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take all the evidence.58 He should pass upon all the matters referred to him, to the best of his judgment, and report his conclusions, and it is improper for him to submit a particular claim to the decision of the court without so doing.59 Where the reference merely directs the master to take testimony and report, he must confine himself to the direction, and he has no authority to determine issues of law and fact.60 Before the master makes his report, the court will not, except in extreme cases, entertain a motion to instruct the master while discharging his duties, where such ruling can be reviewed upon exceptions to his report. 61

$595. Evidence before the master.

The general rules of evidence which govern the courts of common law, as well as the court of chancery, regulate also the proceedings in the master's office.62 Where the court directs an inquiry into a fact, before a master, it is in the nature of a new issue joined, and what would be evidence in the other case would be evidence before the master.63 The pleadings may be used for the same purposes that they can be used before the court, viz., as an admission by the party on whose behalf they were filed. They cannot be made use of as evidence for or against any other party. The right to use the proceedings in the cause is subject to the same rules and restrictions as govern the admissions of similar evidence before the court; but if the proceeding has really the character of evidence upon the matter directed to be inquired into, by the decree, it may be received as evidence before the master, whether it was made use

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58 Schumann v. Helberg, 62 Ill. App. 218.
59 Burroughs v. McNeill, 22 N. C. 297.
60 Jones v. Massey, 9 Rich. (S. C.) 376.

61 Anonymous, 3 Atk. 524; Lull v. Clark, 20 Fed. 454; Bates Refrig erating Co. v. Gillette, 28 Fed. 673; Welling v. La Bau, 32 Fed. 293; Rusling v. Bray, 37 N. J. Eq. 174.

621 Barbour, Ch. Pr. 493.

63 Smith v. Althus, 11 Ves. 564.

64 Hoare v. Johnstone, 2 Keen, 553; Kemp v. Wade, 2 Keen, 686.

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of at the hearing or not.65 It is a general rule that affidavits are not admissible as evidence before a master, unless the order of reference contains a direction to that effect.66 The answer of one defendant cannot be used before a master as an affidavit against another defendant.67 It is said that depositions of witnesses in another cause between the same parties may be read be fore a master, without an order to warrant it, though such an order is necessary to authorize the reading of such depositions before the court at the hearing. Under the English practice, all persons who are competent to be examined as witnesses in a cause before the hearing are competent to give evidence before the master upon inquiries directed by the decree, save that, as to those witnesses who were examined in the cause, there must be an application to the court for leave to examine them before their examination can be taken.69 The admissibility of a party as a witness depends upon the same rules and principles as the admissibility of parties to be witnesses before the hearing.70 Where the master erroneously refuses to receive testimony, a motion should be made to the court for an order requiring him to receive it. The master, at the request of either party, should make and deliver to such party a certificate stating briefly the facts of the case, with his reasons for rejecting the testimony, that the court may review his decision.71 The attendance of witnesses before a

65 Smith v. Althus, 11 Ves. 564.

66 Rowley v. Adams, 1 Mylne & K. 545; Tillotson v. Hargrave. 3 Madd. 494; Morgan v. Lewis, 1 Newland, Ch. Pr. 333.

67 Hoare v. Johnstone, 2 Keen, 553.

68 Anonymous, 3 Atk. 524.

69 1 Barbour, Ch. Pr. 497, 498; Smith v. Althus, 11 Ves. 564; Hough v. Williams, 3 Brown Ch. 190.

70 1 Barbour, Ch. Pr. 498.

71 Schwarz v. Sears, Walk. (Mich.) 19; Ward v. Jewett, Walk. (Mich.) 45; Dickinson v. Torrey, 91 Ill. App. 304; Hoffman, Mast. Ch. 58, 59. See, however, Maxim-Nordenfelt Guns & Ammunition Co. v. Colt's Patent Firearms Mfg. Co., 103 Fed. 39; Fayerweather v. Ritch, 89 Fed. 529. See post, § 596.

master, upon a reference, is enforced, when necessary, by process of subpoena.72

§ 596. Evidence and examination of witnesses before the master.

The master, when directed to ascertain the facts of the case, may receive the testimony of witnesses pertinent to such facts without an order expressly directing him to that effect.73 The examination of witnesses before a master was formerly effected either by exhibiting interrogatories or by viva voce questions addressed to the witness himself in the master's presence.74 It is only in special cases, and upon rare occasions, that the method of examination by interrogatories is resorted to.75 According to the English practice, a party interrogated before a master had the right to demand that the questions be propounded in writing. The rule was otherwise as to witnesses. But the party might waive this privilege, and submit to a viva voce examination.76 The witnesses should be examined under oath, and their statements reduced to writing. The master may hear evidence viva voce, but he must reduce the same to writing, and he cannot act upon any evidence not reduced to writing.78 The deposition of the witness must be signed by the witness. If not signed, it is imperfect, and cannot be read at the hearing.79 But

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721 Barbour, Ch. Pr. 500. For form of English summons, see Bennet, Pr. Mast. Office, Appendix, 1; 3 Hoffman, Ch. Pr. 180. For procedure before masters in the federal courts, see United States Equity Rules 77-81.

73 Goodwin v. McGehee, 15 Ala. 232.

741 Barbour, Ch. Pr. 501.

75 1 Barbour, Ch. Pr. 502.

76 McDougald v. Dougherty, 11 Ga. 570. For method of examination of witnesses in cases before a master, see Story v. Livingston, 13 Pet. (U. S.) 359; Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495.

