Green, Judge:
It has been decided by this Court in the case of the State v. Lowe, 21 W. Va. 782 and in Winans v. Winans, 22 W. Va. 678, that there is nothing in the first assignment of error ; and it must be overruled. Under" the decision in Thompson v. Catlett, 24 W. Va., points 5,6, and 7 of thesyllabusp. 525 all the other nine assignments of error in the petition of the appellant must be overruled. On page 541 this Court says: “By section seven of chapter fifty seven of Acts of 1882 it is provided, that, when the commissioner has completed his report, unless it is otherwise ordered by the court or agreed by the parties, he shall retain it ten days for their examination. Any party without being at the expense of taking a copy may inspect the report and file exceptions thereto. But any party may except to such report at the first term of the court to which it is returned or by leave of the court after said term. It will be observed that unless his report is excepted to during the ten days he retains it for examination, he is neither expected nor required to return with it the evidence which was before him and on which he acted, but it is only when his report is excepted to, while it remains in his office, after it is completed, that he is required to return any of the evidence before him, and even then he is only required to return that part of the evidence, which was before him in regard to the matter excepted to, upon which he acted in making up his report. If therefore the commissioner’s report is not excepted to, while it remains in his office after it is completed, tbe evidence, which was before him, and upon which he acted, forms no part of his report, unless specially made so by the report itself or the order of the court. It follows therefore in almost every case, that, when there are no exceptions to his report filed with the commissioner, the court, to which it is returned, can not have what evidence was before him, and must therefore presume that he had sufficient evidence to sustain his report, or else the party injured thereby would have excepted.”
I am satisfied, that the practice thus held by this Court to be correct, though it is so obviously fixed by the seventh section of the Acts of 1882 (see page 110 of said Acts of 1882,) is very often disregarded by our circuit courts, as it was [423]*423in this cause. In this cause the matter referred to the commissioner was pending before him from August 22, 1881, to November 1, 1881, when the report was completed. The commissioner retained it in his office for two months till December 31, 1881, and no exceptions were filed to the report by any of the parties. The commissioner did not return with his report the evidence, on which it was based. In this he acted properly; for he had not been required by the order of reference to return any of the evidence taken before him with his report, no one had filed any exceptions before him nor asked him to return any of the evidence, on which he based any part of his report.
The proper place in a case of this character for parties to make up their issues and carry on their controversies in reference to any debts or lions against the judgment-debtor or his land or any other matters referred to the commissioner is before the commissioner, and while the cause is before him on the order of reference. If the commissioner decides any of these points of controversy wrong in the judgment of any of the parties, when he has made up his report, wherein his judgment on these controverted points appears, it is the duty of any party, who regards the commissioner as having decided any point wrongfully and to his prejudice, to except to the report on this point and requestthe commissioner to send up with his report all the evidence before him on the point, so that the court may inspect it and thus have an opportunity to review the decision of the commissioner. If any of the parties desire to take further evidence on the disputed point, he should ordinarily be allowed to do so, and in the words of this seventh section of chapter fifty-seven of Acts of 1882, “ the commissioner should with his report return the exceptions and such remarks thereon, as he may deem pertinent, and the evidence relating thereto.” If, after this exception is thus filed and this additional evidence taken, any should be taken — the commissioner, as directed by the statute, should make his remarks thereon — should state, whether in his judgment there be an error in his report on the point excepted to; and if there be, he should correct it and make out his statement of the account as thus modified by such correction. And then the court on this point or points at the next [424]*424term of the court passes upon this report and sustains the original report or the corrected report, if it has been corrected, or the exception to the report, if the commissioner himself had not sustained it and corrected it accordingly.
It is true that this seventh section of chapter fifty-seven of Acts of 1882 does provide, that “a party may except to such report at the first term di court, to which it is returned, or by leave of the court after said term.” But as the court does not have this evidence before it, on which that report is made, unless whore the evidence or the portion of it on a particular point is returned with the report, as it usually is not and generally should not be, of course such exceptions made at the term of the court would ordinarily be an exception only to an error on the face of the report, or it might be an error appearing from the evidence, which the commissioner may have chosen to send up with his report as a part thereof, which in fact is but an exception for an error appealing on the face of the report.
