text:
    Scott vs. Young, administratrix, &c.
    The right, which is given to a party by the 85th rule of the court of chancery, to proceed with the examination notwithstanding the decision of the examiner that the witness is incompetent, or that the interrogatory is irrelevant and improper, cannot properly be exercised except in cases where the solicitor or counsel of such party has reason to doubt the correctness of the decision ; and if the solicitor or counsel who is conducting the examination insists upon proceeding, in a case where there is no reasonable ground for doubt as to the correctness of the decision, he will be personally charged with the costs of the application to the court, to suppress the deposition, or to expunge the objectionable testimony.
    The examiner has no right to reserve the question, upon an objection to the competency of a witness, or to the propriety of an interrogatory, where he has no rational doubt as to the validity of the objection. It is his duty in such cases to decide the question, and to leave the solicitor or counsel conducting the examination to proceed with the illegal testimony at the peril of being personally charged with costs.
    It seems that an heir at law, who is liable for the debts of the decedent to the extent of the real estate descended to him, if they cannot be collected out of the personal estate, but who is so situated that he cannot be sued for such debts until the creditors have exhausted their remedy against the personal representative, is not a competent witness for such personal representative, in a suit by the creditor for the recovery of such a debt, to prove that the debt has been paid.
    August 19.
    In February, 1815, Andrew Cannan conveyed to bis son, Robert Cannan, and to bis son-in-law, James Young, a farm in the town of Middlefield in the county of Otsego, and took from them a bond and mortgage on the same premises, conditioned to pay all the debts of Andrew Cannan, and to pay certain sums of money to bis children within one year after his death. Among the sums thus secured to be paid to the children, was one of $250 to the complainant; for the recovery of which this suit was brought. A further agreement was entered into, at the same time, by which R. Cannan and J. Young were to support and maintain A. Cannan and his wife for life. And to secure the performance of that agreement, a lease of the farm was given back to A. Cannan, for the term of his natural life, at a nominal rent. In 1817, J. Young bought all the interest of his brother-in-law, R. Can-nan, in the Middlefield farm, and took a conveyance therefor from him, subject to the payment of the several sums secured by the. bond and mortgage, and subject to the support of A. Cannan and wife as specified in the agreement of February, 1815. it. Cannan subsequently removed to Canada and died. Andrew Cannan died in August, 1828, and James Young died intestate, six or seven months afterwards, leaving a considerable real and personal estate besides the Middlefield farm. After the death of J. Young, the defendant, his widow, administered on his estate, and Robert Young, one of his sons, became her surety in the administration bond. And his children and heirs took possession of the Middlefield farm, which was subsequently sold for their benefit, The bill in this cause was filed in October, 1831, to recover from the administratrix of J. Young the $250 secured to the complainant by the bond and mortgage, together with the interest thereof after one year from the death of A. Cannan. The defence set up by the answer of the defendant was, that several years previous to the death of J. Young, the complainant was indebted to him upon book account, to the amount of $140,75; that after his death, the complainant and defendant settled the accounts between them, including the $250 secured by the bond and mortgage, and that upon such settlement, $70 was found due to the complainant, which the complainant agreed to accept in full of all demands; and that the $70, together with the interest thereon, was tendered to the complainant previous to the filing of her bill in this cause. In her answer, the defendant denied that the personal estate of the intestate was sufficient to pay all his debts, and insisted that she had fully administered all the estate which had come to her hands as administratrix. But by a stipulation, which was afterwards entered into by her solicitor, she agreed to admit that there were assets remaining in her hands unadministered, sufficient to satisfy the complainant’s demand, as stated in the bill, with costs, if a decree should be obtained against the defendant. A replication having been filed to the answer, several witnesses were examined in favor of the respective parties. Among others, the defendant called Andrew Young, Robert Young, Daniel F. Young, and Eleanor N. Young, children and heirs at law of her deceased husband, for the purpose of proving an account in favor of the estate against the complainant, and to show the settlement set up in the answer. The defendant produced, before the examiner, a quit claim deed to herself, from the three first named children, dated on the day of their examination as witnesses, by which they conveyed to her all the real estate of which their father died seised, except the Middlefield farm which had previously been sold; and also a general release to her of all their interest in the real and personal estate of the decedent. These several witnesses were objected to by the complainant as incompetent; and the question as to the competency of the three first was reserved by the examiner. And he decided that Eleanor N. Young, who was under age and had executed no release, was an incompetent witness; and the defendant’s counsel insisted upon her being examined, notwithstanding such decision. Notice was given to the defendant’s solicitor that a motion would be made at the hearing to suppress the depositions of these witness. The cause was brought to hearing upon the pleadings and proofs, and upon the motion to suppress the depositions.

      If. Lathrop, for the complainant.

      II. Brown,;, for the defendant.
   The Chancellor.

It is perfectly clear that Eleanor N. Young, one of the children of the intestate, who had not released her interest in the residuary estate of the decedent, was an incompetent witness for the defendant in this suit. And no excuse whatever is offered for proceeding with the examination of this witness, after the examiner had decided she was incompetent. The right reserved to a party, by the 85th rule of this court, to proceed with the examination notwithstanding the decision of the examiner that the witness is incompetent, or to insist upon an answer to an interrogatory although the examiner decides that the inquiry is irrelevant or improper, is only to be exercised in those cases where the solicitor or counsel of the party against whom the decision is made, has reason to doubt the correctness of such decision. The object of-this part of the rule was to save the expense and delay of a special application to the court in that stage of the suit, to review the decision of the examiner, and to correct it should it turn out to be wrong. The costs of the application to suppress the deposition, or to expunge the objectionable testimony, will therefore be charged upon the solicitor or counsel conducting the examination, when there has been a palpable abuse of the power to proceed in opposition to the decision of the examiner; or where there were no reasonable grounds for doubt as to the correctness of such decision. But if the court is satisfied that the solicitor or counsel conducting the examination really supposed that the decision of the master was wrong, the costs will be charged upon the party for whose benefit he was acting. Neither is the discretionary power given to the examiner by this rule, to decide upon the objection to tire competency of a witness, or to the relevancy of the testimony offered, or to reserve the question, as he shall deem proper, an arbitrary discretion which will justify him in foro conscientia, in reserving the question where there can be no rational doubt in bis mind as to the validity of the objection. It is his duty to decide the question in such a case, although he may lose the extra fees of taking down and furnishing copies of the illegal or improper testimony. And he cannot, consistently with his oath of office, permit a party to proceed with testimony which he knows to be illegal or irrelevant; unless the solicitor or counsel for such party thinks proper to proceed in opposition to the decision of the examiner, and at the risk of being compelled to pay the costs of suppressing such improper testimony, out of his own pocket. In accordance with these principles, the deposition of this witness must be suppressed, with costs. And I should direct those costs to be paid by the counsel who insisted upon proceeding with her examination after the examiner had decided that she was incompetent, if it appeared from the papers before me who that counsel was. But as that does not appear, the costs must be paid by the defendant.

