Story v. Brown

4 Paige Ch. 112 | New York Court of Chancery | 1833

The Chancellor.

If the master is right in supposing that this case comes within the 107th rule of the court, and that. the several parties are required to bring in their accounts before him in the form of debtor and creditor, he erred in requiring the accounts to be exhibited up to a certain period only, and in receiving the account of the complainant without its being verified in the usual manner. Where a party is di= récted to account before a master, as contemplated by that rule, he must bring in his whole account, including debits and credits, and for the whole time for which he is held accountable, as established by the decretal order of the court. Such account must also .be accompanied by the usual affidavit of the party as. to the correctness of the several items on both the debit and credit side of the account, according to the best of his knowledge and belief, and that he does not know of any error or omission in the account to the prejudice of any of the other parties in the cause in which such account is exhibited, (Bennett’s Office of Master, 83. 2 Brown's Ch. Pr. 818. 2 Newl. Pr. 3 Lond. ed. 460.) In this case, however, there has been no decree settling the rights of the parties, or declaring what particular accounts should be taken before the master, or by whom the accounts should be rendered. But by the consent of both parties, it- has been referred to the master, to take the proofs in the cause, and to take and state an account between the parties in respect to the transactions stated -and charged in the pleadings. The accounts must necessarily be taken in connection with the testimony before the master. And the,nature and extent, of the accounts to be taken must, in a great measure, depend upon the facts proved by such testimony. I think,- therefore, the master erred in supposing that this was a case coming within the provisions of the 107th rule. The master, however, is authorized by the 102d rule to regulate the manner.in which the reference before him is to be executed. He may, therefore, require the respective parties, within such time as he may think reasonable, to exhibit in writing before him the several items of charge which they claim against the adverse party,.'so that it may be known to what points the examination of witnesses is to be directed, and to preclude such parties from making a claim afterwards for any further or other items, unless they shall furnish some reasonable excuse for the delay dr neglect. One. object of this rule was to prevent .the delay and expense •of a separate.summons and.attendance upon every proceeding in the .master’s office. The master should,- therefore, at the return of the. first, summons, regulate the manner ofexecuting ■ the reference, and the several steps to be taken by .the respeclive parties, so far as it can then conveniently be done. And at any subsequent time to which the reference may be adjourned, he should give such further directions as may be proper in relation to any other proceedings which have become necessary in the progress of the reference.

■ The motion for an attachment in this case must be denied. But as this was a new question, arising under one of the recent rules of the court, which the complainants’ counsel had some reason to suppose was applicable to the case, I shall not give costs to the adverse party.