11 N.H. 501 | Superior Court of New Hampshire | 1841
According to the present English practice, there are two modes of taking accounts in the master’s office ; the one in the form of a debtor and creditor account, brought in by the accounting party; the other by examining such party upon interrogatories ; and these two modes are sometimes combined in taking an account. 2 Smith’s Ch. Pr. 114; Gresley’s Eq. Evid. 395. The rule in New-York is the same. New-York Ch. Rules 79, Rule 107; 4 Paige’s R. 112, Story vs. Brown. The debtor and creditor account is prepared as an affidavit, and this affidavit is a substitution for an examination, which was the manner of accounting before the New Orders. 2 Smith’s Ch. Pr. 114; Blake’s Ch. Pr. 204, 250. Oral examinations were common in New-York. 2 Johns. Ch. R. 499, Remsen vs. Remsen. But the master is still at liberty to examine on interrogatories. 2 Smith 122; New-York Ch. Rules and Orders 79.
As we have adopted no rule in this respect, either of these modes may be resorted to; but the better practice probably is to require the parties to bring in debtor and creditor accounts, and examine them on written interrogatories, the master taking down the answers. In this case, after the
The remaining questions arise upon the report of the master.
In the first place he finds that one half the services of the defendant, in operating the mills, was to be paid by the plaintiff, at all events. But if the court are of opinion that the answer of the defendant, in relation to the contract of partnership, is not evidence of such a character as to require testimony equivalent to that of two witnesses to counterbalance it, the master desires to make a farther report upon this point.-—The allegation in the answer, that one half of the services of the defendant were to be paid for by the plaintiff, at all events, is responsive to the bill, (see 9 N. H. Rep. 233, 237,) and the plaintiff, to make out his case on that point, must overcome the answer by the evidence of
The next question is, whether the defendant is precluded, by the admissions in his answer, from showing errors and mistakes in a former settlement of accounts between the parties? To the correction of an error of 010, in the casting of the accounts, the plaintiff does not object, and that correction may, therefore, be made. But the admission of the defendant, in his answer, that the plaintiff had advanced towards the erection of the mills the sum of 0188-80, more than the defendant, must be held conclusive against him, so long as it stands as his admission under oath, notwithstanding he may have exhibited evidence tending to show that he might have made the admission under a mistake. 2 Smith's Ch. Pr. 273; Gresley's Eq. Ev. 9. The propriety of this rule is manifest. The admission may be true, notwithstanding the evidence adduced ; and if such evidence could be admitted, the defendant might, in some instances, avoid his answer, when it was strictly true ; because the plaintiff had no other evidence to offer against the evidence adduced by the defendant, except the very evidence that the proceeding in equity designed to give him, to wit., the defendant’s admission under oath. If the defendant has made mistakes in his answer, he can be relieved on a proper case made, by leave to amend, or, according to the modem practice, to file a supplemental answer. 2 Smith's C. Pr. 270.
Another question is on the allowance of interest. We have held, at law, that interest is to be allowed on money due and sums liquidated. 6 N. H. Rep. 571, Mahurin vs. Bickford. Such interest is allowed in equity as is just and reasonable. New-York Ch. Rules 79. And it is just and reasonable to allow interest on all sums which are due and payable, or from the time when there should be a rest in the accounts. Annual rests may be allowed, and
Woods, J., haying been of counsel, did not sit.