the sum of 600 dollars, as the amount received by him from John Prior, whereas the said master ought to have debited and charged the complainant with a greater sum of money, to wit, with the sum of 800 dollars.

Fourth exception. For that the said master has reported, that from an examination of the allegations of the parties, and the proofs thereon, he had ascertained, that the complainant was not in the possession of the store-house mentioned in the pleadings in the said cause during any part of that period which had elapsed since the issue in the said cause, whereas the said master should have reported, that he had ascertained, that during the period above mentioned the complainant was in the possession of the said store-house, or that the defendant was not in the exclusive possession thereof, but that the same was in the possession of the complainant and defendant jointly.

In all which respects the said defendant does except to the said master's said report, and humbly appeals therefrom to the judgment of this honorable court. G. H. Sol'r for def't. L.M. of counsel.

Take notice that exceptions have been taken by the defendant to the report made in this cause by I. H. Esquire, one of the masters of this court, to whom

the said cause stood referred, and that the said exceptions 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.

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.

day of

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, 1739.

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

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

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