1834. Ex parte RICHARDSON. In the matter of CONSITT 66 was in general terms, merely stating that such a motion would be made, and that the parties intended to read affidavits filed on former motions. The Lord Chief Baron said: " In this case I think it is unnecessary to inquire what has been the practice, which seems to and another. be doubtful; we may proceed on principle, and the reason of the thing. The Master has made his report. A motion is then made for leave to except. We must suppose the Master to be right, and the Court ought not to give leave to except, without being informed what are the exceptions intended to be taken, and on what they are founded. They may be frivolous and idle, and without any sort of foundation; and it is a proceeding calculated to create injurious delay. These exceptions only state, that the Master, having reported as he has done, ought to have reported otherwise. But that gives us no information; it is not stated why he should have reported otherwise, or wherein he has done wrong, or why, if he had reported otherwise, he would have done right. The whole proceeds on mere assertion. Before I make an order that the Master review and alter his taxation, as I am in effect required to do, surely I ought to have some reasonable ground for making such an order. Not being apprized of there existing any good cause for making such an order, I certainly shall do no such thing. In Lucas v. Temple, 9 Ves. 299, Lord Eldon expressly decided that exceptions did not lie for costs, but that a petition must be presented; and in Pitt v. Mackreth, 3 Bro. C. C. 321, Lord Thurlow said that exceptions were never admitted, but "that the regular method was to state the articles the party meant to object to on petition, and pray leave to except." Such is the practice in equity; and the practice of this court is to follow that of equity till altered by a general order of this Court. (a) 1834. Ex parte RICHARDSON. of CONSITT Mr. Ching, for another party against whom a similar In the matter motion was made: If a petition were presented, it would state the objections to the taxation, and we should and another. at once perceive if the taxation were erroneous, and if so, should not come here to oppose the review thereof; but, a notice of motion being in general terms, we are compelled to come here to ascertain what is asked against us. If the motion be granted, the Registrar, having nothing to guide, no beacon, will not know how to act. Mr. Swanston and Mr. Montagu: The affidavits filed in support of the motion contain all the facts that would have been embodied in a petition, and more. Ex parte Crockwell (b) decides that it is not necessary to present a petition for leave to except (a) That the practice in the Court of Review shall, until otherwise ordered, be conformed as nearly as may be to the present practice in matters before the Lord Chancellor.-Court of Review, Jan. 12, 1832. Order 25th. (6) Court of Review,July 26,1832. Ex parte CROCKWELL.-In the matter of CROCKWELL. This was a petition for the confirmation of Mr. Gregg's certificate of taxation of a bill of costs, which was opposed, and exceptions now tendered in Court. Mr. Montagu, for the petition, objected to the respondents being heard in opposition to the certi- Per Curiam:-On a reference Not necessary to obtain leave to except to the registrar's certificate of taxation. 1834. to a report or certificate of taxation. The third section of the 1 & 2 W. 4, c. 56, enacts that all matters to be deEx parte RICHARDSON. termined in the Court of Review shall be brought on by In the matter of petition, motion, or special case, according to the way rules and regulations to be established as therein-after provided. of CONSITT and another. Though the practice in Chancery was to proceed on petition, yet in courts of common law it was always done on motion, and this, being a court of law and equity, may pursue either course, and will adopt that which is attended with least expence to the parties. We might abandon the affidavits, and proceed on the allocatur of the Registrar alone. Mr. Russell, in reply:- The order asked has never yet been made in bankruptcy on motion. Affidavits should be used to support a case, not as a means of stating the case itself. The CHIEF Judge: There can be no doubt as to the power of the Court to entertain such applications on motion, the only question which could arise would be as to the expediency of so doing. If the objection appear on the face of the certificate, or report, there never was any necessity for a petition for leave to except; this was held by the Vice-Chancellor in ex parte Farquharson. (a) The principle of the objection does not apply to a (a) Ex parte Farquharson, in the matter of Starkie, 17 June 1831. MS. "It is VICE CHANCELLOR: regular way; if it appear on the face of the report that the Master is wrong, the Court can decide." case like the present, where there is a regular report, or rather certificate. When a party opposes the report, or seeks to amend it, it may be necessary to present a petition. But here the order asked is, that the officer may review his certificate as to bills of costs referred to him for taxation, and the question is, whether he have properly understood and pursued the order of the Court? a question which will be decided at once by looking at the order and the certificate, and if thereupon it appears that the officer has not comprehended or followed the order, then we should not set it aside, but refer it back to him. If there had been any inflexible rule to prevent this being done on motion in Chancery, perhaps this Court could not now act on motion, but there not being any prohibitory rule, there is nothing to disable us from entertaining this on motion. If the notice of motion be so worded that the party called into Court cannot ascertain the point he is required to answer, that would be a ground for the matter standing over till the notice of motion were amended and rendered more specific. Sir John Cross: As yet the Court is ignorant of the facts of the case, and the party opposes the hearing which would enable the Court to ascertain those facts, on the technical objection that there is a universal rule which prevents the matter being entertained on motion. Many cases have been cited, which only prove that it was the general practice to present petitions in certain classes of cases, but not one was cited in support of the proposition that this particular matter cannot be heard on motion. 1834. Ex parte RICHARDSON. In the matter of CONSITT and another. 1834. Ex parte RICHARDSON. In the matter of CONSITT and another. That we can entertain this application on motion unless prevented by general practice, is clear. When this Court was instituted, the Judges resolved not to make any new code of practice, but to adhere to the old, but in so doing it never was intended to rule that no case, however short, or small in value, should be heard otherwise than on petition. It is an established practice in common law courts to entertain similar matters to the present on motion. I agree with his Honor the Chief Judge that this matter should be heard on motion:- - 1st, Because we are not prevented by any inflexible rule. 2d, Because doing so is a saving of expence, and prevention of delay. Sir George Rose: Whether the Court have power to hear any matter on motion, and whether it will do so in the exercise of its discretion, are distinct questions. In the present case, if a petition were necessary, then there is one already in this matter before the Court, that on which the original order of reference to the Registrar was made. Before the Lord Chancellor, sitting in bankruptcy, it was the constant practice to make orders on motion, though in strictness they could only be made on petition, because, owing to the peculiar nature of the jurisdiction, an order was not valid, if contested, unless made on petition. The 1 & 2 W. 4, c. 56, s. 3, expressly enables this Court to hear matters on motion, if it think fit. No one will deny that a motion may be made in bankruptcy to stay an attachment for nonpayment of costs, yet, on that motion, it might become necessary to review |