Leggett v. Dubois — 3 Paige Ch. 477

Majority

p. 477

Leggett vs. Dubois and others.

August 27.

Headnote

Where there has been one reference on exceptions to an answer, if a second or third answer is referred for insufficiency on the old exceptions, it should be referred to the same master, if he remains in office and is competent to act in the case.

In this case the answer of the defendants was excepted to for insufficiency; and a part of the exceptions, upon a reference to a master, were allowed. The defendants thereupon put in a further answer, which was referred upon the old exceptions, but to a different master. This answer being also reported insufficient, a third answer was put in; which was also referred upon some of the old exceptions to a third master. The cause came before the court upon exceptions taken by both parties to the report of the last master.

T. Fessenden, for the complainant.

J. Lynch, for the defendants.

upon these facts being stated, said that where there had been one reference on exceptions to an answer, if a second or third answer was referred on the old exceptions, the correct practice was to refer it to the same master who had passed upon the question of the sufficiency of the former answer, provided he remained in commission and was competent to act in the case. That this, was now the settled practice in England, under an order of the court of chancery, adopted many years since; and that such was the practice here previous to the recent revision of the rules. That it was not the intention of the court, in the adoption of the 99th rule, or by the subsequent amendment thereof, to change the practice in this respect. That the case of a second reference of the same answer, where the master to whom the former reference was made was still competent to act, was not within the spirit although it was within the letter of the rule.