of a special demurrer, and must point out the error specifically.108 Where objections are taken to certain parts of the report, the parts not objected to are admitted to be correct.109 An objection to a finding as not being supported by proofs is not sufficiently specific;110 nor is an objection that the findings, and each of them, are not warranted by the evidence;111 nor is an objection "for other and various reasons, apparent on the face of said report."112 Objections need not recite the evidence relied upon, but only need point out distinctly the findings and conclusions sought to be reversed.118

§ 603. Form of objections to master's report.

[Title of court and cause.]

Objections taken by C. D., the defendant in the above-entitled cause, to the draft of general report of G. B., the master to whom this cause stands referred to take proofs, and report his findings and conclusions thereon:

(1) For that said master has [here state the ground of objection]. (2) For that, etc.

In all of which particulars this defendant objects to the draft of

Nickels v. Kane's Adm'r, 82 Va. 309; Dorn v. Farr, 79 Ill. App. 226; Sheffield & B. Coal, Iron & Railway Co. v. Gordon, 151 U. S. 285.

108 Myers v. James, 4 Lea (Tenn.) 370; Story v. Livingston, 13 Pet. (U. S.) 359; Poling v. Huffman, 48 W. Va. 639, 37 S. E. 526; Lebkuechner v. Moore, 88 Ill. App. 16; Springer v. Kroeschell, 161 Ill. 358, 43 N. E. 1084; Hayes v. Hammond, 162 Ill. 133, 44 N. E. 422; Columbus, S. & H. R. Co.'s Appeals, 109 Fed. 219; Sheffield & B. Coal, Iron & Railway Co. v. Gordon, 151 U. S. 285; Crislip v. Cain, 19 W. Va. 438. See, however, Foster v. Goddard, 1 Black (U. S.) 506.

109 Kester v. Lyon, 40 W. Va. 161, 20 S. E. 933; Reitz v. Bennett, 6 W. Va. 417.

110 Haller v. Clark, 21 D. C. 128.

111 Waska v. Klaisner, 43 Ill. App. 611.

112 Young v. Omohundro, 69 Md. 424, 16 Atl. 120.

113 Hayes v. Hammond, 162 Ill. 133, 44 N. E. 422; Foster v. Goddard. 1 Black (U. S.) 506. Where a master has omitted testimony from his report, under authority of an order of court improperly entered, it is not necessary to the right of the party on whose behalf the omitted testimony was taken to have the report disapproved, that his exceptions to the master's report and findings be supported by a showing of the omitted testimony. Schnadt v. Davis, 185 Ill. 476, 57 N. E. 652.

such report, and submits that the same ought to be altered accord

ingly.

J. E., Solicitor for Defendant, C. D.

C. D., Defendant.

Consideration by the master of the objections filed.

After the objections are filed, it is proper for the master to hear arguments upon the same, and, if he disallows them, to so state in his report, and return the objections, along with his report, to the court.114 If he allows them, he corrects his report accordingly.

§ 605. Filing the report.

After the master's report is settled, the same is filed in the court ordering the reference, and application is made to the court for the confirmation of such report.115 In some jurisdictions, where a defendant is entitled to notice of proceedings before a master under an order of reference, a rule nisi to confirm the master's report should be taken; that is, an order is entered that the report be confirmed, unless exceptions thereto are filed within a specified time.116

§ 606. Returning the evidence.

In the absence of any statute or rule of court, or direction in the decretal order under which he acts, the master need not report the evidence to the court, and it is necessary for the parties to apply to him for certified copies of such evidence as they may require relating to matters excepted to.117

Where a

114 Brockman v. Aulger, 12 Ill. 277; McClay v. Norris, 9 Ill. 370.

115 Weber v. Weitling, 18 N. J. Eq. 39.

116 Weber v. Weitling, 18 N. J. Eq. 39; Clark v. Willoughby, 1 Barb. Ch. (N. Y.) 68; Case v. Abeel, 1 Paige (N. Y.) 630. For practice in the federal courts, see United States Equity Rule 83; National FoldingBox & Paper Co. v. Dayton Paper Novelty Co., 91 Fed. 822; Thomson v. Wooster, 114 U. S. 104.

