Champlin v. Champlin

2 Edw. Ch. 328, 1834 N.Y. LEXIS 335, 1834 N.Y. Misc. LEXIS 47

• Court: New York Court of Chancery
• Decided: September 23, 1834
• Status: Published

Opinion

The Vice-Chancellor:

The question of practice involved in this case is, whether the exceptions to the master’s report were filed in time ? By the 56th Rule of the court the report upon exceptions is to be delivered to the party obtaining the reference, who is forthwith to file the same in the proper office ; and if he does not except to the report within eight days thereafter, it will become absolute as against him. But the adverse party is to have eight days after service of notice of filing the report to except to the same ; and if he does not do so within that time, then it becomes absolute, without order, against him. The present point is to be decided upon a construction of the words “ forthwith” and “ thereafter,” as used in the rule : whether forthwith is to mean the same day and thereafter goes to the time of filing the report ?

I take it that this “ forthwith” is not to be construed into a necessity of doing the thing in a moment after delivery. The party must have time allowed him to make a copy. It is enough if it be filed during office hours of the same or. subsequent day. The courts of law have explained the meaning of their word “ instanter” into, twenty-four hours. And the same construction may be given to our “ forthwith.” The report, therefore, having been filed within twenty-four hours of its being delivered, is to stand as filed ; and as the wor£j „ thereafter” has a reference to its antecedent “ forthwith,” I consider the exceptions also filed in time. A reference to note (1) p. 249 of Mr. Hoffman’s Practice might have saved the present application.

Motion denied.

N. The V. C. was, at first, inclined to give costs, but, upon a re-consideration and inasmuch as the point appeared to be a new one, they were not allowed.