the said cause stood referred, and that the said excep tions have this day been filed in the office of Isaac L. Kip, Esquire, the assistant register of this court. Dated

1816.

Yours, &c.

G. H. Sol'r for def't.

16. Arguing the exceptions.

To E. F. comp't Sol'r.

Arguing the exceptions.

The exceptions being filed, the parties must obtain copies of them from the register or assistant register, and both parties may set them down for argument at the next court, which is done in the same manner as when the cause is set down, of which we have treated before. (a) The like note of issue and notice to put the cause on the calendar, must be given the register or assistant register, and notice of argument must be served in like manner upon the opposite party eight days exclusive before the hearing, if the opposite party. resides in the same county where the hearing is to take place, and fourteen days exclusive if in a different county.(b)

It may be proper to observe, that in the note of issue, regard is had to the date of the issue of the cause, and not the date of the report nor the time of filing it; the oldest cause being always entitled to priority on the calendar until every branch of it is finally disposed of.

day of

On motion of Mr. E. F. solicitor for the complainant, it is ordered, that this cause be brought to a hearing upon the exceptions filed by the defendant to the report of I. H. Esquire, one of the masters of this court, bearing date the ,1816; and that such hearing be on the first day of the next September term of this court, to be held at the City Hall of the city of New-York, at the opening of the court on that day.

Sir,

Please to put the above cause upon the calendar for hearing upon exceptions to the master's report, at the next September term of this court; the issue of the said cause is dated 1st July, 1808.

Take notice, that I intend to bring the above cause to a hearing upon the exceptions taken by the defendant to the report of I. H. Esq. one of the masters of this court, made in this cause, and bearing date the day of 1816; and that such hearing will be on the first day of next September term of this court, to be held at the City-Hall of the City of New-York, at the opening of the court on that day, or as soon thereafter as counsel can be heard.

Dated

1816.

To G. H. Sol'r. for Def't.

E. F. Sol'r. for Compl't.

If the party excepting should neglect or omit to set down the exceptions for argument, it is presumed that the course, according to our practice, would be to call on the cause, upon the notice of the opposite party, if he had set it down and noticed it. But if neither party has set down the exceptions for argument, it may be considered doubtful what course our court would adopt. In a case coming within the knowledge of the writer, it was urged by counsel, that the party who had not excepted should set down and notice the exceptions of the opposite party, and in default of his attendance at the time noticed, the exceptions would be overruled and disallowed. No decision, however,

was made by the court upon the point, the parties having arranged it by consent.(a) But by the English practice, if the exceptions are not set down for argument by the party excepting, the report would be confirmed: filing the exceptions, and making the deposit not being alone sufficient cause against the confirmation; and the order for setting them down must likewise be obtained before the expiration of the time for confirmation.(b)

&c.

Upon arguing the exceptions, the counsel of the 17. Evidene party excepting opens and replies, and no evidence is admitted in support of the exceptions but what was laid before the master upon the objections.(c) Neither will the court permit affidavits to be received in opposition to the report made subsequent to it.(d) But if the master by his report certifies that the defendant has submitted to any thing, and the defendant excepts and insists that he made no such submission, an affidavit is necessary on his part to falsify what has been certified; for though there is no reason that the master's report should be arbitrary and conclusive, yet it will be presumed prima facie to be true, and it rests on the other side to show the contrary.(e)

If the court is satisfied that there is error in the master's report, it will direct the master to review his report.

(a) June T. 1816. Howard v. Moffat. (b) Newland, 174. 2 Mad. 390. (c) 2 Mad. 390. Primrose v. Bromley, Michaelmas Vac. 1799.

(d) Newland, 176. 2 Atk. 20.

(e) 2 Mad. 391. Allen v. Pendlebury,

in note B. 3. P. Wms. 142.

Form of deeree, allowing one exception, and sending back report to be reviewed by the master.

18. Decree upon the ex

Oct.

This cause coming on to be heard upon exceptions ceptions. taken by the defendant to the report made in this cause by I. H. Esq. one of the masters of this court, to whom the said cause stood referred, pursuant to a certain decretal order made in the said cause, bearing date the sixth day of July, 1814, and which said report bears date the thirtieth day of May, 1816, and also for further directions upon the said report,* and the subject matter of the said exceptions, and of the said further directions having been argued and debated by Mr. on behalf of the complainant, and by Mr. on behalf of the defendant, it is ordered, adjudged and decreed, and his honor the Chancellor doth this day, order, adjudge and decree, that the second exception of the defendant be allowed, and that all the other exceptions taken by the said defendant to the said report be overruled and disallowed with costs, and that the said report be confirmed as to all other matters. And further, that the said report be referred back to the said master, to alter and correct the same according to the said third further exception allowed as aforesaid, and that the original report of the said master, now on file in this court, be delivered by the

• It appears by these words, that the cause was set down for hearing upon the exceptions, and also for further directions; of which, see post, p. 278–9.