Smith v. . Estes , 2 N.C. 348 ( 1796 )

By the practice established here since the creation of courts of equity, in 1782, when it is referred to the master to take an account, he, at the instance of either party, must issue a notice appointing a day for attendance. This notice must be served by the party procuring it. If the party cited does not appear on the day appointed, he shall not proceed to take the account in his absence; for perhaps he is sick or prevented by some unavoidable accident, or has not been able to prepare himself to take the account. But, then, a second notice appointing another day shall be issued and served in like manner; and then, if the party noticed fail to appear, the account shall be taken ex parte. In the present instance this practice was not observed, and therefore the report must be set aside; and this is the more proper as the time appointed by the master was known to be inconvenient for Mr. Smith, and as he had not been actually noticed at all. Where a report is regularly taken, but the items of the account are improperly allowed or disallowed by the master, exceptions filed to the report are proper, but where the master proceeds irregularly to take the account, as in the present instance, the objection goes to the whole report, and may be made out and supported by affidavit, as has been done in the present case.

NOTE — Upon the subject of "reference to master and report," seeNash v. Taylor, 3 N.C. 125; Anonymous, ibid., 157; Smith v. Estes, ibid., 156; Smith v. Mallet, ibid., 182; Thompson v. O'Daniel, and Jeffreys v.Yarborough., 9 N.C. 307.

RULE AS TO TAKING DEPOSITIONS.

PER CURIAM. It is ordered that the following hereafter be the rule with respect to depositions:

When either party has filed his depositions, he shall apply to the master for a notice, who shall issue one which shall be served a convenient time before the day appointed by the notice, on the opposite party; and on that day the master shall examine the sufficiency of the notices upon which the depositions were taken, and the regularity (350) of taking them; and such objections against the reading the depositions at the hearing as the party can make shall be considered by the master, and either allowed and overruled by him, subject, however, by appeal of either party to be brought before the Court at the ensuing term. In case of overruling the objection, and no appeal, the depositions shall be considered to have been properly taken, and shall be read at the hearing, and no objection shall be then allowed. If the objection shall be allowed by the master, and no appeal, the deposition shall be suppressed and not allowed to be offered at the hearing. If these precautions, however, are not taken, then the depositions are liable to objection at the hearing, as before the making of this order.