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§ 598. Form of notice of draft of report.

[Title of court and cause.]

To G. H., Solicitor for Complainant, and N. M., Solicitor for Defend ant:

Please take notice that I have prepared a draft of my report in the above-entitled cause, and that you can see the same at any time at my office, and file objections thereto, on or before Thursday, the 7th day of April, A. D. 1900, which will be the last day for filing objec tions to the same, and that I shall hear argument on any objections filed on Saturday, April 9th, A. D. 1900, at 3 o'clock p. m., at which time and place you may appear if you see fit. Dated, Chicago, Illinois, April 1, 1900.

G. B.,

Master in Chancery of the Circuit Court of Cook County.

$599. Frame of master's report.

A master's report is a certificate by the master to the court how the facts or matters referred to him are, or do, upon examination, appear to him, or of something of which it is his duty to inform the court. Masters' reports are either general or separate. General reports embrace the whole matter referred to the master by the particular decree or order, but a separate report embraces only one distinct object of the reference, and is made in cases in which it may be inconvenient to the parties to wait for the general report of the master.90 The ordinary method of framing the report, under the English practice, was to refer separately to each of the directions in the order or decree of reference, and then, with respect to each direction, first to mention on what evidence the master had proceeded, and then to state the conclusions at which he had arrived. In stating his conclusion, he should so far detail the facts which warrant it as to enable the court to judge of its correctness.91 He is

90 2 Daniell, Ch. Pl. & Pr. (4th Ed.) 1294. See, also, Mott v. Harring ton, 15 Vt. 185; Kennedy's Heirs & Executors v. Kennedy's Heirs, 3 Ala. 434. Prior to the orders of 1828, separate reports were not per missible under the English practice. 2 Smith, Ch. Pr. 158; Kennedy's Heirs & Executors v. Kennedy's Heirs, 3 Ala. 434.

91 Adams, Eq. 384. See O'Neill v. Perryman, 102 Ala. 522, 14 So. 898, for practice in Alabama.

(609)

not authorized to make a report more extensive than the allegations and the proofs warrant, and he must not go beyond the matter referred to him, and, if he does so, his report, so far as such matter is concerned, is a nullity. The court will direct him to review his report, or pay no attention to the unauthorized findings.92 He should only give his results, stated clearly, succinctly, and intelligibly, with the proofs on which they rest, and should not give his arguments and processes of reasoning unless requested so to do by the court.93 He should state facts, and not the evidence on which they are founded. He must not omit his conclusion, or state evidence, or circumstances which are presumptive evidence, without finding whether they amount to satisfactory proof.95 If the conclusion which he is required to draw is a question of law, and not a mere legal presumption of a fact, he is permittted, in the exercise of a sound discretion, and without an order for that purpose, to make a special report submitting the legal question to the decision of the court. such special report, he should not report the evidence, but must draw all the conclusions of fact as in a special verdict, leaving the question of law alone for the decision of the court.96 Upon a reference to state an account, his report should so state the account that the court may judge whether it is correct.97

