The Master however clearly should not allow any further evidence to be produced, or examination had, at that stage, but should merely hear the adverse party as to the propriety of the conclusions he has drawn from what is before him. Turn. 229. Fowl. 2. 326. The only inconvenience is, the delay of the summons. The next step is to take out a summons, underwritten, "To set- Newland. tle draft report." If no copy of the draft is bespoken, this may be dated on the retern day of the first summons, otherwise, after the copy has been furnished. Prac. 2. 326. "In settling the report as many warrants may be taken Fow. Exc. out, as are necessary. The object of this warrant is thus sta- 1 Turner. ted by Mr. Turner,-"Attention is requisite in this stage of 229. the cause, that the questions which have been revised upon setting the draft before the Master, and his determination and opinion thereon, have undergone sufficient consideration, and that the proceedings in general upon the inquiries before him, may be so stated in the general report, that the interest of all the parties who appear by their solicitors, may be brought before the court upon the hearing. In attending the warrants to settle the draft, the respective solicitors must state to the Master such alterations as in their judgment they think expedient, and if any evidence has been omitted, it must be brought forward in strictness before the report is settled. That the object of this summons is to preclude the production of any further testimony is shown by the following cases. "In Thomson v. Lambe, one of the exceptions was, that the Master had refused to receive further evidence because pro- 587. duced after his report was settled. Lord Chancellor,-The Master gives due notice according to the course of the court, that his report is to be settled on a particular day. What is he to do? The extent of the mischief is obvious, if the Master is to proceed up to the point of settling his report before the parties without any consideration of respect to the Master, state what they mean to prove, or by what proof. The rule must be, that he who will not produce his proof, before that stage, must be told he came too late. Exception overruled." Vesey, "So in Fearon v. Dawes, an exception was taken on the Cited from the Register's following part of the report, and the said Master Holford book in found, that after he had considered of the said state of facts, and Beames charge laid before him by the plaintiff, and had been several Orders, 259. times attended by counsel on behalf of the parties, and after he had approved of the said report, the said plaintiff's brought in objections to the draft of his report, and at the same time n. 2. 2 Harr. Published in 1776. Vol. 2. 480. Chap. 9. Sect. 3. Tit. Master's report. 29th Oct. 1683. laid before him an affidavit in support of such objections, but such affidavit not being laid before him, previous to the bringing in such objections, he did not take the same into consideration.' The exception was overruled by the Master of the Rolls." There are two points of practice in proceeding upon the report, as to which the books differ. Whether a sum nons, 66 to sign report," as well as one "to settle," should issue, and when, (which indeed depends upon the other question) objections should be filed. In Harrison's practice, the course is thus laid down : "When the Master has fully heard both parties, he prepares a draft of his report, and at the request of either party, issues a warrant for the parties to attend, who have liberty to peruse such report, and take copies, and after that either party may take out a warrant to settle the report, which the Master will do unless either party at that time bring in objections in writing to the draft, and take out a warrant thereupon; then the adverse party takes a copy of the objections, and either party may take out warrants to be heard thereupon, and the Master allows or disallows them and settles his report.” So in the Solicitor's guide, it is stated,-"The Master having gone through the matter referred to him, prepares a draft of his report. The parties may take office copies of such draft, and either side may take out a four day warrant on such draft, “at which time the Master will sign his report." If either party has objections to the report, the same must be made in writing, and delivered to the Master's clerk, and a warrant must be taken out thereon.” So in Newland's Practice-"The Master previously to making his report, prepares a draft of it, and issues a warrant for the parties to attend him, who are at liberty to peruse such report and take copies. If either party is dissatisfied with the report, he ought to bring in objections in writing to the draft of it, and the adverse party takes a copy of those objections, and either party may take out warrants to be heard on them. The Master after having considered the objections settles his report, 'previously giving notice of his intention to do so on a particular day." This course seems to have arisen from the following order. "Every Master, to whom any account is referred, or other Beames' Or- matter, by any order upon the hearing of the cause, when he hath fully heard both parties, and prepared his report, shall, at the request of either party, give out a summons, that both ders, page 258. parties, or some for them, shall again attend him, who shall have liberty to peruse such his report, or take a copy thereof. And that such person that is dissatified therewith, do, in four days next after such attendance, bring in a note in writing of their exceptions thereto, and take out a summons to be heard thereupon, and then the said Master is to settle and finish his report as he shall find just." The practice in Ireland is similar. Side. 1. 36. "When the officer has gone through the proofs, he draws Howard's Eq. up his report, the draft or a copy of which, he gives to either party requiring it, to be served upon the other party; first writing upon the back a notice that it is the draft of his report, and that the party is to object to the same in usual time, or that he will sign the report; and if the party sees cause to object, he is in four days to return the draft with his objections in writing, and is to summon the party in whose favour the report is made to attend the officer upon such objections. When the objections are disposed of, or if none are filed within the four days, the officer will sign his report." The Chancellor appears also to have had this course in 2. J. C. C view in declaring the practice in Remsen v. Remsen. "After the examination is concluded in cases of references to take accounts, or make inquiries, the parties or their solicitors, after being provided by the Master with a copy of his report, ought to have a day assigned them to attend before the Master to report, and to make objections in writing, if 1 Tur. Pr. the settling his any they have." On the other side, in Turner's Practice, a book superior to any other as to the practice in the Master's office, the course is thus stated. After noticing the warrant to 329. 