It is to be observed, that it is not competent to the Court upon exceptions, to make an order which is not quite consistent with the original decree; from the time of the pronunciation of the decree, all the subsequent proceedings should be consistent with it, and if, upon argument of exceptions, it appears, that the justice of the case cannot be got at without an alteration of the decree, it must be reheard.1

If, upon argument, or upon default of the plaintiff,2 the excep tions are overruled, the overruling of them has all the effect of confirming the report absolutely, and if the cause has been set down to be heard upon further directions, to come on at the same time with the hearing of the exceptions, the Court proceeds at once to hear the cause upon further directions. So also, if the exceptions, or any of them, are allowed, but it is not necessary refer the report back to the Master to be reviewed, the hearing of the cause upon further directions may be proceeded with, in the same manner as if the exceptions had been overruled.*

to

If the allowance of the exceptions, or any of them, renders it necessary to refer it back to the Master, an order is made referring it back to the Master to review his report, and the reservation of further directions and of the costs of the suit is continued until after the Master shall have made his report.5

The same rules which have already been laid down with regard to the deposit on and the costs of exceptions to Masters' reports upon the insufficiency of answers, apply to the deposit on and costs of exceptions to the reports of Masters in general; 6 and it may be mentioned, that where there are several parties appearing by rejection of testimony is to be corrected by a motion to the Court for an compelling the Master to receive the evidence, and not by excepting to his report.

order

1 Per Lord Eldon, in Brown v. De Tastet, Jac. 293; see, also, E. L. Company v. Keighley, 4 Mad. 16.

Rookes v. Rookes, 7 Jur. 1104.

2 Smith, 400, 3d ed.

4 Ibid.

♪ Ibid.; and see Daubeney v. Coghlan, 12 Sim. 507. Upon the allowance of an exception to the Master's report, as to the amount of damages sustained, the Court can modify the report and settle the amount, without referring it back to the Master. Taylor v. Reed, 4 Paige, 561.

As to the costs of persons excepting, who seek to establish claims, but are not parties to the suit, see ante, pp. 1209, 1210. Stafford v. Rogers, 1 Hop kins, 98.

different solicitors, and each takes exceptions to the report, and the exceptions are allowed, the costs of all the excepting parties will in general be given to them, although the exceptions are in each case the same.1 It should be recollected, that if the costs of exceptions to a report are not ordered to be costs in the cause, they cannot be allowed as such.2

It may be mentioned, in this place, that sometimes, upon the argument of exceptions, the Court will think it right, before it comes to a decision upon the subject-matter of the exception, to send it back to the Master to supply some defect in his report,3 or to make inquiry into some facts which may be necessary to enable the Court to come to a proper conclusion; in such cases, the Court usually adjourns the consideration of the exceptions, or of the particular exception in question, till after the Master shall have made the supplemental report. So, also, when the subjectmatter of the exception is a fact depending upon conflicting evidence, the Court will frequently, before it decides upon the exception, direct an issue at law to try the disputed fact, reserving the decision upon the exception till after the trial. In all such cases, the course of the Court is to postpone the consideration of the disposal of the deposit paid, upon filing the exceptions, and of the costs till the ultimate decision upon the exception.

Review of Report.

Although the usual course by which a review of the Master's report is to be procured, is by taking exceptions to it, there are many cases in which the Court will direct the Master to review his report without requiring exceptions to be taken; or, if they are taken, will direct it to be reviewed upon grounds independent

1 Trezevant v. Fraser, MSS. 12th Jan. 1836.

22 Smith, 383; and see Wilkins v. Stevens, 1 Y. & C. 436. In the United States Courts, in order to prevent exceptions to reports from being filed for frivolous causes, or for mere delay, the party, whose exceptions are overruled, shall, for every exception overruled, pay costs to the other party, and for every exception allowed, shall be entitled to costs, the costs to be fixed in each case by the Court, by a standing rule of the Circuit Court. Equity Rule, 84.

* See Ex parte Charter, 2 Cox, 168.

• Wilson v. Metcalfe, 3 Mad. 45; see, also, Gregg v. Taylor, 4 Russ. 279. Gibson v. Broadfoot, 3 Desaus. 586; Quintz v. Quintz, 2 Hayw. 182; Dutch Church at Freehold v. Smock, 1 Saxton (N. J.) 148; Honore v. Colmeshil, 1 J. J. Marsh. 510; White v. Johnson, 2 Munf. 285.

of those laid by the exceptions; and sometimes, as we have seen, the Court will direct a Master to review his report, in order to afford a party an opportunity for taking in objections to the draft, as a foundation for exceptions.1

A reference back to the Master, to review a report which has not been excepted to, may be made upon the hearing for further directions; and is frequently so made when the Court is not satisfied with the Master's finding, as where the Master has not found sufficient facts for the Court to found its judgment upon. So, also, if the Master has exceeded his authority, it will either direct him to review his report or take no notice of his finding.

