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PRACTICE.-Continued.

by the rules has expired, he must state in his application what he expects

to be able to prove by the witnesses he seeks leave to examine. Id., 384
30. A complainant seeking to set aside the rules of the Court, will be compelled

to make as strong a case, as a defendant to set aside a default. Id., 384
31. This Court will take no notice of a parol agreement between the solicitors

relating to the proceedings in a cause, but require all agreements to con-
form to the 87th rule. Brooks v. Mead.

389
32. Where complainant had failed to serve his replication on a defendant, but

the latter attended and cross-examined witnesses, it was held to be a waiver
of all objections to the replication. Id.,

389
33. Where an order to take proofs was duly entered, but notice was not

given within the thirty days required by rule 50, and the examination of a
witness was objected to before the Master on that ground, his deposition
was suppressed. Bachelor v. Nelson.

449

VII. Hearing and rehearing.

34 Where the complainants under the statute of 1840, in order to obtain the

decree sought, were required to substantiate their own title, held, that the
defense of one defendant enures to the benefit of the rest. Stockton v,
Williams.

120
35. A rehearing will not be granted where a party, by lapse of time, has lost
his right to an appeal. Benedict v. Thompson.

446
36. It is not a matter of course to allow a deed to be proved at the hearing,

but a satisfactory excuse must be given for the failure to prove it before
the Master. Bachelor v. Nelson.

449
37. The documentary evidence referred to in the 56th rule, has reference to

documents which prove themselves. But to entitle a party to use such
documentary evidence in any case, there must have been an order entered
for taking proofs, to give the opposite party an opportunity of examining
witnesses relative thereto, or of introducing countervailing proofs. Id., 449

VIII.

Reference to Master, Report and erceptions.

38. Where, on a reference to a Master to ascertain the amount due on a mort-

gage, the mortgagor appeared before the Master, and at first refused to
take a part in the proceedings, but after remaining in the Master's office
for an hour or more, and before the opposite party had left, offered to prove
certain payments on the mortgage, and the Master refused to hear the
testimony, on the ground that his report was closed, or that it was then
too late, the Court decided that the Master should have heard the testi-
mony offered. Schucarz v. Sear's.

19
39. Where a Master has erroneously refused to receive testimony, a motion
should be made for an order requiring him to receive it; and this should

Id.,

PRACTICE.-Continued.
be done immediately, and without waiting for him to make his report.

19
40. The Master should in such case, at the request of either party, make

out and deliver to the party requiring it, a certificate stating briefly the
facts of the case, and his reasons for rejecting the testimony; that the

Court may review his decision with as little delay as possible. Id., 19
41. Exceptions to a Master's 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.
Id.,

19
42. Practice as to confirmation of Master's report under the eighty-second
rule of the Court. Suydam v. Dequindre,

23
43. 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. Id.,

23
44. Where the Master decides against allowing a claim presented, the proper

way of bringing the question before the Court, is by exception to the Mas-
ter's report. Id.,

23
45. 1. If the defendant wishes to controvert any allegations in the bill, he

should put them in issue by plea or answer, and neglecting this, he is pre-
cluded from introducing evidence for that purpose before the Master, on a
reference. Ward v. Jewett.

45
46. Where a Master erroneously refuses to receive testimony, the proper way

to correct it is by motion to the Court for an order compelling him to re-
ceive the evidence, and not by excepting to his report. Id.,

45
47. The time fixed by the Master for the service of a summons, should be stated

in the summons itself, or form a part of the underwriting, where the lat-
ter is necessary to inform the party of the object of the hearing; and the
underwriting, as well as the summons, should be signed by the Master.
Whipple v. Stewart,

357
48. Where a defendant appeared before a Master at the return of a summons,

and objected to his proceeding, on the ground that no time had been fixed
for the service of the summons, it was held, that such appearance was no
waiver of his right to make such objection. Id.,

357
49. Where proceedings are to be had under an order of reference to a Master, it

is not necessary to serve a copy of such order on defendant with the Mas-

ter's summons, but he is bound to take notice of it without service. Id., 357
50. The service of a copy of a Master's summons, without showing the orig-
inal, is bad. Howard v. Palmer,

391
51. When a Master has commenced proceedings under an order of reference,
they should be completed by him; and the party obtaining the order can-

PRACTICE.-Continued.

not transfer the proceedings to another Master to be completed. Bishop
v. Williams,

423
52. It is improper for a Master, to perform any official act, as Master, in a
cause in which he is solicitor, or partner of the solicitor. Brown v. Byrne,

453
5:3. Where a bill for a divorce is taken as confessed, and a reference is had to a

Master to take proof of the material facts in the bill, he must report his

opinion on them, with the testimony taken. Emmons v. Emmons, 532
54. The object of a reference in this class of cases, is to guard against collusion

by the parties; and the Master, in addition to the questions asked by com-
plainant, should examine the witriesses himself, that he may give his
opinion understandingly. Id.,

532
See ADMISSIONS, 2. APPEAL. Costs, 2, 4, 5. ELECTION, 2. GUARDIAN

AND WARD, 3. INJUNCTION, 1, 2, 3, 4, 5, 10, 12. JUDGMENT CREDI-
TOR'S BILL, 3, 19, 20, 21. JURISDICTION, 6. LACHES, 4, 5. MORT-
GAGE, II.

