
    Edward Brooks v. Mead, Kellogg, and Hale.
    This Court will take no notice of a parol agreement between the solicitors, relating to the proceedings in a cause, but require all agreements to conform to the 87 th rule.
    Where complainant had failed to serve his replication on a defendant, but the latter attended and cross-examined witnesses, it was held to be a waiver of all objections to the replication.
    Motion on the part of Hale to take from the files a replication to his answer, because it was not filed within the time allowed by the rules of the Court.
    From the affidavits of defendant’s solicitor, it appears he never had any knowledge or notice that any replication was, or had been filed, to the answer of Hale, until he was looking over the files in the register’s office in January last, when he came across the replication. The affidavits used in opposing the motion state that a copy of the replication was not served on Hale’s solicitor, in consequence of a parol agreement or understanding between the solicitors, that a copy need not be served. That testimony had been taken in the cause by complainants, and the defendants, Mead and Kellogg, and that the cause is on the calendar for a hearing. That notices of the taking of such testimony were served on Hale’s solicitor, who attended and cross-examined the witnesses, and that Hale himself was present on one occasion; and that his solicitor had applied to the solicitors of the other parties, to assent to a commission for the examination of his witnesses.
    
      E. C. Seaman, for Hale.
    
      H. T. Backus, for complainant.
   The Chancellor.

I can take no notice of the parol agreement between the solicitors, dispensing with service of a copy of the replication. The S7th rule requires every agreement, in respect to the proceedings in a cause, to be reduced to the form of an order by consent, and entered in the book of common orders, or to be in writing, and signed by the party against whom it is alleged.

By attending and cross-examining the witnesses, defendant waived all objections to the replication. 1 Hoff. Ch. Pr. 452. His application to the solicitors of the other parties, to assent to a commission for the examination of his witnesses, shows his understanding of the state of the pleadings. If there were no replication to his answer, he could examine no witnesses. Where, by mistake, a replication has not been filed, and yet witnesses have been examined, the Court will permit a replication to be filed nunc pro tunc. Mitf. Pl. 323; 1 Smith Pr. 336.

Motion denied,  