Upon

92 White v. Walker, 5 Fla. 478; Levert v. Redwood, 9 Port. (Ala.) 79; Jenkins v. Briant, 6 Sim. 603.

93 Evans v. Evans, 2 Cold. (Tenn.) 143; Lawrence v. Lawrence, 3 Paige (N. Y.) 267.

94 Roberts v. Barker, 63 N. H. 332; West v. Howard, 20 Conn. 581. 95 Adams, Eq. 384; Lee v. Willock, 6 Ves. 605.

96 In re Hemiup, 3 Paige (N. Y.) 305; Marlborough v. Wheat, 1 West. 9; 1 Newland, Ch. Pr. 342.

97 Nims v. Nims, 20 Fla. 204. See, also, Ransom v. Davis, 18 How. (U. S.) 295; Frazier v. Swain, 36 N. J. Eq. 156; Herrick v. Belknap, 21 Vt. 673; Jeffreys v. Yarborough, 9 N. C. 307; Reed v. Jones, 15 Wis. 40. For rules as to stating accounts, see O'Neill v. Perryman, 102 Ala. 522, 14 So. 898; June v. Myers, 12 Fla. 310; Dumont v. Nicholson, 2 Barb. Ch. (N. Y.) 71; Maury v. Lewis, 10 Yerg. (Tenn.) 115; Blauvelt v. Ackerman, 20 N. J. Eq. 141; Hurdle v. Leath, 63 N. C. 366; Dewing v. Hutton, 40 W. Va. 521, 21 S. E. 780. He should return the decrees, orders, and notices under which he has proceeded, in order that the

$ 600. Form of report of testimony, and conclusions thereon. [Title of court and cause, and address to the court.]

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Pursuant to an order of reference heretofore entered on the day of 19, in the above-entitled cause, whereby it was referred to me, as one of the masters in chancery of this court, to take the testimony and report the same, with my findings and conclusions thereon, I, therefore, the said master, do hereby certify and report as follows:

That upon due notice to all the parties hereto, and in due form of law, having first given a written notice to said parties, respectively, of the time and place when and where the said testimony would be taken, and caused to come before me all such witnesses as the respective parties desired or made known to me, witnesses were duly sworn and testified, evidence was heard and received, and proceedings were had as more fully appears from the transcript of proceedings and evidence annexed as a part of this report, which said transcript, together with the exhibits therein mentioned, contains all the evidence submitted before said master, in said cause, and from the competent evidence so submitted, and from the confessions under the pleadings in said cause,

Said master finds the following matters of fact to be true: [Here set out the conclusions of fact of the master.]

Upon the facts aforesaid, and from the pleadings filed in said cause, and from the law, I, the said master, would therefore recommend that [here insert such recommendations as the facts may warrant].

All of which is respectfully submitted.

Dated this 1st day of April, A. D. 1900.

G. B.,

Master in Chancery of the Circuit Court of Cook County, Illinois.

State of Illinois,

LSS.

County of Cook.

REPORT OF EVIDENCE.

[Title of court and cause.]

Testimony taken before G. B., one of the masters in chancery of said court, pursuant to an order of reference heretofore entered in said

cause.

Present, G. H., solicitor for the complainant, and N. M., solicitor for the defendant.

R. S., a witness called on behalf of complainant, being first duly sworn, testified as follows:

Direct Examination. Question: State your name, age, and resi

court may see that they have been properly executed. Holt v. Holt, 37 W. Va. 305, 16 S. E. 675.

dence, etc. [Here insert the examination of the various witnesses.] Which was all the testimony offered by all parties.

I, G. B., master in chancery of the circuit court of Cook county, Illinois, do hereby certify that each of the witnesses aforesaid, before testifying, were by me first duly sworn to testify the truth, the whole truth, and nothing but the truth, according to law; that the testimony of each of them was, upon oral interrogatories, propounded by the solicitors for the complainant and defendant in the above-entitled cause, and reduced to writing, and, after being read over by each of them, the same was duly subscribed and sworn to by each of said witnesses, as shown by the several jurats thereto attached, and, where no such signatures and jurats appear, the signatures thereto were waived by all the parties.

And I further certify that the foregoing transcript of the evidence of said witnesses, together with the exhibits herein before referred to and attached, is a full, complete, and true transcript of all the proceedings and evidence taken before me in said cause. Dated this 1st day of April, A. D. 1900.

G. B.,

Master in Chancery of the Circuit Court of Cook County.98

§ 601. Objections to the report.

