
    Jackson, ex dem. Wadsworth, against Woodworth.
    where a rule slortto0™am-l!obta¡nedSa£ non^r^oui" ¡'¡“does not SW Pr°-ceedmgs, un-^ss the Court rect that it is feci;and¡f the obrnfeed with! d’aysf'it w¡u stay the proceedings of ,. course, though nothing is said m the rule as to its effect. It is, therefore, unnecessary to state in the rule, whether it is to operate as a stay of proceedings or not; unlegs by the special direction of the Court, on application for thatpurpose, 1 °
    
      FOOT, for the plaintiff)
    moved, in this, and several other suits by the same plaintiff) against different defendants; that the defendants pay to the plaintiff the costs of noticing and preparing the causes for trial at the last Seneca circuit. A rule for a commission to take the examination of witnesses residing in Hartford, in the state of Connecticut, was obtained by the defendant on the 13th of Man last, and the interroga- . . _ ^ ° tones settled on the 2d of June, and with the commission, were forwarded the next day. There was an affidavit of merits, and of the materiality of the evidence intended to be obtain ed under the commission. On the 12th of June, J820, the defendant’s attorneys informed the plaintiff’s attorney, that it would not be possible to have the commission executed in time for the circuit, and that they should rely on the issuing of the commission, as a stay of proceedings, &c. It appeared that the suit was commenced after January term, 1819, and that issues were joined in these causes, on the 14th of June, 1819, and that they were noticed for trial at the last Seneca circuit, held before Mr. Justice Van Ness, in June last, when the trml was put off on motion of the defendant’s counsel, the question as to the payment of the plaintiff’s costs being reserved by the Judge. Nothing was said in the rule entered for the commission about its operating, or not, as a stay of proceedings.
   Per Curiam.

If a commission is obtained within the time required by the rules of the Court, that is, four days in term next after issue joined in the cause, it will stay proceedings, of course, without any thing being said to that effect in the rule. If the rule is obtained after the four days, it does not stay proceedings, unless so directed by the Court on application for that purpose. Though it may be the practice' of the bar to insert in the rule, when obtained after the four days, that it is not to operate as a stay of proceedings, such a precaution is unnecessary, as under the rules of the Court, it could not have that effect. In the present case, the commission was moved for long after the expiration of the four days; and the defendants must pay the costs of putting off the cause at the last circuit.

Motion granted.  