We have seen before, that where the report is the consequence of an order pronounced upon petition, or is upon the taxation of costs, the Court will, if the objections to the report are not apparent upon the face of it, entertain a petition to refer it to the Master to review his report.3

In some cases, also, the Court will direct a review of the Master's report, upon application by motion; thus, where there has been some omission or error in the report, which would prevent the matter being properly raised by exceptions, the Court has, upon motion, ordered the Master to review his report, as where, upon a reference of an examination for impertinence, the Master certified, generally, that the examination was impertinent, the Vice-Chancellor, on motion, referred it back to the Master to review his certificate, and state in what respects he considered the same impertinent.1

And, even where exceptions to the report have been heard and disposed of, the Court has, at the instance of a vendor, directed the Master to review his report, in order to give him an opporta

1 Vallence v. Weldon, 1 Dick. 299. Where the order for confirming the Master's report is regular, the order will not afterwards be vacated, so as to allow the defendant to except to the report, when he purposely kept back his objections at the time, and did not state them before the Master, though he had full knowledge of all the facts which formed the grounds of his exception. Slee v. Bloom, 7 John. Ch. 137. See Pickett v. Hewlings, Halst. Dig. 14. Should the Master, however, make his report without giving the parties an oppertunity to object to it, if they see proper, the Court would, immediately on an ap plication for the purpose, order the report back to the Master to hear the objec tions. Pickett v. Hewlings, Halst. Dig. 174.

2 Turner v. Turner, 1 Dick. 313; 1 Swanst. 156, n. S. C.

Ante, p. 1312.

1 Anon. 3 Mad. 246.

nity of completing his title. The Court has, also, as we have seen, referred a report, as to title, back to the Master to be reviewed, upon application, by motion, even after the report has been confirmed.3

In general, however, the Court is very cautious in admitting applications to review a Master's report after it has been confirmed; and it is only in cases of fraud, surprise, or mistake, that it will be permitted; and, even then, it will not be allowed unless a very strong case is made.5 And, it seems, that it is not competent to the Lord Chancellor to order the Master to review a report confirmed and followed by a decree of the Master of the Rolls, containing consequential directions, whilst that decree stands.6 The proper course, in such case, would be to have the cause reheard; but, even then, the Court will not permit the report to be even discussed, unless a very strong case is made out to induce the Court to allow it.7

Amendment of Report.

It is to be noticed, that the proper course for correcting errors or supplying deficiencies in a report which has been confirmed, is by bill of review, yet errors, apparent in the schedules, have been corrected, even after enrolment, on a summary application; thus

8

1 As to the cases in which the Court will send it back to the Master to review his report as to a title, see ante, p. 1215.

2 Ibid.

3 The commissioner's report on matters of account may be opened after confirmation, where the fund is still in the power of the Court, for the purpose of correcting an error originating in mistake or fraud. Cockran v. Lynch, 1 Bailey, Eq. 514.

Drought v. Redford, 1 Moll. 573.

• Turner v. Turner, 1 Jac. & W. 39. Where a matter of fact, depending on conflicting testimony, and the credibility of witnesses, has been referred to a Master, his decision will not be interfered with, on his mere judgment of facts, unless it is a very plain case of error or mistake. Izard v. Bodine, 1 Stockt. (N. J.) 309; Sinnickson v. Bruere, 1 Stockt. (N. J.) 659. Or unless there be some abuse of authority on the part of the Master; and the burden is on the excepting party to establish the mistake or misconduct alleged. Howe v. Russell, 36 Maine,

115, 127; Da Costa v. Da Costa, 3 P. Wms. 140, note; McDougald v. Dougherty, 11 Georgia, 570.

Turner v. Turner, 1 Swanst. 154. 7 Turner v. Turner, 1 Jac. & W. 42. Weston v. Haggerston, Coop. 134.

where, in taking an account in the Master's office, a mistake was made in the casting up of the schedules, and, upon the cause coming on upon further directions, the defendant was decreed to pay a sum, appearing by the schedules so cast up, to be due from him, and the plaintiff enrolled the decree, after which the mistake was discovered, Lord Eldon, upon an application to correct the error, said, that all errors apparent on the face of the schedules might be corrected, even after enrolment, but that there could be no correction except of such apparent errors. His Lordship accordingly permitted the mistakes in the schedules, which were apparent, to be corrected, but refused a subsequent application, by the plaintiff, in the same case, to have some further sums, which he claimed, inserted in the schedules.1

CHAPTER XXVII.

PROCEEDINGS IN THE JUDGES' CHAMBERS.

UNTIL a very recent period in the history of the Court of Chancery, it was the pratice in every suit of any degree of complica tion to refer to one of the Masters of the Court either inquiries to be investigated, or directions to be carried into effect. The form of these references, and the circumstances under which they were made, constituted a most material part of the general practice of the Court. The Masters exercised an almost independent jurisdiction in carrying out these references. No communications took place between the Master prosecuting a reference and the Judge who directed it, but the Master completed the duty delegated to him, and then drew up a lengthy report, stating the result of his inquiries and what he had done in obedience to the decree. After this report was made the cause came again before the Court for a final settlement, and a decree was made, based upon the decisions and investigations of the Master. The parties, by excepting to the report, might appeal to the Court against the decision of the Master, and reopen all the questions that had been decided.

1 See White v. Johnson, 2 Munf. 284; Hatchett v. Cremorne, Sausse & S. 675; Miller v. Rushforth, 3 Green Ch. 174; Howe v. Russell, 36 Maine, 115, 127; 2 Madd. Ch. Pr. 507; Mason v. Crosby, 3 Wood & M. 258.