The question as to the competency of the three sons of the intestate, as witnesses for the defendant, after the conveyance to her of all their interest in the estate of their father except as to the Middlefield farm, which had previously been sold, was properly reserved for the decision of the court. If the personal estate of the decedent was the primary fund for the payment of this debt, as appears to have been conceded by the parties previous to the commencement of this suit, I am inclined to think these witnesses were interested in defeating a recovery against the defendant, notwithstanding the conveyance of their interest in the estate of their father. If a debt cannot be collected of the personal representative of a decedent, the creditor may resort to the real estate in the hands of the heirs at law. And if the real estate has been sold by the heirs, before the commencement of the suit against them, they will be personally liable to the creditors, to the value of such estate. (2 R. S. 454.) The three sons who were examined as witnesses in this case, had conveyed their interest in the Middlefield farm, or it had been sold for their benefit, before the present suit was commenced; and they have since sold to their mother the residue of their interest in the real estate of their father. And if the debts due from the decedent cannot now be collected out of the personal estate which came to her hands as administratrix, these heirs will be liable to the creditors, to the extent of the value of the real estate which has been thus sold. If it should be said she takes the real estate subject to the equitable lien of the creditors for the payment of their debts out of the same, the interest of these witnesses would still be the same, as such lien would impair the security of the mortgage which they have upon the property for the payment of the purchase money. A recovery by the complainant against the administratrix would not be evidence, in a subsequent suit against the heirs, of the existence of the debt. But as it is admitted that personal assets came to the hands of the administratrix sufficient to pay the debts, if the heirs can defeat a recovery against her, it is evident the creditor cannot resort to them ; the revised statutes making it necessary for the creditor, in such a case, to exhaust his remedy against the personal representatives, before he can proceed against the heirs at law. (2 R. S. 452, § 33.) From the opinion which I have formed as to other parts of this case, however, it is not necessary for me to decide the question definitively as to the competency of these witnesses.

■Considering -tliem as competent, I am satisfied there was no settlement between the parties, in 1827, which can be considered as binding. It was at most only an attempt to settle, and a partial computation of the matters in difference between them, which was finally broken off by the defendant’s claiming to charge the complainant with a. debt of her deceased son. No statement of the accounts in writing was made, and the witnesses are unable to say what accounts were claimed by the complainant and admitted by the defendant, though It is evident there was a considerable account on the part of the complainant against the estate. As it was merely an attempt to settle, which did not finally succeed, it would be the height of injustice to permit the admissions of one party only to be given in evidence, by witnesses who do not recollect enough of what was said to give the whole conversation. The running accounts were not on interest; "and the agreement to compute interest on both sides, in an attempt to settle their respective claims, but which did not result in a settlement, was not binding on either party. It is evident also, from what is proved to have occurred on the day on which Kelly was hanged, that the defendant did not consider what had taken place at a former day, as a binding settlement. The family account between these two sisters would probably have been arranged without much difficulty, if their children had not interfered to prevent it. As it has resulted, I am satisfied there has been no settlement or admissions as to the state of the accounts, which Is legally binding upon either. It is probably impossible at this time to ascertain what is right in respect to the accounts between the complainant and James Young; most of the items of which are of about 20 years standing. And the accounts between the parties do not appear to have been kept in such a manner that any reliance can be placed upon their books, as evidence of the different items. The book produced by the defendant, and made an exhibit, does not appear to have been kept as a regular account book, in which the items of debt and credit were entered as they occurred. All the items, except one, are dated in 1812 and 1814; and yet the account of a third person, which immediately precedes this in the book, commences in 1815. The second and fourth items also appear to have been interlined after the two following charges were made ; and the credits of the account, if any were originally given, were probably entered on the lower part of the leaf, which appears to have been cut off The accounts of the complainant are probably in no better situation, as her counsel declined making the original account an exhibit before the examiner. I think it probable that there might have been a balance upon these private accounts in favor of James Young, if we reject the complainant’s claim for the support of her father during a portion of his latter days. But although the complainant had no legal claim upon her brother-in-law for such support, as it was not furnished at his request, I think no injustice will be done to either party in considering the accounts as balanced ; and leaving the amount secured to the complainant by the mortgage, with the interest thereon, to be paid out of the estate of James Young. I shall therefore decree that the defendant pay to the complainant the $250, with interest thereon from the 20th of August, 1827, with costs*


source: Caselaw Access Project

author: The Chancellor

license: Public Domain

text:
    Craig vs. Briggs.
    An affidavit may be sworn to before a state senator, be being ex officio a judge of the court for the correction of errors, which is a court of record.
    August 27.
    The question was raised in this case, whether an affidavit taken before one of the state senators could be read in a suit pending in the court of chancery.
   The Chancellor

referred to the forty-ninth section of the article of the revised statutes, relative to the powers and duties of certain judicial officers, (2 R. S. 284,) as authorizing any judge, or clerk, of any court of record, to take an affidavit to be used in any court of this state, or in any cause, matter or proceeding in which an affidavit is required or authorized to be read or used. He said a senator was ex officio a judge of the court for the correction of errors; which court, by another provision of the revised statutes, was declared to be a court of record. (See 2 R. S. 276, § 1.) That a senator, therefore, as a judge of such court, was authorized to take affidavits to be read or used in any court of law or equity, or in any matter or proceeding in which affidavits were required or allowed by law to be used.


author: The Chancellor,

text:
    Pattison vs. Powers and others.
    Where the purchaser of mortgaged premises assumes the payment of the mortgage debt, and gives his own bond as a collateral security therefor, upon which bond a judgment is obtained, the mortgagee cannot file a bill of foreclosure until he has exhausted his remedy against the property of the defendant in the judgment, by the return of an execution unsatisfied.
    The provision of the revised statutes, prohibiting the filing of a bill of foreclosure where proceedings at law have been instituted for the recovery of the debt secured by the mortgage, is not limited to a suit at law against the mortgagor only, or upon the securities originally given as collateral to the mortgage.
    A bill of foreclosure should contain a distinct averment, in the terms of the statute, that no proceedings have been had at law for the recovery of the debt secured by the mortgage, or any part thereof; or if such proceedings have been instituted, the bill should state what such proceedings were, and against whom instituted; and it should also show that the proceedings at law have been discontinued, or that the remedy at law has been exhausted.
    In May, 1802, J. Eaton gave to J. Thurman a bond and mortgage on a lot of land in the town of Chester, to secure the payment of $428,59, with interest at the rate of six per cent.; which bond and mortgage was afterwards, by divers mesne assignments, transferred to G. Gardner. The defendant H. Powers became the owner of the mortgaged premises; and assumed the payment of the amount due on the bond and mortgage. In August, 1831, to secure the payment of the amount then due, and also to secure a further sum due to G. Gardner, H. Powers gave to him a bond for the payment of $2500, and interest, and a warrant of attorney to confess judgment thereon; upon which bond and warrant a judgment was duly entered, in the supreme court, a few days thereafter. In March, 1834, Gardner assigned the bond and mortgage and the judgment against H. Powers, to the complainant, who thereupon filed his bill in this cause to foreclose the mortgage. The complainant averred in the bill, that no suit at law had been brought on the bond of Eaton which was given at the time of the execution of the mortgage ; but he stated the fact of the execution of the bond and warrant for the payment of the $2500, and the entry of the judgment thereon. He also stated in his bill, that the judgment-was intended to be collateral to the mortgage, to the extent of what was due on the mortgage, but that as to the residue of the $2500, the judgment was his only security; and that no execution had been issued on the judgment. The bill was taken as confessed against all the defendants, and the master reported that the whole amount of the principal secured by the mortgage remained due and unpaid. He also reported that the judgment of the complainant was the oldest encumbrance upon the mortgaged premises subsequent to the mortgage; stating the amount then due upon the judgment, for principal and interest, including the amount which was also secured by the mortgage. The cause was heard upon the bill taken as confessed, and the master’s report.

      August 27.

