mentary evidence properly submitted at the hearing by stipulation or otherwise is generally to be considered in the same light as evidence taken by deposition.197 But, as already shown, admissions of the parties are often given greater weight and effect than ordinary evidence, and are usually conclusive when made in judicio.198 Affidavits for preliminary action or as a foundation for ulterior proceedings are also often given conclusive effect for such purpose, 199 but not usually on final hearing. Indeed, ex parte affidavits are seldom received and considered on the final hearing, and, as there has been no opportunity for cross-examination they ought not, in any event, under ordinary circumstances, when contradicted, to be given the weight of evidence taken and heard in the usual course. § 3217. Objections and exceptions. As a general rule, all the evidence offered should be received in the first instance in order to preserve it in the record,200 and where there is doubt as to whether a question is proper the witness should generally be required to answer.201 Objections should be made, however, when the testimony is offered, and should be incorporated in the record, so that they may be passed upon later.202 Yet it has been held proper to reserve until the hearing objections going to the competency,203 or relevancy of testimony.204 The objections should clearly state the particular testimony objected to and the ground of the objection.205 Objec 107 Stone v. Welling, 14 Mich. 514. 198 See ante, § 3193, admissions. See also, Domville v. Solly, 2 Russ. 372; Gresley Eq. Ev. 459, 460; 3 Greenleaf Ev., § 373. 199 3 Greenleaf Ev., §§ 384, 385; 1 Daniell Ch. Pr. (5th Am. Ed.) 940. They have been received as satisfactory proof of exhibits at the hearing. 200 Bilz v. Bilz, 37. Mich. 116; Parisian Comb Co. v. Eschwege, 92 Fed. 721; Lloyd v. Pennie, 50 Fed. 4; Blease v. Garlington, 92 U. S. 1. 201 Whitehead &c. Co. v. O'Callahan, 130 Fed. 243. 202 Williams v. Thomas, 3 N. Mex. 324, 9 Pac. 356; Maxim-Nordenfelt &c. Co. v. Colt's Patent &c. Co., 103 Fed. 39; De Roux v. Girard, 90 Fed. 537. See also, Johnson v. Meyer, 54 Ark. 437, 16 S. W. 121; Williamson v. Johnson, 5 N. J. Eq. 537; Vol. II, §§ 1180-1185. 203 Goelz v. Goelz, 157 Ill. 33, 41 N. E. 756; Kennedy v. Meredith, 3 Bibb (Ky.) 465; Williams v. Vreeland, 30 N. J. Eq. 576; Williams v. Maitland, 36 N. Car. 92. 204 Williams v. Vreeland, 30 N. J. Eq. 576; Jones v. Spencer, 2 Tenn. Ch. 776; Diamond Drill &c. Co. v. Kelly, 120 Fed. 282. tions are generally regarded as waived unless the attention of the chancellor is called to them,206 and will not be considered on appeal.207 So there may be a waiver by other conduct inconsistent with any objection;208 and a cross-examination with knowledge of the incompetency of the witness and without objection has been held to be a waiver.209 But it is said that an express waiver of an objection must be entered on the record.210 The subject of objections and exceptions where there has been a reference to a master will be considered in another chapter. 200 Babcock v. Carter, 117 Ala. 575, 23 So. 487, 67 Am. St. 193; Seals v. Robinson, 75 Ala. 363; Brewer v. Browne, 68 Ala. 210; Skinner v. Campbell, 44 Fla. 723, 33 So. 526; Clarke v. Saxon, 1 Hill Eq. (S. Car.) 69; Van Namee v. Groot, 40 Vt. 74. 207 Pinney v. Pinney, (Fla.) 35 So. 95; Ocala Foundry &c. Works v. Lester, (Fla.) 38 So. 56, 64. See also, Hillier v. Farrell, 185 Mass. 434, 70 N. E. 424. But compare, Goelz v. Goelz, 157 Ill. 33, 41 N. E. 756. As elsewhere shown, the admission of improper evidence is often regarded as harmless, within limits, CHAPTER CLVII. REFERENCE TO MASTER. Sec. 3218. Discretionary. 