1 Paige Ch. 145 | New York Court of Chancery | 1828
The Chancellor :—It appears by the affidavits of the complainant’s solicitor and the report of the master, that the
It is the practice on the equity side of the exchequer, to refer exceptions to an answer to the court in the first instance ; but in the Court of Chancery a different practice prevails. The multiplicity of business in the latter court renders it impossible for the Chancellor to examine the numerous cases of exceptions to answers which must constantly occur. It is for this reason that such exceptions must, in the first instance, be passed upon by a master; and the cases which are brought before the court, by way of appeal from his decision, are comparatively few. The whole benefit of the reference to a master in the first instance will be lost, if the parties are not compelled to appear and litigate the matter before him. *It is undoubtedly the duty of the master, although he proceeds ex parte, to examine the subject with as much care as if both parties appeared and contested the matter before him. But every person, at all conversant with the proceedings of courts of justice, is aware that the arguments of counsel materially assist the minds of those who are entrusted with the decision of any matter in coming to a correct conclusion, both as to the law and the facts of the case. Hence it is, that a court of dernier resort will not hear and decide any point which has not been distinctly submitted to the court below. And, for the same reason, this court will not permit any exceptions to be taken to a master’s report which are not founded on objections distinctly made, and urged upon the consideration of the master. (Remson v. Remson, 2 John. Ch. Rep. 495; Methodist Church v. Jacques, 3 John. Ch. Rep. 78; Beame’s Orders, 258; Hues v. Lawes, Bunb. Rep. 93.
In the case of an ordinary reference to take an account, the objections to the report are to be made and urged after the master has prepared the draft of his report; and in such cases, objections may be taken by a party who has not pre