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. 16 Trifling errors in a master's statement of an account will be disregarded." Where upon an accounting the court sustained an exception by one of several persons having a common interest in the fund, and thus surcharged the account, it was held by two State courts that all persons interested took the benefit of the exception and of the increase of the fund, and that the decree should not merely add to the share of the exceptor his proportion of the amount surcharged.18 Exceptions to a master's report are only proper when he has made an erroneous decision upon the matters referred to him.19 An irregularity in his appointment cannot thus be questioned.20 The remedy for an irregularity in his proceeding, or for his neglect to report upon all the matters referred to him, is a motion to set aside the report, or to refer the same back to the master." 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.22 Where exceptions to the report of a master are sustained, the court has discretionary power to order a re-reference for further testimony or to enter a final decree upon the facts appearing in the case; and an appellate court will not ordinarily interfere with the exercise of such discretion.23 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. The party who files exceptions is 24 (C. C. A.), 70 Fed. R. 652; Farrar v. Bernheim (C. C. A.), 75 Fed. R. 136. 16 Duden v. Maloy, 43 Fed. R. 407. 17 Taylor v. Robertson, 27 Fed. R. 537. 18 Martin's Appeal, 33 Pa. St. 395; Landis v. Scott, 32 Pa. St. 495; Estate of Chalmers, N. Y. L. J. of April 8, 1897. 19 Taylor v. Robertson, 27 Fed. R. 537. 20 Seaman v. N. W. M. L. Ins. Co., 86 Fed. R. 493, 497; N. Y. M. L. Ins. Co. v. Seaman, 80 Fed. R. 357. 21 Tyler v. Simmons, 6 Paige Ch. (N. Y.) 127. 22 Witters v. Soule, 43 Fed. R. 405; Kelsey v. Hobby, 16 Pet. 269; Parks v. Booth, 102 U. S. 96. 23 Mosher v. Joyce, 51 Fed. R. 441. 24 Celluloid Mfg. Co. v. Cellonite Mfg. Co., 40 Fed. R. 476, 478. obliged to pay costs for each exception overruled, and is entitled to costs for each exception allowed.25 The amount of costs is fixed by the court in accordance with a standing rule in each circuit. By leave of the court exceptions may be amended.27 An objection to a master's report not raised below will ordinarily be considered upon an appeal.29 The review of a master's report upon a receiver's account is described in a preceding section.29 26 § 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 decree or order for the sale of the property by a master before the rights of the parties under the several mortgages have been fully ascertained and determined. 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.3 Pending an appeal, the court which ordered the sale may postpone the same, although no supersedeas has been obtained and the term at which the decree was entered has expired. A foreclosure sale should not be ordered until the amount due from the mortgagor has been judicially determined so that he and junior incumbrancers may be able to intelligently decide whether to redeem. A substantial error in such an adjudication will ne 25 Rule 84. 26 Rule 84. 27 Jones v. Lamar, 89 Fed. R. 585. 28 Topliff v. Topliff, 145 U. S. 156, 173. 29 Supra, § 256. § 316. 1 Pennsylvania R. Co. v. Allegheny V. R. Co., 42 Fed. R. 82, 85; First Nat. Bank v. Schedd, 121 U. S. 74. The fact that the title to land is being litigated in another court is not an insuperable objection to its judicial sale. Fidelity L, Tr. & S. D. Co. v. Roanoke Iron Co., 84 Fed. R. 752. 4 Bound v. South Carolina Ry. Co., 55 Fed. R. 186. As to laches which will defeat an application for an injunction to stay a sale, see Duncan v. Atlantic M. & O. R. Co., 88 Fed. R. 840; Foley v. Guaranty Tr. & S. D. Co. (C. C. A.), 74 Fed. R. 759. Chicago, D. & V. R. Co. v. Fosdick, 106 U. S. 47. It has been said that a decree is not defective where it fails to adjudicate before the sale the amount of costs, counsel fees and compensation to the trustee which it requires the mortgagor to pay in order to redeem the property. Grape 2 First Nat. Bank v. Schedd, 121 C. C. Co. v. Farmers' L. & Tr. Co. (C. C. U. S. 74. 3 Burlington, C. R. & N. Ry. Co. v. Simmons, 123 U. S. 52, 55. A.), 63 Fed. R. 891, 896. See Alabama & G. Mfg. Co. v. Robinson (C. C. A.), 72 Fed. R. 708, 712. It is customary A sale of real estate beyond cessitate a reversal of the decree. the jurisdiction of the court is void unless confirmed by the owner. 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. 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 the agent of all the parties to the suit.10 The particulars, conditions and notices of the sale are prepared by him, subject to the approval of the master, when not prescribed in the order for the sale." They should be entitled in the cause, and should contain a general description of the nature and situation of the property; and if land is sold, the notices should state in whose possession it is or has lately been.1 The conditions of the sale should be in general similar to those annexed to ordinary sales of similar property in the vicinity.13 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 to order a reference to a master to determine the amount due, but the court may make the computation without a master's aid. Brown v. Grove (C. C. A.), 80 Fed. R. 564. 6 James v. Milwaukee & M. R. Co., 6 Wall. 752; Chicago, D. & V. R. Co. v. Fosdick, 106 U. S. 47; Alabama & G. M. Ry. Co. v. Robinson (C. C. A.), 56 Fed. R. 690; Grape C. C. Co. v. Farmers' L. & Tr. Co. (C. C. A.), 63 Fed. R. 891. 