      J. King, for the complainant,
    asked for the usual decree for a sale, and for the payment of the amount due on the mortgage, with interest and costs, out of the proceeds of the mortgaged premises; and for a decree over against H. Powers, in case of a deficiency. He also asked for a direction to the master to apply the surplus, if any there should be, towards the balance due on the complainant’s judgment.
   The Chancellor,

after ascertaining the facts set forth in the bill, refused to make a decree for a foreclosure and sale of the mortgaged premises; as the complainant had not exhausted his remedy at law upon the judgment against H. Powers, previous to the commencement of this suit. He said the statute was imperative, that where any judgment at law had been obtained for the monies demanded by a bill of foreclosure, or for any part thereof, no proceedings should be had in the foreclosure suit, unless the sheriff should have returned to an execution issued upon such judgment, that the defendant therein had no property to satisfy the same, except the mortgaged premises. (2 R. S. 192, § 156.) That the provisions of the statute were general, and were not limited to proceedings at law and judgments recovered against the original mortgagors, upon the bonds or other collateral securities given by them for the payment of the mortgage monies. That the complainant, in a bill of foreclosure should aver, or state, in the terms of the statute, that no proceedings have been had at law for the recovery of the debt secured by the mortgage, or any part thereof; or if proceedings at law had been instituted, the bill should state what such proceedings were, and against whom instituted. And that it should also show that such proceedings at law had been discontinued, or that the complainant’s remedy at law had been exhausted, by the return of the execution unsatisfied, for want of property whereon to levy.


text:
    Hart and others vs. D. & A. Small.
    A defendant who has appeared by a solicitor, is entitled to notice of all the subsequent proceedings in the cause, although he suffers the complainant’s bill to be taken as confessed; and a decree taken against him ex parte, without notice to his solicitor of the hearing, will be set aside as irregular.
    The defendants in this cause appeared by their solicitor, and put in their answers to the complainants’ bill. But the answers, upon exceptions taken thereto, being found insufficient, the bill was taken as confessed against the defendants, in consequence of their neglect to perfect their answers within the time prescribed by the order of the court. The complainants’ solicitor, thereupon, placed the cause upon the calendar for hearing, at a stated term of the court; but he neglected to give notice of such hearing to the solicitor for the defendants. (Ante, 333, S. C.)
    August 27.

      J. N. Cushman, for the complainants,
    now moved for a decree, ex parte, upon the bill taken as confessed.
   The Chancellor

said, that where a defendant had appeared by a solicitor, he was entitled to notice of all subsequent proceedings in the cause, although he had suffered the complainant’s bill to be taken as confessed for want of an answer. That such was the decision of this court, in January, 1833, in the case of Wager v. Stickle, not reported ; where a decree, upon a bill taken as confessed, which had been entered ex parte and without notice of the hearing to the defendant’s solicitor, was set aside as irregular. That in Rose v. Woodruff, (4 John. Ch. Rep. 547,) a loose expression of the chancellor had been introduced into the report of the case which was calculated to mislead. That Rose v. Woodruff was undoubtedly a case of a bill taken as confessed against the defendant for want of an appearance. And the late Chancellor Kent only meant to say, that in such a case the complainant was not required to give notice of the hearing to the defendants, either by a personal service on him, or by affixing the notice in the register’s or clerk’s office—a principle which is now settled and declared in the last clause of the 16th rule of this court.

The chancellor said it was frequently the case that all the material facts in the cause were correctly and truly set forth in the complainant’s bill; and that in such a case, although the defendant admitted the facts, by suffering the bill to be taken as confessed, it might still be very important, for the preservation of bis rights, that he should be heard before the court, as to the nature and extent of the relief to which the complainant was entitled, upon the facts thus set forth and admitted. And that there was no good reason why the defendant should be deprived of his right to be heard upon the entering of the decree, on the supposition that he had abandoned his rights, because he had suffered the bill to be taken as confessed, instead of subjecting himself or the complainant to the additional costs and useless expense which would have arisen from the putting in of an answer, admitting the same facts, though in a different form.

The cause was therefore directed to stand over, that notice of the hearing might be given to the solicitor for the defendants.


author: The Chancellor.

text:
    In the matter of The Rensselaer and Saratoga Rail Road Company.
    A rail road company is interested in the keeping up of the partition fences which separate the lands taken for the use of their railway from the adjoining lands ; and where there is no special provision on the subject in their act of incorporation, the company is bound to make and support one half of the partition fences.
    in estimating the damages which the owner of lands taken for the use of a rail road will sustain by the running of the road through his lands, he should be allowed for the expense of making and maintaining only one half of the partition fences, as the other half the rail road company are liable to make and maintain.
    The corporation of the Rensselaer and Saratoga Rail Road Company having appropriated for the use of its railways the lands of certain individuals, without their consent, and being unable to agree with them as to the price of the lands thus taken, commissioners were appointed by the chancellor, in pursuance of the act of incorporation, to appraise the damages which the land owners would sustain from such appropriation of their lands for the use of the company. The owners of the lands, upon the investigation of the subject before the commissioners, claimed, as a part of the damages which they would sustain by the laying out of the rail road through their farms, the expense of building the whole of the partition fences between the lands taken for the use of the corporation and the remaining lands of such owners, and of keeping such fences in repair during the existence of the charter. The commissioners of appraisement allowed this claim pro forma. But, for the purpose of enabling the court to determine the question as to the right to such damages upon the coming in of the report of the appraisal, the commissioners made a separate or distinct estimate of that portion of the damages which each land owner would sustain, in consequence of the extra fencing that would become necessary to separate his other land from that taken by the corporation.
    September 1.

      J. Paine <$• A. Brown, for the corporation.

      G. W. Kirtland, for the land owners.
   The Chancellor.

The additional fences which these land holders would be obliged to build and maintain, in con-, sequence of the laying of the rail road through their farms, formed a proper subject of consideration in the estimate of the damages. And if the land owners are either legally or equitably bound to build and maintain the whole of the partition fences, between their own lands and those which are taken for the use of the corporation, then the amount allowed by the commissioners is right. In the ordinary case of a turnpike road, running through the lands of an individual, neither the turnpike company or the public has any interest in protecting such, road against encroachments of cattle or other animals from the adjacent lands, as such encroachments will not materially affect the ordinary use of the road. And neither law nor equity will compel the turnpike company to maintain fences, from which it is to derive no benefit. As the owner of the lands adjoining the road must in such case, from necessity, forever afterwards maintain the whole fence, unless he is willing to let his lands lie open as a common, the entire expense of maintaining such additional fences as are rendered necessary by the laying of the turnpike through his lands, forms a proper subject of consideration in the estimate of the damages which he will sustain by reason of the laying- out of such road. The same principles are applicable to the assessment of damages, where a common highway is laid out.through the lands of an individual. And he must, in that case., .also, obtain his compensation for the expense of maintaining the whole fence in the first instance, by way of damages; as he can never afterwards call upon the public to contribute towards such expense.

•In the case now under consideration, however, the land holders are under a mistake in supposing that they will be obliged to make and maintain the whole of the partition fences, between their lands and the lands of the rail road (Company, at their own expense. The manner in which a, rail road is to bs used, renders it necessary that the company should secure their road against the encroachments of cattle, sheep and swine from the adjacent lands; to ensure the safety of the persons and property of those who may pass upon the road. And the company will be answerable for any injuries which may be sustained from a neglect to adopt the obvious means of guarding against accidents arising from that source. If the owners of the adjacent lands elect to let their lands lie open to the commons, the rail road company will, of necessity, be compelled to make the whole of the partition fence, to secure itself against such encroachments from cattle. And, therefore, if the owner of the adjoining lands finds it necessary to have his land enclosed, either for the purposes of cultivation or to restrain his own cattle, he will have an ■equitable claim upon the rail road company to make and support one half of the partition fence. The 30th section of the article of the revised statutes, relative to division and other fences, (1 R. S. 353,) does not in terms apply to this case; because the lands of the rail road company are not in fact enclosed at those points where their road is crossed by the public highways on a level therewith. But the case of a rail road company, which has a deep interest in fencing against cattle, &c. from the adjoining lands, comes clearly within the equitable principle adopted by the legislature in this section of the statute ; that where the owners of adjoining lands are to receive a common benefit from a division fence between them, each shall contribute a moiety towards the erection and support of such fence, so long as the common benefit continues. In this case, therefore, in analogy to the statutory provision, equity will compel the rail road company, and the adjoining land owner, to contribute equally towards the erection and maintenance of the partition fence. And if either shall neglect or refuse to make or repair his or their proportion of such fence, after reasonable notice, the other may make the whole, and may recover the contributory share of the one so neglecting or refusing, in the equitable action of assumpsit.

