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![handle is hein.slavery/ssactsengr0846 and id is 1 raw text is: BICKFORD V. SKEWES
[206] BICKFORD V. SKEWES. April 23, 1838.
Waiver of Reference. Practice. Impertinence.
Defendant filed an affidavit in support of a motion. The Plaintiff filed an affidavit in
opposition, which the Defendant referred for impertinence, and then filed further
affidavits in support of his motion, but not in reply to, or in any manner noticing,
any of the passages in the Plaintiff's affidavit, which were alleged to be imper-
tinent. Held, that the reference was not waived.
Motion by Plaintiff to discharge an order referring, for impertinence, an affidavit
which he had made in opposition to an application of which the Defendant had given
notice. The motion was made on the ground that the Defendant, after obtaining the
reference, had filed other affidavits in support of his application. Those affidavits,
however, were not in reply to, nor' did they in any manner notice, the contents of
the affidavit referred for impertinence.
Mr. Knight Bruce and Mr. Roupell, for the Plaintiff, in support of the motion.
[207] When a portion of the evidence for one party is referred for impertinence,
it is not competent to the other party to go on with the evidence. All proceedings
are stayed pending the reference; and if the party who obtained it proceeds with
the evidence, he waives the reference. The case does not admit of the evidence being
added to, until the Court knows what is the evidence on the other side. Keeling v.
Hoskins (2 Russ. 319), Pellew v. (6 Ves. 456).
THE VICE-CHANCELLOR [Sir L. Shadwell]. The Plaintiff files an affidavit which
relates to matter A. and also to matter B. : and the Defendant objects to matter A.
as being impertinent, and files an affidavit in answer to matter B. How can the
answer to matter B. be a waiver of the reference as to matter A., which is alleged to
be impertinent? Keeling v. Hoskins has nothing whatever to do with the present
case; for it was decided before the New Orders of 1828 were made; and then the
party might have objected to the whole of the affidavit as impertinent. But the New
Orders of 1828 (see the 11th Order) require the party to point out, specifically, what
are the passages that he objects to as being impertinent: and, consequently, references
for impertinence made since those orders came into operation are materially dis-
tinguishable from references made previously. And as it is not alleged that any of
the further affidavits are an answer to any of the passages in the Plaintiff's affidavit
which are alleged to be impertinent, the motion must be refused with costs.
Mr. Jacob appeared for the Defendant in opposition to the motion; but THE VICE-
CHANCELLOR decided without hearing him.
[208] THE ATTORNEY-GENERAL V. KEMP. May 4, 1838.
Practice. Dismissal.
Two of the Defendants had answered the bill; but the other Defendants had not
answered. Above eight months after the answer of the two first Defendants was
filed they served a notice of motion to dismiss. On the next day the Plaintiff
obtained, as of course, and served an order to amend. Held, that under the 26th
Order of 1833 the order to amend was regularly obtained, and, therefore, the'
motion to dismiss was refused.
The answer of two'of the Defendants was filed on the 27th of May 1837 ; and on
the 5th of February 1838 (but before the other Defendants had answered the bill)
the first-mentioned Defendants served the Attorney-General with notice of a motion
to dismiss. On the following day the Attorney-General obtained by petition at the
Rolls, and afterwards served, an order to amend the information.
Mr. Puller, in support of the motion, said that the 13th and 16th Orders of 1831
and the 26th Order of 1833 must all be construed together; and that, as the order
8. SIM. 206.](ViewImageLocal?handle=hein.slavery/ssactsengr0846&div=1&collection=&method=preview&ext=.png&size=3)