O'reilly's Adm'r v. Brady

RICE, C. J. (After stating the facts) — An exception to the report of a master is in the nature of a special demurrer, and the party objecting must put his finger on the error; otherwise, the part not excepted to may be taken as admitted. — Darrington v. Borland, 3 Porter’s Rep. 9; Story v. Livingston, 13 Peter’s R. 359; Royall v. McKenzie, 25 Ala. Rep. 364. [535] When the only exception to a report is directed to a particular portion of it. which includes several distinct items or matters; and the exception does not point to any one of them in particular, but is leveled at all of them in mass, it may be overruled, unless the report appears to be wrong as to every one of them. — Royall v. McKenzie, supra; 2 Daniel's Ch. Pr. 1496, and notes. Conceding that the chancellor may allow an exception in part, and that he may direct the master to review his report upon grounds independent of those laid in the exception; (2 Daniel’s Ch. Pr. 1496, 1501; Hoare v. Johnston, 4 M. & C. 127;) yet he is not bound to sustain an exception in part, which is bad in part. He commits no error in overruling such exception in toto, and confirming the report, in the •absence of any other exception. It is unnecessary, in this case, to decide whether, where the partnership has continued for -some length of time after the death of a partner, the survivor should be allowed any thing for his skill and personal services in continuing the business, or in winding up and settling it. However that may be, we consider it clear that, where a trading partnership and its business continued for a considerable length of time after the death of a partner, and his representatives elected to have a report and decree for the profits which accrued during that time, the surviving partner is entitled, at least, to an allowance and deduction for “tavern bills”, and “ other expenses incurred” “ in the adjustment and settling up” of the affairs of the partnership. — Collyer on Partnership, §§ 199, 327, 328, and note 1: As there is nothing in the record which contradicts either the responsive statements of Brady's answer hereinabove set forth, or the report of the master, they must be taken as true; and taking them as true, the master was authorized, from what appears in them, under the pleadings, to allow to Brady at least a part of his said charge of $3,500 — to-wit, the expenses incurred by him in adjusting and settling up the partnership affairs. Whether any other part of the charge of $3,500 could properly have been allowed, it is not material to inquire; for, as the exception of- complainant was leveled at that charge [536] as a whole, and is clearly bad as to part of it, the chancellor was authorized to treat it as bad in toto, and to confirm the report, — that being the only exception to it. The decree is affirmed, at the costs of the appellant.