Ballard v White
| Jurisdiction | England & Wales |
| Judgment Date | 31 March 1843 |
| Date | 31 March 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 66
HIGH COURT OF CHANCERY
S. C. 7 Jur. 506.
[158] ballard v. white. March 27, 31, 1843. [S. C. 7 Jur. 506.] Exceptions to the Master's report ought to follow in form as well as in substance the objections carried in before the Master. Upwards of thirty separate objections were taken to the draft report, in respect of the same number of items allowed in an account; one exception, including all the objections, was taken to the report, for that the Master ought to have disallowed the same items, or some or one of them. Held, that this was informal, for the exceptant requiring the judgment of the Court on every item, the exceptions should have been in the same form as the objections, and thereby have called for such judgment; that this exception must be allowed if it should be found that any item ought to have been disallowed; but that, notwithstanding the informality, the Court might, if it thought fit, hear the exception upon all the items, and make a special declaration as to any or all which had been improperly allowed. An infant Plaintiff coming of age during the progress of the cause, and disapproving of the proceedings, cannot appear in the proceedings by counsel other than those who appear for the Plaintiffs generally; he can only complain of or repudiate the proceedings by making them the subject of a special application. Under a decree to take the accounts of an estate, in a suit against the administrator, the Master allowed the Defendant various sums in his discharge, and among them allowed upwards of thirty different items, varying in amount from 5s. to 80, to which the Plaintiffs objected ; and as to which they carried in distinct objections to the draft report for every item complained of. The Master overruled the objections. Two exceptions were taken by the Plaintiffs to the report. First exception: For that the Master had found that the Defendant had laid out and expended several sums of money, amounting together to ,467, 14s. 6d., in the funeral of the intestate, in obtaining letters of administration to his estate, in discharge of debts due from him at the time of his decease, and otherwise on account of his personal estate, the particulars whereof the Master had set forth in the schedule to his report; whereas he ought to have found that the monies so laid out and expended amounted to a less (1) By the affidavit read the deponent stated "that he examined each copy which he so served as aforesaid with the draft from which the ingrossment of the said bill was made, and that deponent examined the said ingrossment with the said draft, and filed the same at the Eecord and Writ Clerk's Office, and that no alteration was made in the said draft, from the time when he so examined and filed the said ingrossment to the time he so examined the said copies as aforesaid, nor was the said draft out of the deponent's custody between the time of such respective examinations." See on this order, Welch v. Welch, vol. 1, p. 593. (2) The order had been sometimes made on the simple averment in the affidavit that the copies served were " true copies " of the bill, without shewing how they were proved to be so. 2 HARE, 159. BALLAKD t. WHITE 67 sum than 467, 14s. 6d. Second exception: "For that the Master has in and by his report, and the second schedule thereto, allowed to the Defendant the several sums of money specified in the schedule hereto annexed; whereas he ought to have disallowed the same sums of money or some or one of them, or some part or parts of them, or some or one of them." [159] Mr. Eoupell, in support of the exceptions. Mr. Watson appeared for two of the three Plaintiffs, and stated that they were infants at the time of the institution of the suit, and had since come of age, and repudiated the present proceedings, by exception. Mr, Eoupell cited Acres v. Little (7 Sim. 138), and insisted that the parties, in order to interpose, ought to have moved that their names should be struck out of the record as Plaintiffs. the ViCE-CHANCELLOE [Sir James Wigram] said that the Plaintiffs could not sever, but must be heard by the same counsel. There was nothing to shew that the proceedings had not been or were not regular, and if any objections to the proceedings were to be taken, or the frame of the suit was proposed to be altered, it must be upon an application to the Court for that specific purpose. Mr. Goodeve, for the Defendant, objected to the form of the exceptions as being necessarily inconclusive, inasmuch as any decision to which the Court might come, except that of overruling both exceptions, would still leave the case wholly undecided. The exceptions should have followed the form of the objections, every item being made to form a distinct subject of exception. The first exception, moreover, was so framed that, even if it was overruled, the case must be again opened in order to proceed with the consideration of the second exception; 2 Smith, Pr. pp. 341, 342; 2 Dan. Ch. Pr. 957. [160] Mr. Eoupell and Mr. G. L. Eussell, for the exceptions, insisted that they were correct in form; and that, to make every item the subject of a separate exception, would justly have been'complained of as oppressive. Gompertz v. Best (1 You. & Coll. 114). The Court might as conveniently dispose of the whole case by considering the items in the schedule successively, and making a special order, as if there were distinct exceptions. Moore v. Langford (6 Sim. 323) and Tench v. Cheese (1 Beav. 571) were also cited. the vice-chancellor [Sir James Wigram]. The Plaintiffs in this case carried in objections to the allowances made by the Master to the Defendant: these objections were upwards of thirty in number, and were overruled by the Master. The general, I may say nearly the invariable, practice, where the draft of the Master's report has been objected to, is to convert the objections into exceptions. The rule, which is stated in all the books of practice, is that the party who excepts to the report is bound to make his exceptions correspond with his objections, so that, at least, they may be the same in substance. I doubted, and still, to some extent, doubt...
To continue reading
Request your trial