
    M'LEARN vs. PETTIT.
    Eastern Dis.
    March, 1833.
    APPEAL FROM THE COURT OF THE FIRST DISTRICT.
    Where ninty-three days had elapsed from the issuing of a commission to Matamoras, under which no testimony had been obtained, and no diligence was shown to have been used in endeavoring to obtain it, the party was properly ruled to trial by the jugde a quo.
    
   The facts are stated in the opinion of the court pronounced by

Portee, J.

This action is brought to recover from the owner of a vessel the amount of supplies of different kinds furnished for her. The schooner was sequestered, but afterwards released on the defendant giving bond.

Where 93 days had elapsed from the issuing of a commission to Matamoras, under which no testimony had been obtained, and no diligence was shown to have been used in endeavoring to obtain it, the party was properly ruled to trial by the judge a quo.

A question is presented on the record in relation to the legality of an affidavit offered by the defendant, in order to obtain a commission to take testimony in Matamoras, which we do not find it necessary to decide, for it appears that he afterwards did obtain a commission, and that ninety-three days elapsed between the period of granting the same, and the day of trial. It does not appear that any testimony was obtained on it, nor did he show that he had used any diligence to procure the evidence. The court, therefore, did not err in ruling him to trial.

On the merits, the case is fully proved; and it is, therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.  