The commission is as much the defendant’s as the plaintiff’s and he may take the benefit of it on trial. We cannot, therefore, vacate the rule, but the plaintiff may have one to proceed to trial notwithstanding the commission.(a)
Motion denied.(b)
Radcliff and Livingston, Justices, absent.
See Brain v. Rodelichs and Shivers, ante, 74. See Note [2] ante.
See Kirby v. Walhers, post, 503. Caines’ Prac. 428 — 430: inclusive.