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ties acquiesced in the irregularity.30 Where an order is a nullity, and not merely irregular, the objection thereto will not be waived by delay in insisting upon it. Upon a motion by a defendant to set aside an order of reference for irregularity, the complainant cannot be let in on terms, but an application for that purpose must be the subject of a distinct motion.31

§ 591. Who may attend before master.

The general rule is that all parties beneficially interested either in the estate or fund in question are entitled to attend before the master on all those proceedings which may affect their interests, or increase or diminish their proportion in the fund. This includes not only those parties who were parties to the suit, but those who are quasi parties, by having come in under the decree and established a claim.3 32 On a reference of the title to an estate purchased under a decree, it is said the master will only allow the vendor's solicitor to attend before him cn the inquiry.33 Parties entitled to the personal estate are not entitled to attend proceedings which affect the real estate alone, and vice versa.34 Trustees are not allowed, except in proceedings carried on by themselves, to attend in cases where all the cestuis que trust are before the court. If there are parties in being, or who may come into being, who may become interested, whose interests are only represented by the trustees, and are not too remote, the trustees will be allowed to attend the proceedings affecting those interests.35 An executor is entitled to attend on all proceedings relating to the charges of creditors seeking payment out of the personal estate. After there has been a report of debts, if all the parties interested in the personalty are before the court, he is only entitled to attend on

30 Dunn v. Dunn, 8 Ala. 784.

81 Johnston v. Bloomer, 3 Edw. Ch. (N. Y.) 328.

321 Barbour, Ch. Pr. 477, 479.

331 Barbour, Ch. Pr. 477.

341 Barbour, Ch. Pr. 478.

851 Barbour, Ch. Pr. 478.

those proceedings in which he is personally interested.86 If the master refuses to allow a party to attend before him who thinks he has a right to do so, the proper method of obtaining the opinion of the court upon the question is to present a petition praying that the party may be permitted to attend the master on the reference. A copy of this petition, with notice of presenting it, should be served upon all parties interested.37

§ 592. Notice and time of hearing.

Where the court, in a cause not under a default, refers it to a master for his report, the parties are entitled to be present and be heard, and if the master proceeds to take and state the account in the absence of the parties or their solicitors, without notice, exception to his report should be allowed, and the case again referred.38 It is immaterial whether the parties had notice or not, if they were present and took part in the proceedings before the master.39 The notice must be reasonable. 40 What is reasonable notice depends upon the circumstances of the particular case.41 Where a master reports that he gave reasonable notice to all of the defendants of the time and place of the hearing, it is sufficient, in the absence of any evidence

36 1 Barbour, Ch. Pr. 478.

37 1 Barbour, Ch. Pr. 480.

88 Whiteside v. Pulliam, 25 Ill. 285; Ballard v. Lippman, 32 Fla. 481, 14 So. 154; Gaines v. Coney, 51 Miss. 323; Wardlaw v. Erskine, 21 S. C. 359. See supra, § 148, for rights of parties to notice when the bill has been taken for confessed.

39 Prince v. Cutler, 69 Ill. 267.

40 Strang v. Allen, 44 Ill. 428.

41 For illustrations thereof, see Taylor v. Thomas, 2 N. J. Eq. 106; Johnson v. Person, 16 N. C. 364; White v. Drew, 9 W. Va. 695; Bernie v. Vandever, 16 Ark. 616. It is held that, where the evidence already taken has established the facts, and it is the duty of the master merely to make calculations and state the result in figures, the reason and necessity for the notice does not exist. Gaines v. Coney, 51 Miss. 323; Chapman v. Evans, 44 Miss. 118. But it is also held that parties are entitled to notice of a hearing before the master, notwithstanding the reference involves only the examination of records in the case. Wardlaw v. Erskine, 21 S. C. 359.

to the contrary.* 42 The time after notice to prepare for a hearing is, in the absence of statute or rule of court, left a matter of discretion, to be determined by the master, and should be reasonable.43 Where the delay in taking testimony is at the complainant's request, and the taking of testimony is pursuant to agreement, it is error to strike the master's report and testimony from the record on the application of the complainant, because the testimony was not taken within the time fixed by the rule of court, and, if necessary, an order nunc pro tunc may be made extending the time.44

§ 593. Hearing before master.

The master must perform the duties under an order of reference in person, and he cannot delegate his authority to, nor perform his duties by, a substitute. He should see the witnesses, and hear them testify, where he is ordered to report his conclusions of law and fact.45 He must decide upon the testimony, and cannot decide upon his personal knowledge of the facts.46 Under the old English practice, a party prosecuting or resisting any inquiry before a master was required to present to the master a state of facts, which was in effect the pleading of the party before the master. It has been defined to be a statement in writing, made by a party prosecuting or resisting any inquiry before a master, of the facts and circumstances upon which he relies, either in support of his own cause or in contradiction. or defeasance of that of his adversary. It is in effect the pleading of the party before the master, and is governed by nearly

42 State v. McIntyre, 53 Me. 214.

43 Bernie v. Vandever, 16 Ark. 616.

44 Hoofstitler v. Hostetter, 172 Pa. 575, 33 Atl. 753. See Harding v Harding, 180 Ill. 481, 54 N. E. 587. In Harding v. Harding, 180 Ill. 481. 54 N. E. 587, it was held to be within the discretion of the court to receive and consider the master's report, although he had not conformed to the time fixed by the order.

