Brundage v. Goodfellow

The order of reference, directed that notice of proceeding before the Master be given to the defendant. The case made by the bill was such, that an order for proof, only, might duly have been made, instead of a decree pro confesso and an order of reference; though the latter course was proper; and, this course being taken, it was thought proper to require notice to be given to the defendant of the time and place of proceeding before the Master. Notice was given, accordingly, and the defendant did not appear before the Master.

*517Rule 4 of Art. 14 of the rules provides, that where the complainant’s bill shall be ordered to be taken pro confesso, and there shall be a reference to a Master ordered, the complainant may proceed before the Master without notice to the defendant, and it shall not be necessary, upon the coming in of the Master’s report, to enter a rule to confirm the same nisi, or to set the cause down preparatory to further directions or to a final decree, unless directed by the Court, or the report shall be excepted to. Does this dispense with the entry of a rule to confirm the report nisi in a case where by the order of reference the complainant was directed to give notice of proceeding before the Master 1 I am inclined to think it does not. It is not a case under the 4th rule, because the complainant could not proceed before the Master without notice, as provided in that rule, for the reason that the order of reference expressly' required notice. Rule 6, Art. 14, shows, that an order to confirm a report nisi is not dispensed with by reason of the defendant’s having been notified to attend the Master and neglecting to do so; but, only, that the order nisi need not in that case be served on the defendant, and that the report shall become absolute of course, unless cause be shown to the contrary. It seems to me that in this case a rule to confirm the report nisi should have been entered on the part of the complainant. This was not done. This is sufficient to show that the motion to strike the exceptions from the files cannot prevail.

Having thus disposed of the motion, it is not necessary to express any opinion upon the question which was argued, whether, when exceptions are filed, in a case falling under the 4th rule, it is for the complainant to set the cause down preparatory to further directions or to a final decree, or for the defendant to set down the exceptions to be argued.

Independently of our rules, I think the practice is for the defendant to bring on the hearing on the exceptions. 2 Mad. Ch. 390, margin; 1 Newland’s Ch. Pr. 345. Filing exceptions is not, alone, sufficient cause against making absolute the order to confirm the report nisi ; an order for setting down the exceptions to be argued must also be obtained by the defendant; though *518it is said, in 1 Newland, 345, that either party may obtain this order. Our practice, I think, has been for the defendant to set down his exceptions to be argued. It may be that rule 4, above referred to, has changed the general practice of the Court. And I make a remark or two for the purpose of suggesting the inquiry whether such change has been made by this rule, and of calling the attention of the members of the bar to it.

It seems, from the terms of this rule, that, when the report is excepted to, the complainant cannot get a final decree without setting down the cause preparatory to further directions or to a final decree. The rule says, it shall not be necessary for the complainant to set the Gause down preparatory to further directions or to a final decree, unless the report be excepted to. This seems to show that when the report is excepted to, it is for the complainant to set down the cause; and if so, he sets it down, not upon the report only, for if there was nothing but the report it would not be necessary, under this rule, to set the cause down at all, but upon the report and exceptions, preparatory to further directions or a final decree ; and in this way, if the exceptions be overruled, the complainant may get a final decree at the term at which the cause is so set down; whereas, if the defendant is first to set down the exceptions to be argued, it would be a questian whether the complainant could get a final decree at that term, he having not seethe cause down. It may be that, if the defendant sets down his exceptions to be argued, and they are overruled, the case would then stand as a case under this rule in which no exceptions were filed, (considering overruled exceptions as no exceptions,) and that the complainant would then be entitled, under this rule, to his final decree, though he had not set the cause down ;■ or it may be that, notwithstanding the defendant sets down his exceptions to be argued, the complainant may also set the cause down preparatory, &c., at the same term, and SO be prepared to take his final deeree if the exceptions be overruled.

But it is clear, that if the complainant follows this 4th rule, and, when the report is excepted to, sets his cause down preparatory, &C., he will get his decree at that term if the excep*519tions be overruled. And it may be that this rule was adopted for the purpose of avoiding the difficulty and delay that might occur, or that was apprehended, from the defendant’s being required to set down his exceptions to be argued. These are mere suggestions. The motion is denied on the ground first stated.