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master's certificate a commission issues from the clerk's office to take the depositions of witnesses according to the acts of Congress or equity rules. 10 Under extraordinary circumstances, a master may take testimony beyond the territorial jurisdiction of the court. A master has power to direct the mode in which matters requiring evidence shall be proved before him.12 The court 13 may but rarely will interfere with the master's ruling in this respect before his report is brought before it for review.14 § 314. Masters' Reports and Compensation. The final decision of a master upon the matters referred to him is embodied in his report to the court. He is forbidden by the rules to recite at length any part of any paper or deposition brought in or used before him. He is, however, required to refer to and identify every state of facts, charge, affidavit, deposition, examination, or answer used before him, so as to inform the court concerning the pleadings and evidence which he considered in reaching the conclusions embodied in his report. It is the better practice for a master before making his report to prepare and serve on the parties a draft of the same, with notice of a time and place when and where he will hear their objections thereto.3 At the appointed time, counsel should appear, make their objections to the proposed report, and see that these objections are noted in writing and filed with the master. This is the practice in the Second Circuit. The practice is, however, in some circuits very loose in this respect. A master cannot retain his report as security for his compensation. His compensation is fixed by the court in its discretion with regard to the circumstances of each particular case. This compensation is charged upon and borne by such of the parties to the cause as the court shall direct. master's compensation upon an accounting is usually imposed in

10 Rule 77.

A

4 Fischer v. Hayes, 16 Fed. R. 469;

11 Bate Refrigerating Co. v. Gillette, Story v. Livingston, 13 Pet. 359.

28 Fed. R. 673.

12 Rule 77.

13 Webster Loom Co. v. Higgins, 43 Fed. R. 673.

14 Lull v. Clark, 20 Fed. R. 454; Wooster v. Gumbirnner, 20 Fed. R. 167. § 314. 1 Rule 76.

5 Fischer v. Hayes, 16 Fed. R. 469; Jennings v. Dolan, 29 Fed. R. 861.

6 Hatch v. Indianapolis & Springfield R. R. Co., 9 Fed. R. 856.

7 Rule 82.

8 Rule 82; Erie Ry. Co. v. Heath, 10 Blatchf. 214; Middleton v. Bankers' &

2 Rule 76. See In re Thomas, 35 Fed. Merchants' Tel. Co., 32 Fed. R. 524.

R. 337, 339.

8 Fischer v. Hayes, 16 Fed. R. 469; Jennings v. Dolan, 29 Fed. R. 861.

VOL. I.-36

9 Rule 82.

the first instance upon the accounting party.10 The order adjusting a master's compensation should name the party who is required to pay it, and a time within which payment is to be made." Failure to comply with the order is punishable by attachment for contempt of court.12 It seems, however, that payment pending a suit can only be compelled on the application of the master or his representative, not at the request of a party.18 As soon as the report is ready, the master should file the same in the clerk's office; and the clerk should enter the day of the return in the order book.14 If no exceptions are filed within one month from the time of filing, the report is considered as confirmed on the next rule-day after the month has expired.15

§ 315. Exceptions to Masters' Reports. - Exceptions to the report of a master must be filed within one month from the day when it was filed. No exception will lie to any matter which was not objected to before the master. In circuits, where it is not the practice for masters to serve drafts of their reports, an exception to the report, but not an exception to a ruling in evidence, can be filed without a preliminary objection.3 Such an exception has also been permitted after a draft of the report had been served, and no objection made thereto. Objections in support of exceptions may be allowed to be filed nunc pro tunc.5 Exceptions should specifically point out the errors of which they complain, and if they rely on any part of the testimony, it is the safer practice to have them either state the same or refer thereto, so that the court can without difficulty find it. "All that is ne

10 Urner v. Kayton, 17 Fed. R. 539; Springfield R. R. Co., 9 Fed. R. 856; 8. c. 17 Fed. R. 845. Jennings v. Dolan, 29 Fed. R. 861.

11 Rule 82.

12 Rule 82.

8 Hatch v. Indianapolis & Springfield R. R. Co., 9 Fed. R. 856; Fidelity Ins. &

18 Mallory Manuf. Co. v. Fox, 20 Fed. Safe Deposit Co. v. Shenandoah Iron Co., R. 409.

14 Rule 83.

15 Rule 83; Burns v. Rosenstein, 135 U. S. 449, 455.

§ 315. Rule 83; Fidelity Ins. & Safe Deposit Co. v. Shenandoah Iron Co., 42 Fed. R. 372. But see Central Trust Co. v Wabash, St. L. & P. Ry. Co., Hamilton Intervenor, 27 Fed. R. 175.

