his exceptions are allowed, the answer is deemed sufficient from the date of the Master's report. It must be borne in mind that the 19 N. O. applies not only to the time allowed for filing exceptions to a first answer, but also to that allowed for filing, delivering, or referring exceptions to [ *288 ] any answer, or for obtaining a *Master's report upon any exceptions,(1) and also that if the last of any of the days limited to do any act falls on a Sunday, that the time is extended throughout the Monday following.(2)

EXCEPTIONS TO THE MASTER'S REPORT.

If either party is dissatisfied with the report of the Master, he may take exceptions thereto, which are drawn and signed by counsel and engrossed on unstamped paper, and left at the seat of the Registrars with a deposit of 107.(3) In excepting to a Master's report, either of sufficiency or insufficiency, it is not the practice to leave objections.[a] When the exceptions are filed, the party excepting obtains an order as of course to set them down, and they are heard in their regular course. A plaintiff cannot except after he has acquiesced in the report, as by calling for a further answer, or by proceeding with the suit.[b]

Exceptions to a Master's report cannot be regularly filed until his report has been filed, so that the plaintiff taking the report can always manage, at the same time that he files the report, to present a petition and obtain an order to amend, and for the defendant to answer the amendments and exceptions at the same time, and if he serves the order before an order to set down the exceptions is served on him, he prevents the defendant from excepting to the report. To avoid this the defendant should take a transcript of the Master's report, file it, and then except at once.[c]

(1) 19 N. O.

(2) See Angell v. Wescombe, 1 M. & C. 48. (3) 41 N. O.

[a] Richards v. Barlow, 1 Paige, 327; Byington v. Wood, 1 Paige, 146; Mackic v. Cairns, 1 Hopk. 9; Hoff. Mast. in Ch. 254.

[6] Nor can a party who has neglected to appear and argue the exceptions before the Master, except to the report. Byington v. Wood, 1 Paige, 145. Though, upon special application, and cause shown, and on payment of costs of the reference and hearing of the exceptions, leave has been given to refer back the exceptions, that the defendant might be heard. Ibid. 1 Hoff. Ch. Prac. 250.

[c] The inconvenience of this practice, has been obviated in New York, by general

A defendant is not precluded from excepting to a Master's report of insufficiency, unless he is in contempt for *want of a better answer,(1) or has filed a fur- [ *289 ] ther answer, or otherwise acquiesced in the report ;[a] or unless an order to amend, and for the defendant to answer the amendments and exceptions together, has been served before the exceptions are set down.(2) The service of an order setting down exceptions to a Master's report of insufficiency (if the defendant is not precluded as above) prevents process of contempt issuing to compel a further answer until the exceptions are disposed of.

It would appear that the circumstance of the Master fixing a time in his report for the defendant to put in a further answer, is not a waiver of the defendant's right to except to the Master's report. In Taylor v. Bailey,(3) exceptions for insufficiency were allowed by the Master who gave six weeks time to put in a further answer. After the lapse of a month, the defendant excepted to the Master's report; a motion was made to take the same off the file. The Vice Chancellor refused the motion, on the ground that the defendant might except at any period during the time granted by the Master. The defendant, in resisting the motion, swore that he did not ask for time.

If the exceptions are overruled, the deposit of 107. is to be paid to the adverse party, in which case the exceptant is to pay the further taxed costs occasioned by such exceptions, unless the Court shall otherwise order, but in

(1) By Order of the 8th of July, 1683, which is now obsolete, it was ordered that after a report filed of an answer, whether certified sufficient or insufficient, whereon costs were due, no exceptions should be admitted to such report by either party, unless such exceptions should be filed with the Registrar within eight days after service of a subpœna for the costs of such answer, and the party should be at liberty to proceed for his costs, notwithstanding any exceptions that might be filed after the eight days expired. Beam. Ord. 258. Such is not the present practice.

(2) Farquharson v. Balfour, 1 Jac. 587.

(3) 5th Feb. 1836.

rules, which provide, that the report must be delivered to the complainant who must forthwith file it. No order to confirm it need be entered. It becomes absolute, as against the complainant, within eight days after it is filed, which time is allowed him to except. Notice of its being filed must be given to the adverse party, who may file exceptions within eight days after such notice; and if he do not except within that time, it becomes absolute against him also. Where no exceptions are submitted to, or, on a reference, allowed by the Master, the answer is deemed sufficient, from the time when the report becomes absolute against the complainant. N. Y. Chan. Rule 56. If the complainant, on receiving an unfavourable report, should neglect to file it, it would seem, that the answer is sufficient, as against him, at the expiration of eight days from the time allowed for filing. 1 Hoff. Ch. Prac. 249.

[a] See Holmes v. The Mayor, &c. of Arundell, 4 Lond. Jur. 1178.

case the exceptant shall in part succeed, the deposit is to be dealt with and costs paid as the Court shall direct. [ *290 ] *Where several exceptions are taken to an answer, and the Master reports the answer sufficient, and one general exception is taken to his report, and some of the exceptions to the answer are allowed and some not, and others waived, the Court in its discretion may order the deposit to be divided.(1)[a]

COSTS OF EXCEPTIONS.

The costs of exceptions are fixed, and are usually paid to the clerk in court. If payment be refused, they are recoverable by subpoena and attachment. If a defendant submits to answer exceptions before an order of reference is obtained, he pays 20s. costs, both in a town and country cause; after a reference but before report, he pays 30s. both in a town cause and in a country cause. For the first answer reported insufficient, in a town cause he pays 40s., and in a country 50s. For a second answer, in a town cause 50s., and in a country 60s. For a third answer so reported he pays taxed costs. If the answer is reported sufficient, the plaintiff pays costs,(2) for the first answer, 40s. in town, and 50s. in the country, and

so on.

