The opinion of the Court was delivered by

From the cases cited by the defendant’s counsel, it appears, that the Supreme Court of New York, considered a commission, as suspending a cause, so that it could not be noticed for trial, without a previous application at bar, to vacate the rule for a commission, or for leave to notice the cause for trial, notwithstanding the commission had not yet been returned. But by a later case than any of those cited by the defendant’s counsel, Jackson v. Woodworth, 18 Johns’. R. 135. it appears that the practice in the Supreme Court of New York, upon that subject, has been modified, and is now regulated by a standing rule of court. In this court, wc have never had any specific rule of practice, in relation to this matter. It is true, that in Den v. Wood, 5 Halst. 62. Ewing, Chief Justice, is reported to have said, that “ an order for a commission, of itself stays the proceedings, unless there is something in the order, authorizing the suit to proceed in the mean time.” But so far as we can learn, this remark of the Chief Justice, if he really made it, was not justified by any decision of this court, or by any rule of practice on the subject, then known to the bar. In my opinion, it would be an inconvenient rule, and lead to much vexation and delay. The court, when it grants a commission, may no doubt, prescribe terms, when requested so todo, and the circumstances of the case, or the ends of justice require it: but when a *453commission is applied for in season, it is allowed without annexing any condition. In such case, if sued out on the part of the plaintiff, he of course will not notice his cause for trial until his commission has been returned, unless he confidently expects it will come back in time for the Circuit. If lie neglects to speed the execution and return of his commission, the defendant can apply to this court for a rule on him to bring his cause to trial, or that there be judgment against him, as in case of a nonsuit. On the other hand, if the commission is sued out by the defendant, the plaintiff may notice his cause for trial, whenever he thinks the defendant has had time enough to have his commission returned — and the plaintiff does this at his peril. If it appear to the judge at the Circuit, that there lias been ample time, for the execution and return of the commission, the cause will bo ordered on, unless the defendant can show 'some satisfactory excuse for the delay. But if the plaintiff should be so impatient, as to notice his cause, without allowing the defendant a reasonable time to have his commission executed and returned, the cause would be ordered off, without costs. This matter may be safely confided to the discretion of the judge at the Circuit, and it is much better to do so, than to tie up the cause, so that neither party can move in it, until an application can be made at bar for leave to do so.

In this case, the judge did right in ordering on the cause. The commission was issued in May Term, 1839; the Circuit was on the 4th Tuesday of Januaay, 1840. More than eight months had elapsed, and yet the defendant offered no excuse whatever for the delay, but only read an affidavit that he had heard nothing about the commission since he sent it. Even that affidavit had been made three months before the Circuit, (probably for the purpose of being used at the preceding October Circuit,) since which, the defendant had ample time, by correspondence or a messenger, to have heard from the most distant part of the Union. This had, to say the least of it, very much the appearance of using the commission, for delay; and the cause, was therefore properly ordered on and tried. And as no excuse, even now, is offered to the court, for the commission not being returned, nor any affidavit of merits or surprise; the motion for a rule to show cause, must be denied.

Motion denied.