author: ■Mr. Justice Wayne

text:
    Benjamin Story, Appellant, vs. Louisa Livingston, Executrix of Edward Livingston, Appellee.
    Chancery. Strictly, in - Chancery practice, though it is different in some of the states of the ' Union, no exceptions to .a master’s report can Be made, which were not taken before the master; the object being to save time,and to give him an opportunity')» correct his errors, . or to reconsider his opinions. A patty neglecting to bring in exceptionsbefore ihemss t^r,. cannot afterwards except to the report; unless the Court, on motion, see reason to be ms-, satisfied with the report, and refer it .to the Blaster to ro-éxamine it, with liberty to the party to make objections to it.
    Exceptions to the report of. a master must state, article by article, the parts of the report which are intended to be excepted to.
    Exceptions to the report of a master, in Chancery proceedings, are in the nature of a special demurrer, and the party objecting must>point out the errors; otherwise, the parts not excepted to will be token as admitted.
    In a reference to a master for any purpose, the Order need not particülarly empower him to take testimony, if the subject matter is only tc> be ascertained by evidence. And in taking evidence, although the better plan is to take the answers in writing, upon written interrogatories, he may examine witnesses viva voce; the parties to the suit being present, personally, Or by counsel; and not objecting fo such a course.
    The twenty-eighth rule prescribed for the practice of Courts of equity of the United States, provides for bringing witnesses before the master for their compensation; for attachments; for a contempt, when witnesses refuséto appear on a subpcena: and the last clause allows the examination of witnesses, viva voce; when produced in open Court. The same reasons which allow it to be done in open Court, permit it to .be done by a master..
    The allowance of costs is a matter of practice, which need ,not be a part. of the decree or judgment of the Court, although it often is so; as the payment of costs is, in most cases, made to depend upon the rules; and wísfen rules do hot apply, upon the Court’s order in - directing the taxation of costs.
    If any rule has been made by the District Court of Louisiana, abolishing chancery practice-in that Court, it is a violation of those rules which the Supreme Court of the United States has passed to regulate the Courts of equity of the United States. Those rules-are as obligatory on {he Courts of the United States in Louisiana, as they are upon all other Courts of the United Statesand the only modifications or- additions which can .be made by the Circuit or District Courts,"are such as ehalí not be inconsistent with the rules prescribed. When the rules prescribed by the Supreme- Court do not apply, thé practice of the Circuit and District Courts shall be regulated by .the practice of the High Court of Chancery in England.
    The Supreme Court has said, upon more than one occasion,' after mature deliberation upon able arguments of distinguished counsel, against it, that the Courts of-the United States hi Louisiana possess equity powers under the Constitution and laws of the United States. That if there are any laws in Louisiana directing the mode of procedure in equity causes, they are adopted by the act of 26th May, 1829; and will govern (he practice in ■ the Courts of the United States, But if there are no laws regulating the practice in ■equity causes, the rules of chancery practice in Louisiana, mean the rules prescribed by . the Supreme Court for the government of the Courts of the United States; under the act of Congress of May 8, 1792.
    The correct rule as to interest is, that the creditor shall calculate interest, whenever a payment is made. ' To this extent the payment is first to be applied, and if it exceed the interest'due, the balance is'lo be applied to diminish the principal. This rulé is.equally applicable, whether the debt be one which expressly draws interest, or on which-interest ■ is given as damages.
    T}ie mándate issued by the Supreme Court, in a case-decided by the Court, is to be interpreted according the subject matter; and it is in no manner to cause injustice.'
    The general rule in Chancery proefeedings is, that all persons materially interested in a ' suit ought to he parties to it either as plaintifis or defendants, that a complete decree ■ may be made between these parties. But there are exceptions to this rule, and one of them is, when a decree in relation to the subject matter in litigation 'an be made, without a person having his interest in any way concluded by the decree.
    When a complainant omits to bring before the Court persons who are necessary parties, but the objection does.not appeal on the face of the bUl, the proper mode to take advan-. . .tage of it is by plea and answer. The objection of misjoinder of complainants should' - be taken either by demurrer, or on the answer of the defendants.. It is too late to urge a formal objection of the kind; for the first time, at the hearing..
