Lowe v Williams
| Jurisdiction | England & Wales |
| Judgment Date | 16 April 1850 |
| Date | 16 April 1850 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 1145
ROLLS COURT
[48ffl lowe v. williams. April 15, 16, 1850. An omission to give notice of the filing of exceptions on the same day, does not render a subsequent order of reference irregular : but the omission is matter of compensation in time, upon a proper application. On the 6th of March the Plaintiff took exceptions, but did not serve notice until the next day, and he obtained an order to refer on the 15th. A motion to discharge the order was refused. On the 6th of March the Plaintiff filed exceptions to the Defendant's answer for insufficiency. Notice was sent on the same evening, but did not reach the Defendant's solicitor until the following day. On the 15th of March the order of reference was obtained, and was served on the 19th of March. The 24th Order of October 1842 (Ord. Can. 216) requires notice of the exceptions having been filed to be given " on the same day." By Article 26 of the 16th Order of May 1845 (Ord. Can. 285), "The Plaintiff is to procure an order to refer them after the expiration of eight days, but within fourteen days from the filing of such exceptions. If he does not, the answer, on the expiration of *uch fourteen days, is to bo deemed sufficient." A motion was now made to discharge the order of reference. Mr. William H. Terrell, in support of the motion. The Plaintiff having neglected to give notice of filing the exceptions on the same day has been guilty of an irregularity, and, this being an injunction case, the Defendant is entitled to take advantage of it. In a similar case of Johnson v. Tucker (15 Sim. 599) a replication was ordered to be taken off the file, because notice of the filing of it was not given on the day on which it [4831 was filed. The party ought to have come to be relieved from his neglect, as in Bradstock v. WTuztley (6 Beav. 61), where notice of exceptions was not given until a day too late, and was not properly intituled, and the Court relieved the party from the effects of the irregularity, on payment of costs. Calculating from the notice (the 7th), the reference has been made one day too early, and the Defendant has therefore lost an opportunity of submitting. 2. The order was obtained as of course, suppressing the fact of the irregularity as to the notice. It ought, therefore, to be discharged. St. Victor v. Devereux (6 Beav. 584), Holambe v. Antrobus (8 Beav. 405). Mr. Turner and Mr. Goldsmid, contra, argued that the Defendant had sustained...
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