Mott v. Harrington

The opinion of the court was delivered by Williams, Ch. J. This case comes before us on an appeal from a decree made by the chancellor for the third judicial circuit- A decree has heretofore been made by this court, as a court of chancery, before the present system was adopted. The decree was made on a full hearing, and it was referred to Mr. Allen, a commissioner specially appointed, to take the account between the parties. The questions which were settled by that decree we consider as not open for discussion. The only question now before us, is, whether the order of the chancellor, accepting the report of Mr. AI — 194 — len, and the decree thereon, shall be affirmed, reversed or altered. It is very obvious, that not every objection or argument which might have induced the chancellor to come to a different result, should be a ground with this court for revergjng decree. There are many orders made in the progress of a suit in chancery, depending on the discretion of the chancellor, and where he might, with propriety, have made a different order, which should not induce us to disturb his final decree in the premises. On an appeal, this court are to examine all the errors assigned, or found, in the decree of the chancellor, and make such a decree as justice shall require. Under a statute similar to ours, in the state of New-York, it has been holden that, on an appeal from chancery, to the court of errors, an objection not made by the party in the court below, cannot be made in the court of errors. Nor can a point, or question, be raised in the court of errors, for the first time, which, if it had been raised in the court below, might have been met and obviated. If the point, however, could not have been obviated by amendment, or proof, in the court below, and is fatal in the cause, the court of errors may examine into it. The party is not permitted to pass the' court below, in silence," which would make this court, in fact, a court of original, instead of what it was intended, a court of appellate, jurisdiction. In the case before us,' objections are raised against the report of the commissioner, extrinsic, and which are presented by petition, and supported by affidavit, and intrinsic, arising on the report. The case of Tyler v. Simmons, 6 Paige, 127, decides that, in the state of New-York, irregularities in the proceedings of the master are not a proper subject of exception to the master’s report; and this does not appear to be founded, solely, on rules of practice adopted in that state. But possibly the better practice-under our system, would be for the chancellor to hear the objections, both extrinsic and intrinsic. When the case comes here, by appeal, the different objections would require a different consideration. The order of a chancellor founded on objections, not arising on the report, and which are to be proved by affidavit, or in any other way, directed by the chancellor, would rarely, if ever, present a case in which the order of the chancellor should be reversed. And this would afford a sufficient rea — 195 — son why this decree should be affirmed, if there were no other objections to it, than those urged on the hearing of the petitioner. As the practice under the present system of chancery jurisprudence, in this state, has not been settled by judicial construction, we have not been disposed, on this ground to pass by the objections urged on the petition of the orator, more especially as the same objections are mostly, raised on the report. The first objection to the report is, that Mr. Allen, who was appointed a commissioner, had given an affidavit or deposition in the cause, in which he had expressed an opinion as to the merits of the controversy, that is, in relation to the nature of the controversy in which Mr. Harrington was employed as counsel. It appears, from an examination of the papers, that Mr. Allen was once employed by the orator, in conjunction with this defendant, in the prosecution of certain suits, in which the defendant claims a compensation. The orator must have known that Mr. Allen, from being associated with Mr. Harrington, must have some knowledge of the nature and extent of the services performed by Harrington, and whether he had been vigilant. The' solicitor for the orator had agreed that the evidence of Mr. Allen might be taken at Washington, and sworn to before a justice of the peace, and by him transmitted to this defendant, and be evidence in this cause; and furthermore, by the testimony of Tabor J. Sewall, it appears, that the orator was well apprised of Mr. Allen’s acquaintance with the subject in controversy, between him and this defendant, and had agreed with the defendant to submit the controversy to the decision of Mr. Allen. There is no ground, therefore, for the orator to complain, at this time, of the appointment of Mr. Allen, or allege surprise at his having given a deposition. Much less is there any foundation for the allegation in the petition, that “ the defendant, by his management, in this suit, procured the said Allen to be appointed as commissioner to take the account,” &c. The other exceptions contained in the petition, relate to the neglect and refusal of the master to make a special report, to state the facts on which he allowed the claim of interest, and to return the account presented by the defend — 196 — ant. These objections may be considered with the exceptions taken directly to the report, and, in fact are enumerated among the special exceptions to it. These exceptions are nine in number, and are, that the commissioner neglected to retum defendant’s accountrefused to order the production of defendant’s books; allowed sums without any vouchers ; allowed interest without stating grounds; allowed many items which ought not to be allowed; allowed large sums for time spent, without specifying particulars; allowed an account in favor of Harrington and Perrigo on defendant’s own statement; allowed sums on accounts not submitted, and th^t the report was grossly partial and unjust. The two last exceptions are not supported by a reference to the proceedings before the master, nor by any proofs. The order to the master to ascertain the sum due to the defendant, required him to take into consideration-the defendant’s • claim for taxable cost and fees in the