    .APPEAL' from the District Court of the United States, for the eastern district-of Louisiana.
    On the second of March, 1837, the following decree of the Supreme Court Of the United States, was produced in open Court, in the District Court of the United States, for the eastern district of Louisiana. The cause had been taken by Mrs. Livingston, executrix, by appeal to the Supreme Court, and the decree of the District Court reversed. 11 Peters, 351.
    .“ This cause came , on to be heard on the transcript of the record from the District. Court of the United' States, for the eastern district . of Louisiana, and was argued by counsel. Ón consideration whereof, it is, ordered, adjudged, and decreed, that the'decree of the said District Court dismissing the bill of the complainant, be, and the same > is hereby, reversed- and annulled; the court being of-opinon that the' transaction of the 25th July, 1822, between John A. Fort, Benjamin Story, a .id Edward'Livingston, was-a loan to the said Edward Livingston, secured by a pledge denominated an antechrisis in the law of Louisiana. And it is hereby further ordered, adjudged, and decreed, that the cause be sent back for further proceedings in the Court -below, with directions that the cause he referred to a master to take an account between jthe parties. . And it' is hereby further ordered, adjudged, and decreed, that in taking said account; there be allowed to the defendant all advances Which shall be shown to have been-, made by him, or paid oil account of a loan made to Edward .Livingston,.on the 25th day of July, in the year 1822, with the interest, Which the said Edward. Livingston agreed to pay of. eighteen • per cent, per annum, to he calculated upon cash advances, from the-time it .was made until the 5th of August, 1823, and after that time at legal interest; and further, that in taking said account there be állowed to fhe defendant all reasonable expenditures made by’ the defendant; and John A. Fort, in building, repairing, and safe- keep-, ing of the property pledged by the said Edward Livingston, ..to secure the lean made to.him bn the 25th day of July, -1822; and that the complainant 'be Credited in such account with all such sums as the defendant, or John A. Fort,Nr either of them; have received: . from the said property; and that in taking such account, the rents and profits be applied, first, to the-payment of the sums necessarily incurred in building and repairing-: secondly, to the payment of the interest on the sums which shall appear-to have been advanced on the said loan,'or in the improvement of the lot: and, thirdly, to the discharge of the principal of the said loan. And if, on taking said account, it shall appear that there-is a balance due from the complainant, it is hereby-further ordered, adjudged, and decreed, that the defendant pay to the complainant such balance within' six months from the time of entering the final decree in the cause, and shall surrender and reconvey the said property to the complainant, or such person or persons as shall be shown to be entitled to the same; arid ■ if upon the taking of said account, it shall be found that any balance is .due from the estate of the said Edward Livingston, deceased, to the defendants, it is -hereby further ordered, adjudged, and decreéd, that on paying, or tendering to the defendant the saicj. balance, he shall deliver up the possession, and reconvey to the person or. persons who-shall appear to be entitled to the same, the property so pledged to secure the aforesaid loan. And it is further ordered, adjudged, and decreed, that in case a balance .shall-be found» due to the defendant, and shall not Be paid within six months after a final decree of the District Court'upon the master’s report, then the property' shall be sold, by order of the District Court, at such time and notice as the said Court shall direct; arid that the proceeds be first applied to the payment of the balance due the defendant; and the • residue thereof to¡ he paid to the complainant.” .
    The mandate of the Supreme Court,"conforming to this decree,' was filed in the District ;Court by the counsel for Mrs. Livingstori', and by an order of the -District Court, the- case was referred to a master in equity, Duncan N. Hennen,JEsq., to examine into and report upon the "account, according to the principles and, rules established on the judgment of the Supreme Court.
    . Various proceedings took place in .the District Court,'after the order of reference to the master for an account.
    The counsel for the' defendant moved to . strike from the docket, the complainant’s suit ¡..because,.
    1. Edward- Livingston, the former complainant herein, departed this life on the day of ■. and beforelthe hearing of this cause in 'this Court at the, spring term thereof, iri'1836.

