35 F. 337 | D.S.C. | 1888
This case comes up on a special report of E. M. Sea-brook, Esq., one of the registers of this court, as to certain questions arising during the conduct of references in a cause in bankruptcy on the equity side referred to him by an order of this court dated 29th October, 1884. The petition was filed for the purpose of determining some question respecting certain assets claimed to be a part of the bankrupt estate. The answer being in, the cause came before the Hon. Gr. S. Bryan, district judge, on 29th April, 1884, who made this order: “On hearing the motion for an order of reference herein, notice of which has been duly given, and on motion of Mitchell & Smith, for petitioner Absalom Blythe, it is ordered that the issues arising upon the petition herein, and the answer of W. M. Thomas, the defendant, thereto, be referred to Register Seabrook, with instructions to take the testimony to be offered by the parties, and report his conclusions of law and fact upon said issues.” Mr. Seabrook was not the register theretofore in charge of this ease. This order having been made, no steps were taken under it until 23d August, 1886. On that day it wras agreed between counsel that Mr. Bryan, on behalf of W. M. Thomas, should close his testimony on 1 st October, 1886, and that Mr. Mitchell on behalf of the assignee, should close his testimony by 1st November, 1886. Oral testimony was taken on both sides. Testimony by depositions was also taken. These depositions were on due notice. The them were attended coun
' At the hearing, the counsel for the defendant took the further position that the order of reference was void in so far as it directed the register, Seabrook, to report his conclusions on the law and the facts, the register having no other function than that of oral examiner authorized to take the depositions of all such witnesses as should be brought before him. The questions thus raised are important in the practice of the court. As we have seen this is a proceeding in equity. The petition and its answer are treated as a bill and answer in equity. Hearing it, the court, on the pleadings, referred the case to- Mr. Seabrook. This the judge did “by a right inherent in his office, not dependent upon any consent of the parties.” 3 Greenl. Ev. § 330. The right is recognized in equity rule No. 74. The reference was to Mr. Seabrook as register of this court, not,, however, the register at that time in charge of the bankrupt’s petition and estate. As register only,—that is as a register possessing certain powers under the act of congress,—and in the exercise of such powers only, this proceeding in equity could not have been referred to him. The grave litigation involved was not .within his jurisdiction as register. Manual of the United States Bankruptcy Law, 1867, pp. 36, 37, 38. Indeed, under the sixteenth clause of-the act, when an issue of fact or of law arises before a register, and is contested, he loses jurisdiction of it, and the court alone can exercise it. Being thus before the court for decision in a course of proceeding in equity, the judge could either examine and decide it himself,.upon testimony taken ore terms, or upon ■testimony taken under his direction, or he could refer it. In selecting his referee his. discretion was not limited. He could have named his clerk, or the clerk of the. circuit court, or some, member of the ¡bar, or any one in whose opinion.he had .confidence. He chose to refer it id one ■of his registers, whose ability,- experience, and freedom from.'bias, was well.known to the court, and. peculiarly fitted him “tq'assist the judge
“ When the master has disposed of all objections, and has come to a conclusion on the matters referred, lie settles and signs his report, and such report is then filed. The ordinary mode of framing a report is to refer separately to each of the directions in the decree, and then, with respect to each direction, first to mention on what evidence the master lias proceeded, and then to state the conclusion to which he lias arrived. In stating his conclusion he should so far detail the facts which warrant it as to enable the court to judge of its correctness. It is frequently though not always necessary that he should also state the reasons which have induced his decision. But lie must not omit the conclusion itself, or state evidence or circumstances which are presumptive evidence, without finding whether they amount to satisfactory proof.”
jNor is-this practice varied by the rules in equity. Rule 83 provides for filing exceptions to a master’s report. Exceptions to what? If the master be but an oral examiner, as in rule 67, all that he must do is to report all testimony offered before him, and all the exceptions thereto at the time of taking it, without any ruling of Ins own. To give place to exceptions to a report there must be findings in the report. So, also, if the report lie not excepted to within 30 days, it will be confirmed. What will be confirmed? What can he confirmed but its conclusions? But it may be said that these are only conclusions of fact; that the master can find no conclusions of law. The authority quoted makes no such distinction, nor can any reason be assigned for it. ' The purpose of the reference is not to decide the cause, nor does it go to another tribunal. It puts it for a time in the hands of the master, “a branch of the court,” hound implicitly to obey its instructions. Adams, Eq. 672. Even if my conclusion did not coincide with that of the learned magistrate who made the order, I could not hold void this order made by him in a case within his jurisdiction. His orders are the law of this court, and they can only be set aside by a court authorized to reverse its decrees. But he is sustained by the uniform practice of the courts of equity in South Carolina as they existed before 1868, courts which followed implicitly the practice of Westminster Hall. Air. Seabrook will carry out the existing order of the court when he frames his report thereon.
We come now to the exceptions reported by the special master. The first objection is not well taken. As we have seen, Air. Seabrook is acting as a special master. Under equity rule 77 he can not only examine viva voce the witnesses produced before him, but ho can order “the examination of other witnesses to be taken under a commission, * * * or by deposition in the case, under the act of congress. The second objec