77 Brockman v. Aulger, 12 Ill. 277; 1 Barbour, Ch. Pr. 502, 503.

78 Taylor v. Cawthorne, 17 N. C. 221; Brockman v. Aulger, 12 Ill. 277. See McDougald v. Dougherty, 11 Ga. 570. See, for taking evidence in pencil, Prince v. Cutler, 69 Ill. 267.

79 Flavell v. Flavell, 20 N. J. Eq. 211; Eisenmeyer v. Sauter, 77 Ill. 515; Copeland v. Stanton, 1 P. Wms. 414. See, however, Wallen v. Cummings, 88 Ill. App. 45.

an objection that a deposition is unsigned cannot be first raised on appeal.80

In the examination, witnesses and counsel are to be governed by the same rules which would control them in a court of law. Counsel is not to hold a whispered conversation with a witness, nor retire with him for private consultation, nor, after consultation, dictate his answer. His advice must be given under the eye and in the hearing of the master. The witness must be left, after being advised as to his rights, to give his answers in his own language, without aid in writing or otherwise from counsel.81 An objection should always be taken on the spot to each ruling of the master which a party intends to contest.82 It is held in New Jersey and the federal courts that it is not good practice to suspend an examination before a master until the court shall have passed upon the question of the relevancy of testimony offered.88

A master has the right, and it is his duty, to confine the testimony within the lines indicated by the pleadings. As a matter of practice, however, it is better that he should admit testimony in regard to which there may be doubt, and consider its value on his final report, where, if it be admitted, it will not prejudice the case, if improper, and, if not admitted, and found to be admissible on the hearing, the taking of further proofs will be necessary.84

80 Dean v. Ford, 180 Ill. 309, 54 N. E. 417; Dorn v. Ross, 177 Ill. 225, 52 N. E. 321.

81 Stewart v. Turner, 3 Edw. Ch. (N. Y.) 458. See Rice v. Rice, 47 N. J. Eq. 559, 21 Atl. 286, 11 L. R. A. 591, for the right to require a witness to remove her veil.

82 Troy Iron & Nail Factory v. Corning, 6 Blatchf. 328, Fed. Cas. No. 14,196; Marks v. Fox, 18 Fed. 713; Taylor v. Kilgore, 33 Ala. 214.

83 Rusling v. Bray, 37 N. J. Eq. 174; Welling v. La Bau, 32 Fed. 293; Bates Refrigerating Co. v. Gillette, 20 Fed. 454; Maxim-Nordenfelt Guns & Ammunition Co. v. Colt's Patent Firearms Co., 103 Fed. 39. See 1 Hoffman, Ch. Pr. 542; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 40 Fed. 476. See, also, supra, § 594.

84 Hann v. Barnegat & Long Branch Improvement Co. (N. J. Eq.) 2 Atl. 928; Putnam v. Ritchie, 6 Paige (N. Y.) 390. Where evidence is offered before the master, and its competency or admissibility is ob jected to by the adverse party, the master should receive the evidence subject to the objection, so that the court can pass upon the matter

A party, during the period allowed by a rule of court for taking proofs, may take his testimony in any order he may choose.85 A master, in his discretion, may grant a further hearing upon application after the hearing has been once closed.8% If a party desires to introduce further evidence in a case referred to a master, he should exercise diligence, and should apply to the master, and, if refused, should apply to the court. 87

s 597. Draft of report.

Under the English chancery practice, the master made a draft of his report, notified counsel of his findings, gave them an opportunity to point out errors therein, and then considered and corrected such errors, if any, so pointed out.88 This principle still obtains in many states. It was also the practice in the federal courts, in chancery, prior to the adoption of the equity rules of practice.89

in review. Kansas Loan & Trust Co. v. Electric Railway, Light & Power Co. of Sedalia, 108 Fed. 702.

85 Brown v. Brown, 22 Mich. 242.

88 Richardson v. Wright, 58 Vt. 367, 5 Atl. 287; Whiteside v. Pulliam 25 Ill. 285. See Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. In some jurisdictions it is held that, after the closing of testimony taken orally, and the submission of his draft of report to the parties in order to reopen the case for further testimony before the master, a special or der of court is necessary, and this will be granted for the taking of testimony not newly discovered, only in case of mistake or surprise. Burgess v. Wilkinson, 7 R. I. 31; Trotter v. Trotter, 5 Sim. 383. 87 Whiteside v. Pulliam, 25 Ill. 285.

88 Hatch v. Indianapolis & S. R. Co., 9 Fed. 856; Fidelity Ins. & SafeDeposit Co. v. Shenandoah Iron Co., 42 Fed. 374; Story v. Livingston, 13 Pet. (U. S.) 359; Troy Iron & Nail Factory v. Corning, 6 Blatchf 328, Fed. Cas. No. 14,196; Gaines v. City of New Orleans, 1 Woods, 104. Fed. Cas. No. 5,177; Gleaves v. Ferguson, 2 Tenn. Ch. 589; Byington v. Wood, 1 Paige (N. Y.) 145; Central Trust Co. of New York v. Richmond & D. R. Co., 69 Fed. 761; Trustees of Methodist Episcopal Church v. Jaques, 3 Johns. Ch. (N. Y.) 77.

89 Fidelity Ins. & Safe-Deposit Co. v. Shenandoah Iron Co., 42 Fed. 374. For practice in circuit court of northern district of Georgia, see Central Trust Co. of New York v. Richmond & D. R. Co., 69 Fed. 761.

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