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Newland,
171.
1 Turner,
193, 194.

Ibid, 198.

for

Slee v.
Bloom, 27

May, 1822.

Ivertson v. Tappen, 20 Aug. 1821. 1 Turner, 200. and 2

convenient for immediate determination for the satisfaction of parties, or the aid and instruction of the Master.

Upon the distinction between these and special reports, see post, under the head report.

They can only be made by permission of the court, given either by a fresh order, or by the original decree.

Thus on a bill by a creditor against an executor, if in the progress of the investigation, a party is dissatisfied with the Master's judgment upon a creditor's claim, he may apply for an order that the Master make a separate report upon the matter, and the decision of the court is obtained upon exceptions, or if the point is short upon motion. So in a case where the maintenance of infants is directed, and it is necessary to obtain the allowance before the general report comes in, an order must be obtained for the Master to make a separate report of the personal estate, &c. and what is a proper allow

ance.

Frequently the decree authorizes the Master to make a separate report upon particular matters, which are to be settled in the course of taking an account, as in Vane v. Dungannon, 2 Sch. & Lefroy, 134, 5. and Basset v. Percival, 1 Coxes Cases, 272.

It is also frequent in our decrees to authorize the Master to apply further directions upon questions arising in the course of the account, and this application is made by a separate report.

The same course of practice is to be pursued upon preFowler, Ex. paring, and settling this report as upon a general one.

P. 332. citing
Carter v.

And in the case of Slee v. Bloom, in which a separate reCarter, 1731. port of some importance was made, the regular course was pursued, and the cause brought on upon exceptions. But there is a late decision which appears to warrant a more expeditious and simple mode of bringing the case before court.

May, 1822.

1818.

Van Kamp v. "Under a decree directing it, the Master made a separate Bell, 3 Mad. report as to certain matters; a petition was presented at the Rep. 430. Rolls to confirm it, and for consequential directions: the petition was heard, and stood for judgment. The plaintiff then, (dissatisfied with the opinion which the Master of the Rolls appeared to entertain, set the cause down for further directions, on the separate report.

It was moved to strike the cause out of the book. The question was, whether the separate report ought to be brought on for the consideration of the court by petition, or by setting down the cause for further directions.

The Fice Chancellor." The decree in this case follows the common language of such decrees, that the consideration of all further directions shall be reserved until the Master shall have made his general report. The cause therefore cannot be set down for further directions on the separate report; but any order upon the separate report must be made on petition."

As the subject of a separate report is usually either an unimportant collateral matter, such as an allowance for maintenance, or one or more distinct principles to be decided by the court, a petition is clearly the best and readiest mode of bringing it up. And in such cases as embrace more numerous questions, and where both parties would take exceptions, a petition may be presented by each, stating the modifications deemed proper, and praying an order appropriate to them. Then the court would no doubt, at the request of either party on the day of presenting the first petition order that both should be heard together, and make such order upon the whole matter as it should deem just.

By this course, the great advantage is obtained, of hearing the separate report in vacation.

1 Br. C. C.

In England, separate reports are principally made in cases 577. 1 Tur of maintenance, and it is settled that exceptions will not lie ner, 200. 1. to them. They are brought up on petition.

2d. REPORT.

Reports are either separate or general. The nature of a separate report has been stated.

The term Special Report frequently occurs in the books of practice. There appears to be two distinct meanings in which it is used.

In the first place it applies to a report, stating matters and circumstances of importance in the cause, but which the particular directions of the decree do not call upon the Master to state. In such a case the Master has sometimes thought himself without authority to state them, and a special order has been procured.

Ass. 164.

"Thus on a bill for specific performance, the plaintiffs, Hand's Sol. vendors of an estate, having procured a report that a good title could be made, had a decree for a specific performance.And a further reference was directed, with a view to costs, as to the time when an abstract containing a sufficient title was delivered, and when objections to the title were made by the defendant. Under this order, the Master did not think himself authorized in reporting that the defendant had not the pur

chase money ready, or any other matter he might think special. Upon special motion, it was ordered, that the Master be at liberty to report, whether the objections alleged by the defendants to have been made to the title, were the only rea-sons why they did not carry the agreement into execution, and that he be at liberty to state in his report any other matter he may think material for the information of the court."

It is to prevent this difficulty, that the decrees so frequently authorize the Master to state any special matter.

Mr. Fowler says," It is part of the usual directions to Exch. Prac. the Master in matters referred to him, that he may report spe

2.328.

2 Atk. 620. Anon.

Lord Bacon's
orders,
Beames,
page, 23.

Curs. Can. 429. Newland, 177.

cially thereon, if he thinks fit, and therefore where a special matter arises out of the general matters referred, he may in his general report certify the special matter, and submit it to the judgment of the court."

Lord Hardwicke however has decided, "That the Master. is at liberty to state any special matter, although there is no direction in the decree for that purpose."

99

The other sense in which the term is used in the books is, where the Master, instead of stating the conclusions he has drawn, and giving a decision upon the subject, sets forth the various facts and matters he has found, or the evidence on each side, and compels the court to examine the whole, and draw the conclusion itself. Several orders of court have been made upon this subject.

