petition, and not in the form of exceptions to the Master's report; (Fenton v. Crickett, 3 Madd. 496; Pitt v. Mackreth, 3 Bro. C. C. 320 ;) nor can the question be brought before the Court by motion. (Attorney-General v. Brown, 1 M. & K. 567.) The usual form of the petition is for liberty to except, although in some instances the [ *387] prayer is for the *Master to review his report.[a] The petition states the grounds of objection to the Master's allowance. Although the petition prays for liberty to except, the question is always disposed of on the hearing of the petition, which is either dismissed, or an order made for the Master to review his taxation.

Although the subject of costs cannot be brought before the Court in the form of exceptions, yet it appears questionable whether an exception for costs can be joined and taken with other exceptions to the Master's report. In Holbecke v. Sylvester, 6 Ves. 417, heard before Lord Eldon, an exception was taken to the Master's report on account of his having disallowed a certain class of costs. It was objected that the question ought to have been brought before the Court by petition. Mr. Romilly, in support of the exceptions said, "There cannot be an exception for costs only, yet if the party excepts upon any other ground, he may add an exception for costs, as upon a rehearing or appeal upon other grounds you may enter into the question of costs, though you cannot rehear or appeal for costs only."(1) The exception was allowed, and it was referred back to the Master to review his report. In a subsequent case of Lucas v. Temple, 9 Ves. 298, Lord Eldon expressed a doubt as to the distinction taken in Holbecke v. Sylvester, and one of the points

(1) In the case, the only exception appears for costs, but there must have been other exceptions, from Mr. Romilly's argument.

[a] In England, it seems that this is the proper course. Bozon v. Williams, 3 You. & Jerv. 188.

In the Supreme Court of New York, (and the same practice has always prevailed in chancery,) if either party is dissatisfied with the taxation, he may appeal to the court, on a motion for re-taxation. Low v. Vrooman, 15 Johns. 238. This motion must, however, be made without delay; and after the lapse of two terms, at which the party might have applied for a re-taxation, the Court refused to interfere, though there were exceptionable items in the bill. M'Lean v. Forward, 1 Cowen, 49; Morris v. Mullett, 1 Johns. Ch. Rep. 44. Nor will they review the bill, upon a point not made before the taxing officer. Lyon v. Wilkes, 1 Cowen, 591. Nor will they in any case, pass upon disputed items in a bill of costs, until after taxation. Swift v. Kelly, 2 Wend. 623; Gra. Prac. 2d ed. 338.

Eng. Chan. Reps. vii. 167.

being whether an exception could lie for costs if joined with other matter, Lord Eldon observed that frivolous exceptions would be taken merely for the sake of costs, and that his opinion was, that exceptions would not lie for items of costs which were items properly falling within the description of those costs which the Master was to

tax.

*I think it may be inferred that the Court will [ *388 ] not entertain a question, however presented for its consideration; whether by petition, or by an exception for costs joined with other matters, as to mere quantum of costs, or on items properly falling within the description of those costs which the Master is directed to tax; his judgment on these points being conclusive; but that if there has been an irregularity in the proceedings, or the Master has acted upon a mistaken principle, or a question as to a certain class of costs is agitated, that the Court will entertain the objection; and that if costs are the only substantial ground of objection to the Master's report that a special petition must be presented, but that, if joined with other substantial objections to the report, the point may fairly be brought before the Court by an exception. The distinction as to an appeal for costs in Attorney-General v. Butcher, 4 Russ. 180, (ante, p. 21,) may be fairly applied to the present question. Otherwise, the party would incur the double expense of petitioning and excepting.

Although the Master's report of a receiver's account, like his report on the taxation of costs, cannot be excepted to, yet the Court will, upon the petition of the party complaining, enter into the consideration of objections to the general principle on which the Master has proceeded in taking a receiver's account, but not of objections to particular items of it. (Shewell v. Jones, 2 S. & S. 170; Idem. on Appeal, 3 Russ. 522.)

There is a numerous class of reports arising from references to the Master in cases where the Court exercises a control over trust estates, or estates belonging to infants, which being the result of discretion or opinion, are never confirmed by orders nisi and absolute, nor are they open to exception. If a question arises on any Eng. Chan. Reps. iii. 622. Ib. i. 400. Ib. iii, 507.

of these reports, *it is decided on the petition to confirm the same, and for consequential directions; or if the question be not then sufficiently raised, it is brought before the Court by a petition for the Master to review his report. Amongst this class are reports as to the propriety of granting leases; of carrying contracts into effect; as to repairs; as to purchases with the personal estates of infants; or as to paying off incumbrances, and as to cutting timber.

