Moore ex rel. Delaney v. Hunter

The court advised upon the subject: and afterwards their opinion was delivered by the chief justice. Two causes have been assigned against the rule. 1st. That no exception can be received after four days from the time the report was read in court. 2d. That the exceptions ought_to have been taken before the auditors, and cannot be taken after the return of the report. As to the first exception, it does not appear, that the court has any rule, or any established practice on the subject. This may be accounted for, by the action of account render not being in general use. We do not conceive, that the rule with respect to the reports of referees is applicable to this case, so that until a rule is established, it is sufficient that the exceptions are filed before judgment. 2d. We think the most regular way of proceeding, and by far the most convenient one, would have been to take the exceptions before the auditors, to be returned by them as part of their [360] report. This appears to be the manner of conducting the business, as far as it appears from English precedents, which we have consulted. But as this court suffered exceptions to be filed, after the return of the report in the case of Holland v. Mackie, in which no objection was taken on this ground, though other points were controverted, we think it would be unjust, to preclude the plaintiff from the benefit of his exceptions in this case. Although in this particular instance, the court allow the exceptions for the reason I have assigned, yet it is not to be understood, that this practice is adopted. On the contrary, it is expected, that in future, the exceptions shall be taken at such time and in such manner, as is agreeable to the principles and practice to be found in the books, prior to the case of Holland v. Mackie. Rule made absolute.