suit mentioned ; and there is no foundation for the allegation that the report is either partial or unjust. The other exceptions may be embraced in two classes, and will be determined by ascertaining the power and duty of a master in chancery, as Mr. Allen was a special master in this case. They relate to the duty of the master in ordering the production of books and papers, in making a special report or statement of facts, and in stating the evidence in support of the different facts which he was required to find. The object of referring an account to a master is for convenience, to have a full investigation of facts, which could not well be had before the court, or, as was said in Bax, exparte, 2 Ves. 388, “ because it is impossible for the court to take accounts originally, as that would so take up the time of the court, that justice could not be administered in other causes.” Competent masters are appointed for this purpose, and the time and leisure which they can bestow upon the subject, enables them to investigate the facts, and state an account, more fully, and more for the benefit of the parties. The duty of a master is thus laid down by an eminent writer on the practice in chancery, Newland, 172, in which he is confirmed by Maddock and by Comyns, title Chancery,(W.2.) “ The report of the master-ought to be as succinct as may be, reserving the matter clearly for the judgment, and with — 197 — out recital of the several points of the orders of reference, or the debates of counsel; nor is he to make a special report upon the importunity of counsel or of their clients, unless he is required by the court so to do, or his own judgment is satisfied with the propriety of it; and if he does, he is not to set forth the evidence with his opinion upon it, but only to state the bare fact, for the opinion of the court, in the same manner as in a special verdict.” And when a master is required to ascertain a particular fact, he must draw the conclusion himself, and not report, the evidence ; as when it was referred to a master to ascertain whether a person was dead, who reported that he had been absent fourteen years beyond seas and had not been heard from, it was referred back to the master to report whether the person was dead. Lee v. Willock, 6 Ves. 605. A rigid adherence to these rules, and a firmness in resisting the solicitation to state numerous facts and the evidence, would save our records from much useless matter, and the court the unnecessary labor of selecting the true points in controversy from a multitude of unimportant facts, and testimony, with which reports of masters, referees and auditors, are too frequently encumbered. A reference to a master would be worse than useless, if the whole investigation of the account, the facts in controversy, and the evidence in support of, and in opposition to the same were to be re-examined before the chancellor, and then again be heard and litigated, as to all the items of account, before this court, on appeal. This view of the nature of a reference to a master to take an account, and his duty and power in taking the same, obviates the several objections raised to the report. The master did not require the production of the. books and accounts, because he did not deem it necessary to stop the inquiry and have them produced, or that they were required for the purpose of determining the controversy. Had he deemed them necessary, or proper, for that purpose, undoubtedly he would have required their production. He did not make a special report or statement of facts, because he was not required so to do, by the decretal order, and was not satisfied, in his own judgment, of the propriety of making such report. He did not state the evidence upon which — 198 — he was convinced of the several facts by him found, or the ground on which he made certain allowances, because it would not have been proper for him so to do., And this disposes of all the exceptions which have been made to the report. On a view of the whole case we can see no grounds, either in the petition, or in the exceptions to the report, why it should not have been accepted by the chancellor. It is sufficiently concise, and reports the sum due to the defendant; and a more particular report was not required, by the order of the court, nor by the difficulty or intricacy of the case. The decree of the chancellor in accepting the report, was, therefore, correct; and neither he nor this court can, with propriety, enter into an investigation, or examination, of all the claims or accounts which the commissioner was required to adjust. An objection is, next, taken to the decision of the chancellor in allowing to the defendant the cost in this suit. As a general rule, undoubtedly the mortgagee is entitled to his costs on having his security redeemed. He may, however, be deprived of his costs, and, when his conduct is vexatious, he may be ordered to pay cost. When he sets up an unjust defence, insisting upon his deed as an absolute purchase, he may be deprived of his costs. I should have been wqll satisfied, in this case, if no costs had been awarded to the defendant. This was, however, a case where the allowance of costs was discretionary with the chancellor ; and although I might have exercised this discretionary power differently, it would be no reason with me, for reversing a decree in this particular. Moreover, the general rule on this subject is, that there can be no appeal or rehearing, for costs only. This was decided by Lord Thurlow, in the case of Herdman v. Kent, 1 Brown, C. C. 140. This was stated to be the rule by Mr. Romily, in the case of Jenour v. Jenour, 10 Ves. 572, and recognised by Lord Ejdon, in the case of Taylor v. Popham, 15 Vesey, 72; subject, however, to certain exceptions, which it is unnecessary to enumerate, as the case under consideration does not come within those exceptions. As the chancellor, below, thought proper not to allow cost to the orator, and the case was one where it was purely with — 199 — in his discretion whether to allow cost or not, and his décree is not to be altered in any other particular, we do not think that, consistently with the rules of equity as to cost, on an appeal, the decree, in this particular should be reversed. The decree of the court of chancery must, therefore, be affirmed.