McCrackan v. Valentine — 1 Seld. Notes 163

Majority

p. 163

McCrackan against Valentine.

Headnote

Foreclosure suit; evidence on reference to compute.

In an action commenced in the late Court of Chancery, to foreclose a mortgage, where the defence of fraud in obtaining the mortgage was set up in the answer, and the question tried in the Superior Court (to which court the cause was transferred), and a decree made appointing a referee to compute the amount due on thp mortgage, and to examine the complainant on oath as to payments, and to take proof of the facts and circumstances stated in the bill (there being an absent defendant), and directing that on the coming in and confirmation of the report, the mortgaged premises be sold, &c.,—

Held, that the referee had no right to examine the complainant as to any facts except those relating to pay-' ments on the mortgage; or to examine the defendant,

p. 164

who had been proceeded against as an absentee, on behalf of his co-defendant, as to the issue on the question of fraud. That the decree of reference had concluded the parties as to that issue.

(S. C., 9 N. Y. 42 .)