Ferris v. Smith , 2 Cai. Cas. 253 ( 1804 )

IN this caufe a commilfion had ifiued to examine a witnefs in France. Pending this, a letter was received, giving infer-mation, that he was then a prifoner in England. At the next term an application was made for a fecond commilfion to be tránfmitted to England, which, after an ineffectual oppo-iition, was granted, but not to prevent bringing on the caufe at the circuit. Previous to this another letter was receiv- . . ed, ipecitying the witnels to be m confinement in a town near Liverpool, and evincing that his teftimony was almoft conclu-five on the queftion.

Bogert on thefe facts, and ftating that the commilfion had been fent, without a knowledge of the exact fpot where the w^tnefs was, moved to vacate that part of the laft rule permitting the plaintiff to go to trial at the nei-ct circuit, and to allow eight months from the time the commiffion iffued for its return.

Ordered accordingly.