
    Seamans vs. Tillson.
    Facts and circumstances upon which, defendant was allowed judgment as in case of non-suit, after stipulation; unless plaintiff paid costs of motion, and referred the cause.
    
      Motion for judgment as in case of non-suit after stipulation.—Defendant’s facts: cause at issue upon issues of fact. Plaintiff got an order for a commission to examine a witness in Michigan, July, 1843. Commission sent by mail in February, 1844, without any money to pay expenses. At the April circuit, 1844, plaintiff gave defendant a stipulation to try said cause at the September circuit following, and told defendant’s attorney he would try it or discontinue the suit then, if said commission was not returned. Plaintiff did not notice the cause or try the same at said September circuit. Plaintiff’s facts: the witness in Michigan was the material witness in the cause as defendant’s attorney knew; the commissioner to whom the commission was directed was owing plaintiff more than enough to pay the expenses, and was directed to apply the plaintiff’s funds in his hands for the expense; the commissioner had funds in his hands belonging to plaintiff. Plaintiff’s attorney stipulated to try said cause only on the condition that said commission was returned in season, defendant’s attorney saying he would take no advantage of the stipulation if said commission was not returned. Plaintiff’s attorney never told defendant’s attorney he would try it whether the commission was returned or not. Plaintiff’s attorney wrote to the commissioner in May last as to the commission, and received no answer. In July last he employed a person to go to Michigan to see what had become of the commission and papers, there being important papers with the commission which he could not do without, and could not execute a new commission. Said person has not yet returned but is expected daily.
    James Hyde, Defts Mty. C. Field, Plffs Mty.
    
   Decision.— Motion granted, unless plaintiff pay costs of motion and then it is referred.  