Clark v. Willoughby

Headnote

It is irregular for a party, by new exceptions to a master’s amended report, to raise the same questions which have been considered and decided by the court o a the exceptions to the original report.

Where a master’s report, upon the hearing of exceptions to the same, is sent back to be amended, it is not open for review generally by the master; unless the court expressly authorizes him to review it generally, or the nature and scope of the exceptions allowed necessarily embrace the whole subject matter of the account originally taken by the master.

The usual order nisi, to confirm a master’s report, which is entered upon the filing of such report, becomes absolute at the expiration of eight days, except as to the matters embraced in the exceptions to the report. And the decretal order, made upon the exceptions, need not direct the report to be confirmed as to those parts thereof which are not directed to be altered or reconsidered by the master.

No exception can be taken to a master’s report where the master has merely refused to disobey the directions contained in the order of reference.

A party cannot, by excepting to a master’s report, which has been properly made pursuant to the instructions of the court as contained'in the order of reference, indirectly review the decision of the court in giving such instructions. But if he is dissatisfied with the order of reference, he must apply for a re-hearing thereof directly, or must appeal.

This was an appeal from an order of the vice chancellor of the first circuit, ordering the defendant’s exceptions, to the master’s amended report in this case, to be taken off the files of the court. The bill in the cause ivas filed against the defendant Willoughby and J. B. Clark, as the administrators of the estate of J. Fisher, to recover the, balance of an account claimed to be due to the estate of H. Fisher; and in 1835 a decretal order was made, by the vice chancellor of the first circuit, referring it to a master to take and state the account. The master made his report in February, 1843; and the defendants

took twelve exceptions to that report, which were afterwards brought to a hearing before the assistant vice chancellor. J. B. Clark, one of the defendants, died; and the cause was directed to proceed against Willoughby as the surviving administrator. Before any decision had been made by the assistant vice-chancellor, the surviving defendant presented a petition to the vice chancellor, stating that the defence had been conducted by his co-defendant, then deceased; and claiming that he had not received any of the funds of the estate, and that he ought hot to be personally charged with the amount which might be found due to the complainant. And he thereupon obtained an order authorizing him to file a cross-bill, in the nature of a bill of review and supplement. Subsequently, and on the 4th of September, 1844, the assistant vice chancellor made his decretal order upon the exceptions; allowing the sixth and ninth exceptions, and disallowing all the rest, except so much thereof as related to the admissibility of the testimony of R. Bogardus, and to the mode adopted by the master in the computation of interest. The decretal order further directed that the report should be referred back to the master, to be altered and corrected as follows: That the master, in stating the account under this decree, do strike a balance upon each and every sale, stated in the report and in schedule C. thereto annexed, on the first of January, 1822, and that he charge interest, from the time of the respective sales, upon one-third of the purchase money in the said report and schedule mentioned, as the said one-third is set fortlh in the schedule, and that he credit interest upon the respective payments made by J. Fisher to H. Fisher, on account thereof, down to the first of January, 1822, in the same manner which John Fisher had adopted in the small books, and from the dates therein computed; that the master allow commissions at the rate allowed in his original report; that he allow interest upon the balance, as thus ascertained, from the said first of January down to the date of his report; and that he also allow interest on payments made subsequent to the said first of January, from the time of such payments, as in schedule E. annexed to the original report.”

Immediately after the decision and decretal order of the assistant vice chancellor, the defendant filed a cross-bill, in the nature of a bill of review and supplement; and claiming, among other things, to review this decision of the assistant vice chancellor upon the exceptions. But the vice chancellor afterwards directed that part of the cross-bill to be expunged; so as to confine the litigation, on that bill, to the question of the personal liability of Willoughby, for the balance which might be found due, upon the confirmation of the master’s report.

In March, 1845, the master filed his amended report, in conformity to the directions of the decretal order upon the exceptions; whereupon the defendant filed two exceptions to the report, raising the same questions which had been decided against him by the assistant vice chancellor upon the hearing of the exceptions to the original report. The vice chancellor directed these exceptions to the amended report to be taken off the files. And from that order the defendant appealed to the chancellor.