Brain v. Rodelicks & Shivers ( 1803 )

Per Curiam.

When a rule for a commission has been obtained, it suspends^(a) the cause till, on application to the court, a vacatur be ordered and entered, or leave obtained to proceed to .trial. But if the defendant appear and examine witnesses, it is a waiver of his commission, and the vacatur is unnecessary. ^[1] The motion must be refused.

Motion denied.^(b)

(a) But notice of motion for judgment as in case of non-suit does not, Brandt v. Burrows, 3 Caines’ Rep. 140. [See note (a) ante, p. 4.]

[1] See also Webb v. Wilkie, post, 153.

(b) A commission lias been denied where the affidavit on which the application was made, did not state the cause to be at issue; and the marginal note is, that it will not be granted till after the cause is at issue, Jackson ex dem. Aikins and others v: Bancroft, 3 Johns. Rep. 259. But it has been said that a commission is grantable at any time after suit instituted. Concklin v. Hart, Cole. Cas. 69. Perhaps the rule is, that regularly the application ought to be after issue, but if particular and good reasons be shown, it may be made before. Anonymous, 2 Caines’ Rep. 259. Hackley v. Patrick, 2 Johns. Rep. 478.

An issue of fact must be joined, or an interlocutory judgment obtained. before a commission can be issued.