Fitch v. Hazeltine

The 86th rule makes no exception • of the case where the time to produce proofs has been once extended by the consent of the adverse party. In this respect it differs from the 125th rule, which contains an express provision for such a case, in relation to answers and replications. It was not therefore irregular to make the application, ex parte, within the time given by the stipulation. As the time was enlarged by the agreement of the parties, it had not actually expired at the time the ex parte order was obtained. But as the time had been enlarged by stipulation, that fact should have been stated in the affidavit, to enable the chancellor to judge whether further time ought to be granted under such circumstances. The special agreement as to the examination of Seward ought also to have been stated, so that a similar provision might have been inserted in the order. If the facts had all been stated, as they now appear, I should have extended the time, on the ex parte application ; but I should have directed the same provision to be in* *418serted in the order which the parties had agreed to in their stipulation. The application to set aside the, order for irregularity is denied, but without costs ; and the defendants' are > to have 15' days, after the examination of Seward, to pro-; duce their prgofs, provided he is examined as a witness on the part of the complainants, as provided for by the stipu-” lation. -