2 Troy Iron & Nail Factory v. Corning, 6 Blatchf. 328; Fischer v. Hayes, 16 Fed. R. 469; Story v. Livingston, 13 Pet. 359. But see Hatch v. Indianapolis &

42 Fed. R. 372. See Jennings v. Dolan, 29 Fed. R. 861.

4 Jennings v. Dolan, 29 Fed. R. 861. 5 Fischer v. Hayes, 16 Fed. R. 469. 6 Harding v. Handy, 11 Wheat. 103; Foster v. Goddard, 1 Black, 506; Greene v. Bishop, 1 Cliff. 186; Stanton v. Alabama & C. R. R. Co., 2 Woods, 506; Cutting v. Florida Ry. & Nav. Co., 43 Fed. R. 743, 747. In Duden v. Maloy, 43 Fed. R. 407, 410, the following exception was held to be insufficient according to the practice in the Second Circuit, and was

cessary is that the exception should distinctly point out the finding and the conclusion of the master which it seeks to reverse." 7 Exceptions to the report of a master upon a reference to compute damages for the infringement of a patent, which raised the points that the infringement was not wilful, that the reduction of plaintiff's profits was not solely due to the infringement, and that the master should have reported nominal damages, were held sufficient to bring before the court the whole subject of the computation of damages.8 It has been held that the point that a statute is unconstitutional need not be specifically stated in the exception. Exceptions to the admission or exclusion of evidence, taken upon the hearing before the master, need not be restated in the exceptions filed to this report.10 If the court is in session when exceptions are filed, they are argued at that session; 11 otherwise, at the next session.12 Every presumption is in favor of the correctness of the decision of a master. 18 If the testimony is conflicting, the court will rarely interfere with the master's decision on the facts, provided he made no errors in law which affected the result.14 Where after a master's report had been filed a judgment finding facts opposite to those found by the master had been entered in a State court, in a suit between the same parties, it was held that the judgment of the State court must be followed on the hearing of the exceptions to the report of the master.15 Trifling errors in a master's statement of an account will be disregarded.16 Exceptions to a master's report are only proper when he has made an erroneous decision upon the matters referred to him.17 The remedy for an irregularity in his proceeding, or for his neglect to report upon all of the matters referred to him, is a motion to set aside the report, or to refer the same

consequently disregarded: "For that the master has found contrary to the preliminary requisitions and objections of defendant to his proposed draft report, and which requisitions and objections he here repeats, and contends that fresh evidence should be taken thereon."

12 Rule 83.

18 Medsker v. Bonebrake, 108 U. S. 66; Tilghman v. Proctor, 125 U. S. 136; Callaghan v. Myers, 128 U. S. 617, 666; Kimberly v. Arms, 129 U. S. 512, 524.

14 Welling v. La Bau, 34 Fed. R. 40; Mason v. Crosby, 3 W. & M. 258, Gott

7 Foster v. Goddard, 1 Black, 506, 509, fried v. Crescent Brewing Co., 22 Fed. R. per Mr. Justice Swayne.

Boesch v. Graff, 133 U. S. 697.

9 Fidelity Ins. & S. D. Co. v. Shenandoah Iron Co., 42 Fed. R. 372, 374. 19 Marks v. Fox, 18 Fed. R. 713. 11 Rule 83.

433; Jaffrey v. Brown, 29 Fed. R. 476;
Central Trust Co. v. Texas & St. L. Ry.
Co., 32 Fed. R. 448.

16 Duden v. Maloy, 43 Fed. R. 408.
16 Taylor v. Robertson, 27 Fed. R. 537.
17 Taylor Robertson, 27 Fed. R. 537.

back to the master.18 A report of a master may be corrected without a re-reference, from facts appearing in the case aside from the evidence taken before him.19 It has been held in the Second Circuit that if the master errs by an improper rejection of evidence his error should be corrected by an immediate motion to compel him to receive the evidence, and is not the proper subject of an exception to his report.20 The party who files exceptions is obliged to pay costs for each exception overruled, and is entitled to costs for each exception allowed.21 The amount of costs is fixed by the court in accordance with a standing rule in each circuit.22 By leave of the court exceptions may be amended.23 The review of a master's report upon a receiver's account is described in a preceding section.24