      2. The said Livingston departed this , life before" the making or enrolment of the decree herein at the spring term of.the year 1.836; consequently the Court could not then entertain any jurisdiction of the cause. , _
    3. This" cause has never been regularly revived in the name of the present complainant — nor could it be so revived by the laws and usages of chancery,- the complainant claiming as a devisee.
    - On the-18th of Deceiriber, 1837, the District Court,, after argument overruled this motion.
    •On the same day, the report of the master-was filed. This report contained, at large, all the evidence produced before the master; with an account, by which a balance of thirty-two -thousand nine hundred and fifty-eight dollars'and eighteen cents, was found due by Benjamin Story, to Mrs. Livingston, executrix, on the. first of November, 1837.
    . On the second of January, 1838, exceptions-to the master’s repdrt were filed by Mr. Storv. '

      1. Because chancery practice has been,'abolished by a rule of this Cpurt, and-such proceeding is unknown to the practice of the Court.
    • 2. The master has erred iA not allowing to the defendant the thousand dollars, with interest, paid to Morse, or some, part thereof.
    3d. The master’s report does not show, that it reports all the evidence ¡taken before the master. '
    __ .4. The master,: in making, his estimates and calculations, has hot pursued the mandate of the Court.
    5. It appears, from--the master’s report, that- the stores were rented from November to November; and he erred in assuming the 1st April as the period of payment of annual rent.
    6. A reasonable allowance should have been made to Story'for the costs and risk of collecting the rents.
    7. The master erred in all his charges against the defendant, and failed to allow the defendant his proper credits. ■
    These, exceptions were overruled- by the District' Court, and the Court decreed that Benjamin Story do pay to the -complainant the sum of thirty-two. thousand nine hundred and fifty-eight-dollars and. eighteen cents; and that the master’s report be, in all other respects confirmed: and that the defendant conform to the deeree .of the Supreme Court in this case. .
    .. A petition for a rehearing was afterwards presented to the District Court, hy the counsel for the defendant; Which, after argument, was overruled; and the District Court made the following decree:
    . “ The petition for a rehearing having been overruled, it is ordered, adjudged and degreed, that the defendant, Benjamin Story, do further surrender and reconvey the -property described, in the bill of complaint as e all that parcel of ground situated on the batture of the suburb St. Mary, between ■ Common and Gravier streets, measuring eighty-two feet fronting Common street; one hundred and twenty-six feet, or thereabouts, fronting Tchapto'ulas street, one hundred and forty-six feet, or thereabouts, fronting New Levee street, and bounded on the other side' by the lot of ground belonging to Messrs. Livermore, Morsé, Miller and Pierce, containing one hundred and twenty feet, or thereabouts; together with the buildings, improvements^'and all other appurtenances to the same in any wise'belonging or appertaining,’ to. Louise Livingston, widow and .executrix and devisee óf Ed. Livingston, deceased, and to Cora Barton, daughter, and fdrced heir of said Ed. Livingston ; in conformity to the decree of the Supreme Court of the United States, and to the decree heretofore made in pursuance, thereof -by this Court.” •
    The case having been transferred to the Circuit Court of the United States.-for the ninth Circuit, and eastern district of Louisiana ; the defendant prosecuted this appeal.
    The case was argued by Mr. Crittenden and Mr. Jones, for the appellant;, and by Mr. Ogden, and Mr. Butler, with whom was Mr. Key, for the appellee.
    The counsel for the appellant stated that the great object of the appellantwas to Bring before the Court of Louisiana; the fact of the' decease of Mr. Livingston, before the decree of the Court was rendered. They had offered proof óf this, and it was rejected. A supplementary bill was filed for the purpose of introducing this fact, and this was refused a hearing in the District Court, then having the Pause before it. A mandamus was then asked of this Court, for the purpose of having the matter presented in the 'supplementary bill heard, which was refused. 12 Peters, 339.
    It was contended that the death of Mr. Livingston; before the decree from which the appeal was originally taken,- had made all the proceedings on that appeal"irregular and void; and the case ought now to be open to a re-examination on all of. its merits.
    The right of the- executrix, after the decease of the,testator,'was to revive the suit. This should have been done, but she could not prosecute án appeal, as she had done, (11 Peters, 351,) without having previously revived the suit.
    ’. The question is, whether the ihandate of this Court, in the appeal decided in 1837, (11 Peters, 351,) could be executed without their being proper and legal-parties to the case. It is admitted that the principles of the case have been settled in this Court; but it is claimed that'Mrs. Livingston'was not a. proper party to ask for an account, in the Circuit Court.
    Upon the death of Mr. Livingston, there was an entire suspension of the contest; and the executrix had no right to proceed in the mode she. had proceeded. She, as executrix, could hot have a right to an account of the rents of the estate in controversy, after the decease of the testator. The decree could not have intended this. The report should have stated the amount to which Mr. Livingston was entitled; and the amount which belonged to the devisees under the will. The devisees were, Mrs. Livingston, and Mrs. Cora Barton. .
    The Court have decreed that the property shall be conveyed to the persons entitled to- it, under the will of Mr. Livingston. The only mode by which this could have been done was by a bill of revivor, showing'who the heirs, or persons entitled were.
    Advantage of the defect of proper parties, cari be taken at any time, when discovered. This is clearly a case in' which, from want of parties,'the Court are to decree to the.personal representative, the-property of the devisees under the will.
    Mr; Ogden and Mr.- Butler, for the appellee.
    1. The merits pf this cause having been fully disposed of by the decree of this Court,'rendered in February, 1837, and the mandate issued thereon' requiring only the execution of that decree, the Court below was bound to carry the decree into effect; and therefore decided correctly in overruling the motion to strike, the cause from the docket, and in refusing to hear testimony as to.the period of the death of "Edward Livingston., The right and capacity of Mr?. Livingston, as executrix, to proceed-in the cause, and her title to recover the. moneys found due from the defendant, are also settled by the mandate.
    2. ' Independently of the effect of the mándate, the defendant, by proceeding in the reference, and by not objecting to. the sufficiency of the revivor of the cause, until after the reference was- closed; was’ estopped from making any such objection.
    3. The exceptions to the master’s report, embraced in the decree .of the 16th of January, 1838, were correctly overruled.'
    ■4. The petition for a rehearing was properly denied; and the decree thereon is not the subject of an appeal.
    5. There is no error in the decrees appealed from. -
   ■Mr. Justice Wayne

delivered the opinion'of. the- Court.

