#### *Samuel Meek*vs. *W. H. B. Richardson and others.*

The practice, under the rules of Court, may he moulded at the discretion of the Chancellor, so as to meet the exigencies of the case, and to promote the ends of justice: and with this purpose he may suspend their operation in particular cases, where justice seems to require it; observing them as a general chart by which the proceedings of the Court are to be conducted, where no special equity-makes a deviation proper.

From the exercise of such discretion on the part of the Chancellor, in enforcing or suspending the rules, no appeal lies.

*Before*HargaN, Ch. *at Sumter, June, 1851.*

The bill in this case was filed April *15, 1851,*and on April *21,*subpoenas to answer were duly served on the defendants, who resided about thirty miles from the Court House. On June *2,*the bill was taken *pro confesso.*On Tuesday, June 8, the sitting of the Court for Sumter commenced, and on that day the order *pro confesso*was set aside as to the defendant, W. H. B. Richardson, and he filed his answer. On Wednesday, the case was continued, and on Friday, June 6, the other defendants, John P., James B., Thomas 0. and Richard C. Richardson, moved, by their solicitors, F. J. & M. Moses, that, as against them, the order *pro confesso*be set aside, and that they have time to answer. In support of the motion, an affidavit and statement were submitted, as follows:

*“*Thomas 0. Richardson, one of the defendants to the case of Samuel Meek, makes oath that on 21st April last, he was served with process of *subp. ad resp.;*that his brothers John and James B. were also served. That at request of his brothers, he wrote to Ool. Moses to engage his services, and begging to be informed what they must do in the matter. That it turned out that Ool. Moses was in Charleston, and on the first Tuesday of the sitting of the Appeal Court, he met Ool. Moses at the depot, who had not then received the letter, and it was agreed between him and Ool. M., that as soon as Ool. M. returned from Columbia he would write by mail to defendant when to come up. That Ool. Moses has informed him that he wrote a joint letterBto deponent an$ his *89brothers, informing them be was at borne, hnd they must come up before first Monday in June to file their answers. He swears that to this day he has never received the letter or heard of it from either of his brothers, and believes it was never received. That waiting to hear from Col. Moses they did not come up, and only now came upon his sending an express down for them. He swears it was entirely from the fact that his action was to depend on the notice of Col. Moses, that he did not come up ; that the complainant has not a shadow of law, justice or morality in the claim he has set up against him, and to deprive them of the opportunity of answering, under the circumstances, would he inequitable. This deponent further says, he informed his brothers of the understanding with Col. Moses: deponent swears he did not know the Court was sitting until the messenger of Col. M. came down.”

“ Defendants’ solicitor stated that an affidavit was then in the course of writing, nearly completed by Richard C. Richardson, another of defendants.

“ The Chancellor said it was unnecessary, as he would regard the affidavit already made as extending to all the defendants.

“ Mr. E. J. Moses, defendants’ solicitor, submitted the following statement, affidavit to which was dispensed with by complainant’s solicitor.

“ That about the last of April, 1851, he met Richard C. Richardson in Charleston; that said Richardson expressed gratification at meeting him, stating that he desired to see him on business ; that he had been served with a writ by one Samuel Meek, requiring him to appear at Sumter Court House in ten days, and he did not desire to be guilty of any neglect in making his defence; wished it attended to. Counsel explained the process to him, informing him he would have to answer, which he could not do without a copy of the bill; that he would leave Charleston (as he expected) on 80th April, go to the Court of Appeals at Columbia the week following, and on his return from Court of Appeals, would write him when to come up, and prepare his answer.

“ That on Tuesday morning, the 6th May, Mr. Moses, on his *90way to the Court of Appeals, met at Middleton depot, tbe defendant, Thomas 0. Richardson, who informed him of the suit by Meek, and the wish of his brothers and himself to engage his professional sendees; that he had written a letter to Mr. M. on the subject, which letter Mr. M. had not then received.

“ Mr. M. informed him, that on his return from the Appeal Court, he would write to him and his brothers, informing them when they must come up and attend to the filing of the answer, &c. That on his return from Court of Appeals, which was on the night of May 8, he found at his office the letter alluded to by said T. C. Richardson, dated April 80, post-marked May 1.

*“*Mr. M. further states, that within at farthest, as he thinks, two days after his return home, he wrote a letter by mail addressed to John P. Richardson, James B. Richardson, and Thomas C. Richardson, at Eulton post office, informing them they must come up before the first Monday in June, to prepare the answer in the Meek case, and that by same mail, he addressed a letter to the same effect to the said Richard C. Richardson.

*“*That during the term, as they did not come up, on Wednesday evening, he sent a letter down for them, and three of them appeared in Court at its opening on Friday morning, and submitted the motion above set forth.”

As stated in the brief, his Honor the Chancellor said, that if he considered he had any discretion in the matter, the cause shewn was abundant for its exercise in favor of the application, but that as he regarded his hands tied by the rule of Court, he was obliged to overrule the motion.

The defendants appealed, on the grounds:

1. Because, under the circumstances, the said order should have been granted.

2. Because the Court has the entire control over the pleadings of a cause, and the right to permit an answer to be filed at any time, when by so doing the complainant could in no wise be prejudiced.

8. Because the cause having been continued, the complainant *91could not bave been delayed or otherwise prejudiced by the motion.

4. Because the failure to file the answer on the day of the meeting of the Court was the effect of accident and surprise, from which the said defendants were entitled to relief, and the refusal of leave to do so, would seriously affect them in their defence on the merits of the case.

*F. J. Moses,*for appellants.

*FeSaussure,*contra.

The opinion of the Court was delivered by

Dabgan, Oh.

I did not hold on the circuit, as the brief represents, that there were no circumstances under which the Chancellor could exercise the discretion of relaxing the 36th rule of Court. On the contrary, I said, distinctly, that there were extraordinary circumstances, such, for instance, as accidents resulting from the act of God, which would justify the Chancellor *pro hae vice*to set aside the rule, and to permit the answer to be filed on such equitable conditions as he might think proper to impose. And I put cases by way of illustrating my views. I said, that if the omission was occasioned by sickness, or any other calamity or misfortune, which occasioned the answer not to be filed in time, I would feel myself authorized to interpose. But I did not consider the case as falling within that class. It was an omission, which did not result from calamity, misfortune, sickness or inevitable accident. In the case made by the affidavits, and similar cases, I considered the rule as of imperative obligation, and in reference to such cases, used language very much like that imputed to me in the brief.

It is the opinion of this Court, that the practice under the rules, may be moulded at the discretion of the Chancellor, so as to meet the exigencies of the case, and to promote the ends of justice. And with this piu-pose in view, he may suspend their operation in particular cases, where justice seems to require it; observing them as a general chart by which the proceedings of the Court are to *92be conducted, where no special equity makes a deviation proper. At the same time it is the clear doctrine, that the exercise of such a discretion on the part of the Chancellor, in enforcing or suspending the rules, is not a matter from which an appeal will lie. Where there is a right to exercise discretion, there is no right of appeal from its exercise.

I am now persuaded, that I had a greater latitude of discretion than I had supposed on the circuit. As the parties and their counsel did appear to have used a considerable degree of diligence, with my present views, if the case were now before me, I should allow the defendants, on the case made, to file their answers. On this statement to the other members of the Court, and on my own motion, this Court has consented to reverse the decision of the circuit Court, and to grant the defendants leave to file their answers.

It is ordered and decreed, that the order *fro confesso*be set aside; that the defendants have leave to file their answers on or before the first day of March next.

JOHNSTON, DüNKIN and Wardlaw, CC. concurred.

*Decision reversed.*