Page:Federal Reporter, 1st Series, Volume 9.djvu/872

HATCH V. INDIANAPOLIS & SPRINGFIELD E. CO. 857 �After the case was put at issue it was referred to the master to take and report the testimony and a finding thereon. Both parties appeared before the master and took testimony, without objecting to the terms of the reference. Having heard the arguments of counsel on both sides, the master prepared his report and filed it in the clerk's office on the twenty-fourth day of August, 1880. This was done without notice to either party that the report was ready to be filed. The same day, or within a day or two thereafter, the complainant's counsel were fumished with a copy of the report. Nothing further was done in the case until the twenty-third day of September, when the complainant's counsel filed a written motion to recommit the report to the master for review, because the master had gone beyond the matters to him referred, had omitted to report upon divers mat- ters properly included in the reference, and had filed his report with- out submitting the same in draft to the complainant, and allowing him opportunity to make his objections thereto, and thus lay the requisite foundation, under the rules and practice established by the supreme court, for taking valid exceptions to the report if the master should overrule any of said objections. �It is urged by the complainants' counsel that, after writing out his report, and before filing it in the clerk's office, the master should have notified counsel that it was in draft, thereby aiiording them opportunity to point out supposed errors, and make objections to his conclusions, so as to give him an opportunity of considering and cor- recting his report, and that no exceptions, according to correct chan- cery practice, can be heard by the court which have not been carried in before the master. �It is also further urged by the counsel that the equity rules do not cover all the details of equity practice, and that this is evident from rule 90, which adopta the English practice in omitted cases, as it was known and understood when the equity rules were adopted. These rules were promulgated by the supreme court and took efiect on the second day of August, 1842. It seems to have been the practice in England, for some time before our equity rules were adopted, that a party should never except, unless he had flrst objected to the draft of the report before the master, and when there was no objection brought in it was allowed good cause to discharge the exception. That beihg the practice, of course the unsuccessful party was entitled to notice that the report was in draft. 2 Daniell, (2d Am. Ed.) 1483. This seems to be recognized as the correct practice in some of the courts of this country. Troy, etc., v. Corning, 6 Blatohf. 328 ; Gaines v. New ��� �