
    Jacob S. Van Ness, appellant, v. Ephraim Van Ness, respondent.
    1. The practice in this state is, on a reference to a master, for such officer to take the testimony and hear the arguments of counsel, and thereupon to make up and file his report without notice to the respective counsel.
    2. An order being made to re-refer an account stated and filed by a master, “for the purposes and with the powers mentioned in-the original order of reference, to state an account between the parties with particularity, and that the said master have power to take further evidence,”—Held, that such order gave authority to the parties to introduce such as they respectively deemed requisite.
    On appeal from a decree of the vice-chancellor, reported in Van Ness v. Van Ness, 5 Stew. Eq. 569.
    
    
      Messrs. C. & R. W. Parker, for appellant, cited—
    
      1 Newt. 329; Remsen v. Remsen, 2 Johns. Ch. 501; Copeland v. Crane, 9 Pick. 73; Napier v. Staples, 1 Mol. 928; 1 Mol. 231; 4 Mad. 43; 2 Smith 121; Bennet 85; Turn. & V. 428; Bowker v. Nickson, 3 Mad. 429.
    
    
      Mr. David A. Pyerson, for the respondent, cited—
    
      Parkhurst v. Muir, 3 Hal. Ch. 555; Patrick v. Ashcroft, 5 C. E. Gr. 198; Haulenbeck v. Cronkright, 8 C. E. Gr. 407; Clark v. Condit, 6 C. E. Gr. 322; Murray v. Elston, 9 C. E. Gr. 310, 589; Izard v. Bodine, 1 Stock. 309; Sinnickson v. Bruere, 1 Stock. 659; Blauvelt v. Ackerman, 8 C. E. Gr. 495; 10 Id. 570.
    
   The opinion of the court was delivered by

Beasley, C. J.

This was a bill by one partner against his associate, for an accounting after dissolution. There was an order to account, and a reference to a master. Accordingly the master reported, finding a large balance due from the appellant to the respondent. To such finding the appellant took exceptions, which being overruled and a final decree taken, this appeal was taken in order to review the propriety of the proceedings before the master.

The first exception urged against such proceedings, is that the master did not, after preparing his report and before filing it, give the parties an opportunity of appearing before him to inspect it and to point out errors and suggest amendments. To show that this is the proper course, the English books are referred to, but it is not necessary to look into these authorities, as the practice in this particular, in this state, is settled by immemorial usage. The course here is for the master to take the testimony of the litigants, and, after that is in, to hear the arguments of the respective counsel. This being done, he then proceeds to make up his account, which he files without first having exhibited it to the parties. The proceeding is then ripe for exceptions to be interposed to the report, and these are heard before the chancellor. In this case, the master’s conduct was, in this particular, regular and unobjectionable, and this first exception must be overruled.

The next objection is, that the master refused to receive further evidence, upon the accounts being sent back to him by an order of the chancellor. The record shows that, when the matter was first sent to the master “to take and state an account of partnership dealings between the parties,” a. report was sent in and put on file, which, without any specification of items, found a gross sum in favor of the' respondent. Objection being taken, the matter was “ again referred to said master for the purposes and with the powers mentioned in the original order of reference to state an account between the parties with particularity, and that said master have power to take further evidence.” The construction put upon this order by the master was that all he was authorized to do was to restate the accounts, setting out the particulars, on the evidence already before him. lie consequently refused to hear any further testimony. I am not able to see how such a construction of the order of the chancellor is to be justified. There is strong reason to believe that justice has not been done, as this matter now stands, and that the introduction of further evidence is necessary in order to enable a' satisfactory judgment to be pronounced on the merits of the case. My consideration of the facts now before this court has brought me to the conviction that it is highly proper that these accounts should be again before tbe master, and that both sides should be allowed to put in such additional testimony as they may deem requisite.

I shall consequently vote to reverse this decree, so that an order may be made conformable to the above views.

Decree unanimously reversed.  