West v. Paige , 9 N.J. Eq. 203 ( 1852 )

The Chancellor.

On the twentieth of May last past, the defendant took an order on the complainant to speed his cause. The order was served on the day following, and on the twenty-second day of May, the day after service, the complainant filed his replication.

On behalf of the defendants, it is now moved to dismiss the bill, on the ground that the mere filing of a replication is not a compliance with the rule to speed the cause.

It was said, on the argument, that Chancellor Pennington decided that the filing of a replication, without taking any further step in the cause, was not a compliance with the rule.

This is stated from mere recollection, and no record is referred to of such a decision. I think, however, such a decision, if made, was upon correct principles.

In the absence of any established practice or rule in our own court to the contrary, we follow the English practice, in all cases where such practice is not rendered inapplicable by some statutory provision, or does not violate the spirit of our statutory regulations.

The statute regulating the practice of this court, (R. S., page 912, sec. 45,) renders the English practice, to the point in controversy, inapplicable.

The statute referred to entitles the defendant to have this bill dismissed, because the complainant has not, in compliance with that statute, brought his cause to a hearing at the present term of the court.

The court may, on just cause and reasonable terms, allow further time for the hearing; and I am willing now to hear such application, if the complainant's counsel desires to make it.

Cited in Schenck y. Conover, 2 Beas. 33; Ratzer v Ratzer, 2 Stew. 163.