This principle of equitable contribution between the owners of adjoining lands is not new; neither does it depend alone for its support upon express statutory provisions. It was ori£*na^y derived from the civil law, and is constantly acted upon in those countries where the equitable principles of the civil law regulate the rights of vicinage. (Civil Code of Louisiana, Art. 671 to 686. Code Nap. Art. 653 to 670. Vander Linden’s Inst. of Holland, Lib. 1, ch. 11, § 3. Bell’s Law of Scot. 279, Art. 1086.) The same principle was also acted on by this court in the case of Campbell v. Mesier, (4 John. Ch. Rep. 334,) where the late Chancellor Kent compelled the owner of a building in the city of New-York to contribute his rateable portion of the expense of rebuilding a party wall, from which the owners of adjoining lots received a common benefit.

It would undoubtedly have been better for both parties, and would perhaps have saved some useless litigation hereafter, if the legislature had made it the duty of the rail road company to keep up and maintain the whole of the partition fences between their railway and the adjoining lands of other persons. But as the legislature has not seen fit to adopt that principle, and each party being bound to support one half of the fence, the estimated amount of damages, on account of the fencing, must be diminished one half. And the rail road company must pay the amount as thus reduced, together with the general damages sustained by the land owners, as ascertained and determined by the commissioners ; the appraisal of damages, so far as regards these parties, being correct in other respects.


text:
    Gregory & Selman vs. Dodge.
    Where, upon a bill for an account as to certain commercial transactions, the defence set up is, that the claim for which the suit is brought was a partnership transaction, in which a third person was jointly interested with the complainants as a copartner, and that the account has been adjusted and settled up to a certain period, such third person is a competent witness for the defendant to prove the existence of the copartnership and the settlement of the account.
    A copartner of the complainants, who is not made a party to the suit, is also a competent witness for the defendant to prove the existence of a demand against the copartnership which the defendant wishes to avail himself of as a set off.
    It is not a sufficient compliance with the rule requiring the objection to the competency of a witness to be made before his testimony is closed, for the counsel for the adverse party merely to reserve to himself the right to object to the testimony of the witness thereafter, on the ground of interest; but the objection to his testimony must be distinctly made, and the nature of his interest stated, so that the objection may be noted or passed upon by the examiner.
    Where the interest of a witness appears from his own examination, the objection to his competency on that ground should be made before his examination is closed.
    But if the adverse party intends to prove the witness incompetent by other testimony, the objection to the witness should be made before his examination is closed, and the nature of his interest or the other grounds of objection to his competency should be distinctly stated, that they may be noted by the examiner; and it will then be sufficient, if the party making the objection proves the facts stated as the grounds thereof, at any time before the proofs in the cause are closed.
    The bill in this cause was filed by the complainants against the defendant Dodge, as the surviving partner of the firm of Dodge & Green, for an account and settlement of certain commercial operations between the parties. The defence set up by the defendant was, that the commercial transactions were carried on between Dodge & Green of the one part, and the complainants and Leavitt Kingsbury, who was their partner, of the other part. And the defendant insisted, that as to a certain part of the account, there had been a settlement thereof between Dodge & Green, and Kingsbury, on behalf of himself and the complainants, and that the account should not go back beyond that period. He also insisted upon being allowed, on the taking of the accounts, for advances and payments made to Kingsbury as one of the partners. Kings-»bury was examined as a witness on the part of the defendant, and established the defence set up in the answer. At the hearing of the cause, before the late vice chancellor of the first circuit, the complainants applied to- suppress the deposition of Kingsbury ; which application was granted, with costs. And the vice chancellor made a decretal order for a reference to take an account between the parties, in relation to the matters stated in the pleadings, excluding therefrom the accounts, if any, in which Kingsbury was interested, either solely or jointly with the complainants as copartners. And in taking the account, the master was directed to reject the testimony of Kingsbury. From the order suppressing the depsition, and from so much of the decretal order of reference as directed the master to exclude the accounts in which Kingsbury was interested, and to reject the testimony of Kingsbury as evidence upon the taking of the account, the, defendant appealed to the chancellor.

      September 16.

      G. B. Hall, for the appellant,
    jD. D. Field, for the respondents;.
   The Chancellor.

No objection was made to the competency of Kingsbury as a witness before the examiner. And as the nature of his interest, if he had any, was such that it might have been released if a distinct objection had been made before the testimony was closed, it was too late to object to his competency at the hearing. (The Mohawk Bank v. Atwater, 2 Paige’s Rep. 54. Town v. Needham, 3 Idem, 546.) Again ; the testimony of this witness was not completed before the examiner until some months after the new rules of this court went into operation; and the 85th rule-expressly declares, that no objection to the competency of a witness shall be made at the hearing, unless such objection was made before his testimony was closed. The reservation which the complainants’ counsel made at the commencement of the examination, of a right to except to the testimony of the witness thereafter, on the ground of interest, if he should think proper to do so, was neither a compliance with the letter or the spirit of the rule. It amounted to nothing more than saying, <e If the witness you are about to examine discloses any thing that shows he is interested, and if I shall think it for the interest of my clients to exclude his testimony on that account, I reserve the right then to make the objection.” But the object of requiring the objection to the competency of a witness to be made before his testimony is closed, was to enable the party calling him to obviate the objection, if possible, by a release, or if that could not be done, to give the party an opportunity of substantiating the facts by other witnesses. When a witness is called by one party, if the adverse party intends to prove by other evidence that the witness is interested in favor of the party calling him, or that he is otherwise incompetent, the objection to his competency, and the nature of the interest or other disqualification, should be distinctly stated in the same manner as an objection to the competency of a witness is taken at the circuit, except that it will not be necessary for the party making the objection to produce his evidence in support thereof previous to the examination of the witness. Where the nature of the disqualification is particularly stated, and the objection to the competency of the .witness, on that ground, is noted by the examiner before the testimony of the witness is closed, so that the party calling him may have a fair opportunity to obviate the objection where it can be obviated, it will be sufficient if the party making the objection produces his proof in support of the same at any time before the proofs in the cause are closed, and while the examination of witnesses is going on before the examiner. And where the interest appears, from the examination of the witness himself, the objection should be distinctly made, and should be passed upon or noted by the examiner, when the facts disclosing such interest are sworn to by the witness, or at least before the examination is closed.

Upon the merits of this question, also, I do not perceive that this witness was interested in defeating a recovery in favor of these complainants against the defendant. If, as he .testified, the matters in controversy were matters in which he was jointly concerned with the complainants as a partner, then he was interested in having them recover the whole sum claimed; as he could call upon them to account to him as a partner therefor, although it had been recovered in a suit prosecuted in their names only. And if he was also liable to the defendant, as a partner of the complainants, for the amount claimed as an offset against the partnership demands, it only balanced his interest so as to make him indifferent between the parties. The fact that his copartners were insolvent, did not alter the nature of Iris interest; because, if they had obtained a decree against the defendant, he could, by filing a bill to settle the copartnership accounts, have prevented them from receiving the money until the whole copartnership debts, including any balance which might be due to him from his copartners, were settled or provided for. The fund being within the jurisdiction of this court, it might be reached on such a bill, although Gregory & Selman were insolvent and out of the state. If Kingsbury is considered only as an agent of the complainants, from the agreement which is made an exhibit in the cause, his interest, in defeating a recovery against Dodge in favor of his principal, is not thereby increased. In any other view I have been able to take of this case, the witness, at the most, was interested in the question, as to some of the matters upon which he was examined; but was not interested in defeating the complainants as to the matters in controversy in this suit.

