Barrow v. Rhinelander — 3 Johns. Ch. 120

Majority

p. 120

Barrow and others, assignees of Prior, against J. Rhinelander.

November, 17.

Headnote

A decretal order of reference to a master to state the account between the parties, was made in September, 1815, and the parties appeared, from time to time, before the master, until the 16th of October, 1817, when they were nearly ready for a final hearing before him; aud then the defendant presented an appeal from the decretal order, dated the 16th of October, 1817. On petition and motion of the plaintiff, the court ordered the master to proceed in taking the aócount, and to complete and file his report, notwithstanding the appeal.

THE petition of the plaintiffs stated, that this suit had long been pending, and that on the 39th of September, 1815, the court decreed, (vol. 1. p. 550.) that the accounts between the plaintiff and the bankrupt, on the one part, and the defendant, on the other, should be opened from the 39th of November, 1790, and that it should be referred to a master to state the said accounts, according to certain principles and directions in the decree mentioned. That in pursuance of such decretal order, James A. Hamilton, one of the masters of the court, proceeded in taking, and stating the accounts. That the accounts-were extensive, and somewhat complicated, involving many large sums of money, and some questions of considerable difficulty, but that owing to concessions and admissions, almost all the matters of any considerable moment, in number or amount, were disposed of, and settled by the solicitors on each side.

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That such admissions were reduced to writing, and signed by the respective solicitors, and filed with the master the 1st of May last. That a small number of notes, bonds, &c. brought in question, were left to the decision of the master, and all the matters remaining in dispute were reduced to certain specific points. That the plaintiffs were thereupon prepared for a final hearing before the master, on the matters not disposed of as aforesaid. That various meetings of the parties were had, when, on the 1st of September last, at a meeting of the parties before the master, and when the plaintiffs were ready to go to a final hearing, the defendant prayed for further time to take testimony, and the defendant’s counsel then appointed, and agreed on the 23d of September last, as the time when all the testimony should be taken and closed, and that they then would be ready to go to a final hearing before the master, and the respective solicitors subscribed a memorandum to that effect, on the minutes kept by the master. That on the 23d of September, the counsel for the plaintiffs appeared, and the final hearing was adjourned to the 1st of October, when the parties met, and on the representations of the defendant’s solicitor and counsel, it was finally agreed that further time be allowed the defendant and his counsel, until the 16th of October, that time being named at the instance of the solicitor and counsel for the defendant, as sufficiently remote for a full preparation by them; That on the 16th of October, the parties again met before the master, and application was again made on the part of the defendant, for an indefinite postponement of the final hearing, but the master denied the motion, and ordered on the argument, when the solicitor for the defendant, ten-ered an appeal from the decretal order of the 29th of September, 1815, to the court for the trial of impeachments and correction of errors, which appeal was dated the said 16th of October. That from a full and perfect view of the accounts, so far as the same have been agreed to

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or admitted, there will be due the plaintiffs, if stated up to the present time, 20,000 dollars, and upwards, exclusive 0f ap gumg jn controversy, and of the notes, bonds, and securities still undetermined. Prayer, that the plaintiffs may be permitted to proceed in the taking and stating their said account before the master, and that the defendant may be ordered, on the completion thereof, to bring into court, within a reasonable time, the sum which may be found due, or that he may be compelled, within a reasonable time, to give security for what may ultimately be adjudged due to him.

This petition was sworn to by one of the plaintiffs.

There was a special report of the master annexed to the petition, stating the material facts set forth in the petitions, in respect to the progress of the cause before him.-

II. Bleecker, for the petition.

He read an affidavit of the defendant, stating that his answer was filed on the 29th of June, 1805. That on the 6th of June, 1814, an order for publication was entered. That by an agreement before the hearing, the plaintiffs abandoned all claim for the defendant’s not collecting the moneys due on the securities for money, except as- to those in- the agreement mentioned, and that the defendant was not to be charged with moneys on securities, the payer of which was insolvent on the 4th of July, 1801. That in the course of the proceedings before the master, the plaintiffs, by agreement, abandoned the said claim. That the securities which the plaintiffs still insist the defendant ought to be charged with, amount to 11,449 dollars, 10 cents, besides interest, though the defendant has never received any money whatever thereon. That he has several- material witnesses whose testimony he has not been able to procure, for want of time, though he has been busily employed for the purpose ? that

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Ms witnesses reside in different states. That he is willing to proceed in the reference, notwithstanding the appeal, provided he be permitted to complete the examination of his witnesses.

This case presents as strong an instance of the abuse of the right of appeal, as can well be imagined. It would seem, from the offer contained in the latter part of the defendant’s affidavit, that the appeal was interposed merely for delay, and because the defendant was not indulged in a further and unlimited time to procure his testimony. After a long and tedious discussion before the master, and when the cause was ready for a final hearing before him, the defendant interposed his appeal. The defendant was led to appeal from the decretal order for a reference, because the master refused a further adjournment. If the master had acted improperly, the defendant would have had relief on application to this court, on the coming in of the report. If the defendant was dissatisfied with the original decretal order, he ought to have appealed at the time, and not "lain by, and suffered all this" intermediate delay, trouble, and expense. If the appeal was to operate as a suspension of further proceedings before the master, and the master should happen to die, or be out of office, before the cause could be heard and decided" in' the court of errors, all that had been done before him would be lost. A cause might thus be protracted through whole generations, and until the patience and the resources of suitors had become exhausted. We may apply to this case the observations oí Montesquieu. On en wit la correction ; mais on wit encore les obús de la correction meme.

I cannot order that the defendant give security for the amount that may be due, because, until the master’s report has been received and confirmed, I have nothing by" which to guide my judgment. It will be sufficient, at pre*

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sent to grant so much of the motion as to allow the master to proceed and finish his report, notwithstanding the appeal. After the report is made, brought into court, and confirmed, it will be in season for the plaintiffs to make further application for leave to proceed, if they can then show a necessity for it.

Order accordingly, that the master proceed in the reference to the completion and filing of his report,^[1]

(a.) (a.) Vide Messonier v. Kauman, ante, p. 66.