Rush v. Cobbet

2 Johns. Cas. 70

Opinion

Per Curiam.

Let the plaintiff have leave to proceed to trial. The commission being taken out on the part of the defendant, it was incumbent on him to have it properly returned, and there has been sufficient time for that purpose. Besides, the offer of the plaintiff to waive the irregularity is fair, and cannot reasonably be refused.

Rule granted.(

b)

(b) “ According to the former practice of this court, a commission, duly issued, was per se a stay of all proceedings, until the return, provided it were obtained within the first four days of the term after issue joined, unless sooner vacated by the order of the court, which was done after a reasonable time, and no sufficient cause shown. 2 Johns. Cas. 70. If after the four days had elapsed, it did not stay the proceedings, unless so directed by the court, on application for that purpose. 18 Johns. 136. There is now, however, no rule or practice of the court, by which a rule for a commission in any case operates as a stay of proceedings ; and unless it be so ordered by the court, it will not operate as a stay, but will issue according to the statute, 2 R. S. 393, sec. 4, upon such terms as to the court shall seem reasonable. 7 Wend. 520.” Grah Prac. 2d ed. 593.