Brown v. Ricketts

3 Johns. Ch. 63, 1817 N.Y. LEXIS 213, 1817 N.Y. Misc. LEXIS 61

Opinion

The Chancellor

was of opinion that the objection was well taken, and that the cause was, consequently, not ready for hearing. .In one of Lord Coventry's rules (Beames' Orders in Chancery, p. 96.) it was declared to be the course of the court to permit the party to examine witnesses until publication. There is no doubt that either side who has examined may give rules for publication, but the defendant cannot give them, until the plaintiff has been in default. (Newland’s Practice, p. 143.) Publication cannot pass but by rule to be entered with the register or assistant register. This has been frequently declared by orders in the English chancery to be the practice; (Beames’ Orders, p. 319. 333. 336.) and it is the practice here. The passing publication being founded on the previous rules for publication, it can only be done by the party procuring the rules. They are connected parts of one act, and it would be unfit and unprecedented, for the defended to pass publication upon the plaintiff’s rules, when he is only entitled to proceed with his rules, on the plaintiff’s default.

Motion denied,