It is true as stated in Thompson v. Catlett, 24 W. Va. 540, the evidence before the commissioner on particular points must bo brought before the court “by order of the court” and at the instance of some party, in order that the court may act on the exceptions filed at the term of the court, and not before the commissioner. But as the party asking the court by its order to direct such evidence to be sent up, that it be examined on the hearing of an exception filed at the term of that court, is in default in not filing his exception before the commissioner, such a request to make such an order should not be granted as a matter of course; and, before it is granted, the court should be satisfied by affidavit or otherwise, that justice to the parties in the cause requires that this evidence before the commissioner on the point excepted to during a term of the court should be brought before the court; and the court should be well satisfied, that the object of filing such exception at the term of the court instead of before the commissioner was not to delay the hearing of the cause on its merits, and was not to get an unfair advantage by objecting to informal evidence heard by the commissioner, when the cause was before him ánd not then objected to by any party. For [425]*425such informal evidence, such as affidavits or other evidence not technically legal, if heard or taken before the commissioner, would probably be such as could have been supplied by depositions or other evidence, which would have been strictly legal, had any objection been made to them or exception taken to the report, while it was before the commissioner, on account of such informal evidence having been taken or considered.
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Green, Judge:
It has been decided by this Court in the case of the State v. Lowe, 21 W. Va. 782 and in Winans v. Winans, 22 W. Va. 678, that there is nothing in the first assignment of error ; and it must be overruled. Under" the decision in Thompson v. Catlett, 24 W. Va., points 5,6, and 7 of thesyllabusp. 525 all the other nine assignments of error in the petition of the appellant must be overruled. On page 541 this Court says: “By section seven of chapter fifty seven of Acts of 1882 it is provided, that, when the commissioner has completed his report, unless it is otherwise ordered by the court or agreed by the parties, he shall retain it ten days for their examination. Any party without being at the expense of taking a copy may inspect the report and file exceptions thereto. But any party may except to such report at the first term of the court to which it is returned or by leave of the court after said term. It will be observed that unless his report is excepted to during the ten days he retains it for examination, he is neither expected nor required to return with it the evidence which was before him and on which he acted, but it is only when his report is excepted to, while it remains in his office, after it is completed, that he is required to return any of the evidence before him, and even then he is only required to return that part of the evidence, which was before him in regard to the matter excepted to, upon which he acted in making up his report. If therefore the commissioner’s report is not excepted to, while it remains in his office after it is completed, tbe evidence, which was before him, and upon which he acted, forms no part of his report, unless specially made so by the report itself or the order of the court. It follows therefore in almost every case, that, when there are no exceptions to his report filed with the commissioner, the court, to which it is returned, can not have what evidence was before him, and must therefore presume that he had sufficient evidence to sustain his report, or else the party injured thereby would have excepted.”
I am satisfied, that the practice thus held by this Court to be correct, though it is so obviously fixed by the seventh section of the Acts of 1882 (see page 110 of said Acts of 1882,) is very often disregarded by our circuit courts, as it was [423]*423in this cause. In this cause the matter referred to the commissioner was pending before him from August 22, 1881, to November 1, 1881, when the report was completed. The commissioner retained it in his office for two months till December 31, 1881, and no exceptions were filed to the report by any of the parties. The commissioner did not return with his report the evidence, on which it was based. In this he acted properly; for he had not been required by the order of reference to return any of the evidence taken before him with his report, no one had filed any exceptions before him nor asked him to return any of the evidence, on which he based any part of his report.
The proper place in a case of this character for parties to make up their issues and carry on their controversies in reference to any debts or lions against the judgment-debtor or his land or any other matters referred to the commissioner is before the commissioner, and while the cause is before him on the order of reference. If the commissioner decides any of these points of controversy wrong in the judgment of any of the parties, when he has made up his report, wherein his judgment on these controverted points appears, it is the duty of any party, who regards the commissioner as having decided any point wrongfully and to his prejudice, to except to the report on this point and requestthe commissioner to send up with his report all the evidence before him on the point, so that the court may inspect it and thus have an opportunity to review the decision of the commissioner. If any of the parties desire to take further evidence on the disputed point, he should ordinarily be allowed to do so, and in the words of this seventh section of chapter fifty-seven of Acts of 1882, “ the commissioner should with his report return the exceptions and such remarks thereon, as he may deem pertinent, and the evidence relating thereto.” If, after this exception is thus filed and this additional evidence taken, any should be taken — the commissioner, as directed by the statute, should make his remarks thereon — should state, whether in his judgment there be an error in his report on the point excepted to; and if there be, he should correct it and make out his statement of the account as thus modified by such correction. And then the court on this point or points at the next [424]*424term of the court passes upon this report and sustains the original report or the corrected report, if it has been corrected, or the exception to the report, if the commissioner himself had not sustained it and corrected it accordingly.
It is true that this seventh section of chapter fifty-seven of Acts of 1882 does provide, that “a party may except to such report at the first term di court, to which it is returned, or by leave of the court after said term.” But as the court does not have this evidence before it, on which that report is made, unless whore the evidence or the portion of it on a particular point is returned with the report, as it usually is not and generally should not be, of course such exceptions made at the term of the court would ordinarily be an exception only to an error on the face of the report, or it might be an error appearing from the evidence, which the commissioner may have chosen to send up with his report as a part thereof, which in fact is but an exception for an error appealing on the face of the report.
