§ 1. Where party the exceptant might make a distinct motion that he should be ordered to receive it.1 Where it appears upon the hearing of the exceptions, that the excepting party did not lay a material piece of evidence before the lay important Master, which he had then in his power, and that the error in omitted to evidence before the Master. As to reading parts of an swer, not read before Mas ter. Specific ob jection to be made to Mas ter's rejection of evidence. No order upinconsistent with decree. the Master's report was owing to such omission, the Court will not direct the Master to review his report upon any other terms than the exceptant's giving up his deposit.2 The rule which precludes the reading of any evidence which was not before the Master, also precludes the reading of any parts of a defendant's answer, which were not read in the Master's office.8 It may be mentioned, that if a Master improperly rejects evidence which has been tendered to him, it should form a specific subject of exception to his report. It is to be observed, that it is not competent to the Court upon on exceptions 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.5 Effect of overruling. Allowance of. If, upon argument, or upon default of the plaintiff, the exceptions 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 to 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. 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 1 On an application to open a Master's report for the introduction of additional evidence, the party must show good reason why it was not offered before the Master. Whiteside v. Pulliam, 25 Ill. 285. 2 Hedges v. Cardonnell, 2 Atk. 408; see Mitford v. Reynolds, 1 Phil. 706; Andrew v. Andrew, 13 Jur. 400, V. C. K. B. 3 Rands v. Pushman, 6 Sim. 46. 4 But see Ward v. Jewett, Walk. Ch. 45, where it was held that an improper rejection of testimony is to be corrected by a motion to the Court for an order compelling the Master to receive the evidence, and not by excepting to his report. Per Lord Eldon, in Brown v. De Tas tet, Jac. 293; see also E. I. Company v. 6 Rookes v. Rookes, 7 Jur. 1104. 8 2 Smith, 400, 3d ed. When a decree directing an account to be taken is a final decree, with no equity reserved, and where no further directions need be given consequent upon the Master's report, an error made by the Master can be corrected by the Court, without referring the account back to him for a restatement, or setting down the cause for a further hearing. Huston v. Cassidy, 1 McCarter (N. J.), 320. § 1. it back to the Master to review his report, and the reservation of CH. XXIX. further directions and of the costs of the suit is continued until after the Master shall have made his report.1 2 costs. The same rules which have already been laid down with regard Deposit and 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; and it may be mentioned, that where there are several parties appearing by 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. 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.1 Adjournment of exceptions ter to supply to allow Mas defect in report, 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,5 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 subject-matter of the exception is a fact depending upon conflicting evidence, the Court or to allow 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. the trial of an issue. In what Although the usual course by which a review of the Master's Review. 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 12 Smith, 400, 3d ed.; 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 cost of persons excepting, who seek to establish claims, but are not parties to the suit, see ante, p. 1210; Stafford v. Rogers, 1 Hopk. 98. 1836. Trezevant v. Fraser, MSS., 12th Jan., 1 2 Smith, 383, and see Wilkins v. Ste cases. CH. XXIX. his report without requiring exceptions to be taken; or, if they § 1. are taken, will direct it to be reviewed upon grounds independent 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.2 Where report has been excepted to. Where report has not been excepted to. Where report Upon motion. After excep of. 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.* 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." And, even where exceptions to the report have been heard and tions disposed disposed of, the Court has, at the instance of a vendor, directed the Master to review his report, in order to give him an opportunity of completing his title. The Court has, also, as we have seen, referred a report, as to title, back to the Master to be re After confirmation. 1 Gibson v. Broadfoot, 3 Desaus. 586; Quintz v. Quintz, 2 Hayw. 182; Dutch Church at Freehold v. Sinock, 1 Saxton (N. J.), 148; Honore v. Colmeshil, 1 J. J. Marsh. 510; White v. Johnson, 2 Munf. 285. 2 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. viewed, upon application, by motion, even after the report has CH. XXIX. been confirmed.1 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. 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. 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." 6 Amendment of Report. § 1. Cannot be aldecree on further direc lowed after tion. Where errors are apparent on face of it. It is to be noticed, that the proper course for correcting errors Amendment or supplying deficiencies in a report which has been confirmed, is of by bill of review, yet errors, apparent in the schedules, have been corrected, even after enrolment, on a summary application, without a rehearing; thus 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 After enrolwhich the mistake was discovered, Lord Eldon, upon an applica- ment; tion 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 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. 2 Drought v. Redford, 1 Moli. 573. 8 Turner v. Turner, 1 J. & W. 39; see Earl of Bath v. Earl of Bradford, 2 Ves. S. 587. 591; Jowett v. Broad, 16 Sim. 352. Where it appeared that the delay had been occasioned by accidental neglect, the Court gave leave to make the application to vary the certificate, though the time had expired. Ashton v. Wood, 8 De G., M & G. 698; 3 Jur. N. S. 146. 4 Turner v. Turner, 1 Swanst. 154. Turner v. Turner, 1 J. & W. 42. Where a matter of fact, depending on conflicting testimony, and the credibility 6 Weston v. Haggerston, 9 Coop. 134; but only where errors are apparent. CH. XXIX. § 2. application, by the plaintiff, in the same case, to have some further sums, which he claimed, inserted in the schedules.1 Former practice. SECTION II. Proceedings in the Judges' Chambers. General Course of Proceeding at Chambers. Formerly, it was the practice, in every suit of any degree of complication, to refer to one of the Masters in Ordinary 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 the references. No communication 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 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 might, however, by excepting to the report, appeal to the Court against the decision of the Master, and re-open all the Abolition of questions that had been decided.2 office of Master in Ordi nary. Transfer to the Judges of the powers 4 The office of Master in Ordinary is now abolished; and all or any of the powers, authorities, and jurisdiction given to the Masters in Ordinary by any Act or Acts in force on the first day of Michaelmas Term, 1852, may be exercised by the Master of the exercised by Rolls and Vice-Chancellors respectively; and all powers and authorities which, on the 30th June, 1852,5 were exercisable by the Masters in Ordinary, under or by virtue of any general order or orders of the Court, may be exercised by those Judges respectively in Chambers. the Masters. Power to the Judges to sit at Chambers. The Master of the Rolls and the Vice-Chancellors for the time being are empowered and required to sit at Chambers, at such times as may be fixed by them respectively, for the despatch of such part of the business of the Court as can, without detriment to the public advantage, arising from the discussion of questions 1 See White v. Johnson, 2 Munf. 284; Hatchett v. Cremorne, Sausse & S. 675; Miller v. Ru-hforth, 3 Green Ch. 174; Howe v. Russell, 36 Maine, 115, 127; 2 Mad. Ch. Pr. 507; Mason v. Crosby, 3 Wood. & M, 258. 2 As to the duties of the Masters in Ordinary, see 1st Rep. Chan. Com. (1852) p. 26 et seq. As to the Masters Extraordinary, see 16 & 17 Vic. c. 78, § 1. 8 15 & 16 Vic. c. 80, § 1; Ord. 23 Aug., 1860; 23 & 24 Vic. c. 149, § 1. 4 15 & 16 Vic. c. 80, § 36. 5 The date when the 15 & 16 Vic. c. 80 was passed. 6 See Ord. XXXV. 61. |