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these propositions. It is true that this was just before the promulgation of Equity Rule 83 in 1842, yet we find the court more than once repeating this same statement and citing the early case in its support, after the adoption of the above rule. For example, in 1855 we find the court quoting from the early case approvingly as follows: "In Story vLivingston, 13 Pet. 359, this court decided that no objections to a master's report can be made which were not taken before the master, the object being to save time and to give him an opportunity to correct his errors and reconsider his opinion." It is true, as stated by Judge Gresham, that this question was not before the court, yet such expressions indicate pretty strongly what the court will do when a case arises presenting the question squarely. Again, in 1857, we find the court laying down the same rule. And again, in 1891, we find the same court quoting the same language from Story v. Livingston.* Even as late as 1893 we find the court stating the correct practice as follows: "Proper practice in equity requires that exceptions to the report of a master should point out specifically the errors upon which a party relies, not only that the opposite party may be apprised of what he has to meet, but that the master may know in what particular his report is objectionable, and may have an opportunity of correcting his errors or reconsidering his opinion.” 5

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95

If the reader will turn back to section 369 and read the remarks of the court in the case of Gay Mfg. Co. v. Camp, in the fourth United States circuit, a case in which Chief Justice Fuller sat with Judges Goff and Simonton,- I think he will be satisfied that the highest authority in this country is in favor of the strict rule and the propriety of its enforcement.

§ 382. Exceptions to the rule. An apparent variation from the rule requiring objections to be filed with the master as a basis of future exceptions occurs in the cases of two or three kinds of certificates granted by the master, as the certificate of sufficiency or insufficiency, or scandal or impertinence 1 McMicken v. Perin, 59 U. S. (18 How.) 507, 510.

2 Hatch v. Indianapolis & Springfield R. Co., 11 Biss. 138, 9 Fed. 856. 3 Hudgins v. Hudgins, 61 U, S. (20 How.) 54.

4 Topliff v. Topliff, 145 U. S. 156, 173, 12 Sup. Ct. R. 825.

5 Sheffield, etc. R. Co. v. Gordon, 151 U. S. 285, 290, 14 Sup. Ct. R. 343.

in any pleading, or other matter before the court, or the certificate allowing interrogatories. In these instances exceptions may be filed without the necessity of objections previously taken.1 So, too, neither objections nor exceptions are required when the error complained of is an alleged wrong conclusion of law, or when error complained of is apparent upon the face of the report. This subject is fully discussed in a future chapter. We will simply state here that in all cases where the chancellor reviews the action of the master, not upon exceptions, but on petition, motion, or otherwise, of course no objections are left with the master. It is also said that in some few cases, and under special circumstances, where a party has neglected to leave objections to the draft report, the court may allow exceptions to be taken; thus, exceptions were allowed to be taken in Carter v. Clitheroe, where, by surprise, as to which there was an affidavit of the defendant's solicitor, the master signed his report before objections were taken, Lord Hardwicke referred it back to the master to receive objections. In another case objections were not left in consequence of the warrant to settle, the master's report not having been sent to the party; the court allowed exceptions to be filed." So, also, the court may re-refer a case to the master with leave to file objections, where the failure was by reason of ignorance or misapprehension of counsel as to the rule. Sometimes the court will consider exceptions where failure to file objections was by reason of misapprehension of the rule, and will go on and dispose of the case on its merits, contenting itself with an admonition that the rule must be observed in the future. another case, where counsel failed to file objections with the master, the court permitted, after the coming in of the report, objections to be filed with the master nunc pro tunc, instead of re-referring the cause.

In

12 Barbour, Ch. Pr. 547; 2 Smith, cuit re-referred a case to the master Ch. Pr. 150. for this reason.

2 Post, ch. VII; post, §§ 436-442. 32 Smith, Ch. Pr. 150; 2 Barbour, Ch. Pr. 547.

42 Smith, Ch. Pr. 152.

5 Bowker v. Nickerson, 3 Madd. 439. 6 See ante, § 372, where Judge Sev. erens of the sixth United States cir

7 Gaines v. New Orleans (U. S. Cir. Ct., 5th Ct.), 1 Woods, 104; Fed. Cas. 5,177; Gay Mfg. Co. v. Camp (U. S. C. C. App., 4th Ct.), 65 Fed. 794, 68 Fed. 67.

8 Fischer v. Hayes, 16 Fed. 469.

§383. Time of leaving objections with the master.- Although, in strictness, objections ought to be taken within the period between the time of service of the notice and draft report and a time fixed in such notice for filing the same, yet, upon a proper case or excuse being submitted to him, the master will allow further time for bringing in the objections.1 It is too late to bring in objections after the report has been signed and returned into the clerk's office, as, when that is done, all power of the master under the order of reference is terminated. The master, however, may ask and obtain from the court leave, in a proper case, to withdraw his report for the purpose of correction of errors; and, in a proper case, where counsel, through ignorance, mistake or inadvertence, has failed to file objections with the master, the court may rerefer the cause to the master with leave to file objections.2

Under certain circumstances objections may be permitted to be filed with the master nunc pro tunc; for example, where it appeared by the certificate of the master that the respective counsel were notified that the draft of the report was ready for their inspection and suggestions, whereupon they appeared before him; that the plaintiff's counsel verbally objected to certain findings; and that the written exceptions which had been filed in court were substantially the same as the verbal objections presented to the master when the draft report was submitted, while the course pursued by counsel was held to be faulty, yet the court allowed objections to be reduced to writing, substantially corresponding with the exceptions, and permitted them to be filed with the master nunc pro tunc.3 Sometimes the instructions to the master in the order of reference fix a specific time for filing objections to the master's findings, and all objections not filed in such time, or in such further time as shall be allowed by the master, are deemed to be waived.

