Abraham L. Brain v. Rodelicks and Shivers

Abraham L. Brain v. Rodelicks and Shivers. IN this cause, it was necessary to examine a witness in the Havanna; and, as that port was open only to certain privileged vessels, in April, 1802, a yule for a commission was granted before issue joined, to prevent losing an opportunity of transmission which then presented itself. No return having been made, the cause was noticed for trial for the last sittings in March, 1803, when the defendant’s attorney, seeing some witnesses in the court, whose absence, he feared, might delay the cause after the return of the commission, appeared, and examined them; stating, however, the circumstances of his case, and that he begged to be considered as acting without prejudice to his future rights. He now moved to set aside the verdict, with costs ; the plaintiff having proceeded to trial, without vacating the rule for the commission. [MAJORITY — Per Curiam.] Per Curiam. When a rule for a commission has been obtained, it suspends the cause till, on application to the court, a vacatur be ordered and entered. But, if the defendant appear, and examine witnesses, it is a waiver of his commission, and the vacatur is unnecessary. The motion must be refused.