3219. In what cases. 3220. Hearing on bill and answerMaster not to take testimony. 3221. Issues to be first determined Scope of order. Sec. 3227. Master's report. 3228. Submitting draft of report. 3230. Irregularities in proceedings. 3222. Duty of parties to prosecute 3233. Action on exceptions. reference. 3223. Evidence before master. 3224. Objections to evidence. 3234. Recommittal-Re-reference. 3235. Correction of report - Confirmation. 3225. Taking additional testimony 3236. Weight to be given master's after time fixed. 3226. When evidence should be re ported. finding. § 3218. Discretionary.-Whether a reference to a master shall be made is a matter that is generally left very largely to the discretion of the court. Where a reference to a master is proper it is generally within the power of the court in its discretion either to order a reference, even without consent of the parties,1 or to determine the matter without a reference.2 In the absence of some special rule to that 1 Williams v. Benton, 24 Cal. 424; Smith v. Rowe, 4 Cal. 6; State v. Orwig, 25 Iowa 280; State v. McIntyre, 53 Me. 214; Nephi Irr. Co. v. Jenkins, 8 Utah 369, 31 Pac. 986; Shiras Eq. Pr. 41. See also, Bond v. Welcomes, 61 Minn. 43, 63 N. W. 3; Green v. Green, 50 S. Car. 514, 27 S. E. 952, 62 Am. St. 846; Commercial Banks v. McAuliffe, 92 Wis. 242, 66 N. W. 110; note in 79 Am. Dec. 207. 2 Levert V. Redwood, 9' Port. (Ala.) 79; Bryan v. Morgan, 35 Ark. 113; Bussey v. Bussey, 71 Mich. 504, 39 N. W. 847; Barnebee v. Beckley, 43 Mich. 613, 5 N. W. 976; Goodrich v. Parker, 1 Minn. 195, exceptions; Powell v. Kane, 5 Paige (N. Y.) 265, impertinence; Fortune v. Watkins, 94 N. Car. 304; Goddard v. Leech, Wright (Ohio) 476. In re Weed, 163 Pa. St. 600, 30 Atl. 278; Phillips's Appeal, 68 Pa. St. 130; Buchanan v. Alwell, 8 Humph. (Tenn.) 516; New York Cent. Trust Co. v. Madden, 17 effect in the particular jurisdiction a reference is not strictly a matter of right, and it has been held that it should not be made on the motion of a party as of course. A party is entitled to the judgment of the court especially upon issues of law, and the court should not abdicate its functions by referring the whole cause to a master to try and determine all the issues, although it may do so where the parties consent. The constitution or law of the particular jurisdiction may also prohibit a reference to a master, and a constitutional provision that "the testimony in causes in equity shall be taken in like manner as in cases at law," has been held to have that effect." But in the same jurisdiction under the statute a compulsory reference may now be ordered in cases where the taking of a long account is involved either in law or equity.8 § 3219. In what cases.-References are most often made in cases of accounting or where it becomes necessary to investigate and take C. C. A. 236, 70 Fed. 451; Kelley v. 3 * Manning v. Ludington, 6 Ohio Dec. (Reprint) 620, 7 Am. L. Rec. 117, and authorities in last two notes, supra. • Barnes V. Haynes, 16 Gray (Mass.) 34; Faitoute v. Haycock, 2 N. J. Eq. 105; Corning v. Baxter, 6 Paige (N. Y.) 178; Manning v. Ludington, 6 Ohio Dec. (Reprint) 620, 7 Am. L. Rec. 117. 5 Early Times &c. Co. v. Zeiger, (N. Mex.) 66 Pac. 532; Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Garinger v. Palmer, 61 C. C. A. 436, 126 Fed. 906; Walker v. Kinnare, 22 C. C. A. 75, 76 Fed. 101. But see, Littlejohn v. Regents, 71 Wis. 437, 37 N. W. 346; Jordan v. Warner's Estate, 107 Wis. 550, 83 N. W. 946. Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355; Haggett v. Welsh, 1 Sim. 134, 2 Eng. Ch. 134. See also, Memphis v. Brown, 20 Wall. (U. S.) 289. 