The order to suppress his deposition with costs, and so much of the decretal order of reference as is appealed from, are erroneous; and must be reversed, with costs.


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    Taylor vs. Read.
    Where the decree of a vice chancellor settles the rights of the parties and disposes of the general costs of the cause, and also contains the consequential directions for carrying the decree into effect upon the coming in and confirmation of the report of a master, to whom a reference is directed to ascertain the amount to be paid, it is, substantially, a final decree, although the case is subsequently brought before the vice chancellor, upon exceptions to the report; and an appeal from a decretal order, allowing or disallowing such exceptions, will not authorize the chancellor to reverse or alter the original decree of the vice chancellor.
    Upon the allowance of an exception to a master’s report, as to the amount of damages sustained, the court can modify the report, and settle the amount, without referring it back to the master.
    W here a complainant, in a court of equity, claims a compensation in damages for the non-fulfilment of a contract which has been in part performed, the benefit received by him from such part performance will be allowed to the defendant, in estimating the damages of such complainant.
    The proper measure of damages, for the breach of a contract for the delivery of goods, on sale, to be paid for when delivered, and where no part of the goods have been received, is the difference between the contract price and the actual value of such goods at the time they should have been delivered, and the interest upon such difference.
    Where particular articles of property are to be delivered within a limited period, to be applied for specific purposes, and not for general merchandise, the party who fails to perform bis contract to deliver the articles, is bound to make good the loss occasioned by his delinquency; but he is only liable for direct damages, which, according to the nature of the case, may be presumed to have resulted from his failure to perform the contract, and not for remote or speculative damages.
    If a party, entitled to the benefit of a contract, can protect himself from a loss, arising from a breach thereof, by reasonable exertions or common prudence, and he fails to do so, he will not be permitted to throw the loss, which has arisen from such neglect, upon the other contracting party.
    Where the defendant contracted to deliver a certain number of saw-logs at a specified price, to be paid for on delivery of the whole, and only a part was delivered, but not paid for, and the contract price of those delivered was more than the difference in value between the residue of the logs and the contract price thereof: Meld, that the complainant was only entitled to nominal damages, for the non-performance of the contract as to the delivery of the residue of such logs.
    The bill in this cause was filed for the purpose of enforcing alien upon a land contract, given by Sir J. L. Johnstone to R. Topping, which by divers assignments afterwards came to Hannah, the mother of Hudson Topping. The contract was pledged to the complainant to secure the performance of an agreement with him by Hudson Topping for the delivery of 500 saw-logs, at ,his saw-mill, and was afterwards assigned to the defendant Read, by Hannah Topping. The cause was heard before the equity court of the sixth circuit upon pleadings and proofs. And in March, 1830, the vice chancellor of that circuit made a decree therein, in favor of the complainant, by which his lien upon the land contract, to the extent of his damages for the non-performance of the agreement for the delivery of the saw-logs, was established. That decree directed a reference to a master to ascertain and report the amount of the complainant’s damages for the non-performance of that agreement; in estimating which damages, however, the master was directed not to take into consideration the payments which had been made to Hudson Topping thereon, unless it should be made to appear, by the proofs before the master, that Hannah Topping knew of and assented to such payments. The master was also directed to ascertain and report the amount, if any, which Read had paid on the land contract, over and above the rents and profits of the premises; deducting from such rents and profits' the value of improvements made -by him upon the land. It was further decreed, that upon the coming in and confirmation of the report, the defendant Read, within ten days after he had notice of the same, might elect to pay the damages reported due on the agreement for the logs; and that in default of such election, or of the payment of such damages within thirty days thereafter, he should release to the complainant the land contract, and all his interest in the premises therein described, upon the payment to him by the complainant of the amount, if any, of his payments on the contract over and above the rents and profits, as ascertained by the master’s report. And that neither party should recover costs as against the other.

      September 16.

      Under this decree, the master reported that the damages, which the complainant had sustained by the non-performance of'the contract, for the delivery of the logs, were six cents only; that the defendant Read was not entitled to any thing for improvements on the land ; and that the rents and profits of the premises exceeded the amount paid by Read on the contract, in the sum of $30,76, He also reported that Hudson Topping had delivered to the complainant 160 logs, but not such as were described in the contract; and that in estimating the damages, the master had not taken into consideration the sum of $200 paid to Hudson Topping on the ■ contract, because the evidence was not sufficient to satisfy him that any part of the payment was made with the knowledge and assent of his mother. To this report, the •complainant filed two exceptions : First. That the report was erroneous in fixing the damages at the nominal amount of six cents, whereas the complainant insisted that the master should have allowed at least $500 for such damages; Second. That the master had erred in not taking into the estimate of damages the monies paid to Hudson Topping on the contract; the complainant, by his exceptions, insisting that it was proved before the master that the mother knew of and assented to the payment. Upon the hearing of these exceptions before the vice chancellor, in October, 1831, he decided that the master was right in disregarding the payment; but that, on the other hand, the delivery of the 160 saw-logs was to be disregarded, except so far as it went to reduce the whole number of logs which were to be delivered on the contract. A decretal order was therefore made, referring it back to the master to ascertain and report the damages of the complainant for the non-delivery of the remaining 340 saw-logs; disregarding the payment of the $200 paid by the complainant to Hudson Topping, and disregarding the value of the 160 logs delivered by him. Under these instructions, the master again reported that the damages of the complainant were merely nominal. Upon exceptions to this report, the vice chancellor overruled the decision of the master; and on the testimony taken on the reference, and .certified by the master, the damages of the complainant were fixed at $338,77. And a final decree was thereupon made, in conformity with the original decree of March, 1830. From this decree, fixing the amount of the damages and providing for the carrying the original decree into effect, the surviving defendant, Read, appealed to the chancellor.

      Henry Welles, for the complainant.
    The first decree cannot be questioned on this appeal. (Townsend v. Graves, 3 Paige, 458. Kane and others v. Whittick, 8 Wendell, 219.) That decree was authorized by the pleadings and proofs. The contract for the purchase of the premises in question passed to the complainant by way of mortgage, by either the assignment of Hudson Topping or of Hannah Topping. The assignment of Hannah Topping to the complainant was previous to her assignment to the defendant Read; and of which Read had notice at the time of the assignment to him. The assignment from Hannah Topping to the complainant, although lost, is established by the proofs. The assignments from Hudson and Hannah Topping to the complainant operated as an equitable mortgage. (Henry v. Davis, 7 John. Ch. Rep. 4.) The vice chancellor had the power to correct and modify the report of the master. The reference to a master is only to inform the conscience of the court. The rule of damages is the value of the logs at the time and place appointed for their delivery, deducting the contract price. The complainant ought to be allowed not only his general costs in the suit, but his costs on the appeal. (3 Paige, 458.)
    The defendants cannot take the objection that Hannah Topping is discharged from her assignment- to the complainant, as to her interest in the land contract, by a subsequent modification of the contract between the complainant and Hudson Topping relative to the saw-logs having been made without her consent, as this objection is not taken in the defendants’ answer. (James v. McKernan, 6 John. Ch. Rep. 543.) But there was no modification of the contract. The complainant merely extended to Hudson Topping some indulgence as to the time of fulfilling his contract; which agreement for indulgence was not binding on the complainant, and might have been revoked by him at any time. Sureties are discharged only where the creditor, by an agreement binding on himself, extends the time of payment by the debt- or, or where he omits to enforce the collection of his debt when requested by the surety. (7 John. Ch. R. Index, 242. 2 John. Ch. R. 554. 17 John. R. 384.) It was not necessary to make the proprietors of the Pulteney estate parties.

