Irving v. Humphreys — 1 Hopk. Ch. 364

Majority

p. 364

Irving v. Humphreys.

1825. 31st May.

Headnote

Notice of motion under the 53d general rule may be four days, one exclusive aud the other inclusive.

On exceptions the master was ordered to return the testimony, and the case being complex, the court would not make any special order, as to the costs of it.

Mr. 1. Hamilton for the defendant,

presented a petition upon notice to the solicitor for the complainant, given on Thursday for Monday following.

Mr. Roosevelt objected,

that the notice was too short. By the 53d general rule, notices of special motions are to be given four days “ exclusive of the day of service.” It is different from the rule in the supreme court, where one day is exclusive, and the other inclusive.

on recurring to the rule, said it might admit of either construction ; it might he inclusive of the day of making the motion. The more convenient and reasonable construction, where a specific number of days is designated, is, that one is to be taken inclusive and the other exclusive : and such has been the practice of this court.

This petition was, that the master should return the testimony on which he had reported certain matters of account. To which among other objections the complainants alleged, that the testimony was exceedingly voluminous ; and hoped,, if the order was made, the testimony would he returned at the cost of the party applying for it.

The Court, from past experience of the cause, was aware,that the testimony must be very voluminous; and was much disposed to grant the order only at the cost of the defendant. But on canvassing the subject, there appeared much difficulty in making the discrimination, and in settling the details of the order.

After some remarks from the bar, the court thought, there was too much difficulty in attempting to make an exception to the general rule, and therefore left the costs to abide the final order as to the costs of the cause.