117 Hayes v. Hammond, 162 Ill. 135, 44 N. E. 422; Schnadt v. Davis, 185 Ill. 476, 57 N. E. 652; Donnell v. Columbian Ins. Co., 2 Sumn. 366, Fed. Cas. No. 3,987; Vaughan v. Smith, 69 Ala. 92; In re Hemiup, 3

case is referred to a master to examine and report as to any facts in the case, it is his duty to draw a conclusion from the evidence produced before him, and to report that conclusion only, and it is improper and irregular for him to set forth the evidence in his report without a special direction of the court.118 But where the order of reference directs the master to report the proofs, he must return to the court the depositions of the witnesses.119 Objection to a report that the master has sent up no evidence in support of his findings as to certain matters of fact should be brought before the court by motion to refer the report back to the master on those points, or that he send up the evidence on which his report in those respects is based. Such an omission is not the subject of exception.120

Paige (N. Y.) 305; Mott v. Harrington, 15 Vt. 185; Clapp v. Sherman, 16 R. I. 370, 17 Atl. 130; Harding v. Handy, 11 Wheat. (U. S.) 126; Warren v. Lawson, 117 Ala. 339, 23 So. 65.

118 Prince v. Cutler, 69 Ill. 267; In re Hemiup, 3 Paige (N. Y.) 305; Nichols v. Ela, 124 Mass. 333; Evans v. Evans, 2 Cold. (Tenn.) 143; Mott v. Harrington, 15 Vt. 185.

119 Remsen v. Remsen, 2 Johns. Ch. (N. Y.) 495. It is said that how fully the testimony of a witness examined viva voce before the master should be taken in writing, and returned with the master's report, is discretionary with the court, and a matter of practice. Lovejoy v. Churchill, 29 Vt. 151; Freeland v. Wright, 154 Mass. 492, 28 N. E. 678. It is held that, where the order of reference does not direct the master to report the evidence, either party may, during the hearing before the master, move the court to require the master to report the whole testimony, or any part of it, if, in the progress of the hearing, either party considers it necessary or desirable. Parker v. Nickerson, 137 Mass. 487. The practice in Rhode Island has been for the master not to report the testimony given orally before him unless directed to do so by the decree, or requested to do so by the parties, or one or either of them. Clapp v. Sherman, 16 R. I. 370, 17 Atl. 130. A similar practice prevails in other states. Simmons v. Jacobs, 52 Me. 147; Freeland v. Wright, 154 Mass. 492, 28 N. E. 678. Where no objection is taken to testimony produced before a master, and it is not shown to the court what the testimony was, the master's report is conclusive. Schieffelin v. Stewart, 1 Johns. Ch. (N. Y.) 620. See, also, Sheffield & B. Coal, Iron & Railway Co. v. Gordon, 151 U. S. 285.

120 Miller's Adm'x v. Miller, 26 N. J. Eq. 423; Ridifer v. O'Brien, 3 Madd. 44; Tyler v. Simmons, 6 Paige (N. Y.) 127.

$ 607. Exceptions to the master's report.