      Z. JL Leland, for the defendants.
    The decree of the vice chancellor was bad, even if the report of the master was erroneous. There should have been another reference to the master. The report of the master was correct. No actual damages were shewn before the master. The proper measure of damages in such a case is the difference between the price agreed upon, and the actual worth of the labor in furnishing the property. (Dey v. Dox, 9 Wendell’s Rep. 129, 35. Clark v. Pinney, 7 Cowen, 681. Shepard v. Hampton, 3 Wheaton, 200. Woodworth v. Curtiss, 7 Wendell, 112.) No rule of law or equity was violated by the master, and his discretion cannot be questioned by the court. He should be allowed the same powers of discretion as a jury on a quantum damnijicatus, particularly as this was a fit case for a jury. If the last point is correct, the suit should be dismissed with costs, on confirming the master’s report, as being beneath the jurisdiction of the court. (4 John. Ch. Rep. 183. 5 Id. 276. 1 Hopk. 112, 119.) After the master’s report in such a case, it is in time to move for the dismissal of the bill, as the amount of -damages could not be ascertained before. (Cooper’s Eq. Pl. 166. 2 Atkyns, 253.)
    The chancellor’s and vice chancellor’s court being one and ihe)sarne, and the chancellor, on an appeal from the final decree, being required by statute to make any other order in the cause which justice may require, besides annulling, modifying or altering the decree appealed from, it would seem to have been the intention of the legislature that the chancellor should review the whole proceeding in the cause. (2 R. S. 178, § 62.) The original act, giving chancery jurisdiction to the circuit judges, clearly implies a review by the chancellor of the whole proceedings, on appeal from the final decree, by placing obstacles in the way of appeals from interlocutory decrees. And let it be remembered, this cause was commenced under that statute, and the first decree made before the revised statutes went into effect. (Session Laws of 1823, p. 214, § 15.) The revised statutes did not intend to alter the ,rule in that respect. (See modification of 116th Rule of this court, 7th January, 1834.) The appeal from the final decree would open the interlocutory decrees, aside from the statute. (17 John. Ch. Rep. 584. 1 John. Cas. 498. 8 Wendell, 240.)

      The first decree in the cause was erroneous. The contract, under which the security was pledged, was'altered without the consent of the pledgor. Sureties are to be held liable only upon a compliance with the strict letter of the contract. A court will not inquire whether the surety is actually injured by the alteration. It is sufficient that he may be injured. (2 Caines’ Cas. in Er. 1, 34, 35, 44 to 50, 57, 58. 2 Taunt. 206. 8 Wendell, 516. 10 John. Rep. 180, 587.) The giving time was an act founded on sufficient consideration, and was binding. The principal could not have been holden on the original agreement for which the security was given. Certainly, then, the surety could not. (1 John. Cas. 22. 1 Cowen, 345. 9 Id. 115.) Perhaps it may be objected that this should have been taken advantage of by demurrer. In answer to this, it will be remembered that the bill was framed with two aspects; one, that the premises in question were owned by Hudson and assigned by him to the complainant, and the other, that Hannah had assigned or authorized Hudson to assign the same, as security for the fulfilment of the contract. We successfully rebutted the first position, by answer and proof, and we then resort to the bill to help us out on the other position. Besides, a motion was made at the time of taking the testimony, after the complainant had closed his proofs, for the dismissal of the bill for want of equity, agreeably to the rules of the court at that time. (See 65 th Rule of Equity Courts, Oct. 8, 1825.)
    It was not established by legal proof that Hannah assigned her interest in the premises in question. The loss of the instrament was not proven. The respondent could not identify the one lost, to be the same proven by Mrs. Stevens. Again, it may be questioned whether an assignment, in the manner alleged, would vest the interest in the assignee without a delivery of the contract, especially as against a subsequent assignee of the contract. The vendors would not be bound to recognize any assignment, except such as was on the contract itself. They look to the contract itself, and to the holder thereof, to ascertain who is the owner of it. The appellant having renewed the contract, or made a new agreement with the vendors, or their agent Mr. Cameron, and that in good faith, he could claim of them a compliance therewith. And how is this suit to alter the case ? It cannot bind the vendors, who would be the actors in giving a deed. The suit, if any right exists, should have included the vendors. The vice chancellor decided that the premises in question were Hannah Topping’s. Did Hannah ever assign her interest to Hudson 1 This is not alleged in the bill, which it should have been, if intended to be relied upon. Again such an assignment, to be valid, should have been in writing. She was in possession of the land under the contract, had paid part of the purchase money, and had made improvements. This was an interest in lands, within the statute of frauds. It is not pretended that any writing was made conveying Hannah’s interest to Hudson. Therefore, all declarations that she had given the lands to Hudson, or intended to give them to him, were inadmissible; and such testimony was objected to. (See 1 R. L. of 1813, 78. 7 John. Rep. 205.)
   The Chancellor.

The only question which, is properly before me on this appeal is as to the correctness of the vice chancellor’s decision in allowing the exceptions to the master’s last report, and fixing the complainant’s damages at a larger sum than had been allowed by the master. The original decree of March, 1830, was, for all substantial purposes, a final decree; and not being appealed from within the time allowed by law for appealing, it cannot now be altered or reversed by the appellate court. It settled all the rights of the parties, except as to the amount of damages sustained by the complainant by the non-performance of the agreement for cutting and drawing the saw-logs, and the balance, if any, which had been paid by the defendant Read upon the land contract, over and above the rents and profits of the premises during his occupancy thereof. It contained all the necessary and consequential directions for carrying the decision of the court into effect, when the master’s report should have been made and confirmed. And it also disposed of the question between the parties as to the general costs of the cause. Nothing, therefore, was left to be done, upon the coming in and confirmation of the report, but to enroll the decree, and to enforce its performance by the ordinary process of the court. And the report, if not excepted to, would have been confirmed by an order of course, entered by the clerk upon the mere application of the solicitor, and without bringing the case again before the court. The exceptions to the master’s report, and the proceedings thereon, were therefore merely collateral to the decree ; and an appeal from the order of the vice chancellor allowing such exceptions and reforming the master’s report, cannot authorize the appellate court to reverse or alter the original decree upon which the report was founded. The directions for carrying the first decree into effect, contained in this order, were merely surplusage. The effect of the order, allowing the exceptions and modifying the report as to damages, would have been the same if those directions had been omitted therein, as they were already contained in the original decree, and need not have been repeated in this last order.

The objection is not well taken, that the vice chancellor was bound to refer the case back to the master, and that he had no right to settle the amount himself upon the allowance of the exceptions to the report. The evidence, upon which the master had acted in the settlement of the damages, was necessarily brought before the court upon the hearing of the exceptions to the report; and the vice chancellor having decided that the report of the master, founded upon that evidence, was incorrect as to the amount of damages, it was proper that the court should fix the amount. The object of a reference to a master is for the convenience of the court; to ascertain disputed facts, and to make computations which would take up too much of the time of the court. And where but a single item is in dispute, upon an exception to a report, it is the usual practice, upon the allowance of the exception, to modify the report, by a decretal order, instead of sending it back to the master to be corrected.

