PAYMENT OF MONEY INTO COURT AFTER DECREE. 392

having reported. The Court asked, "Is it competent, if in this stage of the account so much appears to be due, to apply to have it paid into court, and to call upon the defendant to say he does not believe so much will appear to be due in the end?" (Fox v. Mackreth, 1 Ves. 69.)

The present practice, however, permits an application to be made for the payment of a balance into court, appearing to be due by the defendant's own examination. Lord Eldon, in the case cited, said, "According to the old practice, you did not, between the original decree and the hearing for further directions, apply for payment of money into court; but that application upon an examination, admitting money to be due, has been long the settled practice, and the payment is made, certainly without prejudice to a further demand if more is due." (Hatch v.

19

Ves. 116.) And in Wood v. Downes, 1 V. & B. 49, after the usual decree for an account, on motion, the principal sums admitted to be due upon examination were ordered to be paid in, but not interest on those sums (not being computed by the Master, but only by the solicitor.) In *this case the usual decree was made; the defen- [ *393 ] dant put in an examination in answer to interrogatories: the plaintiff's solicitor cast up the schedules to the examination, and by affidavit proved the balance, and he computed interest on such balance. The motion was for payment of both principal and interest into court; but the order was confined to the principal.

The Court will not order money to be paid into court upon the affidavit of an accountant, that from the schedules to the examination, and from the books of account such a balance was due. (Mills v. Hanson, 8 Ves. 68.) In this case, Lord Eldon said, "If you will make an affidavit, stating that the answer, or an examination in the Master's office, refers to schedules containing the receipts and payments, and simply adding them up, that will do. So, if they brought a book into the Master's office, and you state that it contains an account of the receipts and payments, and the affidavit gives him the credit he craves, charging him with what he admits, and simply casting it, up, the balance might be paid in upon motion: but if the case is more complicated than that, and the question is, what is the result of that more complicated account, that cannot be the foundation of a motion for paying in money.

393 PAYMENT OF MONEY INTO COURT AFTER DECREE.

If the books were referred to in such a way as to make them part of the examination, or the schedule, as they might be, that would do." Motion refused. And on a subsequent application before him in the same cause, that the defendant should pay in a sum, appearing to be in his hands by the partnership cash-book and ledger, referred to by the examination, he said, "I remember when the practice was introduced of making a defendant pay in money, appearing by his answer or exammation to be in [ *394] his hands. It must be upon the ground of admission, and it is not sufficient to cut up books brought into the Master's office, unless connected with admission by the defendant, so as to make those books as much a part of his examination as the schedules are part of the answer. In this instance, the books are sufficiently referred to for purpose, but the reference is to all the books, not to the cash-book and ledger only; therefore I cannot make the order; but if the plaintiff can make another affidavit, bringing it to that, I should be very willing to make the defendant pay in the money, unless he says more about it than he has said." (Mills v. Hanson, 8 Ves. 91.)

CHAPTER XXXVII.

FURTHER DIRECTIONS.

Considerations of, how reserved, 395. Setting down cause on, 396. If to come on with exceptions, 396. Regular, although plaintiff has excepted to report, 396. When further directions should come on to be heard together with the exceptions, 396. Where a cause may be heard on further directions, and where not, 397. How set down for hearing, 397. If to come on with exceptions, 398. Service of order to set down cause on further directions, 398. Brief for hearing, how prepared, 399. How cause heard, and what evidence admissible on hearing, 399. When necessary that a petition should be presented to come on with the further directions, 399. How a person interested in the report, though not a party to the suit, can be heard on further directions, 401. On the hearing on further directions the report is conclusive, if it has not been excepted to, 402. Order on further directions, 402. If after bill taken pro confesso, 403. Order on further directions cannot vary original decree, 403. Nor decide a question not reserved by decree, 404. Evidence entered in the decree or report cannot be objected to on further directions, 405. How order drawn up, 405. Petition by a person interested in the share of a party to the suit, to have such share paid to him, 406. Provisions made by the order on further directions in the case of money or stock being declared to belong to infants, married women, or deceased persons, or to partners or executors, 406. Provision for accumulation of interest, and dividends for payment of an ultimate residue, and for apportionment of a fund, 407. Provision as to specific bequests, and for a contingent legacy, 408. Proceedings consequent upon the order on further directions, 409. Power of attorney to receive money, 409. Two cases in which the AccountantGeneral tries a fact, 409. Right of plaintiff's solicitor to withhold production of order, 410. Petition by the representative of a creditor for the payment of a debt reported due to creditor, 410. Payment of debts under 10l. to the solicitor of creditors, 411. A gross sum of money paid out on petition; interest paid out on motion, 411.

