On October 22d, 1923, the Central Lumber Company instituted a suit by capias in the Monmouth County Circuit Court against Herbert II. Smith, trading as H. H. Smith Building Company, and on the same day Smith was arrested. To this action bail was entered and an answer filed. On January 9th, 1924, a motion was made before Judge Daly for a hearing and the discharge of the defendant from arrest. On June 26th, 1924, the motion was denied. Application was then made to Mr. Justice Kaliseh for a writ of certiorari to review the order to hold to bail and the order of J une 26th, 1924. The case being on the calendar for trial on the 30th day of June, this application was denied and the case itself was tried on June 30th, 1924, resulting in a verdict for the defendant. On a rule for a new trial this verdict was set aside and a new trial granted. On October 3d, 1925, almost two years after the commencement of the action, notice of the present application for a writ of certiorari was given.

The applicant, by his own action, has debarred himself from the review he now seeks. By appearing to the action and pleading to the complaint he waived the right even to have the order to hold to bail set aside. Ferenga v. Moskowitz, 1 N. J. Mis. R. 169. In addition, after a lapse of nearly two years, during which time motions to set aside the writ and for a writ of certiorari were heard and dismissed, a trial had on the merits and the resultant verdict set aside, it would be an abuse of discretion to entertain the present application on the eve of a retrial of the case, and it is accordingly denied.