I am not satisfied with the correctness of the principle adopted by the vice chancellor, in the decretal order of October, 1831, in disregarding the benefit which the complainant had derived from the delivery of the 160 saw-logs, in computing the damages sustained by the non-fulfillment of the contract. I am aware that this decision is based upon the authority of the case of Stephens v. Beard, (4 Wend. Rep. 604,) in the supreme court. But although I have the highest respect for the worth and talents of the learned judge who examined that case, and of his associates who concurred in the decision, I cannot bring my judgment to assent either to the equity or to the justice of a rule of damages which, in many cases, will enable a party to recover a compensation as for an injury, when be has in fact been benefited by the neglect of his adversary to fulfil a contract after it had been in part performed. It is well settled that, where the contract is entire, a party who has advanced money or done any other act in part performance thereof, and then, without any legal excuse, has neglected or refused to proceed and complete the contract on his part, cannot recover for the money advanced, or for what he has done under the contract, although the other party has been actually benefited thereby. (M’Millen v. Vanderlip, 12 John. Rep. 165. Jennings v. Camp, 13 Id. 94.) And the case of Stephens v. Beard was decided upon the erroneous supposition that in estimating the plaintiff’s damages, no allowance could be made for the benefit he had received by a partial performance of the contract, because no action could have been maintained against him, by the defendant, until the contract had been complied with in full. But, upon examination, it will be found that there are many cases in which a benefit received by the plaintiff at the expense of a defendant may be recouped -in damages, although no action could have been brought by the defendant against him, to recover compensation therefor. A very familiar instance of this kind is the allowance made to the defendant, in an action formesne profits, for beneficial improvements upon the land, although no action could have been sustained against the owner of the land to recover compensation for such improvements. So also, where a man disseises another of his land upon which there is a rent charge, and the disseisor pays the rent, if the disseisee afterwards recovers the land and damages in an assize, such rent shall be recouped in the damages, although the defendant in the assize could not have recovered the i;ent thus paid, in an action brought by him. (1 Dyer's Rep. 2, b.)

Where an agreement is made between two persons, for the sale and delivery from one to the other of 100 barrels of flour, at the price of five dollars a barrel, to be delivered within a certain period, and to be paid for on the delivery of the whole quantity, if ninety barrels are delivered within the time limited, but the other ten are not delivered, and the actual value of the flour is but six dollars a barrel at the expiration of the time limited for the completion of the contract, it is evident that the vendee will be benefitted bythe non-fulfilment of the contract, to the extent of the contract price of the ninety barrels received, deducting therefrom the sum of ten dollars for the difference between the actual value and the contract price of the other ten barrels; inasmuch as he will be permitted to retain the ninety barrels without paying any thing therefor. In other words, the vendee will be benefitted to the amount of $440, by the non-performance of the contract, instead of being injured to the value of $10; as the fulfilment of the contract would have made the vendee liable for the payment of the whole contract price of the 100 barrels. And yet, upon the principle adopted by the supreme court, in Stephens v. Beard, and acted upon by the vice chancellor in the decretal order of October, 1831, the vendee in such a case would still be entitled to recover of the vendor, the ten dollars, as damages for the non-delivery of the last ten bands of flour, and might also retain the other ninety barrels for which he had paid nothing. It appears to me that a role of damages which produces such results cannot be correct. But if such be the rule of law, it certainly is not one which ought to be followed by this court, when the party who has been benefitted by the nonfulfilment of the contract comes here to ask for equity. A question, however, arises in this case whether it is competent for this court, upon an appeal from the decision of the vice chancellor upon the exceptions to the second report, to review the former decision which settled the principles upon which the master was to proceed in making such report. But the conclusion at which I have arrived upon another part of the case renders it unnecessary that I should express any opinion on that question at this time.

1 have not been able to ascertain upon what principle of computation the vice chancellor arrived at the conclusion that the complainant’s damages, for the non-delivery of the 340 logs, amounted to $338,77, the sum fixed by him in the decretal order of October, 1833, even if he was right in laying out of consideration the benefit which the complainant had derived from the part performance of the contract. The original decree of his predecessor proceeded upon the ground that the land contract belonged to Hannah Topping, and that it was assigned by her merely as a security for the performance of the agreement of her son to deliver the saw-logs. And it was upon this ground alone that the payments in advance were not to be allowed, unless it should appear that she had assented thereto ; as by the terms of the agreement, the price of getting the logs was to be applied to the payment of what was due on the land contract, for her benefit. The damages, therefore, according to the decretal order of October, 1831, were to be estimated in the same manner as if the contract had been for the delivery of340 logs, at forty cents each, of which none had been delivered and nothing had been paid on account thereof The only witnesses who have spoken on the subject of the damages, estimated them at from eight hundred to a thousand dollars. And if any reliance could be placed upon those estimates, in opposition to the legal rule of damages founded upon the facts in evidence before the master, the amount should have been fixed at the sum of $800, at the least. Their estimate, however, was founded upon the assumption that the complainant was entitled to recover in damages the whole amount of the profits which could have been made by sawing the logs into boards, although his mill may have been as profitably employed, in sawing other logs, during the time which would have been requisite to have sawed up these particular logs, had they been delivered on the contract. This certainly would not be a correct mode of estimating the damages, unless it also appeared that the mill was unemployed, during that period of time, because no other logs could be procured on which a profit could be made by sawing them, beyond the first cost or value of the logs and the labor and expense of running the mill. But in this case it appears affirmatively by the testimony of Youmans, which is stated at length in the first report of the master, that the complainant’s mill did not lie idle for want of logs. And Glass and M’Clure both testify, that the value of cutting and drawing these logs would have been but $120. Where a contract is made for the delivery of goods on sale, to be paid for upon receipt of the goods, the proper measure of damages, if no part of the goods is delivered, is the difference between the value of the goods at the time they should have been delivered, and the contract price. (Leigh v. Paterson, 3 J. B. Moore's Rep. 588. Clark v. Pinney, 7 Cowen's Rep. 681. Dey v. Dox, 9 Wend. Rep. 129.) To which may be added the interest, on such difference in value, from the time when the goods should have been delivered, as a part of the damages to be recovered for the breach of contract. (Dox & Mercer v. Dey, 3 Wend. Rep. 356.) In a case like the present, where particular articles of property are to be delivered within a limited period, and to be used or applied for a specific purpose, and not for general merchandize, the principles upon which the damages for a non-performance of the contract should be estimated are very correctly laid down by Mr. Justice Weston, in the case of Miller v. The Mariner's Church, (7 Greenl. Rep. 55.) After stating the general rule of equity and common sense, that the delinquent party is holden to make good the loss occasioned by his delinquency, he proceeds to say that such liability is limited to direct damages, which, according to the nature of the subject, may be contemplated or presumed to result from the failure ; and that remote or speculative damages, although susceptible of proof, and deducible from the non-performance of the contract, are not to be allowed. That if the party entitled to the benefit of a contract can protect himself from a loss, arising from a breach thereof, at a trifling expense, or with reasonable exertions, he fails in social duty if he omits to do so, regardless of the increased amount of damages for which he may intend to hold the other contracting party liable. And that the law will not permit him to throw the loss upon the other contracting party, if by common prudence he could himself have prevented the loss. “ For example: a party contracts for a quantity of bricks to build a house, to be delivered at a given time; and engages masons and carpenters to go on with the work. The bricks are not delivered. If other bricks of an equal quality, and for the stipulated price, can be at once purchased on the spot, it would be unreasonable, by neglecting to make the purchase, to claim and receive, of the delinquent party, damages for the workmen, and the amount of rent which might be obtained for the house if it had been built. The party who is not chargeable with a violation of the contract, should do the best he can in such cases, and for any unavoidable loss, occasioned by the failure of the other, he is entitled to a liberal and a complete indemnity.” In other words, if the party entitled to the performance of the contract can himself procure the articles contracted to be delivered, within a reasonable time, he is only entitled to such damages as will fully compensate him for the additional expense and price, and the injury resulting from the necessary delay in obtaining the articles.