384. Who may file objections with the master to draft report. It may be broadly stated that any party who is entitled to appear before the master upon a reference must file objections to his draft report in order to enable such party to

12 Barbour, Ch. Pr. 547.

*See post, §§ 450–452.

Fischer v. Hayes, 16 Fed. 469.

4 March v. Eastern R. R. Co., 43 N. H. 515, 535.

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contest the findings of the master afterward by exceptions.' Either or both parties may object in the first instance to the master's report, and both parties may afterward except to the final report, and either party may set down the cause for hearing upon the exceptions to the master's report. If a person interested in the report, though not a party to the suit, is dissatisfied with it, he must file objections to the draft in the master's office as a preliminary step to putting himself in a situation to take exceptions. So, too, defaulted parties desiring to contest the correctness of the master's findings of fact must file objections to the draft report. If the parties are satisfied with the facts as found by the master, and the question is solely as to the law applicable to such a state of facts, then no objections or exceptions are necessary to enable the court to determine whether or not the master erred in his legal conclusions.5

§ 385. What may be objected to and character of objections. Objections should be taken to the principal findings of fact made by the master, that is, findings of fact upon the ultimate issues submitted to him by the order of reference. Counsel must be careful to distinguish the terms "objections" and "exceptions" to the master's findings from objections made to the admission or exclusion of evidence, or to other matters, made during the progress of the hearing and from exceptions taken to the rulings of the master thereon. The term "objection," in the sense in which it is now used, is the formal, written protest of counsel to the master's findings upon the issues of fact submitted to him, and the term "exception" as used in this section applies solely to the paper filed in the office of the clerk, after the coming in of the report, as a basis for testing the legality or propriety of objections previously left with the master.

1 As to whom are entitled to appear in the master's office upon a reference, see ante, §§ 184, 185.

2 Union Sugar Refinery v. Mathiesson, 3 Clif. 146, 149, Fed. Cas. 14,398. 32 Smith, Ch. Pr. 152.

4 Brockman v. Aulger, 12 III. 277, 279; Hurd v. Goodrich, 59 Ill. 450, 455; Pennell v. Lamar Ins. Co., 73

These terms are often

Ill. 303; Dates v. Winstanley, 53 Ill. App. 623, 627; Burke v. Tutt, 59 Ill App. 678; Cheltenham Imp. Co. v. Whitehead, 128 Ill. 279, 284, 21 N. E. 569. As to the rights of defaulted parties upon a reference, see ante, §§ 211–213.

5 Kingsbury v. Kingsbury, 20 Mich.

212.

erroneously used as if interchangeable, even by judges in writing their opinions. Objections may state that some evidence has been misunderstood, some fact not found, or improperly found, or that some irregularity or error is apparent on the face of the draft of the report. An objection, however, is unnecessary where error is shown on the face of the report or is an error as to conclusion of law. This subject is fully discussed hereafter. Both objections and exceptions should be signed by counsel.*

As the objections filed with the master are the foundation for exceptions, afterward to be taken upon the coming in of the report, and as the latter must strictly follow the objections, great attention is required in framing them, so that the points and matters to be contested may properly be brought before the court. Indeed, in actual practice, objections filed with the master are usually afterward, by consent, converted into exceptions, and, no matter whether this is done or whether the exceptions are written out independently, the same care and exactness is required in the framing of objections as is required in the preparation of exceptions; but, as this subject is fully examined in a subsequent chapter, nothing further need here be added, except to say that they must be specific or they will be disregarded. For example, if the objection is that there is a variance between the proof and allegations such objection must be specific; in other words, it must point out specifically in what the alleged variance consists. That is, the objector must put his finger on the precise spot in order that both the master and opposing counsel may know definitely what is claimed to be erroneous. The rule that exceptions and objections to master's findings must be

1 Whiteside v. Pulliam, 25 Ill. 285, 288: Hewitt v. Dement, 57 IL 500, 507; Pennell v. Lamar, 73 II. 303, 306: Brainard v. Hudson, 103 Ill. 218, 221; Cheltenham Imp. Co. v. Whitehead, 128 Ill. 279, 284, 21 N. E. 569; Gehrke v. Gehrke, 190 Ill. 166, 175, 60 N. E. 59.

2 Bennett, Pr. in Master's Office, 21. 3 Post, § 439.

6 "Attacking Master's Findings of Fact," post, § 431 et seq.

7 Rittenhouse & Embree Co. v. Barry, 98 Ill. App. 548, 554; Bishopp v. Blair, 90 Ill. App. 64, 81; Thornton v. Commonwealth L. & B. Ass'n, 181 Ill. 456, 458, 54 N. E. 1037; Kinsella v. Cahn, 185 Ill. 208, 56 N. E. 1119.

8 Thornton v. Commonwealth L. & B. Ass'n, 181 Ill. 456, 458, 54 N. E. Bennett, Pr. in Master's Office, 22. 1037, and cases cited. 52 Smith, Ch. Pr. 151.