This cause haying been before this Court at its term in 1837, it was then decreed, that the decree of the District Court, dismissing the bill of the complainant, should be reversed; that' the cause should be "sent' back for' further proceedings in the.Court below, with directions that it should be referred to a master, to take an ■ account between the parties. The mandate then recites the principles upon which the accoimt was to be made;;' provides the time within which any sum that may be found to be due to either'of the parties should be paid after the entry .of affinal decree in the Court below; directs, if a sum shall be found due to the complainant, a surrender and reconveyance of the property fropa the defendant to the complainant, or to such person or persons ás shall be shown entitled to the same;' and further orders, in the event of a sum being found to - be due to the defendant, if it'shall not be paid within.six months after a final decree of the District' Court upon the master’s report, that the property shall be sold by order.of the District Court, at .such time and notice as the Court shall direct; and that the proceeds be first applied to the payment of the balance due the'defendant, and that the residue, therepf be paid to the complainant.

•In pursuance of the mandate, the District Court appointed Duncan N; Hennen master, to examine into and: report upon the account according to the rules, and principles established in the judgment of this Court. The master was swprn in open Court, fáithfully to perform the duties of his appointment. On the same day the master • ordered a-meeting to be .held on the 6th of March, which was adjourned to the 8th; when he commenced, the reference by taking testimony in behalf of the" complainant, and it was adjourned to the next day. . The meeting was then' adjourned to the 24th March, when other testimony was taken; was then adjourned to the 1st .April; thence; on, the application of the defendant, was adjourned to tlje 15th April, and the' reference was closed the day after. All the, meetings were attended by. the ’parties; the complainant being represented by counsel, and the defendant having .been personally , present, aided by counsel. After these proceedings were had, the defendant’s counsel, in November following, obtained an order from the.. Court upon the corhplainant; to "show cause why the “suit should not be stricken from the. docket, the bill of the complainant dismissed, or the suit abated ;” which. rule was returnable on the 1st December. The grounds relied upon to sustain this motion were, 1. That Edward Livingston,'the former complainant, departed this life on day of and before the hearing of the cause in this Court, at the spring term thereof in 1836:

3. The said Livingston departed this life before the making or •.enrolment of the decree at the spring term of the year 1836; consequently the Court could not then entertain any jurisdiction of the cause.

3. This cause has never.been regularly revived in the name of the present complainant; nor could it be so' revived by the laws and usages of chancery practice, Mrs. Livingstop. claiming as a" devisee. This rule was continued from time to time under, sundry orders of the Court, until the 18th of December, when ,the Court rejected and overrule-i the motion. This motion wé have noticed, not only because it was a singular, attempt to oust the jurisdiction of the Court over the cause, after it had been decided on its merits in the Supreme Court,, and the. Court below was acting under its mandate; but, because from the time when it was made, and when the rule was granted, the defendant having hot before objected ;to the reference ■ to the master, and having joined in all the prodeedings under that reference; it cannot be. viewed in apy other light than an attempt to prevent the master’s report from being returned to the Court, instead, of contesting its conclusion, and the master’s proceedings .under the mandate, by regular exceptions., It presents an anomaly without any parallel in the history of chancery proceedings'; placing an inferior tribunal, acting under the mandate of a superior, in- the attitude of reversing the judgment of the latter — calling upon it . to disregard' the mándate altogether — to revokuits'oWn proceedings under such mandate — and, in effect, to, act in contradiction to the sole’authority by which the District Court was in possession of. the cause. •But the motion being overruled, on the same day the master presented his report to the Court, which was read and filed. The following exceptions weré then made to the report 'of the master by the defendant:—

1. That chancery practice has been ábolished by a rule of the Court, ánd such proceeding is unknown to the practice of thé Court.

3. The master has'erred in not allowing to the defendant the thousand dollars, with interest, paid to Morse, or some part thereof.

3. The master’s report does not show that it reports all the evidence taken'before the master.'

4. The master, in making his estimates and calculations, has not pursued the mandate of the Court.

5. It appears, from the-master’s report, that the stores were rented from November to November; and he erred in assuming the 1st of April as the period of payment of annual rent.