Applying these principles to the present case, under the directions contained in the decree, to reject the §200 advanced as a payment on the contract, I think the master arrived at a correct conclusion, upon the evidence, that the damages of the complainant were merely nominal. It was not stated in express terms, in the written contract, that the complainant was to furnish the trees from which the saw-logs were to be made. The place from whence the logs were to be obtained, however, was stated; and it is fairly inferrible from the whole case that the logs were to be cut upon the complainant’s land, or upon lands from which he had the right to take timber for the supply of his mill. The price which he would have been bound by the agreement to pay, and to apply on the land contract for the benefit of Hannah Topping, if the agreement had been fulfilled, was forty cents a log; or $136 for the 340 logs which remained to be delivered. And the cutting and drawing of such logs, according to the testimony of Glass and M’Clure, the only witnesses who say any thing on the subject, would have been but §120. The difference, therefore, between the contract price of the saw-logs, and the actual value of the cutting and drawing them, was such as to make it for the interest of the complainant that the contract should not be performed; as the price for which the logs could be procured by him was $16 less than the price which he was to pay for them, in orders upon the land office. And there is no testimony in the case to show, or from which it can be inferred, that he could not have procured the logs, if there were any such upon the land, for the price stated by those witnesses ; and in time to have kept his mill constantly supplied. And if no such logs as were" mentioned in the agreement could be found, upon the land, Topping is not chargeable with a loss arising from- that cause. I do not, therefore, see how it was possible for the master to say the complainant had sustained any thing more than nominal damages, from the nonperformance of the contract, unless he had wholly disregarded the directions of the original decree and of the decretal order of October, 1831, to reject the payments made to Hudson Topping, to which his mother had not assented.

.The decretal order appealed from must, therefore, be reversed. The exceptions to the last report of the master-must be overruled with costs, and the report confirmed. And the appellant is also entitled to the costs of this appeal.


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    Bloodgood vs. Clark and others.
    Upon an appeal from a decree or order of a vice chancellor, the appeal must be decided upon the papers which were read or used before the court below ; and where a question arises upon the hearing of the appeal as to what papers were before the court below, if such papers are not referred to in the order or decree appealed from, resort must be had to the minutes of the clerk, and to the papers marked by him as read, to ascertain what papers were read or used before the vice chancellor.
    Where a party opposing a motion, or petition, has papers to read in opposition thereto, and the application is decided in his favor upon the opening of the case, on the papers of the adverse party, if he desires to have the benefit of his papers, in opposition to the application, upon an appeal from the decision, or wishes to be allowed therefor upon the taxation of his costs, he should have such papers entered in the minutes of the court below, and marked as read.

      Where original papers are used in opposition to an application which is denied, the party using such papers must file them, so that the adverse party may obtain copies thereof.
    Upon a creditor’s bill, for the purpose of reaching the property of the defendant after the return of an execution unsatisfied, it is a matter of course to appoint a receiver of the defendant’s property, if the equity of the bill is not denied upon the hearing of the application.
    It is not a sufficient answer to the application for a receiver, upon a creditor’s bill, that the defendant has not yet answered the bill, or that Ke denies that he has any property.
    Where the defendant, in a creditor’s bill, is restrained by injunction from collecting his debts and disposing of property which is liable to waste, it is the duty of the complainant to apply for the appointment of a receiver.
    This was an appeal from the decision of a vice chancellor, denying an application, on the part of the complainants, for the appointment of a receiver of the property and effects of the defendants, upon a creditor’s bill filed against them. Upon the hearing of the appeal, the counsel for the respondents, in addition to the papers furnished by the appellant, as required by the rules of the court, offered to read certain affidavits which had not been used, or marked as used, or filed With the clerk, upon the hearing of the motion as to which the appeal was brought. It appeared by the affidavit of the respondents’ solicitor that the affidavits were drawn and sworn to previous to the hearing of the motion before the vice chancellor, for the purpose of being used in opposing that application; but that it became unnecessary to use them, as the complainant’s motion was denied upon his own statesmen t and papers. The appellants’ counsel objected to the reading of these affidavits, upon the hearing of appeal; but the chancellor reserved the decision of the question, at that time, and permitted the affidavits to be read.
    J. L. Wendell, for the appellants.

      J. Mllsioorth, for the defendants.
   The Chancellor.

The affidavits on the part of the defendants, which were not read before the vice chancellor, do not materially vary the rights of the parties, as the material facts in the complainant’s bill are not denied. Neither is it sworn that the aggregate amount of the property and effects of the defendants does not exceed one hundred dollars. But as the question has been raised, it is proper that I should express an opinion upon the right of the respondents to use these affidavits on the appeal. The appeal must be decided upon the same papers and facts which were before the vice chancellor at the time of making the decree or order appealed from. And if a dispute arises upon the appeal as to what papers were before the court below, and such papers are not particularly specified or referred to in the order, resort must be had to the minutes of the clerk, and to the papers marked by him as read, to ascertain what papers were read or used there. Each party, therefore, should be careful to see that all affidavits, depositions and other papers which he wishes to have considered as before the court below, are entered in the minutes of the court, or marked as read. Where the application is denied upon the opening of the case, on the papers of the party making such application, if the adverse party has papers to be read, in opposition to the motion, and desires the benefit thereof on an appeal from the order denying the motion, or wishes to be allowed therefor on the taxation of costs, he should ask to have them entered in the minutes, and marked as read in opposition to the motion. And if they are original affidavits, or other papers which are not already on the files of the court, he should also cause them to be filed; so that the other party may obtain copies thereof, tobe furnished to the court on the appeal. These affidavits not having been filed with the clerk of the vice chancellor, or entered or marked as read on the motion, are not regularly before me on the present appeal.

The vice chancellor was wrong in supposing that a receiver could not be appointed, in a case of this kind, until after the defendants had put in their answer. By the ancient practice of the court of chancery in England, a receiver was not appointed until after the coming in of the defendant’s answer. This practice appears to have been first broken in upon by Lord Apsley, in the case of Compton v. Bearcroft, in 1773. And Lord Kenyon, the master of the rolls, appointed a receiver, before answer, in the case of Vann v. Barnett, in 1787. (2 Brown's Ch. Cas. 157.) He said that although a motion for a receiver before answer was then unusual, yet had it been ¡accessary he would have made a precedent. And it now appears to be well settled, both here and in England, that a receiver may be appointed before answer, provided the complainant can satisfy the court that he has an equitable claim to the property in controversy, and that a receiver is necessary to preserve the same from loss. In these cases of creditors’ bills, where the return of the execution unsatisfied pre-supposes that the property of the defendant, if any he has, will be misapplied, and entitles the complainant to an injunction in the first instance, it seems to be almost a matter of course to appoint a receiver, to collect and preserve the property pending the litigation. And where the sworn bill of the complainant shows that he has an equitable right to all the funds and property of the defendant, to satisfy his debt, if the right of the complainant is not denied by the defendant, in answer to the application for a receiver, there can be no good reason why the complainant should not have a receiver appointed, to preserve the property from waste or loss. Indeed this court has already declared that it is the duty of a complainant, who has obtained an injunction, upon such a bill, restraining the defendant from collecting his debts, or disposing of property which might be liable to waste or deterioration, to apply to the court and have a receiver appointed without any unreasonable delay. (See Osborn v. Heyer, 2 Paige's Rep. 343.) It is no sufficient answer to such an application to say there may not he any property to protect; as the complainant proceeds at the peril of costs, if there is no property. And if there is nothing for the receiver to take, the defendant cannot be injured by the appointment.

The order of the vice chancellor must be reversed. And it must be referred to a master to appoint a receiver, with the usual powers of receivers upon creditors’ bills.