If a party objects to interrogatories settled by the Master, it is not the practice for such party to present a petition to expunge certain parts of the interrogatories, but the question is brought before the Court by exceptions, (Hughes v. Williams, 6 Ves. 459.) In Paxton v. Douglass, 16 Ves. 239, it is said the exceptions must be to the Master's report upon what the Master does after the interrogatories are addressed to the witness. This case as reported, is difficult to be understood; it was a creditor's suit, and exceptions were taken to the Master's certificate allowing interrogatories for the examination of Charles Christie, claiming as a bond creditor.

The

objection of the witness was, that by answering he would criminate himself. The Court said, the interrogatories may be put to the witness, and it must be left to himself whether he will answer them or not. The exceptions were disallowed, but as the case was new and special, the deposit was returned. The correct practice appears to be, to take exceptions to the report allowing the interrogatories. In Archbishop of York v. Stapleton, Reg. Lib. 1742, fol. 152, exceptions were taken to a report settling interrogatories pursuant to a decree, and an order made on the hearing of the exceptions. The view taken above, is confirmed by a recent case of Chennell v. Martin,a 4 Sim. 340, when, after an elaborate view of all the cases, [ *390 ] *the Court decided that if the parties are dissatisfied with the allowance or disallowance of any of the interrogatories, they must except to the Master's certificate. If one general exception is taken to the Master's certificate allowing interrogatories, and the Court is of opinion that only one of the interrogatories ought not to have been approved of, the exceptions will be allowed. (Moore v. Langford," 6 Sim. 323.)

Eng. Chan. Reps. vi. 154. Ib. ix. 292.

a

As has been before observed, if any party is dissatisfied with the Master's certificate as to any pleading, he takes exceptions. In Chalk v. Thompson, 4 Sim. 350, a motion to discharge a Master's certificate of the sufficiency of the defendant's examination under a decree was refused, the the Court deciding that the proper course was to except to the Master's certificate. In Jones v. Powell," 1 Sim. 387, Sir A. Hart decided that a Master's certificate as to the production of papers by a defendant could not be excepted to, and that a motion must be made to quash it; but as the reasons given in support of the decision are not only contrary to received practice, but have been completely overthrown by the arguments and authorities adduced in Chennell v. Martin, 4 Sim. 340, it may be inferred that the proper mode of bringing a question as to the production of papers before the Court, is in the form of exceptions to the Master's certificate.

If a party is dissatisfied with the Master's report approving a conveyance, he brings the question before the Court by exceptions to his report.

A defendant took one general exception to a report finding his examination insufficient. The Court held the report to be right in part, and wrong in part, and overruled the exceptions, and gave the plaintiff the deposit, but under the 41st N. O. refused to make any order as to costs. (Ward v. Fitzhugh,a 7 Sim. 42.)

Eng. Chan. Reps. vi. 159.

Ib. ii. 194.

Ib. vi. 154. dIb. ix. 470.

CHAPTER XXXVI.

PAYMENT OF MONEY INTO COURT AFTER THE DECREE.[@]

Not necessary to wait until further directions, 391. Application cannot be made on charge and discharge, 391. But may on Defendant's Examination, 392.

AFTER the Master has made his report, any party is at liberty to apply as soon as the report has been confirmed, that a party against whom a balance is found due may be ordered to pay the same into court, and it is not necessary to wait until the cause comes on to be heard on further directions. (See Gordon v. Rothley, 3 Ves. 572.)

But the Court will not order a balance to be paid in upon charge and discharge brought into the Master's office, even upon his certificate of the sum due. (Fox v. Mackreth, 3 Bro. C. C. 45; and see Quarrell v. Beckford, 14 Ves. 177.) In Fox v. Mackreth, as reported in 1 Ves. 69, the Court refused the motion of the plaintiff, that the defendant might be ordered to pay into court the balance of the charges, allowed against him by the Master, after deducting the full amount claimed by the defendant in his discharge. In this case, an account was directed against the defendant, who was examined in the usual way upon interrogatories. A charge was brought in and allowed [ *392] against the defendant, who thereupon left his discharge in the Master's office. Deducting the whole amount alleged to be due in this discharge from the amount allowed by the Master in the charge, a large balance appeared due from the defendant. Upon a certificate from the Master to that effect, the above motion was made. The Court refused to recognize a certificate, and said a report should have been made. The cause stood over to look into the case of Lech v. Stevens, 7th April, 1769, and upon its coming on again the plaintiff's counsel applied upon the ground of a balance appearing upon the defendant's examination. The motion was refused as contrary to practice, and as prematurely made, the Master not

[a] This subject has been incidentally referred to, in the notes to the chapter on "Payment of money and transfer of stock into Court," Vol. 1, p. 667-670.