THE Consideration of further directions is only reserved in decrees and decretal orders. In other orders, the reservation is" and after the Master has made his report such *further order shall be made as shall be [ *396 ] just." If, by a decree, or a decretal order, the consideration of further directions, and of the costs of the suit has been reserved, as soon as the Master's report has been absolutely confirmed, the plaintiff is at liberty to set down his cause for further directions and costs. If after the service of the order nisi to confirm the report, and before the same has been made absolute, exceptions have been shown either by the plaintiff, or by any of the defendants, as cause against the confirmation of the report, and have been set down, the plaintiff is at liberty to apply, by a petition of course, that the cause may be set down for further directions and costs, and may come on to be heard together with the exceptions. In Yeo v. Frere, and

Bowersbank v. Collasseau, 5 Ves. 424, it was decided, that although the plaintiff had excepted to the report, yet he was entitled to set down his cause for further directions.

In deciding as to the propriety of further directions coming on to be heard, together with the exceptions, the plaintiff should be influenced by the probability of the exceptions requiring or not requiring that the Master should review his report. If from the nature of the exceptions the decision of the Court is likely to be final, and not to require a reference back to review, the cause may with propriety be heard on further directions, together with the exceptions; as for instance, where the Master has reported A. a prior incumbrancer to B., and exceptions are taken, as the decision of the Court, on whichever side given, will dispose of the question, the cause may with propriety and safety be set down on further directions to come on after the exceptions. If, on the contrary, there is a probability that the exceptions will [ *397 ] require a reference *back to the Master, inasmuch as the cause cannot be heard on further direction, until the Master has made his further report in pursuance of such reference to review, and must after that be set down again, the plaintiff will not be justified in incurring, or allowed on taxation, for the expense of setting down the cause, or for the fees paid on the first abortive attempt at hearing the cause on further directions.

A cause cannot be set down on further directions, excepting on a Master's general report, made in pursuance of a decree or decretal order. If the Master has made a separate report in pursuance of a decree or decretal order, or any report not in pursuance of a decree, or decretal order, the party cannot bring the same before the Court on further directions, but must apply for consequential directions by an attendable petition. In Van Kamp v. Bell, 3 Madd. 430, it was decided, that a cause cannot be set down for further directions on a separate report, but that the order must be sought by a petition.

If the Master's separate report, or his report not made in pursuance of a decree or decretal order, involve a question of law or of fact, as ancillary to a legal decision, before this petition can be presented, the report requires to be confirmed by orders nisi and absolute. If involving a

question of discretion or opinion only, the petition praying consequential directions may also pray that the report may be confirmed.

If the report has been confirmed absolutely, the plaintiff presents a petition, as of course, to the judge before whom he proposes to have the same heard, that the cause may be set down on further directions and on costs. The petition is left with the secretary of the judge, and the *plaintiff's solicitor furnishes him with a full [ *398 ] copy of the decree or decretal order, of the Master's report, including the schedules, and of any interlocutory orders and reports made in the interval between the decree and the general report. If the petition is presented to the Master of the Rolls, the order is delivered out by his secretary, passed and entered. If presented to the Lord Chancellor,(1) the petition is answered by his secretary, and the order to set down the same is drawn up by the registrar. The cause is set down by the registrar.

If exceptions have been taken and set down, the plaintiff presents a petition to set down the cause on further directions and costs, and prays that the same may be heard together with the exceptions. In this case, the same papers are left with the secretary of the judge, and the cause is set down in the same manner as if set down without the exceptions. As the party excepting must leave a copy of the decree, report and exceptions, it appears at first unnecessary that the plaintiff should do the same. The reason is, that each party should perfect his own proceedings, so that he may not be prejudiced by an omission of the other party.

A copy of the order to set down the cause, on further directions, is served on the clerks in court of all the defendants, by delivering to, and leaving with, the clerks or agents of the clerks in court of the several parties, true copies of the said order, and at the same time showing them the original order duly passed and entered. An affidavit of the service is made and filed, and the office copy thereof should be in court, that, if any party does not appear, a decree may be taken against him on the affidavit of service. If there has been a sale [ *399 ]

(1) If intended to be heard before the Vice Chancellor, it is presented to the Lord Chancellor.