
    Rush against Cobbet.
    Where the party who sues out a commission to examine witnesses, does not use due diligence to get it returned in proper time, or the return is not properly made, the court will permit the trial to proceed, notwithstanding the commission.
    A commission to examine witnesses in Philadelphia was issued on the application of the defendant, and returned, but the return was stated to be irregular.
    
      Livingston
    
    moved for leave to proceed to trial, at the next circuit, and offered to waive the irregularity in the return of the commission, and that the same might be opened, and the defendan t have the benefit of the testimony taken under it.
    Riker, contra.
   Per Curiam.

Let the plaintiff have leave to proceed to trial. The commission being taken out on the part of the defendant, it was incumbent on him to have it properly returned, and there has been sufficient time for that purpose. Besides, the offer of the plaintiff to waive the irregularity is fair, and cannot reasonably be refused.

Rule granted.() 
      
      
        (b) “ According to the former practice of this court, a commission, duly issued, was per se a stay of all proceedings, until the return, provided it were obtained within the first four days of the term after issue joined, unless sooner vacated by the order of the court, which was done after a reasonable time, and no sufficient cause shown. 2 Johns. Cas. 70. If after the four days had elapsed, it did not stay the proceedings, unless so directed by the court, on application for that purpose. 18 Johns. 136. There is now, however, no rule or practice of the court, by which a rule for a commission in any case operates as a stay of proceedings ; and unless it be so ordered by the court, it will not operate as a stay, but will issue according to the statute, 2 R. S. 393, sec. 4, upon such terms as to the court shall seem reasonable. 7 Wend. 520.” Grah Prac. 2d ed. 593.
     