
    Le Conte against Pendleton.
    
    Where the plaintiff took an inquest by default, after regular notice of an intended application to move at the next term for a commission, it was set aside.
    B. Livingston, for the defendant,
    moved to set aside the inquest taken in this cause for irregularity. Issue was joined on the 9th June, last, and on the 19th June, the defendant gave notice to the plaintiff, that he intended to apply, at this term, for a commission to take the examination of witnesses in Georgia. But the plaintiff afterwards gave notice of trial for the July circuit, and took an inquest by default.
    
      
      Harison, contra.
    
      
       S. C., C. C. 74.
    
   Per Curiam.

As issue was not joined in the cause, until after the election made as to the plea, in the last vacation, the defendant was in time, to apply for a commission, according to the 9th rule of April term, 1796. The propriety of the plea elected by the defendant is not to be examined on this motion. The inquest must be set aside, and a commission issue.

Rule granted. 
      
      
         Grah. Prac. 2d edit, 293.
     