
    *Burr against Skinner.
    
    If the defendant neglects to give notice óf a motion for a commission, until after the cause is noticed for trial, he must pay the costs of the notice for trial.
    The issue in this causé was joined in the vacation, and the defendant put off the trial on an affidavit, and notice of a motion to be made at the next term, for a commission.
    
      Boyd, for the plaintiff,
    now moved that the defendant should pay the costs of the notice for trial.
    
      Pendleton, contra.
    
      
       S. C., C. C. 100.
    
   Per Curiam.

If the defendant intends to sue out a commission, he ought to give notice of it, before he receives a notice of trial, or within a reasonable time after issue is joined, according to the circumstances of the case, and such notice will stay the proceedings. But if he waits until he receives notice of trial, before he gives notice of his intention to apply for a commission, he must pay the costs to that time.

Rule granted. 
      
       And if the defendant desire to escape paying the costs of resisting the motion for a commission, he should stipulate in his notice to pay the plaintiff’s costs of preparing for trial; La Farge v. Luce, 2 Wend. 242, 243 ; but if the defendant has used due diligence, as where he received a notice of trial with the replication, on the 26th of September, and gave notice of a motion for a commission on the. same month, the costs will be made to abide the event; Johnson v. Jackson, 1 Wend. 283; for in all cases where costs have been ordered to be paid; they have been so ordered upon the ground that the defendant did not use' due diligence in giving notice of his motion. Per Savage, Ch. J., p. 284. See Gra. Prac. 2 ed. 594.
     