May v. Corlew

Williams, J., after stating the case delivered the opinion of the Court.-^Som'e objections have been made to the form in which this report is made $ but it appears" .to us that these objections are not well founded. The auditors must find all the facts, and cannot reler the decision of any mere question of fact to the Court: but they may submit any question of law to the Court, and for that .purpose, they may report in the alternative as they have done in this case. In rendering the judgement which the county court have rendered on this report, they fnust have decided, on the alternatives submitted to them, either that the auditors had no right to do any thing further than to enquire and decide whether there had been a settlement in 1819, or that they improperly admitted the defendant to testify as stated in their report. As to the first question, I would remark, that when a report of. auditors is made, the court must accept it and render judgement thereon or they may reject it, and the whole case is then again submitted to the same or another board of auditors, who are to hear the whole case anew, without regard to the former proceedings. If the report is not explicit, or not made as the auditors intended, it may be recommitted to them for amendment or correction, so that it may be made conformable to their intentions ; and in this case the parties are not allowed to introduce further testimony, or to have a further hearing. If any other course is taken with a report, or ifiit is recommitted to hear testimony on a particular fact, it must be by consent of parties. In this case it appears that the first report was not_accepted : the case was referred to the same auditors, with the addition of Mr. Henry, and they were to report upon the whole case. It then became the duty of the auditors to go into an examination of the whole case, if requested, and make their report accordingly : for upon the report which they should make, the judgement of the county court was. to be rendered. The auditors having found that the sum of twenty nine dollars had been paid by the defendant to the plaintiff, there is no sound reason why it should not be deducted from the account of the plaintiffs. • If the county court decided upon the ground that the auditors were confined to a single enquiry, and ought not to have enquired in relation to this payment, their decision was erroneous. [16] On the other question, whether the auditors decided correctly in admitting the defendant to testify, we are of opinion that the ' defendant was properly admitted. There have been a great variety of opinions heretofore, as to what a party might be admitted to testify in an action on book. We are well satisfied with the rules which have been laid down by this Court in the cases which have been before them, viz. that the parties may “ testify to every material fact in relation to the account proper to be considered in deciding upon the merits of the respective claims of the parties (Stevens vs. Richards & Truesdale, 2 Aik. Rep. 81;) that they “ may be examined as to the mode and time of payments, and to payments made'either in whole or in part.”—Fay et al. vs. Green, 2 Aik. Rep. 386. The decision in either of the cases last mentioned is sufficiently broad to embrace the present case. There can be no stronger objections urged against the testimony of a party to a settlement than to a payment. If only part of an account is claimed to have been embraced in a settlement the question must be usually determined by auditors, and the parties may both be examined as to that fact; otherwise, the .plaintiff might charge the defendant by his own oath with the whole of an account claimed, and the defendant would not be prevented either to callón the plaintiff to testify, orto testify himself, that a part of the account had been paid or embraced in a former settlement. But if our opinion on this question had been otherwise, and if the defendant ought not to have been admitted to prove the settlement, yet the plaintiffs are not injured by the testimony ; as the auditors did not find the fact of a settlement proved either by the testimony of the defendant, or by any other testimony. In every point of view the county court ought not to have rendered this judgement on the ground that the auditors erred in admitting the testimony of the defendant. The judgement of the county court ought to have been rendered for the plaintiffs to recover the sum of seven dollars forty eight cents, only, as reported by the auditors, after deducting the payment made in 1819. The judgement which was for a larger sum must, therefore, be reversed, and this Court will render judge-? ment for the plaintiffs to recover that sum only, unless the plaintiffs elect to have the whole case again submitted to the auditors, which the court will permit if requested.