General principles on which examinations before a mas ter are to be conducted, regulating and setting the practice as to the mode of taking testimony, on an order of reference to a master. 1. The parties should make their proofs as full before pu lication as the nature of the case requires or admits, to the end, that the supplementary proofs before the master may be as limited as the rights and responsibilities of the parties will admit. 2. That orders of reference should specify the principles on which the accounts are to be taken, or the inquiry proceed as far as the court shall have decided thereon, and that the examinations before the master should be limited to such matters within the limits of the order, as the principles of the decree or order may render necessary, and as were not examined to or fully proved before publication. 3. No witness in chief, and examined before publication, nor the parties ought to be examined before the master, and no witness once examined before a master, ought to be examined again on the same matter without a special order for the purpose, and the order ought to specify the matter or extent of the examination, except however, that the accounting party may establish by his own oath, being credible and uncontradicted, small sums not exceeding twenty dollars, according to the course of the court. 4. The master ought, in the first instance, to ascertain from the parties, or their counsel, by suitable acknowledgments, what matters or items are agreed to be admitted, and then as a general rule, and for the sake of precision, the disputed items claimed by either party ought to be reduced to writing by the parties respectively, by way of charges and discharges, and the requisite proofs ought then to be taken on written interrogatories, prepared by the parties and approved by the master, or by viva voce examination, as the parties shall deem most expedient, or the master shall think proper to direct in the given case. That the testimony may be taken in the presence of the parties or their counsel, if they choose to attend, (except when by a special order of the court it is to be in secret,) and ought to be reduced to writing in cases where the master shall deem it desirable by him or under his direction, as well where a party, as where a witness is examined. 5. In all cases where the master is directed by the order to report the proofs, the depositions of the witnesses should be reduced to writing by the master, and subscribed by the witnesses, and the depositions returned with his report to the court. 6. When an examination is once begun before a master, he ought, on assigning a reasonable time to the parties, to proceed with as little delay and intermission as the nature of the case will admit of, to the conclusion of the examination; and when once concluded, it ought not to be opened for further proof without special and very satisfactory cause shown. 7. After the examination is concluded, in case of reference to take accounts, or make inquiries, the parties, their solicitors or counsel, ought to have a day assigned them to attend before the master, to the settling of his report, and make objections in writing, if any they have: and when the report is finally settled and signed, the parties ought to be confined in their exceptions to be taken in court, to such objections as were overruled or disallowed by the master. All orders of reference, if without specification of a particular master, shall be deemed to apply only to the master's permanently residing in the cities of NewYork and Albany, and an order for reference to a master elsewhere shall always be on suggestion, or on showing special cause for that purpose to the chancellor.(a) Reference to a master to examine and state an account. Special Contents. I. Of the order and directions thereon. II. Form of the order, summons, &c. III. Interrogatories filed by the complainant to collect materials for the charge. IV. The report of the master allowing the interrogatories. V. The examination and answers of the defendant to the com plainant's interrogatories. VI. Reference to the books of the defendant, and proceedings thereon. VII. The complainant's charge. VIII. The defendant's discharge. IX. Order for the examination of witnesses. XI. Arguing the cause before the master. XII. Settling the draft of the report. XIII. Objections to the draft of the report. XV. Exceptions to the report. XVI. Arguing the exceptions. XVII. Evidence, &c. XVIII. Decree of the court on the exceptions. (a) Rule 47. XIX. Further directions. XX. Final decree. Of the order-directions thereon-form thereof, and sum mons of the master. der and direc. THE object and intention of this species of reference 1, Of the or is to examine and report on the state of disputed ac- tions thereon counts, arising sometimes out of copartnership concerns and sometimes of the state of complicated accounts of individuals, who are induced to come into the court of Chancery to obtain that relief, which they could not have availed, themselves of in a court of common law. In such cases the proceedings are carried on before the master by way of charge and discharge, (that is to say,) by having the claim of the plaintiff regularly stated and proved before him; and in like manner, that of the defendant in case of his having any claim against the plaintiff, which is used by way of a set off; and on the liquidation of their mutual accounts, the balance is stated by the master in the form of a report, agreeably to the form of the order. Before the order of reference is made, the solicitor should submit the draft of it to counsel, that it may be carefully examined, and so framed as to embrace all the matters to be inquired into, for this being the master's authority to act, he is confined in the inquiries before him, strictly within the terms of the order. Every order to take an account should authorize the master to compel the production of such books, papers and documents as may be in the possession of the ties, or either of them ;(a) to examine the parties upon (a) 2 Harrison's Chan. Prae. 95. 101. par 2. Order of reference. oath in such manner as the master may think fit ;(b) and to proceed de die in diem in the reference before him. It seems to be doubted, whether without such order he can proceed de die in diem, (c) but when made, it is not imperative upon him, but subject to his discretion.(d) And in the case of a mortgage upon a bill of redemption, or in case of executors, the usual order is to account for what they might have received if it had not been for their own default. This cause coming on to be heard before his honor the Chancellor, and the same having been argued and debated by Mr. plainant, and by Mr. fendant, It is thereupon on the part of the com on the part of the deordered, adjudged and 'de creed, and his honor the Chancellor doth hereby order adjudge and decree, that it be referred to one of the masters of this court, to take and state an account between the parties complainant and defendant, touching and concerning the concerns and business of the partnership heretofore subsisting between them, under the firm of B. and D. and mentioned in the pleadings in this cause. That in stating the said accounts, each of the said parties be charged with the sums respectively drawn or received from the copartnership funds, and with interest thereon: and that the said master do (b) Cowslade v. Cornish, 2 Ves. 270. Ves. jun. 423. (d) Ib. 11 Ves. 862, 5 Ves. jun. 423. Newland's Chan. 161. |