of the report in a mere matter of computation may be corrected by the court, although no exceptions have been filed.139 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 exception 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.1 141 The court may make additional findings, if the same are warranted by the evidence accompanying the report;142 or where the report, though inac

posing 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

curate 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.14 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 master, 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.

the same time when he applies to set aside the report for irregu larity, or to refer it back to the master to take testimony and review his report.147 When alleged errors in conclusions of fact are brought to the attention of the court by exceptions, the court examines the evidence, if returned by the master, and reviews his conclusions.148 The court is not required to search for evidence to sustain exceptions to a report, but may, by proper rule, require the evidence to be abstracted, or otherwise presented, in convenient form, and only evidence relating to the exceptions need be heard.149 The report cannot be excepted to in matter of fact unless all the evidence is reported on which the conclusion is based.150 It is held in some jurisdictions that, on the hearing of exceptions, it is not competent for the court to hear any evidence that was not before the master when he made his report.151 The argument is confined to the exceptions taken, and does not reopen matters fully discussed and determined by the court before the reference.152 The question whether there should have been a reference is not open.153 The exceptions will be overruled, notwithstanding errors committed, if, upon the entire report, it appears that such errors were immaterial.154 On considering the exceptions, the court either sustains or overrules them, and an order to that effect is usually entered. It is held that a decree on the points covered by the exceptions, or adopting them, is in effect sustaining or disallowing the exceptions, and the omission to make a formal order sustaining them is

147 Tyler v. Simmons, 6 Paige (N. Y.) 127.

148 Shipman v. Fletcher, 91 Va. 473, 22 S. E. 458; Jackson v. Jackson, 3 N. J. Eq. 96; Jaques v. Methodist Episcopal Church, 2 Johns. Ch. (N. Y.) 543; Boyd v. Gunnison, 14 W. Va. 1.

149 Hayes v. Hammond, 162 Ill. 133, 44 N. E. 422.

150 Nichols v. Ela, 124 Mass. 333.

151 Prince v. Cutler, 69 Ill. 267; Bruggestradt v. Ludwig, 184 Ill. 24, 56 N. E. 419.

152 Pingree v. Coffin, 12 Gray (Mass.) 288. See Frith v. Lawrence. 1 Paige (N. Y.) 435.

153 National Bank of Metropolis v. Sprague, 23 N. J. Eq. 81.

154 Gottfried v. Crescent Brewing Co., 22 Fed 429

not error.155 It is said that, where a general exception is filed, if the master is right in any one particular, the exception must be overruled.156

$ 614. Form of order confirming master's report.

[Title of court and cause.]

This cause coming on this day to be heard on the report of G. B., one of the masters in chancery of this court, to whom the above-entitled cause was referred to [here state substance of the order of ret erence], which said report was filed in this court on the first day of April, A. D. 1900, and upon the exceptions of the defendant, C. D., to said report, and the complainant being present in open court by G. H., his solicitor, and the defendant being present in open court by J. E., his solicitor, and the court having heard the arguments of the solicitors for the respective parties in support of and against the allowance of said exceptions and the confirmation of the said report, and having considered the same, and being fully advised in the premises,

It is ordered that the said exceptions, and each of them, be and the same are hereby overruled, and that the said report of the said master in chancery aforesaid be and the same is in all things approved and confirmed.

155 Portoues v. Holmes, 33 Ill. App. 312; Johnson v. Meyer, 54 Ark. 442, 16 S. W. 123; Anderson v. Henderson, 124 Ill. 164, 16 N. E. 232.

156 Enright v. Amsden, 70 Vt. 183, 40 Atl. 37, citing Green v. Weaver, 1 Sim. 409; Pearson v. Knapp, 1 Mylne & K. 312; Candler v. Pettit, 1 Paige (N. Y.) 427; Franklin v. Keeler, 4 Paige (N. Y.) 382. If various exceptions are taken to an answer and allowed by the master, a single exception to the report, insisting upon the sufficiency of the answer generally, cannot be sustained, if any of the exceptions to the answer are well taken. Candler v. Pettit, 1 Paige (N. Y.) 427; Hodges v. Salo mons, 1 Cox, 249.

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CHAPTER XXXIII.

FEIGNED ISSUES.

§ 615. In general.

A feigned issue is a mode of procedure adopted from the civil law by courts of law as well as courts of equity as a means of having some question of fact, arising incidentally, and to be made the foundation of some order or decree, determined by the verdict of a jury. It is called a feigned issue for the reason that its object is not the establishment of a legal right on which a judgment shall regularly follow, but the ascertainment by a formal trial of some fact arising in another cause, and material to the decision of the latter. For convenience of trial, the issue under the English chancery practice was given in the form of a common-law action, with appropriate pleadings of an issue thereon.1 An issue was directed where an incidental question of fact was so involved in doubt by conflicting or insufficient evidence that the court, considering the inefficacy of written testimony, was desirous of referring it to the verdict of a jury. It could, however, only be adopted where the evidence created a doubt, and not as a substitute for omitted evidence, and therefore the party claiming the issue was required to first prove his case by regular depositions. Statutory provisions are found in most jurisdictions authorizing an issue out of chancery to determine the disputed question of fact, and greatly simplifying the ancient English practice.

1 American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 270; Barth v. Rosenfeld, 36 Md. 604.

2 Adams, Eq. 376; Moons v. De Bernales, 1 Russ. 301; Chase v. Wi nans, 59 Md. 475; Whitaker v. Newman, 2 Hare, 300.

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