
    Bouchereau against Le Guen.
    missionato°ex-amme witnes-had been issu-cd, on the part of a defendant, and^not retar-ned in Feb’ry, 1807, the court allowed the plaintiff to proceed to trial, no satisfactory cause being* shown to the court for the (]e]ayof the return. An am* davit of coun. sei, that he be-i¡eves that the commission^ „rtsoftbeother party, is not sufficient.
    
      Hoffman (T. A. Emmet fy Riggs, on the same side)
    moved, that the rule for a commission, obtained by the defendant in May term, 1805, for the examination of certain witnesses in France, should be vacated, the same ' not having been returned, and that the plaintiff have leave to proceed to trial at the next sittings in NewYorTc.
    
    
      Harrison, contra,
    read an affidavit, stating that the . , , , , action was brought to recover money alleged to be due on a certain contract ¿nade in France, in February, 1791, both parties being citizens of that country. That this contract was made in the manner usual in France, before a notary public, with whom it is duly registered. A variety of facts were also stated,, showing the origin of the plaintiff’s demand, and subsequent transactions between the parties, by which'it was contended, that the defendant was entitled to be discharged from the plain-3 r . tiff’s demand, and upon which contests had arisen, and .... -. . _ - were still depending m the courts or granee, between the present parties, on the point whether the-defendant was or was not discharged from the contract. The affidavit also stated, that according to the laws of France, all ° , controversies, where both parties are citizens or subjects of that country, can only be tried, adjudged and determined before the tribunals established in the same country, or under its authority; that the defendant on finding that the commission which' he had sent to France to éxamine witnesses, had not been executed, and sent back, returned to that country, where all the wituesses reside; that he has there cited the plaintiff before the proper tribunal, to desist from further proceedings against the defendant in this country, giving notice to the plaintiff, that the'defendant would apply to the proper tribunal in France for a final settlement of the -controversy between them ; that some of the witnesses named in the commission issued from this court, had refused to appear or be examined, alleging as a reason for their refusal, that they had been recently retained as counsel by the plaintiff, or one Bapst, his agent, which refusal, it was believed, had been obtained by the arts of the plaintiff, or of Bapst.
    
    
      Emmet, in reply,
    offered counter-affidavits, which the court would not allow to be read, saying that the present application was not such as to take the case out of the usual rule of practice, which did not permit, counter-affidavits. It ,was then contended on the part of the plaintiff, that the defendant, having joined issue in this cause, and taken out a commission to examine his witnesses, had thereby submitted to the jurisdiction of this court, and that it was now too late for him to allege any want of jurisdiction here, or that the cause was properly cognizable only in the tribunals of France. If the contract has been annulled in that country, that might be a matter of defence to be urged on the trial. If it has not been annulled, which was said to be the fact, there could be no possible reason for this court to depart from the ordinary rules of practice for the purpose of staying the proceedings.
   Per Curiam.

The reasons alleged on the part of the defendant are not sufficient to induce us to stay the proceedings in this cause. The affidavit merely states the belief of the defendant’s counsel, that the return of the commission is delayed by the arts of the plaintiff; it states no information or facts on ■ which that belief is fouded. It is too uncertain, therefore, to furnish a ground for ihe interposition of this court. The plaintiff must have leave to proceed to trial, notwithstanding the commission is still out, since it has not been returned within the time allowed by the rules of the court, and no sufficient cause is shown for its delay.

Rule granted.  