After the master has prepared the draft of his report, and notified counsel of his findings, if the same is not satisfactory to them, and they desire to secure a modification thereof, it is incumbent upon them to file with the master objections thereto.99 The province of objections to the report of a master is to call in question the conclusions to which he may have come upon the subject referred to him.100 true where no objection is taken.101 report, unless made on the hearing

The report is received as Objections to a master's before the master, cannot

98 For another form of master's report, see Mason v. Crosby, 3 Woodb. & M. 258, Fed. Cas. No. 9,236.

99 Brockman v. Aulger, 12 Ill. 277; Jewell v. Rock River Paper Co., 101 Ill. 57; Hurd v. Goodrich, 59 Ill. 450; Gay Mfg. Co. v. Camp, 25 U. S. App. 134, 68 Fed. 68; Kinsella v. Cahn, 185 Ill. 208, 56 N. E. 1119; Lebkeuchner v. Moore, 88 Ill. App. 16; Springer v. Kroeschell, 161 Ill. 358, 43 N. E. 1084; Hoe v. Scott, 87 Fed. 220.

100 Douglas v. Merceles, 24 N. J. Eq. 25; Byington v. Wood, 1 Paige (N. Y.) 145; McNamara v. Home Land & Cattle Co., 105 Fed. 202; Dorn v. Farr, 79 Ill. App. 227.

101 Harding v. Handy, 11 Wheat. (U. S.) 103; Jewell v. Rock River Paper Co., 101 Ill. 57; Kinsella v. Cahn, 185 Ill. 208, 56 N. E. 1119.

be considered, where the failure to so object was not caused by mistake or surprise.102 Where, owing to surprise or accident, objections are not taken before the master, the court may allow exceptions to be filed after the coming in of the report.103 Questions insisted upon before the master are considered as waived or abandoned if not made matter of exception, unless it appears on the face of the report that the master has committed an error. 104 Where a master's report is erroneous on its face, it may be inquired into, although no objection was taken to it. Where it states the facts correctly, but is mistaken in its legal conclusions, the error may be reviewed at the hearing without formal exceptions.105 In such case, the objection that the adverse party is not entitled to a decree upon the facts reported can be made when the decree is applied for.108

§ 602. Frame of objections.

Objections to a master's report must show definitely the part of the report objected to.107 They are said to be in the nature

102 Pennell v. Lamar Ins. Co., 73 Ill. 303; Trustees of Methodist Episcopal Church v. Jaques, 3 Johns. Ch. (N. Y.) 77; Lewis' Adm'r v. Lewis, Minor (Ala.) 35; Holt v. Holt, 37 W. Va. 305, 16 S. E. 675; Mitchell v. Burnham, 57 Me. 314; Thorne v. Hilliker, 12 Mich. 215; Gaines v. New Orleans, 1 Woods, 104, Fed. Cas. No. 5,177.

103 Prince v. Cutler, 69 Ill. 267. Objections to the report upon a ref erence to state an account, after the draft of the report is prepared, may be taken by a party who has not previously appeared before the master, but he cannot introduce any new matter in evidence to support such objections. Byington v. Wood, 1 Paige (N. Y.) 145.

104 Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5,613.

105 Kinsella v. Cahn, 185 Ill. 208, 56 N. E. 1119; Von Tobel v. Ostrander, 158 Ill. 499, 42 N. E. 152; Ogle v. Adams, 12 W. Va. 213; Levert v. Redwood, 9 Port. (Ala.) 79; Windon v. Stewart, 48 W. Va. 488, 37 S. E. 603; Kester v. Lyon, 40 W. Va. 161, 20 S. E. 933.

106 Monahan v. Fitzgerald, 62 Ill. App. 192. It is not necessary to file objections to a report which is erroneous in point of law, or which violates the directions on which it is ordered to be stated. Such a re

port may be attacked on motion for confirmation, or appeal from the decree of confirmation. Fowler v. Payne, 52 Miss. 210; Kinsella v. Cahn, 185 Ill. 208, 56 N. E. 1119.

107 Scrivener's Adm'r v. Scrivener's Ex'rs, 1 Har. & J. (Md.) 743;

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