"The Masters of the court shall not certify the state of the cause, as if they would make breviates of the evidence on both sides, which doth little ease the court; but with some opinion. In case they think it too doubtful to give opinion, and therefore makes such special certificate, the cause is to go on to a judicial hearing without respect had to the same."

This order is more explicit than the subsequent orders by Ibid, 80. 208. Lord Coventry, and Lord Clarendon, usually cited in the Pract. Regis. "That the books of practice. That of the former runs. 377. Masters are not, upon the importunity of councel or clients, to make special certificates of matters, when the court expects an opinion from them; nor are they to do it, but where their own judgment in respect of difficulty, leadeth them to it." The latter order is the same, omiting the words,-" When the court expects an opinion from them."

1 Atk. 453.

"In the Duches of Marlborough v. Wheat, Lord Hardwicke said, That Masters in reports which are special, are not to set forth the evidence with their opinion upon it, but only to state the bare matter of fact for the judgment of the court."

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I understand Lord Hardwicke to refer to the special reports now under consideration; and to mean, that the Masters should find the facts, though they leave the judgment upon those facts to the Court, and should not merely state the evidence, and their opinion that such evidence establishes such facts.

But this species of special report has of late been much discountenanced by the court.

66

By a decree at the rolls an inquiry was directed as to the Lee . Willock, fact of the death of Charles Lea. Upon that question, the Mas- 6 Vesey, ter did not draw any conclusion; but the report stated the cir- 605. cumstances.-That Charles Lea went to America; that upon his arrival there a letter was received from him, and that since that period which was fourteen years before the date of the report, he had not been heard of. No reason appeared why he should not have been heard of, if living.

The Lord Chancellor said,-The evidence is strong in favour of the presumption of death. But I approve what I understand to have been Lord Alvanley's course, to make the Master draw the conclusion.

3 Br. Ch.

5th.

It is singular that the court should send such a question to the Master, and that he should send it back to the court.” "So in Dixon v. Dixon the Master had merely stated cer- Rep. 510. n. tain facts under an order directing him to enquire whether a 1. Belt'sEdit. party was living or dead. His report certified, that the individual had gone to sea about twenty eight years from the time of his report, and that he had been heard of as being in the East Indies in an ill state of health about a year afterwards, since when there had been no intelligence of him. P. Arden, M. R. referred it to the Master to review his report by drawing a conclusion from those facts, which he accordingly did by stating his opinion, that he had died in the testator's life time."

Sir

There is also the common acceptation of the term special report, as a report setting forth the material facts found, leading to the Master's conclusion, and not the result merely. The Master's judgment in each particular case must be his guide whether to make such a report or not.

When the Master has investigated the several matters refer- Newland, 1 red to him by the decree, he proceeds to make his report.

Vol. 340. 2

Edit.

Mr. Blake states that a summons for a final hearing is first Chy. Pr. taken out, and the matters argued before the Master.

If strict practice by charge and discharge, has been pursued, this would generally be useless, as every disputable item will have been contested as it was brought forward. Indeed in

1 Turner, 229.

Beames orders, 258. 2Fowl. Exch. Pract. 326.

1 Turner,

229.

Newland.

Beames orders. 258. Order, Oct.

1683. & Ibid. 375. order, Nov. 1743.

Rule 95:

Howard's Eq. Side. 1, 40.

Ibid. 36.

any mode of proceeding, all the important principles of the case are usually brought before the Master in the progress of the reference. It is a practice not recognized in the books, and not usual here; and its advantages do not seem equivalent, to the delay and expense. Full opportunity for discussion is given upon the objections.

Cases indeed sometimes occur which have been so conducted as to render it advisable to take this course. But it is matter of convenience merely, and the solicitor is unquestionably not irregular who admits it.

Either party may call upon the Master to make his report and take out the warrant upon it, though this is usually done by the complainant's solicitor.

The first summons is underwritten,-" The Master has prepared a draft of his report." Sometimes,-" To peruse report,” or, "To hear report."

:

The object of this summons is to give the parties an opportunity of examining the report, which they are at liberty to do on the day of the return and if they think proper, they may take a copy, or of such part of it, as they desire. By a former rule of our court, the Master could not charge for a copy of the draft of his report. Perhaps this was adopted to check a practice, which is yet some times resorted to of the Masters making copies of his draft, without an application, and the solicitor of the acting party serving them; the first summons then being to settle the draft.

This rule has been repealed, and the Master is allowed to charge for copies of the draft of his report, furnished to the parties in those cases in which, by the practice of the court, he delivers a draft before signing, that the parties may take objections,

The practice of summoning to peruse tends to prevent the charge for copies of the draft; as frequently the solicitor will be satisfied with an inspection of the report, and will take a copy only in cases of difficulty.

If all parties inform the Master that they shall want a copy of his draft report, (which is frequently the case,) this summons may be dispensed with. This summons should be served whether the party has attended or not.

In all cases the draft of the officer's report is to be served upon the opposite party, as well where both parties have attended, as where the officer hath proceeded ex-parte. By the Irish practice the draft or a copy is served with the officer's notice of the time to attend.

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