It has been heretofore seen that objections to a master's report, unless made on the hearing before the master, cannot be considered, where the failure to so object was not occasioned by mistake or surprise. A party objecting to the confirmation of a master's report is also required to file, within a time fixed by the court, exceptions, setting up his grounds of objection to such confirmation. The province of such exceptions is to call in question the conclusions to which the master may have come upon the subject referred to him. No exception can be taken to the report unless the objection be made before him prior to his signing his report.121 An exception based on matters of fact not brought to the attention of the master will not be considered by the court. 122 Practically the same rules as to the form of such exceptions obtain as to objections.123 If exceptions are not filed within the time allowed by the court, the report stands confirmed.124 An exception brings up for examina

121 Prince v. Cutler, 69 Ill. 267; Trustees of Methodist Episcopal Church v. Jaques, 3 Johns. Ch. (N. Y.) 77; Whitworth v. Lowell, 178 Mass. 43, 59 N. E. 760; Lebkuechner v. Moore, 88 Ill. App. 16; Springer v. Kroeschell, 161 Ill. 358, 43 N. E. 1084; Marble v. Thomas, 178 Ill. 540, 53 N. E. 354; Mahone v. Williams, 39 Ala. 202; Warren v. Lawson, 117 Ala. 339, 23 So. 65.

122 Gay Mfg. Co. v. Camp, 25 U. S. App. 376, 68 Fed. 67. The report cannot, unless excepted to, be impeached at the hearing by adult defendants, on grounds which may be affected by extraneous evidence. Thompson's Adm'r v. Catlett, 24 W. Va. 524. Where the order confirming a master's report is regular, it 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 on which the exceptions were based. Slee v. Bloom, 7 Johns. Ch. (N. Y.) 137.

123 Poling v. Huffman, 48 W. Va. 639, 37 S. E. 526; Crislip v. Cain 19 W. Va. 438; Springer v. Kroeschell, 161 Ill. 358, 43 N. E. 1084.

124 Weber v. Weitling, 18 N. J. Eq. 39; 1 Barbour, Ch. Pr. 550. If exceptions not filed within such time are received without objection, and acted on by the court, the default is waived. Ex parte Jordan, 9! U S. 248.

tion all questions of law and fact arising upon the report relative to that subject.125

Exceptions are, in general, only proper where the master has come to a wrong conclusion upon matters which were referred to him to decide. Irregularities in the proceedings before a master are not proper subjects for exceptions to his report. Exceptions waive such irregularities. The correct practice is to apply to the court to set aside the report, or refer it back to the master to be perfected.128 The fact that the report contains surplusage will not invalidate the other part of the report, or sustain an exception.127 The proper course in such a case is to apply to the court, by motion, to expunge the extraneous matter, if either party is aggrieved by the introduction of such matter into the report.'

128

§ 608. Correcting exceptions.

It is irregular for a party, by new exceptions to a master's amended report, to raise the same questions which have been considered and decided by the court on the exceptions to the original report.129 A party who has filed exceptions to a master's report will not be permitted to extend them after the time for filing exceptions has elapsed, except upon affidavit setting forth special grounds, as surprise or accident, which prevented him from excepting to points objected to in due time.1

130

125 Foster v. Goddard, 1 Black (U. S.) 506. Where the merits of the case have been fully considered and disposed of, and the cause is then referred to a master for an accounting, exceptions to his report cannot set up a new defense. New Orleans v. Warner, 180 U. S. 199, citing Yazoo & M. V. Ry. Co. v. Adams, 180 U. S. 1; Supervisors v. Kennicott, 94 U. S. 498.

126 Miller's Adm'x v. Miller, 26 N. J. Eq. 424; Tyler v. Simmons, 6 Paige (N. Y.) 127; Schwarz v. Sears, Walk. (Mich.) 19; De Mott v. Benson, 4 Edw. Ch. (N. Y.) 297; Troy Iron & Nail Factory v. Corning, 6 Blatchf. 328, Fed. Cas. No. 14,196.

127 National Bank of Metropolis v. Sprague, 23 N. J. Eq. 81; Tyler v. Simmons, 6 Paige (N. Y.) 127.

128 Tyler v. Simmons, 6 Paige (N. Y.) 127; Rufford v. Bishop, 5 Russ. 346.

129 Clark v. Willoughby, 1 Barb. Ch. (N. Y.) 68.

130 Potts v. Trotter, 17 N. C. 281.