6. A reasonable allowance should have been made to Story for the costs arid risk of collecting rents. . .

7. The. master erred in all his charges against the -defendant; and failed to allow the defendant his proper credits.

. All of these exceptions, except the third, are irregularly taken, and might .be disposed of by' us; without any examination óf them in connexion with the master’s report. They aré too general; indicate nothing but dissatisfaction with the entire report; and furnish no specific grounds, as they shofild have done, wherein' the defendant has suffered ány wrong,, or as to which of his rights have, beén disregarded. Strictly, in chancery practice, though it is' different in some of our states', no exceptions to a master’s report can be made, which were not' taken before the master: the object being to save time, and to give him ab opportunity to correct his errors or reconsider his opinion. Dick. 103. A party neglecting to bring in objections, cannot afterwards except to the report, Harr. Ch. 479; unless the Court, ón motion, see reason to be dissatisfied with the report,’ and refer it to the master to, review his report, with liberty to, the •party to take objection to it. 1 Dick, 290, Madd. Rep. 340. 555. But without restricting exceptions to this course, we must observe, that exceptions to a report of a master must state, article by article; •those parts of the report which are intended to be excepted to. Exceptions to reports of masters in chancery are in the nature .of •a special .demurrer; and. the party objecting must point, out the error, otherwise the part , not excepted to will be taken as admitted. Wilkes vs. Rogers, 6 Johns. 566.

The.Court directed the master to amend his report, so as to state that it contained all the evidence given, under.the reference, which ■the master did by his.certificate; and this disposes of the defendant’s-•third exception. To that certificate the defendant’s counsel did not object. In-the subsequent proceedings in the Court, upon the report, it was treated by both parties as conclusive of the fact; that all the evidence had been disclosed in the report as it was originally made-•The report was then before the Court , upon exceptions by the defendant, which were'argued by the counsel of the respective' parties; and the Court overruled the exceptions on the 15th January, and decreed the; defendant to pay to the 'complainant, within six months from that day, thirty-two thousand nine hundred and fifty-eight dollars eighteen cents, the sum found by the master to,be due by the. defendant to the complainant; and' further'“décreed that the master’s report be in all other respects confirmed, and that the-defendant conform to the decree of the Supreme Court in the case.”' After this décree was made, the defendant filed a petition for a rehearing. The grounds taken in the petition are reasons against the confirmation of. the report on account of the Court’s proceedings -upon it, by which the defendant'alleges he had been deprived of an opportunity to except to the report as.it had been amended. That the cause upon the report had not been docketed regularly for trial, on account of the master’s having taken testimony viva, voce, when it should .have been by depositions upon interrogatories; that the Court in its decree had not disposed of the question of costs; and that the Court in its general direction to the defendant to do all things directed by the mandate of the Supreme Court, had left it uncertain to whom the defendant was to surrender and to convey the property.' The Court after this petition"had been answered by-the complainant, heard an argument upon the motion. The judge finally overruled the application for a rehearing; and decreed that, the defendant should surrender and reconvey the property described in the bill of complaint, to Louise Livingston, widow and executrix, and devisee of Edward Livingston, deceased, and to Cora Barton, daughter and forced heir of said Edward Livingston; in conformity to the decree of the Supreme Court of thé United States, and to the decree heretofore made; in pursuance thereof, by this Court. This-decree was made bn the 6th February, 1837. The cause is now regularly before • this. Court, on an appeal "from the decree of the District Court, overruling the defendant’s exceptions to the master’s report, and confirming the same. But .before we .consider the exceptions, we think it proper to notice the-petition for a rehearing. Upon any matters in that petition, not directly touching the master’s report, but assuming what this Court did -or did not decide or direct to be done by its mandate, it -is only necessary to repeat what this Court said in ■ ex parte Story, 12 Peters, 343. “ The' merits of the controversy were, finally decided by thfe .Court, and its mandate to the District Court; require only the executipri of its de.cree.” As to the Objection, that the defendant had,not an opportunity to'except to the master’s report as it was amended, it is founded upon a misconception of the fact, for the defendant’s third exception, that the report did not show that it .reports the evidence, and the Court simply allowed the master to certify that it did. If this certificate had not been allowed by the Court, the exception coulcl not have prevailed, muess the several allegations, that'the evidence did,not appear in the report, had been accompanied by a specification of .the particulars in which it was deficient. On such an ..exception, supported by the oath of the party making it, or without oath if the opposite party joins in the exception without requiring the exception to be verified by affidavit, the Court would call upon the master’to report the evidence. We have noticed- this exception as a point of practice. The truth of the exceptions not appearing on the face of the proceedings, and not being supported by affidavit-or otherwise, the Court cannot notice the exceptions. Thompson vs. O’Daniel, 2 Hawk. Rep. 307.