5th, peruse report, and that warrants may be then taken out to Ed. settle, the object of which he explains in the passage before cited, he proceeds to state,-That the solicitors upon the attendance on the warrants to settle, state to the Master the alterations they deem expedient, and when these have been disposed of, he signs the draft, from which the clerk makes a transcript, and a warrant to sign the report must be then taken out, underwritten,—“ at which time the Master will sign his report." Which is a warrant of four days. If a party is dissatisfied with the report, he must bring in objections in writing to the draft within the four days limited by the warrant. Ibid. 230. And again,—“ If any party should leave objections to the Ibid. 232. draft (which must be left in strictness within the four days appointed by the return of the warrant to sign, or before it is actually signed he takes out a warrant upon the objections. The report cannot be signed until the objections are gone Harrison's Pr. 2. 479. through, and either party may take out warrants to proceed upon them. Mr. Newland in his edition of Harrison, adds after stating the practice from his author as above," That the Master having settled his report, either party may take out a warrant for the other party to attend the signing of the report." In Fowler's Fxchequer Practice, the course is stated as by Mr. Turner the warrants to settle are taken out after copies taken upon the warrant to peruse, and then a four day warrant to sign. Objections must be brought in, and a warrant taken out thereon, returnable before the warrant taken out to sign the report. It appears to me, that the practice of filing the objections by the return of the summons to settle is preferable. It compels an earlier attention to the whole report, and prevents delay. The trifling inaccuracies of the report, errors in computation or mistakes which the Master would alter on suggestion, nerer would be made the subject of objections. The discussion of the objections suspends the settling and signing the report; and ample opportunity is given for a thorough examination of the points in England by emmaners to proceed on the objections, and with us by adjournments if necessary in the Master's judgment. arr After this is finished, there can be no object of a warrant to sign, except to give an opportunity to see that the fair copy of the report is correctly made from the draft as settled. This is too unimportant to justify the expence of a new summons and attendance, and may properly be left to the care of the Master. It cannot be supposed that the copy will vary in principles; and errors of calculation may be amended at any time, after confirmation or before. Besides which the party may attend, if he think it expedient for this purpose, on the day that the Master states, his copy will be prepared. Since writing the above I have met with a late case, which is decisive as to the time of filing objections; that it should be done within the running of the warrant to settle. "Motion for leave to take exceptions to a Master's report, the clerk in court having neglected to give the solicitor notice of the warrant served upon him, fixing a day, when the draft of the report would be settled, whereby he lost the opportunity of carrying in objections to the draft, which was necessary to entitle the party to except. The Vice Chancellor stated he should grant the order upon affidavit of the clerk in court to the fact, otherwise he would dismiss the motion with costs." By this course of practice, the signing and delivering of the report are combined with its final settlement. In order that the party may know when it is finished, and ready to be filed, the Master should on the day of the return of the summons to settle, adjourn to a future day, when it will be completed. This will be necessary in cases where important questions are discussed on the draft, and left for decision, or even where a new copy of the report to file is requisite. It may be observed that this, in such cases, will be equivalent to a summons to sign. That is true, but the practice is prefera-. ble, because in a large class of cases the report may be finished and signed the day, or within one or two days of the return of the summons to settle. And in the other class, the simple course by adjournment will be substituted for a summons. But in my judgment, much the better mode would be to rescind that part of the 58 rule, which provides that where the parties have been summoned upon the report, no notice of the order to confirm it need be served, and to require such notice to be given as in other cases. From the above examination of this point, I have always pursued the practice of issuing only a summons to peruse, and a summons to settle. If the report could not be got ready to deliver on the return day of the last, I have adjourned to another, by which it could be prepared. I conceive that the adverse party has a right to presume it filed on the day of its dewithin eight livery, and would be justified in filing day of its de But it has been days, even if the report was not in Court. The practice of bringing in objections before taking exceptions, seems to have arisen from the following order. Orders, "The Lord Keeper, taking into his most serious considera- Order 29. tion the delays and great expences that do happen to suitors, Oct. 1683. by exceptions taken to Master's reports, made in pursuance of Beames orders upon hearings, and especially such whereby accounts 258. are directed to be taken, which his Lordship conceives might be in a great measure prevented if the Master were informed of the matter of such exceptions before the signing and allowing of the report," proceeds to direct the bringing in exceptions in writing, as is stated at length. Ante. 388. This rule is recognized in all the books of practice, and by 2 Vesey, S. Lord Hardwicke in Ex. parte Bax. The Vice Chancellor of England says it is a rule not of 3 Mad. Rep. form, but substance, that the Master may have an opportunity 439. of reconsidering his opinion. |