7 Lynde v. Columbus, C. & I. C. Ry. Co., 57 Fed. R. 993. See Carpenter v. Strange, 141 U. S. 87, 106; Muller v. Dows, 94 U. S. 444, 449; infra, § 319. 8 Pennsylvania R. Co. v. Allegheny V. R. Co., 42 Fed. R. 82, 86. It has been held that in a suit in equity by an assignee in bankruptcy to recover assets of the bankrupt, a District Court may order the real property sold free of all incumbrances. In re Mead, 58 Fed. R. 312. 9 Daniell's Ch. Pr., ch. xxvi; Hutson v. Sadler, 31 W. Va. 358; Bound v. South Carolina Ry Co., 46 Fed. R. 315. 10 Dalby v. Pullen, 1 R. & M. 296. But see Blossom v. Railroad Co., 3 Wall. 196, 207. 11 Daniell's Ch. Pr., ch. xxvi. See Bacon v. N. W. M. L. 14 in the due course of his receivership. The sale should be advertised at least twice, and the advertisement should give such a description of the property as clearly to indicate and identify it.15 A recent statute provides: "That hereafter no sale of any real estate under any order, judgment or decree of any United States court shall be had without previous publication of notices of such proposed sale being ordered and had once a week for at least four weeks prior to such sale, in at least one newspaper printed, regularly issued and having a general circulation in the county and State where the real estate proposed to be sold is situated, if such there be." 16 The master has power to adjourn the sale, even after the auction has begun and bids have been made.17 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.18 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.19 If the property to be sold consists of a railroad and its appurtenances, it 14 Lake S. L. Co. v. Brown, Bonnell held that where a sale is adjourned & Co., 44 Fed. R. 539. 15 Kauffman v. Walker, 9 Md. 229; Merwin v. Smith, 1 Green Ch. (N. J.) 182; Daniell's Ch. Pr., ch. xxvi. See Ray v. Oliver, 6 Paige (N. Y.), 489; Treadwell v. United V. C. Co., 47 App. Div. (N. Y.) 613. 16 27 St. at L. 754. It has been held that such an advertisement once a week for only twenty-seven days before the sale is not a compliance with the statute, Wilson v. N. Y. Mut. L. I. Co., 65 Fed. R. 38; and that a foreclosure sale cannot be collaterally attacked in another suit filed by creditors against the mortgagees and others because of the failure of the decree to comply with a State statute regulating the time allowed for a redemption before a sale. Andrews v. National F. & P. Works (C. C. A.), 77 Fed. R. 774. A State court has no advertisement of the adjournment is required. White v. Zust, 28 N. J. Eq. 107. It has been held that a party waives any objection founded upon a failure to comply with this statute, by not opposing a motion to confirm the sale, of which notice has been served upon his attorney in the suit. Nevada Nickel Syndicate v. National N. Co., 103 Fed. R. 391. 17 Blossom v. Railroad Co., 3 Wall. 196. 18 Daniell's Ch. Pr., ch. xxvi. The decree for the sale need not name the master who is to conduct it; and in case of such an omission the sale can be conducted by any master in whose hands plaintiff places a certified copy of the decree. Seaman v. N. W. M. L. L. Co., 86 Fed. R. 493, 497. 19 Daniell's Ch. Pr., ch. xxvi. 22 is usually sold as a single thing.20 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."1 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 $25,000; 2 in another $50,000,23-and that no bid be considered unless it exceed a specified amount.24 Every subsequent bidder must do like the first until no person will advance on the last bid, when the latter is declared the purchaser; 25 unless there has been a reserved bidding fixed, when if the last bidding does not reach the reserved one, the person conducting the sale declares that the lot has not been sold, but has been bought in by the persons interested in the estate. The court may authorize payment of a bid in bonds secured by the mortgage which is foreclosed." It seems that the court may direct that the sale be made for cash, in a suit under a railroad mortgage which provides that the purchasemoney may be paid in bonds.28 In general, the courts are prone to construe provisions in a trust deed regulating the time and manner of the sale as applicable only to a sale under the power without an application to the court; and unless 20 Bound v. South Carolina Ry. Co., 46 Fed. R. 315; Compton v. Jesup (C. C. A.), 68 Fed. R. 263. This was done where a mortgage secured three series of bonds, each of which had a prior lien upon one of three divisions of the railroad and a subordinate lien upon the other two. Farmers' L. & Tr. Co. v. Cape F. & V. V. Ry. Co., 82 Fed. R. 344. The ordinary rule that mortgaged premises must be sold in the inverse order of their alienation is not strictly applied when it would produce an inequitable result. Phila. M. & Tr. Co. v. Needham, 71 Fed. R. 597. See Riggs v. Clark, 71 Fed. R. 560; Central Tr. Co. v. Sheffield & B. C. L & Ry. Co., 60 Fed. R. 9. 23 Turner v. L, B. & W. Ry. Co., 8 Biss. 315. 24 Farmers' L. & Tr. Co. v. Houston & T. C. R. Co., Pardee and Sabin, JJ., May, 1888; Hervey v. Illinois Mid. Ry. Co., U. S. C. C., S. D. Ill., June 10, 1886; Roosevelt v. Columbus, C. & L. C. Ry. Co., U. S. C. C., N. D. Ill., Drummond, J., Nov. 15, 1882; Jesup v. Wabash, St. L. & P. Ry. Co., U. S. C. C., N. D. Ill., Gresham and Jackson, JJ., 1889, and many other foreclosure cases. 25 Daniell's Ch. Pr., ch. xxvi. 27 Ketchum v. Duncan, 96 U. S. 659. As to payment in stock, see Treadwell v. United V. C. Co., 47 App. Div. 21 Bound v. South Carolina Ry. Co., 613, 619. 46 Fed. R. 315, 316. 28 Farmers' L. & Tr. Co. v. G. B. & 22 Farmers' L. & Tr. Co. v. G. B. & M. R. Co., 10 Biss. 203; s. C., 6 Fed. R. |