McCrackan v. . Valentine's Executors

The ruling of the referee (which was confirmed by the superior court) in excluding the testimony offered by the defendants, presents the only question in the case. As to the last exception, the examination of the complainant was expressly limited by the decree of reference to the subject of payments upon the bond and mortgage. The referee had no discretion, but was bound to pursue the directions contained in the decree under which he acted. There was no error therefore in his decision in this particular. It is true that these defendants have appealed from the whole decree, but as the proofs are not before us, we have not the means of determining whether the decree of reference was or was not justified. The referee was also correct in refusing to allow James A. Valentine to be examined as a witness for his codefendants. This offer, like the preceding one in reference to the examination of the complainant, was not limited to an inquiry as to the payments made or the sum due upon the securities, but the evidence was intended to bear upon the issue joined between the parties as to the validity of the mortgage, and to re-try a question which had already been adjudicated in favor of the complainant. This was a right which the defendants could not exercise in that stage of the proceedings. The Code does not aid the defendants. For if we assume that it abolished the old rules in chancery, and was as potential in these respects as insisted by the counsel for the defendants, yet he has not claimed that the Code was designed to give the parties a right to litigate the matters in issue twice in every equity case: once preliminary to a hearing on the merits, and a second time before the master, under the order of reference. The judgment of the superior court should be affirmed, with costs. *Page 45