Johnston v. Bloomer , 3 Edw. Ch. 328 ( 1839 )

The Vice-Chancellor :

The defendant has taken no step which at all recognizes the validity of the order of reference, nor has he so delayed giving notice of this motion as to have waived his right to object to the order. The reason why a delay operates as a waiver does not exist in this case. If the complainants had been lulled into a belief of the regularity of their order and taken proceedings consequent upon it, while the defendants’ solicitor had a knowledge of the irregularity and apparently acquiesced and induced the complainants to go on and incur an expense, with a view of afterwards setting their proceedings aside, then, in such a case it would be manifestly unjust to allow the proceedings to be set aside and the delay would be held to be a waiver: 1 Hoff. Ch. Pr. 417. But it is questionable whether here is not more than an irreg- ■ ular order ; whether, by the 51st rule, it is not a nullity. If so, there can be no waiver, by delay, in moving to set it aside: lb.

The next question is whether, upon the affidavit of the complainants’ solicitor, he can still have the benefit of the order saved to him on this motion, upon terms ? I think he cannot; and that any relief from his own laches, which he may wish to ask for, must be the subject of a distinct motion on his part." Order : that the order of reference of the exceptions be set aside ; with costs of this motion to be taxed.