45 Stone v. Stone, 28 N. J. Eq. 409; Schnadt v. Davis, 84 Ill. App. 669, 185 Ill. 476, 57 N. E. 652.

46 Bissell v. Bozman, 17 N. C. 229.

the same rules and proceedings as pleadings in the court, yet not being signed, nor, in general, prepared by counsel, those rules were not so strictly observed.*7 A state of facts was a general form, by which the prosecution or defense of every refer ence to a master was commenced. It was entitled in the cause, and contained a detail of the facts and circumstances intended to be relied upon by the party. It might be amended at any time before the examination of witnesses commenced. When prepared, it was carried into the master's office, and a return or summons on leaving was taken out and served upon the other parties. If they had a counter state of facts to leave, they proceeded in the same manner.48 Scandalous or impertinent matter contained therein might be expunged.49 A further state of facts might be carried in if necessary, upon leaving which, a warrant "on leaving" was taken out and served, as when an original state of facts was left. Where another party claimed the facts to be different from those alleged by the party carrying in the state of facts, the party so claiming was required to bring in a counter state of facts, which was not necessary, however, where one party merely negatived the facts as alleged by the other.50 In modern practice, the procedure in the master's office is usually regulated by statute or rule of court, intended to provide a simple and expeditious procedure.51

471 Barbour, Ch. Pr. 503, 504.

48 1 Barbour, Ch. Pr. 503-505.

49 Erskine v. Garthshore, 18 Ves. 114.

50 1 Barbour, Ch. Pr. 505.

51 It is said that the rules of the United States supreme court for conducting a reference before masters provide a simple and expeditious procedure, and were obviously intended to dispense with the old formalities incident to the settlement or making of masters' reports, and that these rules establish a procedure in themselves, and that reference to the practice of the high court of chancery in England for the formalities attending the settlement, or making of masters' reports, and the entering of exceptions thereto, is unnecessary. Hatch v. Indianapolis & S. R. Co., 9 Fed. 856. For an extended summary of the procedure before the master, see Remsen v. Remsen, 2 Johns. Ch. (N. Y., 495.

§ 594. Scope of inquiry before master.

A master cannot report as to matters charged in the bill, but not within the order of reference.52 His report upon a question not referred to him by the court is erroneous, and subject to exception by the party aggrieved, and the report may be referred back to the master to strike out the superfluous matter.53 A master is bound to obey the order and directions of the court. Unless special directions are given to a master, he will not be allowed to go behind the decretal order of reference and consider equities between the parties, and has no right to review, reject, or disregard the decision, order, or directions of the court contained in such order.54 Evidence which changes the complexion of the case, and which, if it had been heard before the court, would probably have changed the decree, cannot be heard.55 Thus, where a question of fraud is determined by the court, and the cause is sent to a master to find the amount due, he is not authorized to examine the issue of fraud.56 He has no authority to go outside the bill and raise and decide questions which were not presented by the pleadings, on which the parties were never heard, and report a decree entirely foreign to the whole subject of the contention before him.57 Where a case has been referred to take and report the evidence, he should

52 Gordon v. Hobart, 2 Story, 243, Fed. Cas. No. 5,608.

53 Taylor v. Robertson, 27 Fed. 537; Henderson v. Huey, 45 Ala. 275; Howe v. Russell, 36 Me. 115. A report directly repugnant to the order of reference under which it purports to have been made, and deficient in those facts upon which the final action of the court could alone be based, need not be excepted to in order to set it aside. In such cases, it is the duty of the chancellor either to direct the master to review his report, in order to conform to the decree under which it is made, or to disregard it in toto, and order him to report under the original decree. Lang v. Brown, 21 Ala. 179, citing 2 Daniell, Ch. Pl. & Pr. 1501; Turner v. Turner, 1 Dickens, 313, 1 Swanst. 156.

54 Felch v. Hooper, 4 Cliff. 489, Fed. Cas. No. 4,718; Rankin v. Rankin, 36 Ill. 293, 87 Am. Dec. 205; Izard v. Bodine, 9 N. J. Eq. 309; Updike v. Doyle, 7 R. I. 456.

55 Maury v. Lewis, 10 Yerg. (Tenn.) 115.

56 Gilmore v. Gilmore, 40 Me. 50.

57 Morio's Appeal, 4 Penny. (Pa.) 398.

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