$609 Extending time to except.

Where parties are excusably prevented from filing exceptions within the time fixed for that purpose, they should be guilty of no unreasonable delay in applying for an extension of time. If delay having the effect to protract the litigation exists before the application is made, some reasonable excuse therefor must be shown, as well as the excuse for the original failure, before any extension will be granted.131

$610. Form of exceptions to master's report

[Title of court and cause.]

Exceptions taken by C. D., the above-named defendant, to the report of G. B., master in chancery, to whom this cause has been referred by an order heretofore made herein, on the which report is dated the

day of

(1) For that the said master has, etc.

cxception.]

(2) For that, etc.

day of A. D. 19-:

19-,

[Here insert the ground of

Wherefore this defendant does except to the said report of the said master, and appeal therefrom to the judgment of this court.

C. D., Defendant.

J. E., Solicitor for Defendant, C. D.132

$611. Conclusiveness of master's report.

It is the duty of parties who have been notified of the mas ter's report to interpose their objections to it before the master. and, if the master declines to modify his report, to file excep tions to it after it has been filed in court, and it is held in Illinois, if no sufficient reason appears for failure so to do, the report will be deemed conclusive by the court of review.133 Such report will be taken to be correct, and will not be disturbed until error is shown by the party questioning

131 Cook v. Houston County Com'rs, 62 Ga. 228; Stewart v. Crane, 8. Ga. 328, 13 S. E. 552.

132 For another form of exceptions, see Mason v. Crosby, 3 Woodb. & M. 258, Fed. Cas. No. 9,236.

133 Jewell v. Rock River Paper Co., 101 Ill. 57.

the same. 134 It is held in some jurisdictions that the findings of the master are entitled to the same weight as the verdict of a jury;185 but the better doctrine would seem to be that the findings of fact of the master are only presumptively correct, and will be sustained unless the evidence clearly shows that they are erroneous.136

134 National Bank of Metropolis v. Sprague, 23 N. J. Eq. 81; Jaffrey v. Brown, 29 Fed. 476.

135 Cary v. Herrin, 62 Me. 16; Vaughan v. Smith, 69 Ala. 92; Howard v. Scott, 50 Vt. 48; Whitcomb v. Duell, 54 Ill. App. 650. See, also, Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 33 Fed. 803; McKinney v. Pierce, 5 Ind. 422.

136 Camden v. Stuart, 144 U. S. 104; Holmes v. Holmes, 18 N. J. Eq. 141; Girard Insurance & Trust Co. v. Cooper, 162 U. S. 527; Kimberly v. Arms, 129 U. S. 512; Handy v. Scott, 26 W. Va. 710; Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458; Hartman v. Evans, 38 W. Va. 669, 18 S. E. 810; Taintor v. Franklin Nat. Bank, 107 Fed. 825; Columbus, S. & H. R. Co.'s Appeals, 109 Fed. 177; Dewing v. Hutton, 48 W. Va. 576, 37 S. E. 670; Western Union Telegraph Co. v. American Bell Telephone Co., 105 Fed. 684; Schwartz v. Duss, 103 Fed. 561; First Nat. Bank of Albuquerque v. McClellan, 9 N. M. 636, 58 Pac. 347. See, also, Stewart v. Stewart, 40 W. Va. 65, 20 S. E. 862; Central Trust Co. v. Texas & St. L. Ry. Co., 32 Fed. 448; Gaines v. New Orleans, 1 Woods, 104, Fed. Cas. No. 5,177; Howe v. Russell, 36 Me. 115. In Illinois the master's findings are advisory merely, and are not entitled to the same weight as those of the chancellor, when he has heard the witnesses. Bruggestradt v. Ludwig, 184 Ill. 24, 56 N. E. 419. The rule that a master's finding of fact is entitled to the same consideration as the verdict of a jury, and will not be set aside unless palpably wrong, does not apply where the findings are mere deductions from undisputed facts, or from uncontradicted or credible evidence, for in such case the master has no greater facilities for reaching a correct conclusion than has the court in passing upon exceptions to his report. McConomy v. Reed, 152 Pa. 42, 25 Atl. 176. It is held in the federal courts that, where a cause is referred to a master to report not merely the evidence, but the facts of the case and his conclusions of law thereon, his findings are conclusive so far as they depend upon conflicting testimony, or upon the credibility of witnesses. Such findings are not absolutely conclusive if there be no evidence tending to support them. The rule is confined strictly to questions of fact, and does not include questions of law, nor, generally speaking, the interpretation and construction of the legal effect of documents, and is inapplicable where, by stipulation, additional evidence is introduced before the court. United States Trust Co. v. Mercantile Trust Co., 88 Fed. 140; Davis v. Schwartz, 155 U. S. 631. See Home

