state of facts, but if the matter appears from any admissions in any account, or examination or proceeding in the master's office, and requires no other proof in support of it, it is usual to make a charge' only. When a state of facts is prepared, it is carried in to the master's office and a warrant on leaving' must be served upon the other parties, who may then apply for and obtain copies from the master's clerk, and if they have a counter state of facts to leave, they must proceed in the same manner. It is usual to add to a state of facts, a sort of petition, that the party may be at liberty to add to, alter, or vary the state of facts, as he may be advised; and it is presumed, that such form was originally considered necessary, to enable the party to amend his state of facts, after it has been delivered in. It is, however, now an unnecessary form, as a state of facts may be amended at any time, or a further state of facts carried in, upon leaving which, a warrant, on leaving,' should be taken out and served, as when an original state of facts is left." It has been held that an amendment should not be allowed after the case has been submitted to the master for decision.1 § 313. Evidence before a master." All affidavits, depositions, and documents which have been previously made, read or used in the court upon any proceedings in any cause or matter may be used before the master." These should, however, be regularly offered in evidence, so that the other party may have an opportunity to explain or rebut them.2 Otherwise, they cannot be referred to upon the argument, or used in support of the report. The master has power to examine under oath the parties in the cause, and any witnesses produced by them, and any creditor or other person coming in to claim before him. The evidence should be taken down in writing by 3 Daniell's Ch. Pr., ch. xxvi. 4 Clyde v. Richmond & D. R. Co., 59 Fed. R. 394; Central Tr. Co. v. Marietta & N. G. Ry. Co., 75 Fed. R. 41. § 313. Rule 80. But see Hammacher v. Wilson, 32 Fed. R. 796. Upon the reference of a claim of a judgment creditor for a preference, his judgment roll is admissible to prove the date when he began the suit, the nature of his cause of ac tion and the amount of damages re- 3 Ibid. 4 Rule 77. 8 the master, or by some one in his presence, so that the court may use the same. Witnesses who live in the district may, upon due notice to the opposite party, be summoned to appear before a master, by a subpoena issued from the clerk's office in blank and filled by the party applying for the same, or by the master, requiring the attendance of the witnesses at a time and place therein specified. Such witnesses are entitled to the same compensation as for attendance in court. A refusal to appear in obedience to such a subpoena is a contempt punishable by the court or a judge thereof by an attachment issued upon the master's certificate. Upon the 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 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. 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. The report may be either general, covering all the matters referred; or special, confined to a part which can be conveniently severed from the rest, and where it is for the interest of persons thereby affected not to delay till the whole case is determined. 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. As soon as the report is ready, the master should file the 4 Fischer v. Hayes, 16 Fed. R. 469; Story v. Livingston, 13 Pet. 359. 5 Fischer v. Hayes, 16 Fed. R. 469; Jennings v. Dolan, 29 Fed. R. 861. "Hatch v. Indianapolis & S. R. Co., 9 Fed. R. 856. against public policy and will not be enforced. Finance Committee V. Warren (C. C. A.), 82 Fed. R. 525. The master's compensation is charged upon and borne by such of the parties to the cause as the court may 7 Daniell's Ch. Pr. (1st Am. ed.) direct (Rule 82). A master's com 1475, 1476. 8 Rule 82. 9 Rule 82; Erie Ry. Co. v. Heath, 10 Blatchf. 214; Middleton v. Bankers' & M. Tel. Co., 32 Fed. R. 524. In an extraordinary case the Circuit Court of Appeals may review the order fixing a master's compensation. Brown v. King. 62 Fed. R. 529, where $12,500 for work during two years was held excessive; Finance Committee v. Warren (C. C. A.), 82 Fed. R. 525, where it was held that an allowance of $4,000 to a master for the sale of a railroad one hundred and twelve miles long was excessive, and that $2,500 was ample compensation. Much larger amounts have, however, frequently been granted. See Erie R. Co. v. Heath, 10 Blatch. 