| New York Court of Chancery | Nov 17, 1817
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
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*
Order accordingly, that the master proceed in the reference to the completion and filing of his report,
Vide Messonier v. Kauman, ante, p. 66.