
    
      Townsend v. New-York Insurance Company.
    
    MOTION for a 'commission to examine. This cause had been once deferred for want of testimony, to acquire which a commission had issued. The defendants afterwards, but previous to the last circuit, gave notice to the plaintiff that he should, on affidavits, (the copies of which he annexed) move for a commission to examine witnesses, and specified the names of the commissioners. At the time of serving this notice, the defendants offered to stipulate not to delay the cause. The plaintiff did not assent to join in the commission, and in a few days gave the regular notice for trial. At the circuit, an application was made to postpone the cause, on the usual affidavit of the want of that testimony, to obtain which the commission noticed was to be sued out. The plaintiff’s counsel objecting, he had till the next day to produce an affidavit of a former delay. Not doing this, the cause stood over of course.
    
      Hoffman now moved for the commission.
    
      Hamilton objected to its being directed to the commissioners named.
   By the court.

The commissioners having been named in the notice of the motion, and the plaintiff having neither joined nor objected, is now concluded.

Hamilton then argued against the application, because it was uncertain how long it would tie up the cause, and the defendants had not entered into any stipulation.

By the court. It is unnecessary, for they take the commission at their peril: let it issue.

Hamilton hoped that it would be on paying the costs of the circuit.

The court ordered them,- and seemed to think, that 1 / in all cases of delay, costs should follow.  