, however, was permitted to come in on terms.Motion by defendant to set aside inquest and subsequent proceedings.
After notice of trial, defendant’s attorney served on plaintiff’s attorney an order, granted by a supreme court commissioner, staying all plaintiff’s proceedings, until the decision of a motion thereafter to be made to change the venue; the motion to change the venue was made and denied, on the ground that the plaintiff had taken an inquest in this cause. Plaintiff took an inquest, regarding the commissioner’s order staying proceedings as a nullity under the 97th rule.
B. W. Peckham, defendant's counsel.
A. P. Grant, defendant's attorney.
M. Fairchild, plaintiff's counsel and attorney.
Plaintiff’s inquest is regular, defendant may be let in on terms.. Motion granted on payment of costs of inquest and subsequent proceedings, and seven dollars costs of opposing motion.