¶1The only specific exception of importance in this case made to the report of the Commission of Referees is that the Commission erred in looking to the deposition of J. W. Nichols. This deposition was excepted to before the Master. The exception was sustained and appeal granted. No action was taken on the appeal, and no exception made, on the hearing, to the reading of the deposition.
¶2It is well settled that where the Master has sustained 'an exception, and there is no appeal, his action is conclusive; and if it appear that the deposition was offered to be read, and rejected for the reason given, it will not be error. Hawkins v. McNamara, 1 Heis., 352; Rhea v. McCorkle, 11 Heis., 415; Brandon v. Mullenix, 11 Heis., 446.
¶3But if the Clerk and Master sustains an exception, and allows an appeal, the appeal vacates his action; and unless the Court is called upon to act upon the appeal the exception will be waived. Both the Code and the Chancery Rules ’ provide that such exception must be made and “ disposed of ” before the commencement of the hearing, or it will be considered as Avaived. New Code, §4626; Chancery Rule 2, § 5, page 1204.
¶4It is not, hoAvever, necessary to notice any objections to the report of' the Commission. The appeal in this case Avas improperly alloAved, and cannot be entertained. A decree was rendered at one term ordering an account. At the succeeding term another Judge revived this order of reference *379and then granted an appeal. The order entered was as follows:
“It further appearing that an appeal was prayed and granted to Defendants Nichols and Dickens at the last term of the Court from the decree rendered, and the same was not made of record (it is so done) now as of then; and the Clerk will make up the record in said cause. This order is granted upon the statement of counsel for the defendants, made in open court, to which order solicitors for complainants except. Appeal is allowed to the next term of the Supreme Court upon giving bond as inquired by law, which is done.”
¶5This order was clearly erroneous. If all its recitals were allowable “upon the statement of defendant’s counsel,” it wotild not justify the grant of this appeal, because it does not recite that bond "was then (at the former term) given, or offered to be given, or time taken to give bond, and would at most but show a prayer for appeal granted, and no appeal effectuated by the execution of bond or taking the proper oath. If the order alleged to have beijn made at the last term had been in fact made then and -entered then, it would not have shown an appeal perfected, but would remain on the minutes without force or vitality.
¶6The nunc pro tunc order, however, is recited to have been made by a Judge who did not make the original order, and who neither knew any thing about it nor had any evidence of it what*380ever, “upon the statement of defendant’s counsel” that such an order was made, complainant’s objecting. It is too clear for controversy that the order nunc pro tunc could not have been made upon such want of evidence, and it is a nullity.
¶7The appeal must be dismissed with cost.