The next objection in the petition for a rehearing, that the master, under the order of the Court, did-not possess the power to take testimony; and that if he did possess such power, then it was irregularly exercised, because it should have been by depositions upon interrogatories"’; we notice also; as- points of practice, not now to be settled, but which have been long- since determined. In a reference to a master for any purpose, the order need not particularly empower him to take testimony, if the subject matter is only to. be ascertained by evidence. And in taking evidence, though the better plan is to take the answers in writing, upon written- interrogatories ; he may examine witnesses viva voce, the parties to the suit being'present, personally or by counsel, not objecting to such a course,(as was the .case in this instance,) and joining in the examinatiom .Such is the general rule in chancery. In- many, if .not in most of the states.in this Union, however, it is the practice for the master to examine witnesses viva voce, and to take down their answers in writing.' But the objection in both its parts is answered and overruled by the twenty-eighth rule of practice for the Courts of Equity of the United States. That rule provides for bringing witnesses before the master, for their compensation, for an attachment for a' contempt, when a witness refuses to appear upon subpoena; •and the last clausé’bf it, allowing the examination of witnesses viva voce, when produced in open Court. We think the same reasons which allow it to be done in open Court, permit it to-be done by a' master. But it is said, the decree-of the District Court does not provide for the payment of costs. This toó, is a point Of practice, which we remark need not be a part of the decree or judgment, though it-often is so; as the payment-of them in most cases depends upon rules, and when rules do not apply, upon the Court’s order, in directing the taxation of costs.

We how proceed to examine the exceptions taken by the defendant, tó the master’s report. -The first, That chancery practice has' been abolished by a -rule of the District Court of Louisiana, and that such proceeding is .unknown to the practice of the Court,” is not an exception to the report, but a denial of the propriety of the reference, to the master: also, -of the'Court’s authority to- make such a reference under the mandate, and involves the assertion that' the rule,, if any such exist, may control the mandate and set it aside as a nullity. No such rule appears in the record. If any such exist, it certainly was disregarded in this'- instance, (as it should be in every other by the Court,) or was not deemed applicable to a case like thé one before it." We think the-occasion, however, a-proper one for this Court, to remark, if any such rule has been made by the District Court in Louisiana, that it is in violation of those rules which the Supreme Court of the United States has passed- to regulate the practice in the Courts of Equity of the United States. They are as’ obligatory upon the Courts of the United States in Louisiana, as they are upon all other United States Courts; and the only modifications or additions which cahbe made in them by the Circuit'or District Courts, are such as shall not be inconsistent with the rules-prescribed. Where the rules prescribed by the Supreme Court to the . Circuit Courts do not apply, .the practice of the Circuit and District Courts shall be regulated by the practice of the High Court of Chancery in England. The parties to’ suits in Louisiana have a right to the benefit -of them; nor can they be denied by any rule or order, without causing delays, producing unnecessary and oppressive expenses, and in the greater number of instances, an entire denial of equitable rights. This Court has said upon more than one occasion, after- mature deliberation upon able arguments of distinguished counsel against it, that the Courts of the United States in Louisiana possess equity powers under the Constitution and laws of the United States: that if there are any. laws in Louisiana • directing • the mode of procedure in equity causes, they are .adopted by the act of the 26th May, 1824, and will govern the practice in the Courts of the United States. 9 Peters, 657. But-if there are no laws regulating the practice in equity causes, we repeat what was said at the last term of this Court, in ex parte Poultney vs. The City of La Fayette, 12 Peters, 474, “ That the rules of. chancery practice in Louisiana", mean the rules prescribed by this Court for the government of the Courts of the United States, under the act. of Congress of May 8th, 1792, chapter 137, section 2'. These rules recognise the appointment of a master': the Court below in making this reference, acted under them, and the mandate, and. it could not? therefore; sustain the exception tq the master’s report. On the second exception, we need only remark, that the master apprehended rightly the decision and mandate of the Court. The payment to Morse by the defendant was not considered an expenditure on account of the property, nor on account' of- Livingston. It was intended to he excluded .from the credits, to which the .defendant was entitled.

The third exception has been already disposed of. It was only a permission tq the master to certify that his report-contained all the evidence taken under the reference.

