Myers v. Bradford

4 Johns. Ch. 434, 1820 N.Y. LEXIS 174, 1820 N.Y. Misc. LEXIS 30

Opinion

The Chancellor.

The orders of the 6 th and 30th of March last, were irregular, as they were obtained ex parte, without notice. The defendants were in default, (1.) In not appearing before the Master on the 11th of February; and, (2.) in not excepting to the Master’s report prior to the 30tb of March. The English practice appears to be, (Hinde, 272, 273. Newland’s Pr. 175.) that with respect to exceptions to a report which does not require confirmation, as oi the insufficiency of an answer, there is no precise time for filing them. Upon filing the report, the plaintiff may immédiately sue out a subpoena for a better answer and for costs; and if the defendant does not file excéptions, and obtain an order for setting them down within eight days from the service of the subpoena, the plaintiff may sue out an attachment; after wdiich the defendant cannot except to the report.

The exceptions to the report, assuming them to have been filed in season, were not well taken. The answers were not sufficiently precise and full, and did not meet and answer all the circumstances from whence a fraudi-lent combination ivas to be inferred. The exceptions to the report are, consequently, overruled, and the defendants must, within fourteen days, answer the exceptions to the answers which bat e been allowed by the Master, and pay the costs accruing to ‘the plaintiff since filing the said exceptions, or Viiat an attachment issue.

Order accordingly.