rule of court in this state, it is provided, that the complainant shall have three weeks time after notice of the defendant's answer being filed to except to the same, file a replication, or set down the cause for hearing on bill and answer, at the expiration of which time, if no proceedings have been had by the complainant, a decree for the dismissal of the bill may be entered at the next term, or any subsequent term, unless there be good cause shown to the contrary.(b)

Where upon a motion, if it is not granted, the plaintiff undertaking to speed the cause, it seems understood, that the plaintiff, according to the ancient practice, has the term and vacation to proceed.(c)

Where a bill is filed merely for a discovery, and prays no relief, a motion cannot be made to dismiss it for want of prosecution, but an order should be prayed for upon the plaintiff, to pay the defendant the costs of suit to be taxed by the master.(d)

If a replication to an answer be filed before a motion to dismiss, an order for that purpose cannot be obtained.(e)

An order obtained for the dismissal of a bill, may upon special circumstances and payment of costs be discharged on motion.(ƒ)

It has been held, that a defendant cannot move to dismiss a bill after publication is completely past.(g)

E. (b) Rule 12. vide Rule 33.

(c) 2 Mad. 296. Findlay v. Wood, 1 Ves. & Bea. 499.

(d) Ib. Mad. Woodcock v. King, 1 Atk. 286.

(e) Ib. Mad. 297. 14 Ves. 492.

(f) Ib. Mad. see Jackson v. Perceval, 16 Ves. 204.

(g) Ib. Mad. 298. Skip v. Warner, 8 Atk, 558. 1

28

Affidavit.

E. F. of the city and county of New-York, being duly sworn, doth depose and say, that on the

day of

last, be served personally on

solicitor for the complainant in the above cause, the notice of motion and certificate whereof the annexed are true copies, and further this deponent saith not.

Sworn to before me, this

day of

E. F.

1818.

Notice.

Take notice, that upon the certificate, whereof a ру is hereunto annexed, this honorable court will be moved on Thursday, the day of June next, or as soon thereafter as counsel can be heard, that the bill of the complainant in this cause be dismissed with costs

I certify, that the bill in the above cause was filed on the 25th day of February last past, that the an- Certificate, swer of the defendant was filed on the 2d day of June

last, and that no replication has been filed therein.

Dated, 29th of September, 1816.

Upon reading and filing the certificate of Edmund Elmendorf, clerk in chancery, by which it appears that the bill of complaint in the above cause was filed on the 25th day of February last, that the answer of the defendant in the said cause was filed on the 2d day of June last, and that a replication had not been filed with the said clerk on the 29th of September last, and upon reading and filing an affidavit of the due service of notice of motion for 5th day of October, inst.-It is thereupon, on motion of Mr. E. F. of counsel for the defendant, ordered, adjudged and decreed, and his ho

Order.

nor the Chancellor, doth accordingly order, adjudge and decree, that the complainant's bill of complaint in the above cause be dismissed with eosts, and that the complainant pay to the defendant his costs in the above cause to be taxed, and that the defendant have execution thereof.

Motion for an order of reference to a master.

Considering the great importance which this title assumes almost in every cause, whenever there may be a proper occasion to resort to it, it is a matter of some surprise, that there has not been more attention paid to it in books of practice. Under the direction and control of the Chancellor, the duties of a master in relation to this subject are extensive and in their nature important, comprising within themselves a subordinate system of practice.

In England, besides the master of the rolls, the chief, there are eleven other masters in chancery; these are from time to time appointed by the Lord Chancellor for the time being; in ancient times they were appointed by the king's letters patent-they are assistants or associates to the chancellor and master of the rolls, and sit with them in court by turns, usually two at a time; and references touching accounts and matters of practice are made to them; upon which they make their reports, but against which reports the party affected thereby is at liberty to except. They were formerly styled Clerici de Prima Forma, and were to be grave and ancient clerks; skilful and of long experience in the practice of the court, and by special appointment of Parliament, these twelve clerks or masters were made coadjutors with the chancellor, and had

equal authority with him in forming the brevia magistralia, for unless they all agreed they were to go to parliament. (a) In this state, however, masters in chancery are created by the council of appointment, and their duties are very important as we have before stated.

A reference is an order of the court, whereby divers matters and things are referred to a master to examine and make report to the court, to the end, that the court may make an order absolute, and thereby determine such matters and things as are therein mentioned.(b)

The title of a reference to a master may properly comprise four principal heads :

1st. Reference to report on exceptions to an answer. 2d. Reference to examine and state an account. 3d. Reference to report on and sell mortgaged premises.

4th. To which may be added, orders of reference concerning the custody of children on the separation of their parents.

In treating on these heads, the compiler will endeavor to combine principles with practice, and at the same time point out those proceedings and forms which ordinarily occur in the progress of a reference, as far as the nature of the subject will permit, beginning with orders for a reference to a master, to take and state an account, being the most important head under the title of reference; and previous to his entering on the examination of this title, the compiler has thought proper to introduce here some general principles established by our court for the masters' practice, in the case of Remsen v. Remsen, 2 Johns. Ch. Rep. 495.

(a) 1 Harrison's Chan, Pr. 59.

(b) Practical Register, 505.