23 N.J. Eq. 81 | New York Court of Chancery | 1872
By consent, the proceedings in several suits were in a manner consolidated, and the chattels included in several chattel mortgages were sold by a receiver under an order of the court before the final decree. One chattel mortgage was held by Elous and Hilbourn, one. by Allen and Mitchell as trustees, and one by Woolman Stokes. These chattels were sold by the receiver in bulk. An order was made referring it to a master to ascertain and report what chattels, included in the mortgage to Stokes, were not included in the mortgage to Elous and Hilbourn, and also which of them were not included in the mortgage to Allen and Mitchell; also, to ascertain the value of such chattels and the amount that they brought at .the sale; and also to report the amount due to Stokes on his mortgage. The master has reported on each point. To this report Elous and Hilbourn filed exceptions.
The only matter that can be considered here is the validity of these exceptions. The. question whether there should have been a reference, so fully argued now, was considered and decided when the order was made, and cannot be reviewed on this argument.
The rule of the court is, that the report of a master on matters referred to him, will be taken as correct, until some error is shown. The burden of this is upon the exceptant;
The first exception is, that certain chattels reported by the master not to be included in the Elous mortgage, were, in fact, included in it. The charge includes four items, viz.: one hundred cots, three hundred pillow cases, four hundred and seventy-three cotton sheets, and all the crockery and glassware for the house. The evidence shows that one hundred cots were included in each mortgage. They may or may not have been the same; they may have been entirely distinct. The receiver may have sold two hundred cots. I am notable to 'determine this, as the inventory of the receiver, which was before the master, was not produced on the argument. The report may be right, for aught that appears, and therefore the exception cannot be sustained as to this. The same result
The second exception is, that the master has reported the value of articles reserved by the receiver and articles not sold by the receiver, when that was not referred to him. Such report would be simply surplusage and would be disregarded; but the fact that a report contains surplusage will not set aside the other part of the report or sustain an exception. But in this case the master has ascertained and reported upon these matters as a means of arriving at the conclusions which he was required to report, and as such they are proper to be stated in bis report.
The third exception to the report is the statement that the value of the chattels in the Stokes mortgage not in the Klous mortgage, and not sold at the receiver’s sale, was only §8390.-54, when they were worth much more. The language, both of the report and the exception, are a little confused and •difficult to understand. But I take it to mean the value of such goods as were exclusively in the Stokes mortgage, which were neither reserved by the receiver nor sold by him; or, in other words, such of the goods as were missing. The exception varies materially from the report, but passing over the variance, I see nothing in the evidence to sustain it in point of fact.
The fourth exception, also, is not sustained in fact.