' The fourth and seventh exceptions, on account of. their generality and indefiniteness, may be considered in connexion. The first of them is, that the master, in making his estimates and calculations, has no.t pursued the mandate of the Court; and the seventh is, that the master erred in- all his charges against the defendant, and.failed to allow the defendant his proper credits. In what particular the mandate has not been pursued, is not stated. It is -a general objection to the whole report, imputing to the master a misconception of the principles upon which the account Was to. be taken; and amounts to this, that if the Coürt shall see upon the face, of the report and the master’s proceedings, error against the defendant, it will correct it, though no exception has been filed. In this view of it, the defendant shall be protected, if the Court shall detect error in the report. As to error in charges, and a denial of proper credits to the defendant, we remark, that without some specification of erroneous charge, and of disallowed credit, it is impossible to determine what the' defendant objects to as a charge, or claims as a credit. Was any credit refused which was claimed, except that of the $11)00 to Morse ? That, we have said, was rightly refused. Was he not allowed all other credits on-the general account of expenditures? Did the defendant, whilst the reference was in progress, or after the report upon it was made, claim any credit by the .exhibition of any account? Did he ask to introduce any evidence to the master in support of any credit ? Did he claim any other credit than such as are to be found in the account, giving; on his own oath, a statement of his ■ expenditures, and of the rents of the property, from 10th Augustj 1822, to the 26th January, 1829? Nothing of the kind, appears. On' the contrary, there is in thé report, a statement by the master, which is conclusive of the' fact, as it has not been denied, that the defendant, though repeatedly called upon, and after having repeatedly promised to give an account, and having had five weeks to furnish it, refused to give any account.

' The parties were summoned to the reference, .by the master, on the 6th of March. On the 8th, the defendant, Story, appeared in person, accompanied by counsel. Upon his suggestion, however, that 'one of his couiisel was absent' from the city; and that he had- been so much occupied as no,t to have had leisure to complete his account, with his'request that' the hearing should be postponed, though it was opposed by the complainant’s counsei, the master adjourned the reference to give the defendant time to furnish his account, and to surcharge the account of the expenditures and rents up to the last of • January,. 1829.- The right to correct any errors in that account was ^conceded to him, the account was .given in evidence subject to such concession. Two witnesses were then sworn on the part of the complainant, without objection,. and • were examined • by both parties. The meeting was then adjourned to the next day,-the parties-, again .attended, but- the witnesses who had been summoned not being present, the defendant again suggested the propriety of adjourning for a few days, when he should be ready to present his account, which he had almost ready. It was assented to. The meeting,was adjourned to the 24th of March. . On that day, the parties appeared before the master, a witness was examined on the part of the complainant, and the- defendant again declared he had been prevented by important business from completing his account; and he ' requested a little more time to make it complete. .The complainant’s counsel 'consented to an adjournment to the 5th of April. On that day, the defendant again requested further time; the case was continued to the 15th of April, and"t,hen the defendant said, he did not intend to furnish any account; but urged, that as the account of expenditures and rents up to the last of January, 1829, had been received as evidence,¿hat it must be considered as conclusive of the expendi- ■ tures which had been made on account of the property. This was allowed to be correct. We have then the refusal of the defendant to . furnish an'-account,’ and proof that he did not claim any other credit .than, those in that account. With what propriety can a denial of credits be urged as an exception to the report ? Thp defendant was the only person who could furnish an account of the credits to which he, supposed hims’eíf. to be. entitled. He refused to do so. To allow hirá-to sáy, theré is error in the report in this respect, would permit him to take ádvantage of his Own wrong, .and to defeat the complainant’s right by artifice. Nor is the account of expenditures'and receipts up to the-last of January; 1829, now examinable, (except as to mere errors in computation,) either as regards the principal Or interest; the defendant being concluded by his admission of it, when he claimed the expenditures as a set-off against his own statement of the rents.

. What has been said of the fourth and seventh exceptions applies to theififth, which is, that a reasonable allowance should have been made to the defendant for the costs and risk of collecting the rents. If under the mandate, any such-allowance could be made, the claim for it should have been presented to the .master supported by evidence of what was the customary compensation for such services, if the service is not compensated by a law of Louisiana. A mere claim for a reasonable allowance cannot give a right to any, and of course is no valid exception to the .report. It is the case of a party before a master, who merely claims for general expenses, without ■stating particulars.' Under such a claim he will be allowed nothing. Methodist Episc. Ch. vs. Jacques, 3 Johns. Ch. 81.

