Peale v. Bloomer

I think the counsel for the defendant Bloomer is right in supposing that the mere entry of an order of reference in the register’s office, is not a reference of exceptions, within the intent and meaning of the fifty-first rule. The party entering the order should either serve a copy, or a notice of the order, upon the solicitor of the adverse party within the ten days; or he should proceed upon the order of reference within that time by taking out and serving a summons from the master. The object of the rule was to prevent any unnecessary delay ; and the defendants’ solicitor has a right to know, within the ten days, whether the exceptions are to be insisted on or abandoned. Such is the construction which has been given to the recent order of the court of chancery in England, which in its terms is the same as the rule of this court, except as to the time within which the exceptions are to be referred. (1 Mylne & Craig’s Ch. Rep. 274.)

*79But as it appears from the affidavit of the complainants’ solicitor that he mistook the practice, and that the defendants’ answer is insufficient in substance, they are at liberty to proceed and procure the master’s report upon the exceptions at any time within twenty days; or to abandon the exceptions and file a replication to the answer within that time. They must, however, pay to the defendants’ solicitor the taxable costs of this application ; as such costs have been caused by the error of their solicitor, in insisting upon the correctness of his own practice after he was informed he was proceeding irregularly, and when an offer had been made to him by the solicitor of the adverse party, which ought to have been accepted.