$612. Proceedings by the court upon master's report.

As soon as the master's report has been filed, the next step is its confirmation by the court. If there is no objection thereto by either party, it is usually confirmed, though, even though the parties do not object thereto, it is discretionary with the court, in most jurisdictions, to itself make objections to its insufficiency or inaccuracy. Where exceptions are filed, there are three courses open for adoption:

(1) They may be disallowed, or allowed absolutely, which has the effect of at once confirming the report, either as it stands, or with such changes as the allowance of the exceptions may make.137

(2) If the facts are imperfectly stated in the report, so that no judgment can be formed as to the proper conclusion, or if the existing evidence is unsatisfactory, or it is possible that other evidence exists which, in consequence of a favorable finding, has not been adduced, or if the nature of the matter contested, or the form of the exceptions, is such that their allowance shows the necessity for further investigation, it may be referred back to the master to review his report, continuing, in the meantime, the reservation of further directions, and either allowing the exceptions or making no order thereon. On the reference back to review, the master may receive additional evidence, but, if it be accompanied by allowance of the exceptions, he can come to no conclusion inconsistent with the terms of the exceptions. If no order is made on the exceptions, his finding on review is unfettered.138 An error apparent upon the face

Land & Cattle Co. v. McNamara, 111 Fed. 822; Kimberly v. Arms, 129 U. S. 512. See Kohlsaat v. Illinois T. & S. Bank, 102 Ill. App. 110. 137 Adams, Eq. 386.

138 Adams, Eq. 386, 387; Magic Ruffle Co. v. Elm City Co., 14 Blatchf. 109, Fed. Cas. No. 8,950. For cases involving re-reference to the mas ter, see Wooster v. Simonson, 20 Fed. 316; Bolware v. Bolware, 4 Litt. (Ky.) 256; Brokaw v. McDougall, 20 Fla. 212; Beard v. Green, 51 Miss 856; Wall v. Stapleton, 177 Ill. 357, 52 N. E. 477; National Folding-Box & Paper Co. v. Dayton Paper-Novelty Co., 91 Fed. 822; Phelan v. Hutchi son, 62 N. C. 116. 93 Am. Dec. 602. Thus, where a master, not sup

of the report in a mere matter of computation may be corrected by the court, although no exceptions have been filed.13 The object of the reference is the convenience of the court to ascertain disputed facts, and where the evidence upon which the master acted is before the court, upon the hearing of an excep tion to the report, it is proper for the chancellor, if the exception is allowed, to settle the point without sending it back to the master.140 And where but a single item is in dispute, it is the usual practice, upon the allowance of the exception, to modify the report by a decretal order, instead of sending it back to the master to be corrected.141 The court may make additional findings, if the same are warranted by the evidence accompanying the report;142 or where the report, though inacposing it to have been referred to him, expresses no opinion on a material point, if either party has further evidence, and desires it, a further reference will be ordered. Dutch Church of Freehold v. Smock, 1 N. J. Eq. 148. The recommitment of a master's report for a specific purpose does not open the whole case, or permit the introduction of an entirely new defense, such as the statute of limitations. Everhart v. Everhart, 2 Kulp. (Pa.) 358. Where he neglects to execute a part of an order of reference, a motion should be made to refer the report back to the master to amend it in that respect. Stevenson v. Gregory, 1 Barb. Ch. (N. Y.) 72. In respect to such matters as a recommittal of accounts or reference back to the master, the chancellor exercises a very large discretion. Where litigants have an opportunity of presenting their case fully, and elect to proceed on a certain theory as to their rights, which is subsequently not sustained, and then move to reopen the cause for proof upon another theory, some good showing should be presented to support such motion. Mosher v. Joyce, 6 U. S. App. 107, 51 Fed. 441; Nunn v. Nunn, 66 Ala. 35; Harrell v. Mitchell, 61 Ala. 270. Where the report is incorrect in part, it may be recommitted as to the part so incorrect, and be confirmed as to the residue. Callender v. Colegrove, 17 Conn. 1.

