
    Bird and others against Sands.
    
    On the affidavit of the defendant,, of the absence of a material' witness, who had gone abroad, the meeting of the referees in the cause was postponed for two months.
    Wortman, for the defendant,
    moved to postpone, the meeting of the referees in this cause, until the returmof a witness from abroad, who was expected in two months. -
    
      Pendleton, contra,
    objected, that the cause had been at issue more than two years, and the defendant had not taken out a commission; and had refused to join in a commission' sued out by the plaintiffs in January, 1798, to take the examination of the same witness.
    
      
      
         S. C., C.. C., 107.
    
   Per Curiam.

The delay in this cause is not owing to the defendant, but to the plaintiffs. The cause is now ready to come before the referees, and this motion is to be'considered as the first application to put off a trial, on account of the absence of a material witness. The power given by the act, to the defendant, to sue out a commission, in his [*395] favor, and his omission to do it, cannot *vary the ordinary practice. The defendant may have a rule to put off the meeting of the referees for two months unless the witness should return sooner.

Rule granted. 
      
       “ The defendant may also, in the first instance, apply to the court who will postpone the hearing on account of the absence of a material witness; and this motion is regarded in the light of an application to put off a trial; 1 Johns. Cas. 394; S. C. Coleman, 107; 20 Johns. R. 476: and for this purpose , á judge at chambers may grant an order to stay proceedings, until an application can be made to the court. 1 Caines’ R. 157. But in no case, can a judge at chambers distinctly adjourn the hearing of a cause before referees, or grant any other order in relation to it, than one staying proceedings until a motion can be made to the court: and where a cause had been duly noticed for hearing before referees, for the 7th of July, and a judge at chambers, upon an affidavit of the absence of a material witness, granted an order, upon the day appointed for the hearing, adjourning the cause until the 7th of October, this court, (Sutherland, J.) held the order to be a nullity, and vacated it, with costs to the plaintiff, of preparing for the hearing before the referees, and of the motion. Graham v. Morton, MS. Aug. 18, 1831; S. C. 6 Wend. 552.” Gra. Prac. 2d ed. 573, 574-.
     