The Master to whom any exceptions to an answer for insufficiency are referred, is at liberty, in making a report upon such exceptions, if he shall think fit to certify by whom and in what proportions (if any) the costs of such exceptions and of the reference thereon ought to be borne, and upon the taxation of the general costs in the cause under the twenty-eighth order, pronounced on the 3rd April, 1828, regard is to be had to such certificate, and the costs to be allowed to either party are to be taxed and apportioned accordingly.(3)[b]

(1) Dawson v. Busk, 2 Madd. 184.

(2) Beam. Ord. 28.

(3) 19 N. N. O.

[a] If several exceptions to the answer, have been allowed by the Master, and one general exception is taken to the report, and the Court find any one exception to the answer well taken, the exception to the report will be overruled, without hearing the rest argued. Candler v. Pettit, 1 Paige, 427; S. C. nom. Pettit v. Candler, on appeal, 3 Wend. 618; Franklin v. Keeler, 4 Paige, 382; Cotham v. West, 1 Beavan, 380.

[b] If the defendant submit to the exceptions, the complainant has his costs; and if they be referred, the complainant has the costs of the exceptions allowed, and the defendant his costs of the exceptions disallowed. Methodist Episcopal Church v. Jaques, 1

The 28th general order of 1828, provides, that if a plaintiff obtains a decree with costs, there the costs occasioned to the plaintiff by the insufficiency of the answer of any defendant, are to be deemed to be part of the plaintiff's costs in the cause, such sum or sums being deducted therefrom as were paid by the defendant, according to the course of the Court, upon the exceptions to the said answer being submitted to or allowed.(1)

*The 28th Order only applies to the case of a [ *291 ] plaintiff obtaining a decree with costs, and not to that of a defendant; and two questions will arise on the construction of this order; first, whether the defendant can, under any circumstances, be allowed the costs of insufficiency on the general taxation; or, secondly, whether a plaintiff, who does not obtain a decree, can deduct the costs of insufficiency. If the reference to the Order of 1828 had been omitted, and a proviso made for the case of the party, in whose favour the Master had certified, not obtaining a decree, both objections would have been avoided.

Exceptions are allowed to be amended upon mistake,(2)

(1) 28 N. O.

(2) Dolder v. Bank of England, 10 Ves. 284.

Johns. Ch. Rep. 65. And on exceptions to a report, each party is entitled to the costs of the hearing as to the exceptions decided in his favour, which costs are to be set off against each other. Where the costs on each side would be nearly equal, the usual practice is, to give costs to neither party. Richards v. Barlow, 1 Paige, 323.

CHAPTER XXII.

AMENDMENT OF A BILL.

What amendments may be made, 293. Amendments affecting the matters stated in the bill, 293. Amendments altering the parties, 294. In what manner bill amended, 295. Or an information, 296. Order to amend, how obtained, 296. Time allowed to amend as of course, 297. On special application, 299. Application to the Master to amend, 300. Costs of amendment, 301. When costs in the cause, 303. Effect of receiving costs of amendment, 304. Effect of amendment on other proceedings, 305. On process of contempt, and on common injunction, 305. On special injunction, and on ne exeat regno, 306. After examination, 306. On exceptions for insufficiency, 307. To enforce appearance to amended bill, 309. Proceedings on the part of a defendant as to an amended bill, 310.

FROM the nature of the subjects cognizable in a court of equity, it frequently happens that parties instituting proceedings are only imperfectly acquainted with the circumstances of their cases or of their rights. The Court therefore permits them (subject to certain restrictions,) as new facts are discovered, either by the industry of the parties or by the disclosures made in the defence set up, by an amendment of their bill to alter their record and shape their case conformably to such changes.[a]

[a] Amending the bill may be for various purposes:-for the correction of mis. takes:-or for the suppression of impolitic admissions in the original statements :-or for adding new parties:-or for inquiring into additional facts:-or for the further investigation of facts which have been only partially disclosed :—or for putting in issue new matter stated in the answer. Story's Eq. Pl. 678, 679.

There are some cases, in certain stages of the suit, in which these amendments are permitted as a matter of course. But where special circumstances exist, permission for this purpose must be obtained from the Court.

Upon this subject, it is almost impossible to lay down a general rule. Amendments being regarded with reference only to the furtherance of justice, as a general rule, they are in the discretion of the Court, especially in matters of mere form. Smith v. Babcock, 3 Sumner, 410; Garlick v. Strong, 3 Paige, 440; McElwain v. Willis, 3 Paige, 505. They are, therefore, always allowed, with great liberality, until the proofs are closed, except where the bill is upon oath; Cock v. Evans, 9 Yerg. 287; in which case, they are allowed, with great caution. Verplanck v. The Mercantile Ins. Co. 1 Edw. 46; Swift v. Eckford, 6 Paige, 22. And where the object is, to let in new facts or defences, wholly dependent on parol evidence, the reluctance of the Court to allow amendments is greatly increased, since it would encourage carelessness and indifference in pleading, and open the door to the introduction of testimony manufactured for the occasion. But, where the facts sought to be introduced, are written papers, or documents, which have been omitted by accident or mistake, there, the common reason does not apply in its full force; for such papers and documents cannot be made to speak a different language, from that which originally belonged to them. Smith v. Babcock, 3 Sumner, 410. Calloway v. Dobson, 1 Brockenbr. 119.

The errors or omissions, which may thus be corrected by amendment, are where the bill is defective in parties, or in the prayer for relief, or in the omission or mistake of a fact or circumstance connected with the substance, but not forming the substance itself, nor repugnant thereto; this latter principle being applicable to all pleadings in equity,