1 Cl. Ch. 423 | New York Court of Chancery | 1840
The complainant cannot have a decree in this cause, upon his papers. It appears from his papers that some of the defendants were absentees, and had been proceeded against as such ; and that his bill has been taken as confessed against them, in consequence of such proceedings. In such cases the statute regulates the course and manner of proceeding. The 126th section (2 Rev. Stat. old ed. p. 186) provides that when a bill is taken as confessed against an absentee, “the court “ shall direct a reference to a master to take proof “ of the facts and circumstances stated in such bill.” The 127th section provides that “the master to “whom such reference is made, shall take such “ proofs as may be offered.”
The 128th section provides for the examination of the complainant as to any payments made upon the demand, but not credited.
The 129th section is in the following words: “ The “ master shall report the proofs and examinations had “ before him; and on the coming in thereof, the
If an order was made by this court, containing the language of the statute, directing a master to take an examination and to report “ the proofs and examinations had before him,” I apprehend there can be no doubt but the master must report the depositions of the witnesses in extenso. I construe the language of the statute to have a like effect as it would have if the same language was contained in an order. In other words, the master must report “ the proofs and examinations” had before him under this statute. In this case he has reported the examination, but has not reported the “ proofs and examinations” so taken before him. It is true that he has reported his opinion thereon, and that such opinion is satisfactory. The only objection to this is, that it does not comply with the statute. The legislature have thought proper to lay down a rule in such cases, in plain terms, according to my reading, and I have no way of escaping from it. It must be complied with to make the complainant’s proceedings regular. The reasons of the rule I am scarcely at liberty to inquire into; but it obviously intends that the whole facts shall be laid before the Chancellor, as they appear in the depositions of the witnesses, without the intervention of the judgment of the master thereon; and that upon such proofs the Chancellor shall make such decree as shall be just. It is sufficient for me that the legislature have so willed it; and I cannot grant the complainant a decree, until the master reports “ the proofs and examinations had before him.”
Decree for sale refused.