139 Bogert v. Furman, 10 Paige (N. Y.) 496; Hawkins v. Day, 1 Ves. Sr. 189; White's Ex'rs v. Johnson, 2 Munf. (Va.) 285.

140 Taylor v. Read, 4 Paige (N. Y.) 561; Henderson v. Harness, 184 Ill. 520, 56 N. E. 786; Cary v. Herrin, 62 Me. 16; Johnson v. Gallegos (N. M.) 60 Pac. 71; Holt v. Taylor, 43 W. Va. 153, 27 S. E. 320; Williams v. Donaghe's Ex'r, 1 Rand. (Va.) 300.

141 Taylor v. Read, 4 Paige (N. Y.) 561.

142 Wolfe v. Bradberry, 140 Ill. 578, 30 N. E. 665. A new reference will not be granted in a matter of account, to allow the party excepting

eurate in some statements of fact, works no prejudice to the party excepting.143

(3) If a suit has taken such a course that, at the time of hearing the exceptions, it is apparent that, whatever orders be made, the same decree will follow, the court may decline to adjudicate on them, and may proceed to decree on further directions as if no exceptions had been filed.144 The right and power of the court to permit the master, on his own application, to withdraw his report for amendment, is recognized in some jurisdictions.145

§ 613. Hearing upon exceptions.

On taking exceptions to a master's report, the party excepting is not bound to set down the exceptions to be argued. Either party may set them down.146 A party cannot bring on the hearing of exceptions to the master's report on the merits at

to have the account examined by a professional accountant, because he believes that a more thorough and careful examination may show a mistake in the report. Van Ness v. Van Ness, 32 N. J. Eq. 669. Where an erroneous amount, reported to be due, can be corrected from the facts that appear in the case, aside from the evidence taken before the mas ter, it should be done and a re-reference is unnecessary. Witters v. Bowles, 43 Fed. 405; Kelsey v. Hobby, 16 Pet. (U. S.) 269. Errors of computation by the master may be corrected by the court at any time before confirmation, without recommitment. Howe v. Russell, 36 Me. 115; Mason v. Crosby, 3 Woodb. & M. 258, Fed. Cas. No. 9,236. A rereference is not necessary where all the facts are before the court and justice between the parties can be done. Haworth v. Huling, 87 Ill. 23; Moore's Ex'r v. Beauchamp, 4 B. Mon. (Ky.) 71; Gaines v. Brockerhoff, 136 Pa. 175, 19 Atl. 958; Lang v. Brown, 21 Ala. 179, 56 Am. Dec. 244.

143 Mason v. Crosby, 3 Woodb. & M. 258, Fed. Cas. No. 9,236; McElroy v. Swope, 47 Fed. 380; Taylor v. Robertson, 27 Fed. 537. See, however, Ward v. Ward, 21 W. Va. 262; Poling v. Huffman, 48 W. Va. 639, 37 S. E. 526.

144 Adams, Eq. 386.

145 National Folding-Box & Paper Co. v. Dayton Paper-Novelty Co., 91 Fed. 822; Heywood v. Miner, 102 Mass. 466; Webber v. Orne, 15 Gray (Mass.) 351; Gardner v. Field, 5 Gray (Mass.) 600.

146 Stafford v. Rogers, Hopk. Ch. (N. Y.) 98; Union Sugar Refinery v. Mathiesson, 3 Cliff. 146, Fed. Cas. No. 14,398; Morris v. Taylor, 23 N. J. Eq. 131,