
    Brain against Rodelicks & Shivers.
    Commission to examine may be before issue joined. A rule for commission suspends the trial till the rule be vacated, or leave to proceed obtained; but if the defendant appear at the trial, and examine witnesses, it will be a waiver of the rule to vacate.
    In this cause it was necessary to examine a witness in the Havannah; and, as that port was open only to certain privileged vessels, in April, 1802, a rule for a commission was granted before issue joined, to prevent losing an opportunity of transmission which then presented itself. No return having been made, the cause was noticed for trial for the last sittings in March, 1803, when the defendant’s attorney, seeing some witnesses in the court, whose absence, he feared, might delay the cause after the return of the commission, appeared and examined them; stating, however, the circumstances of his case, and that he begged to be considered as acting without prejudice to his future rights.
    It was now moved, on behalf of the defendant, [*71] to set aside the *verdict, with costs; the plaintiff having proceeded to trial without vacating the rule for the commission.
   Per Curiam.

When a rule for a commission has been obtained, it suspends the cause till, on application to the court, a vacatur be ordered and entered, or leave obtained to proceed to .trial. But if the defendant appear and examine witnesses, it is a waiver of his commission, and the vacatur is unnecessary. The motion must be refused.

Motion denied. 
      
      
         But notice of motion for judgment as in case of non-suit does not, Brandt v. Burrows, 3 Caines’ Rep. 140. [See note (a) ante, p. 4.]
     
      
       See also Webb v. Wilkie, post, 153.
     
      
      
         A commission lias been denied where the affidavit on which the application was made, did not state the cause to be at issue; and the marginal note is, that it will not be granted till after the cause is at issue, Jackson 
        
        ex dem. Aikins and others v: Bancroft, 3 Johns. Rep. 259. But it has been said that a commission is grantable at any time after suit instituted. Concklin v. Hart, Cole. Cas. 69. Perhaps the rule is, that regularly the application ought to be after issue, but if particular and good reasons be shown, it may be made before. Anonymous, 2 Caines’ Rep. 259. Hackley v. Patrick, 2 Johns. Rep. 478.
      An issue of fact must be joined, or an interlocutory judgment obtained. before a commission can be issued.
     