Champlin v. Champlin — 2 Edw. Ch. 328

Majority

p. 328

Champlin v. Champlin and others.

Sept. 23 d. 1834.

Headnote

The word forthwith” in the 56. rule of the court is to he construed within 24 hours thereafter.

Motion to take exceptions off the files.

On the twenty-fourth day of May, one thousand eight hundred and thirty-four, the joint answer of Elizabeth S. Cham

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plin, John Clark, Israel Dean and John Depeyster was excepted to for insufficiency; and, on the eleventh day of June thereafter, an order was entered referring the answer and exceptions to a master. The latter, by his report bearing date August 23,1884, found the answer sufficient; and this report was delivered to the complainant’s solicitor about three o’clock in the afternoon of the twenty-sixth of the same August: who filed it on the next day (the twenty-seventh.) On the fourth day of September following, the complainant’s solicitor filed exceptions to the report; and, on the same day, served a copy with a notice of having filed them. The copy was refused to be received.

Mr. I. A. Lott, for the motion.

Mr. H. S. Mackay, opposed.

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.”

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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.