Winship v. Waterman, 56 Vt. 181

Winship v. Waterman

56 Vt. 181 | Vt. | 1883

The opinion of the court was delivered by

Ross, J\

I. The defendant excepts to the special master’s report, because she says that he has reported conclusions of law instead of facts, in that he has found that part of the property for which recovery is sought were necessaries which went to her use in her family, and which were furnished upon the credit of her sole and separate estate. What are necessaries in a given case depends upon a variety of facts and circumstances; — the kind of property furnished, the use to which it can be put, the *185occasion for its use, the rank and station of the person for whom it is furnished, etc. Nevertheless, whether the articles are, or are not necessaries, is a fact to be found by the master. It is partly a conclusion of law from other facts, but not wholly so. It is a mixed question of law and fact. The same facts and circumstances which would constitute the same articles necessaries for one person would not for another person. It doubtless would have been better for the master to have stated all the facts found by him from which he found the fact that the articles were necessaries as to the defendant. But it was not legal error that he did not do so, especially when not requested to state all the facts and circumstances upon which he based such finding. The exception was addressed largely to the discretion of the Court of Chancery. It furnished no legal objection to the acceptance of the report and to a decree thereon.

II. The additional exceptions are to the decisions of the master in regard to the admission of testimony. The report does not show that any testimony was received or rejected by him against the objection and exception of the defendant. Sec. 750, ■E. L. provides: ' “No questions in regard to the admission or rejection of evidence by the master shall be heard in the Supreme Court, unless such objection is made by exception duly filed to the report in the Court of Chancery.” This clearly implies that the report is to show the objections and exceptions saved to the admission or rejection of testimony. This is made certain by the last part of s. 727, where it is provided that the masters “shall state in their report decisions made as to the admission or rejection of evidence when the party against whom the decision is made so requests in writing.” Unless so requested the master is not obliged to state his decision in admitting or rejecting evidence, and may treat the objectioiis and exceptions waived. If he should neglect to report his decisions in that behalf when so requested in writing, it would be the duty of the Court of Chancery .to recommit the report to have that done. The provisions of the statute are explicit and pointed in saving to the objecting and excepting party his rights in this respect. It is equally *186explicit that such questions shall be treated as waived in the Supreme Court, unless saved in the report, and insisted on in the Court of Chancery, by exceptions duly filed to the report. The practice pointed out in the statute is certain and definite, and would be unseemly and unfitting in this court to bring it into uncertainty and confusion, by allowing something else to be substituted for the plain requirements of the statute. It was never intended that the Court of Chancery or this court should be compelled to hunt through the imperfect minutes of testimony taken by the master, to ascertain what objections and exceptions were taken on the admission or rejection of evidence. The master has referred to his minutes of testimony, but not for this purpose. As brought to our attention by the defendant’s solicitor, his minutes show objection to a portion of the testimony of the witnesses named in the exceptions, but do not show that he made any decision in regard to the admissibility of the same, except in regard to the weigh-bill of a load of hay; and that was clearly admissible in connection with the weigh-master’s and J. C. Win-ship’s testimony. From the master’s minutes the presumption is that the objection to the other testimony was waived or withdrawn ; at least that it was not insisted on, inasmuch as the minutes show no decision in regard to the objection. If the minutes did show a decision by the master, we should not be inclined to encourage any such loose practice by considering them — a practice so variant from the plain, explicit, and convenient requirements of the statute.

These are the only errors pointed Out by the exceptions filed to the master’s report, now insisted upon.

Decree affirmed, and cause remanded.