214. The court may modify an order fixing the annual compensation of a master even after the service has been performed. Pleasants v. Southern Ry. Co., 93 Fed. R. 93. An agreement between the parties as to the compensation of a master when made before his appointment is pensation upon an accounting is usually imposed in the first instance upon the accounting party. Urner v. Kayton, 17 Fed. R. 539; s. c., 17 Fed. R. 845. It has been held that each party should pay for the expense, including the stenographer's fees, of taking his own examinations, both direct and cross, and for adjournments taken at his request, when a charge is properly made for the same. Where a session is partly taken up with direct and partly with cross-examination, or partly by argument, the expense must be equally divided. Charges for time occupied in the consideration and decision of questions involved and in the preparation of the report must be equally divided. Brickill v. Mayor, etc. of N. Y., 55 Fed. R. 565. 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 (Rule 82). It seems, how same in the clerk's office; and the clerk should enter the day of the return in the order book.10 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." Upon consent of the parties 12 or at the request of the master the court may allow the report to be withdrawn for the correction of a mistake by him; but in such a case it is improper for him to reverse his rulings upon the law or the evidence, except upon notice to all parties affected, and after a hearing of any of them who wish to be heard.13 § 315. Exceptions to masters' reports.- Exceptions to the report of a master must be filed within one month from the filing of the report. No exception will lie to a ruling before the report was made 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. 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 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 ever, 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. Mallory Mfg. Co. v. Fox, 20 Fed. R. 409. The compensation of a master appointed to determine claims against property in the custody of the court is usually paid from the proceeds of such property, and he usually has a preference above all liens upon the same. Pennsylvania Co. v. Jacksonville, T. & K. W. Ry. Co., 93 Fed. R. 60. 10 Rule 83. 13 National F. B. & P. Co. v. Dayton P. N. Co., 91 Fed. R. 822. § 315. 1 Rule 83; Fidelity Ins. & S. D. Co. v. Shenandoah L Co., 42 Fed. R. 372. But see Central T. Co. v. Wabash, St. L. & P. Ry. Co., 27 Fed. R. 175. 2 Troy L. & N. Factory v. Corning, 6 Blatchf. 328; Fischer v. Hayes, 16 Fed. R. 469; Story v. Livingston, 13 Pet. 359. But see Hatch v. Indianapolis & S. R. Co., 9 Fed. R. 856; Jennings v. Dolan, 29 Fed. R. 861. 3 Hatch v. Indianapolis & S. R. Co., 9 Fed. R. 856; Fidelity I. & S. D. Co. 11 Rule 83; Burns v. Rosenstein, 135 v. Shenandoah I. Co., 42 Fed. R. 372. U. S. 449, 455. 12 W. U. Tel. Co. v. Am. Bell Tel. Co., 50 Fed. R. 662. See Jennings v. Dolan, 29 Fed. R. 861. 4 Jennings v. Dolan, 29 Fed. R. 861. Fischer v. Hayes, 16 Fed. R. 469. Exceptions to that the court can without difficulty find it. 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. 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. If the court is in session when exceptions are filed, they are argued at that session; 10 otherwise at the next session." Every presumption is in favor of the correctness of the decision of a master.12 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.13 Where the order directed the master to state the facts, his findings have as much weight as the verdict of a jury." Where the issues are by stipulation tried before a master, only questions of law can be reviewed.15 Where after a master's report had been 6 Harding v. Handy, 11 Wheat. 103; Foster v. Goddard, 1 Black, 506; Greene v. Bishop, 1 Cliff. 186; Stanton v. Alabama & C. 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 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." "All that is necessary is that the exception should distinctly point out the finding and the conclusion of the master which it seeks to reverse." Foster v. God dard, 1 Black, 506, 509, per Swayne, J. See Central Tr. Co. v. Wabash, St. L. & P. Ry. Co., 57 Fed. R. 441, 444. 7 Boesch v. Graff, 133 U. S. 697. 8 Fidelity Ins. & S. D. Co. v. Shenandoah Iron Co., 42 Fed. R. 372, 374. 9 Marks v. Fox, 18 Fed. R. 713. 10 Rule 83. 11 Rule 83. 12 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. 13 Welling v. La Bau, 34 Fed. R. 40; Mason v. Crosby, 3 W. & M. 258; Gottfried v. Crescent Brg. Co., 22 Fed. R. 433; Jaffrey v. Brown, 29 Fed. R. 476; Central Tr. Co. v. T. & St. L. Ry. Co., 32 Fed. R. 448. 14 Davis v. Schwartz, 155 U. S. 631. 15 Shipman v. Ohio Coal Exchange |