Brain v. Rodelicks ( 1803 )

IN this caufe it was neceffitry to examine a witnefs in the Havannah ; and, as that port was open only to certain privileged veffels, in April 1802 a rule for a commiffion was granted before iffue joined, to prevent lofing an opportunity of iranfmiffion which then prefented itfelf. No return having been made, the caufe was noticed for trial for the laft fittings in March 1803, -when the defendant’s attorney, feeing fome witneffes in the court, whofe abfence, he feared, might delay the caufe after the return of the commiffion, appeared and examined them ; ftating however, the circumftances of his cafe, and that he begged to be confidered as acting without prejudice to his future rights. He now moved to fet aiide the verdict, with coils; the plaintiff having proceeded to trial with» . , . r r r out vacating the rule tor the commiilion.

Per curiam. When a rule for a commiffion has been obtained, it fufpends the caufe till, on application to the court, a vacatur be ordered and entered. But if the defendant appear and examine witneffes, it is a waiver of his commiffion, and the vacatur is unneceffary. The motion muff be refufed.