The respondent admits the truth of the allegations in the petition, but objects that they are insufficient, for several reasons which he assigns.
The petition, though it alleges that the exceptions were filed as required by law, does not state that notice was given to the adverse party, or that they were presented to the court, or that they were saved in conformity with the 34th rule of the superior court. But taking the petition in connection with the copy of the bill of exceptions annexed to it, and the allegation that the matters set forth in the bill are correctly stated, there is a sufficient allegation that the exceptions were properly taken and filed, and acted upon by the presiding judge. As he refused to allow the exceptions, the respondent had no need of notice to appear before him.
The present is the proper term for filing the petition, and it is admitted that a copy was delivered to the respondent’s attorney of record more than ten days before the sitting of the court. This is in conformity with the 32d rule of this court. But it is objected that this is insufficient under the Gen. Sts., and the case of Elwell v. Dizer, 1 Allen, 484, is cited. But that case applies exclusively to the eastern counties, in which questions of law' are carried to the law term of the court for the Commonwealth.
The petition being properly before the court, a commissioner is to be appointed to hear the parties and report the facts to the court