Wixom v. Davis. 1 on any misrepresentation or fraud." The complainant not only neglected to inquire of his principal whether there was a defense to the action, but waived, as the bill states, "any defense he might have had on account of the note not having been protested for non-payment;" and then, eighteen months afterwards, and after an execution had been taken out and levied on his property, and the same had been advertised for sale, files his bill for relief, without stating any excuse whatever, for not having made his defense at law, otherwise than his ignorance of the facts until a short time previous to filing the bill of complaint. The ignorance of a party of his defense at law is not a sufficient reason to warrant the Court in interfering with a judg ment, where such ignorance is connected with negligence, and might have been removed by the use of ordinary means to obtain the necessary information. Penny v. Martin, 4 J. C. R., 566; Foster v. Wood, 6 J. C. R., 87; Duncan v. Lyon, 3 J. C. R., 351; Aurial v. Smith, 1 Turn. & Russ., 121; (S. C. 11 Eng. Cond. Ch. R. 69.) This is the rule in equity where a party asks for leave to file a bill of review; Livingston v. Hubbs, 3 J. C. R., 124; Bingham v. Dawson, Jac. R., 243; (S. C. 4 Eng. Cond. Ch. R., 114;) and at law, where he applies for a new trial on the ground of newly discovered evidence. The People v. Superior Court of New York, 5 Wend. R., 121. The injunction must be dissolved. Injunction dissolved. 1 See also Barrows v. Doty, 1 Harr. Ch. R., 2; Wright r. King, id., 12, and note at the end of the case. Schwarz v. Sears. [19] *CATHARINE SCHWARZ et al. v. NATHAN SEARS et al. Where, on a reference to a Master to ascertain the amount due on a mortgage, Where a Master has erroneously refused to receive testimony, a motion should Exceptions to a Master's report, are proper only where the Master has come to THIS was a motion to set aside a Master's report, for irregularity. The complainants had filed their bill to have a statutory foreclosure of a mortgage declared null and void, and to redeem the mortgaged premises. The bill was taken as confessed against the defendants, who afterwards obtained an order of reference to a Master to compute and ascertain the amount due on the mortgage. The Master assigned a day to hear the parties, and, at the time appointed, Schwarz and his solicitor 1See Wood v. Jewett, post, 45; Emerson v. Atwater, 12 Mich., 314. Schwarz v. Sears. appeared. At first *they objected to taking any part [*20] in the proceedings before the Master, alleging that they were dissatisfied with the reference; but after remaining in his office about an hour, and conversing on the several payments that had been made on the mortgage, Schwarz, by his solicitor, proposed to prove before the Master that more payments had been made on the mortgage, by the complainants, than the several payments stated by them in their bill of complaint. The Master refused to receive the testimony; and stated, as a reason for doing so, that his report was closed, or that it was then too late. A. D. Fraser, for complainants. Witherell & Buel, for defendants. THE CHANCELLOR. The Master erred, in refusing to receive. the evidence offered by the complainants. Schwarz and his solicitor were dissatisfied with the reference, and did not intend, when they went to the Master's office, to take any part in the proceedings; but they came to a different conclusion before leaving it, and while the defendants' counsel was still present. I think the Master should, therefore, have heard the testimony. It was clearly competent for him to have done so. It was the first appearance of the parties before him, and the proceedings had not advanced so far as to render it improper. But it is insisted, by the counsel for the defendants, that the complainants cannot take advantage of the Master's error on this motion; first, because they have not excepted to the report, and secondly, because they have, by setting out various payments in their bill, precluded themselves from showing other payments; or, in other words, admitted the balance, after deducting these payments, to be the amount due on the mort gage. *When the Master has erroneously refused to receive [*21] testimony, as was the case in the present instance, a motion should be made for an order requiring him to receive it. This should be done immediately, and without waiting for VOL. I.-3 33 Schwarz v. Sears. him to make his report; and the Master, at the request of either party, should make and deliver to such party a certificate stating briefly the facts of the case, with his reasons for rejecting the testimony, that the Court may review his decision with as little delay as possible. See Hoff. Mast. in Chan. 58-59, and cases there cited. Exceptions to the report are proper only where the Master has come to an erroneous conclusion, either of law or fact, on the whole or some part of the evidence before him touching the subject matter of the reference. Tyler v. Simmons, 6 Paige R. 127. When a witness is improperly rejected, the evidence he might have given is not taken into account by the Master in making up his report, nor is it by the Court, in reviewing on exceptions the correctness of the conclusions the Master has come to from the evidence before him. The Court will not hear evidence that was not before the Master, nor undertake to decide a different case, or what the Master's report should have been on a different state of facts. With regard to the second objection, it would be a sufficient reason for refusing to send the report back to the Master to be reviewed by him, if the complainants had stated in their bill a certain sum to be due on the mortgage; or if, after setting forth the various payments, they had gone on to state they were the only payments, or all of the payments that had been made on the mortgage. There would then have been a clear and full admission of the amount due, or of all the facts necessary to ascertain it. The admission of a party, in a bill or answer, to be [22] *conclusive on the party, must be full and unequivocal. They must not be inferred from other admissions, unless the express admission is so closely connected with the one to be inferred, that to disprove the latter would disprove the former. It has already been stated there is no direct admission in the complainants' bill of the amount due on the mortgage. It is, however, to be inferred, from the various payments stated in the bill of complaint, that the amount due is the balance which will remain, after deducting these payments from the amount for which the mortgage was given. But this may, or may not Suydam v. Dequindre. be true; and to disprove it would not contradict any allegation of the bill. The complainants therefore should not be precluded from showing other payments, in addition to those stated, if they can establish such payments by clear and unquestionable proof. At the same time, the Court will not disregard the strong presumption arising against such payments from the complainants' own statement of their case; and must be satisfied beyond a reasonable doubt that they have been made, before allowing them. The proceedings before the Master were regular, and the motion to set aside the report for irregularity must be denied; but as the Master erred in refusing to hear the complainants' testimony, an order may be entered for him to review his report. *RICHARD SUYDAM et al. v. ANTOINE DEQUINDRE [*23] et al. Practice as to confirmation of Master's report under the eighty-second rule of the Court. An agreement between counsel in a case must be in writing, or reduced to the form of an order by consent, pursuant to the provisions of rule 87, in order to be noticed by the Court.' Where the proceedings before a Master have been irregular, his report may be set aside for irregularity, on motion. In such case an order should be obtained enlarging the time to except until the motion can be heard and decided. Where the Master decides against allowing a claim presented, the proper way of bringing the question before the Court, is by exception to the Master's report. Where the person who executed a trust deed for the benefit of his creditors, offered, as administrator, to prove a debt due from him to the estate, held, that it was incompetent for him to do so; but that the next of kin of the deceased, or others entitled to the money due from him as administrator, might come in and claim under such deed, as his individual creditors. 1 See Brooks v. Mead, post, 389. 1w 23 28 423 |