James Shuter v. Richard S. Hallett

James Shuter v. Richard S. Hallett. D. L. OGDEN moved for a rule to vacate the rule for a commission which had issued in this cause, in the spring of 1802. The facts, as appeared by affidavit, were these : A commission had issued at that time, in which the defendant had joined, but not being returned, another was sued tmt in November last, and as there were no hopes of the first being returned, the parties agreed that the testimony taken on the second, which was on the same interrogatories, should be read in evidence on the trial. After this, the cause was duly noticed, but the judge refused to let it come on, as the counsel for the defendant had joined in the commission. [MAJORITY — Per Curiam.] Per Curiam. The commission is as much the defendant’s as the plaintiff’s, and he may take the benefit of it on trial. We cannot, therefore, vacate the' rule, but the plaintiff may have otie to proceed to trial notwithstanding the commission. See Brain v. Rodelicks and Shivers, ante, p. 176.