It is true as stated in Thompson v. Catlett, 24 W. Va. 540, the evidence before the commissioner on particular points must bo brought before the court “by order of the court” and at the instance of some party, in order that the court may act on the exceptions filed at the term of the court, and not before the commissioner. But as the party asking the court by its order to direct such evidence to be sent up, that it be examined on the hearing of an exception filed at the term of that court, is in default in not filing his exception before the commissioner, such a request to make such an order should not be granted as a matter of course; and, before it is granted, the court should be satisfied by affidavit or otherwise, that justice to the parties in the cause requires that this evidence before the commissioner on the point excepted to during a term of the court should be brought before the court; and the court should be well satisfied, that the object of filing such exception at the term of the court instead of before the commissioner was not to delay the hearing of the cause on its merits, and was not to get an unfair advantage by objecting to informal evidence heard by the commissioner, when the cause was before him ánd not then objected to by any party. For [425]*425such informal evidence, such as affidavits or other evidence not technically legal, if heard or taken before the commissioner, would probably be such as could have been supplied by depositions or other evidence, which would have been strictly legal, had any objection been made to them or exception taken to the report, while it was before the commissioner, on account of such informal evidence having been taken or considered.
In the case before us the report of the commissioner was made and acted upon before the act of 1882 took effect; but the portion of section seven chapter fifty-seven of Acts of 1882, on which the above remarks are based, is identical with section seven chapter, one hundred and thirty of the code then in .force, when this report was made and acted upon. As no exceptions were filed to the commissioner’s report, while the cause was before the commissioner, and as there were no errors on the tace of the report, and none of the evidence before the commissioner had been returned to the court, and all the exceptions of the judgment-debtor, Henry, were for errors based on the insufficiency of the evidence before the commissioner to sustain certain liens, which the commissioner had reported against the judgment-debtor, the court should have overruled all the exceptions to the commissioner’s report in its decree of February 3,1882, and should have confirmed the report and ordered a sale of the real estate of the judgment-debtor, such as was made by the court on June 1, 1882. But instead of doing this the court in its decree of February 3, 1882, obviously examined the evidence, which had been taken before the commissioner, when the cause was before him, though it had not been returned as a part of the report, and finding no evidence to sustain certain judgments reported as liens it sustained some of Henry’s exceptions to the report, but did not recommit the cause, because it was obvious, that the evidence to support these judgments could be readily supplied, if the cause was simply continued, and this being done, this evidence was supplied, and on June 1, 1882, a decree of sale was made, which could properly have been made on February 3, 1882.
If the counsel of Eugene Henry had moved the court on [426]*426February 3, 1882 to order that the evidence, oil which the judgments, to which he had excepted, should be sent up to the court, the court should have refused to make any such order; for the exceptor, Henry, had, while the cause was before the commissioner after the making of the report auditing these judgments, the most ample time to file exceptions to the report, such as he afterwards filed; and as the record shows no reason why he did not, the inference must be drawn, that he did not file these exceptions before the commissioner, because he knew that there was really no justice in them, and that the formal proof wanting to sustain the affidavits could have been at once supplied. ' The evidence shows satisfactorily, that the ten exceptions filed at the term of the court' were simply filed to prevent at that time a decree for the sale of the exceptor’s land.
I presume that in some cases the commissioner had looked at the order-book of the court rendering some of the judgments and acted on information thus obtained in auditing them, instead of requiring, as he should have done, attested copies of all- these judgments to be filed with him. But if these exceptions had been made before the commissioner, the proper evidence could have been at once produced.
Of course the appellant was not prejudiced by the court reading the depositions of E. Maxwell and John Bemliuger, as the same decree for the sale of his land should have been made, had these depositions never been taken. There is no evidence that they were taken without notice, and not being excepted to on that account no such objection could betaken to them in this Court. The presumption is they were taken" on due notice. An affidavit of Eugene Henry made to obtain another continuance of this cause before a decree of sale has been copied into the record; but it constitutes no part of the record never having been filed or acted upon by the court below. But if it had been a part of the record, it showed no sort of ground for a continuance. Tt was an affidavit, that a judgment against him in favor of Gfosorn amounting to $26.29 had been audited, and that he could prove by Gfosorn himself, that it had been paid by affiant, and giving excuses for not having taken Gfosorn’s deposition. But as it appears, that he could have .proven this pay[427]*427ment himself, he is entirely without excuse in not having done so.
For these reasons the decree of the court of June 1, 1882, must be affirmed, and the appellee, Jacob Lynch administrator de bonis non with the will annexed of Isaac Lynch, must recover of the appellant, Eugene Henry, his costs in this Court expended and thirty dollars damages.
Aeeiemed.