Civil Procedure · MBE-tested
John Kirby and Edward Kirby v. Edward Watkeys
1 Cole. & Cai. Cas. 316·New York Supreme Court·1804·NY
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Opinion
John Kirby and Edward Kirby v. Edward Watkeys.
THE defendant had, after due notice, obtained a rule in the last term for a commission, in which the. plaintiff did not join, to examine a person in Port Republican., and since then had not given any notice of further proceedings under the commission. On these facts
Harison
moved to vacate the rule.,
[MAJORITY — Per Curiam.]
Per Curiam.
Let the rule be so far vacated as to
permit the plaintiffs to proceed to trial notwithstanding the commission.
N. B. On a commission to England the court will, after eight months without return, give leave to proceed to trial, notwithstanding the commission; but this does not prevent cause being shown at the circuit, why the trial should not then be put off.