PRIORITY.

See ASSIGNMENT, 2, 3. MORTGAGE, 9.

PROMISSORY NOTE.

1. To cut off the equities of the original parties to a promissory note, in the

hands of a third person, the holder must not have received it in payment
of an antecedent debt, but he must have parted with something for it at
the time, or incurred responsibilities to a third person on the credit of it.
Ingerson v. Starkueather,

316
2. The law does not raise a presumption of non-payment, but of payment when

due, unless the contrary is shown by production of the note, or other evi-
dence repelling the presumption of law when the note itself cannot be
produced. Bailey v. Gould,

478

See JURISDICTION, 3. MORTGAGE, 10, 29, 32.

PUBLIC GRANTS.

See CONSTRUCTION, 5.

RECEIVER.

See JUDGMENT CREDITOR's Bill, 17, 20, 21, LACHES. 2. MORTGAGE, 17.

REHEARING.

See PRACTICE, 35.

REGISTRY.

1. The registry of an instrument not required by law to be recorded, is notice
to no one. Wing v. McDowell,

175
2. The ordinance of 1787, for the government of the Northwest Territory, does

not declare that a deed shall be void, or that the title to land shall not pass
by it, unless such deed be recorded. The object of all registry laws is to
protect subsequent bona fide purchasers, and there is nothing in the ordi-
nance making an unrecorded deed void as against the grantor. Godfroy
v. Disbrou,

260
3. Under the act of June 9th, 1819, it is necessary for a party who wishes to

avoid the effect of a subsequent conveyance first recorded, to show that the
grantee, in such conveyance, had notice of the prior conveyance when he
took his deed, or that he had not paid a good and valuable consideration.

260
4. The presumption is, that a subsequent purchaser, who has got his deed first

recorded, is a bona fide purchaser without notice, until the contrary is
made to appear. Id.,

260

Iit.,

See MORTGAGE, IV.

STATUTE OF FRAUDS.

The delivery of possession under an agreement, is an act of part performance.
Weed v. Terry,

501

STATUTES COMMENTED ON AND EXPLAINED.

1. Revised Statutes, p. 378, § 117. Albany City Bank v. Steerens, 6
2. Revised Statutes, p. 261, $ 32. Russell v. W'aite,

31
3. Laws 1843, p. 139, relative to suits in ejectment hy mortgagees. Sterens
v. Bioun, note,

42
4. Laws 1843, p. 7, relative to alimony. Sauyer' v. Saryer, note, P.
5. Revised Statutes, p. 379, SS 122, 123, relative to appeals. Weed v.
Lyon,

77
6. Ac of June 21st, 18:37, relative to proceedings in chancery against corpo-

rations. Ittorney General v. Oakland County Bank,
7. Laws of 1840, p. 127; act relative to quieting titles to land in chane ry.
Stockton v. Williams,

120
8. Act to authorize the conveyance of real estate of minors in certain cases,
approved February 28th, 1840. Dorr, petitioner, d'c.,

145
9. Ordinance of 1787. La Plaisance Bay Harbor Co. v. City of Monroe, 155
Godfroy v. Disbrou',

260

STATUTES COMMENTED ON AND EXPLAINED.-Continued.
10. Acts relative to the Michigan State Bank. Hammond v. Michigan State
Bank,

214
11. Act of March 31st, 1840, relative to the foreclosure of mortgages. Wood-
bury v. Lewis,

256
12. Registry act of June 9th, 1819. Godfroy v. Disbrou,

260
13. Revised Statutes, 373, $ 89, relative to foreclosure of mortgages against
non-residents. Bailey v. Murphy,

305
14. Revised Statutes, 377, $ 109, relative to foreclosure in chancery. Dennis
v. Hemingway,

387
15. Act of 1840, relative to acknowledgment of deeds by femes covert. Bar-
stow v. Smith,

394
16. Revised Statutes, 379, $ 121, relative to chancery jurisdiction of Supreme
Court. Bank of Michigan v. Niles,

398
17. Appraisal Laws. Benedict v. Thompson,

446
18. Foreclosure against non-residents. Lawrence v. Fellows,

468
19. Statute of frauds of 18:33. Wood v. Sarage,

471
20. Act of Congress of March 3d, 1807, regulating grants of land in the Ter-
ritory of Michigan. Chene v. Bank of Michigan,

511
21. Statutes relative to insolvent estates. Quackenbush v. Campbell, adm.,
dc.,

525
SUPREME COURT.

See JURISDICTION, 7.

SURETY.

Where a surety, whose property had been levied on, paid a judgment confessed

by himself and principal for a usurious loan, with a knowledge of the usury,
it was held, that he might recover the amount so paid by him, of his prin-
cipal. Thurston v. Prentiss,

529

See DEBTOR AND CREDITOR, 3. MORTGAGE, 10.

TESTIMONY.

See PRACTICE, VI.

TREATY.

When a treaty makes no special provision for deciding questions of individ-

ual identity, they must be decided by the judicial tribunals of the coun-
try. Stockton v. Williams,

120

See EvIDENCE, 5. FRAUD, 1. LANDS AND LAND TITLES, 2, 3, 4.

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