§ 316. Sales by Masters. - In a proper case, a court of equity, having the possession by a receiver of the property of an insolvent railway company, may make an interlocutory order for the sale of the property before the rights of the parties under the several mortgages have been fully ascertained and determined.1 In such a case an appeal may be taken at once from the order for the sale, provided the sale is to take place immediately; but not if any subsequent proceedings and order must precede the sale. A court of equity will not make an interlocutory order for an immediate sale of mortgaged property upon terms discharging the lien of a mortgage not yet due, unless it clearly appears that in the end there must be not only a sale of the property, but a sale upon those terms. When property is ordered to be sold by a master, it must be sold at public auction, unless the court otherwise directs.5 Such a sale is conducted under the superintendence of the solicitor for the party at whose prayer the sale is made, and in all questions which subsequently arise between the buyer and the seller it is said that he is considered as

18 Tyler v. Simmons, 6 Paige Ch. (N.Y.) 127.

19 Witters v. Soule, 43 Fed. R. 405; Kelsey v. Hobby, 16 Pet. 269; Parks v. Booth, 102 U. S. 96.

20 Celluloid Manuf. Co. v. Cellonite Manuf. Co., 40 Fed. R. 476, 478.

21 Rule 84.

22 Rule 84.

23 Jones v. Lamar, 39 Fed. R. 585. 24 § 256.

§ 316.

Pennsylvania R. Co. v. Allegheny Val. R. Co., 42 Fed. R. 82, 85, per Acheson, J.; First National Bank v. Schedd, 121 U. S. 74.

2 First National Bank v. Schedd, 121 U. S. 74.

8 Burlington C. R. & N. Ry. Co. v. Simmons, 123 U. S. 52, 55.

4 Pennsylvania R. Co. v. Allegheny Val. R. Co., 42 Fed. R. 82, 86.

5 Daniell's Ch. Pr. ch. xxvi.

the agent of all the parties to the suit. The particulars and conditions of the sale are prepared by him. They should be entitled in the cause, and should contain a general description of the nature and situation of the property; and if land, should state in whose possession it is or has lately been. The conditions of the sale should be in general similar to those annexed to ordinary sales of similar property in the vicinity.8 A sale by a receiver is not invalidated by his announcement at the sale that the purchaser will have the option also to buy other property not covered by the order of sale but acquired by him in the due course of his receivership.9 The sale should be advertised at least twice, and should give such a description of the property as clearly to indicate and identify it.10 The master has power to adjourn the sale, even after the auction has begun and bids have been made.11 The sale is conducted in substantially the following manner: The master, his clerk, or a person appointed by him, is present with a paper upon which the biddings for the different lots are to be marked.12 The lots are successively put up at a price offered by any person present; such person, according to the English practice, signing his name to the sum which he offers on the paper.13 If the property to be sold consists of a railroad and its appurtenances, it is usually sold as a single thing.14 It has been said that railroad property cannot be thus sold piecemeal except by the consent of all the parties expressed in open court or in writing.15 The court may make a condition of the sale that no bid shall be considered unless each bidder first deposit a specified sum in cash, in one instance, twenty-five thousand dollars, 16-and that no bid be considered unless it exceed a specified amount.17 Every

6 Dalby v. Pullen, 1 R. & M. 296. But see Blossom v. Railroad Co., 3 Wall. 196, 207.

7 Daniell's Ch. Pr. ch. xxvi.

8 Daniell's Ch. Pr. ch. xxvi.

Fed. R. 315; Jones on Railroad Securities, §§ 625-628.

15 Bound v. South Carolina Ry. Co., 46 Fed. R. 315, 316, per Simonton, J.

16 Farmers' L. & Tr. Co. v. Green Bay

Lake Superior Iron Co. v. Brown, & Minn. R. R. Co., 10 Biss. 203. Bonnell & Co., 44 Fed. R. 539.

10 Kauffman v. Walker, 9 Md. 229; Merwin v. Smith, 1 Green Ch. (N. J.) 182; Daniell's Ch. Pr. ch. xxvi.

17 Farmers' Loan & Tr. Co. v. Houston & Texas Central R. R. Co., Pardee & Sabin, JJ., May, 1888; Hervey v. Illinois Midland Ry. Co., U.S. C. C., S. D. Illinois, June

11 Blossom v. Railroad Co., 3 Wall. 10th, 1886; Roosevelt v. Columbus, C. &

196.

12 Daniell's Ch. Pr. ch. xxvi.

13 Daniell's Ch. Pr. ch. xxvi.

I. C. Ry. Co., U. S. C. C., N. D. Illinois,
Drummond, J., Nov. 15th, 1882; Jesup v.
Wabash, St. L. & P. Ry. Co., U. S. C. C.,

14 Bound v. South Carolina Ry. Co., 46 N. D. Ill., Gresham & Jackson, JJ., 1889.

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