
    Ames & Ames vs. Webbers.
    ALBANY,
    Oct. 1833.
    In an action of tort, where a defendant asks to put off the trial of a cause for the want of a witness, on its being made to appear, to the satisfaction of the judge, that there is reason to apprehend that the defendant may die previous to the next circuit, the judge is warranted to impose as a condition to the putting off the trial, that the defendant shall stipulate that his death shall not abate the suit.
    This was a motion to be relieved from a stipulation entered into by the defendant’s counsel, in compliance with a condition imposed by a circuit judge, on the application of the defendant to put off the trial of the cause. The action was in tort for an escape, the cause was noticed for trial, and application was made at the circuit, in behalf of the defendant, to put off the trial on account of the absence of a material witness. It was made to appear, to the satisfaction of the judge, that the defendant was laboring under a mortal malady, and that there was just cause to apprehend that he might die previous to the next circuit; and if so, the action would abate. The judge thereupon required the defendant’s counsel to stipulate. as a condition to putting off the trial of the cause, that the ac« tion should not abate, if the defendant should happen to die previous to the next circuit; which stipulation was accordingly entered into. The defendant has since died.
    
      J. Edwards, for the motion.
    
      B. Graham, jun. contra,
    cited the following cases to shew that the discretion exercised by the circuit judge in imposing the condition was conformable to the practice of the courts, to wit: 7 Cowen, 744 ; 3 Bingh. 70; 1 Chitty’s R. 74, 730; 4 Dowl. Ry. 830; 8 Bingh. 26 ; 1 Moore & Scott, 62; 2 Price, 16 ; 3 Johns. R. 257; 4 Cowen, 49; 7 id. 475; 2 Chitty’s R. 425; 7 Bingh. 437; 2 Brown, 125; 1 Crompt. & Jerv. 47 ; 2 Barn, adol. 394, 966 ; 8 Taunt. 712; 7 id. 571; 2 Archt. Pr. 322, 336 ; 4 Bingh. 435; 2. Y. & J. 11 ; 1 .Moore & Payne, 147; 3 Barn. & Cres. 144; 4 Bingh. 143.
   By the Court,

Nelson, J.

The stipulation was correctly imposed, and the motion is denied.  