'Brown v. Runals, 14 Wis. 693, 697. 8 Winnebago County V. Dodge County, (Wis.) 106 N. W. 255. And in most jurisdictions a compulsory reference may be made in a proper case in equity. See Clarkson v. Hoyt, (Cal.) 36 Pac. 382; Smith v. Pollock, 2 Cal. 92; Grim v. Norris, 19 Cal. 140, 79 Am. Dec. 206; Huston v. Wadsworth, 5 Colo. 213; Wilson v. Union Distilling Co., (Colo.) 66 Pac. 170; Mackenzie v. Flannery, 90 Ga. 590, 16 S. E. 710; Klutts v. McKenzie, 65 N. Car. 102; Galbraith v. McCormick, 23 Kans. 706; Creve Coeur &c. Co. v. Tamm, 138 Mo. 385, 39 S. W. 791; Burt v. Harrah, 65 Iowa 643; St. Paul &c. R. Co. v. Gardner, 19 Minn. 132, 18 Am. R. 334; Camp v. Ingersoll, 86 N. Y. 433; Green v. Green, 50 S. Car. 514, 27 S. E. 952, 62 Am. St. 846. In many of these cases it is held that the constitutional provision as to right of trial by jury does not apply to prevent a reference. an account. But there are other cases in which a reference is frequently made. In a recent text-book it is said: "Wherever it is necessary, in the progress of a cause, to take an account, or to investigate the title of persons to property affected by the suit, or to make any other inquiries necessary to properly inform the court so that it may be in a position to determine and adjust the rights of the parties in interest; or where some special ministerial act is to be done, as to sell property; and in other similar cases, the court will refer the particular matter to a master in chancery, who is an officer of the court, and whose duty it is to thereupon comply with the order of the court, and report to the court the facts of such compliance." A more definite, and at the same time more comprehensive, statement is as follows: "The matters which are ordinarily referred to masters in chancery are inquiries, as to whether pleadings or other proceedings in a suit in equity contain impertinence or scandal; as to who are the heirs, next of kin, creditors, or members of a particular class of legatees of a person whose estate is in the hands of the court for distribution; as to whether the title to real estate is good; and as to the state of the law of a foreign country; as to whether one of two books or other publications is pirated from the other; or as to the amount of damages suffered by the granting or withholding of an injunction; the taking of accounts; the computation of interest; the settlement of conveyances, and other deeds; the selling of property; the appointment of trustees, receivers and guardians; and the superintendence of the performance of their duties by receivers."10 11 § 3220. Hearing on bill and answer-Master not to take testimony. As already intimated it is usually within the discretion of the court after the issues are formed to order a reference to take testimony. But where the complainant has the cause set down for hearing upon the bill and answer, and the answer is to be taken as true, according to the rule elsewhere stated, it has been held that the facts are to be ascertained from the bill and answer alone and that the court should not refer the cause to a master to take testimony and report.12 Shipman Eq. Pl. 109. See also, S. E. 818; Farmers' Mut. Ins. Assoc. Beach Mod. Eq. Pr., §§ 672, 680, et seq.; Adams Eq. (8th Ed.) 378, 379. 10 Foster Fed. Pr., § 307. 11 Grob v. Cushman, 45 Ill. 119; Davis v. Davis, 30 Ill. 180; Barnwell v. Marion, 58 S. Car. 459, 36 v. Berry, 53 S. Car. 129, 31 S. E. 53; McSween v. McCown, 21 S. Car. 371; Bank v. Fenwell, 55 S. Car. 379, 33 S. E. 485. 12 Irvine v. Eptein, (Fla.) 33 So. 1003; Byrd v. Belding, 18 Ark. 118; |