Six of the exceptions having been disposed of,' the. seventh only remains to' be considered. ' It is, “ that it appears from the master’s report,-that the- stores were rented from November to November,, and he erred in assuming the 1st April as the period Of payment of annual rent.” It Was said in argument, that computing the payment of annual rent in extinguishment of the defendant’s debt, on the 1st April, is in effect to deprive him.of interest for a part of the year, as the aggregate of the rent was not in fact received; that ■ it is to allow interest upon rents and profits, contrary to the mandate, and established decisions. ' This would certainly-be so if the -rent had only been received at th,e end of the year. But if the rents were payable at intervals in the year, and were actually so received; and if the half, or any other portion of the ascertained annual rent shall, extinguish the interest upon the debt when.it was received, and ■reduce the principal; why should the whole debt continue .to draw interest ? Surely, to allow this Would be to vary the obligations of these parties to each other, differently from what would be their respective rights in any other case of a debt drawing' interest upon which a payment' had been made, which paid the interest and part' of-the principal. Is there any- difference in the effect of a payment, whether made in person by the debtor, or if it arises from the income of his property.? The7 correct-rule in general is, that the creditor shall .calculate interest whenever a payment is made;' To this interest the payment is first to be applied; and; if it* exceed .the interest due,' the-balance is to be. applied to diminish the principal. If the payment fall short of the interest, the balance of interest is not to be added to the priricipál só as to produce interest. This rule is equally applicable whether the debt be one which expressly draws interest, or on which., interest is .given in the name of damages. Smith vs. Shaw’s adminis., 2 Wash. C. C. Rep. 167. 3 Cowen, Note A. 87. This then be..ng the rule, if the fact is probable in this case that the income of the property received at any time in. the' .course of . the year did; pay interest and a part of principal, the defendant 'cannot complain; he being the receiveu-of the money, and refusing to give "any account of the -aggregate, or its parts when recéivéd, if the master has taken a date for the computation of the aggregate rent as payment which places the parties upon an equality. Besides, the mandate does, not restrict the right, of the complainant to. a credit fox the-aggregate of -the rent at the end of the. year, it does not allow interest upon-the rent, but directs the rents'to be applied to the payment of.the sums incurred in building and repairing; secondly, to the interest on the sums which have been advanced on the loan* or in the improvement of .the lot; and, thirdly, to the discharge of the principal of the loan. The fair inference from the silence qf the mandate as-to the time-when .the rents are to’be credited is, that they are to be so when they are received if the interest and part of the principal are. paid. This is the general rule for the application of payments, and- is the rule of equity which does substantial justice. -What then is the case of the defendant in this particular ? He has a debt drawing five per centum interest, yielding anriually $ 1135’ 55, and is in, possession of the property of the complainant, giving a rent' annually, after deducting @700 for repairs and taxes, of @8000. ’ But, it may be- asked, by what means or evidence did the master ascertain the. amount of rents, and that they wére paid at such times, and in such amounts, as tb-jus'tify the, computation o'f'the annual aggregate as a payment before the' expiration of the year'? First, he must have known that leases of houses are .not made, either, in Louisiana or elsewhere, for the payment of the-, 'entire rent" at the end of-the year;' next, he had an account made-by the defendant, verified by his oath, showing., that for seven years’the rents of this property were received by him,-principally in monthly payments; in thb year 1-828.altogether' soand then, at intervals of two, three, or four months, in sums over seventeen' hundred dollars up to three thousand. ' The rents received in January’ahd February, 1828, exceeded the amount of. interest upon the principal deb.t'or loan-by six hundred dollars. . The rentin'that account, . received on the 26th- January, 1829-, ’was @950,"and the account states a thousand’-'as due on the 1st of February, 1829. The amount of the annual rent the master ascertained from the tenants, who were .witnesses before him, not to - be less than eight thousand dollars. Let it be remémbered-that thequésti’on.now is not whether the defendant shall pay interest upon rents and profits, but the time when •hé shall credit a payment upon the debt which discharges the interest ánct a part of the principal. ■ His debt was carrying' interest, ,and therefore his receiving the rents of the property at any time in a sum sufficient to pay the interest and part of the principal, should .be applied at the date when it was received. The defendant could not claim an exemption from the operation of- this general rulé, in virtue of any relation between himself and the complainant, as trustee, bailiff, attorney, or agent of the latter; who was always ready to pay when called upon, who had not mingled-tHé rents with his own money, and not used it as his own, or that it had been kept on hand. to. abide the decree of the Court. If he had been in either of these attitudes, especially the latter, his own oath, if. not controlled-by other testimony and the circumstances of the. cáse, would have entitled, him to a continue^ accumulation of interest upon the debt, without, any credit of the rent, until the. final decree had directed a sum to be paid to the complainant. Under the circumstances of this.cáse, the defendant refusing to give any account, yet admitting that he had received the rents, at intervals, hr the year; when we consider such to 'be the usual way of renting houses, he having agreed that the certificates.of the tenants should be received as evidence of the amount of rents respectively pajd-by them — the tenants having proved the amount of the annual rent of the premises — we conclude that the master did right.in assuming an intermediate point in the year for the computation of the annual amount of rent, in the absence of. all proof when its parts were paid; -and that it was thejairest way of carrying out the subsfantial intention of the mandate of this Court. But suppose; as was urged. in argument, that the mandate had directed ah annual application of the rent of the premises to the payment of the debt , .of the defendant, without specifying, that the interest was to. be calculated to a date contemporaneous with the last payment of the rent, and the debt was one carrying interest de die in diem, . The mandate could only be executed according to the general rule in the casé of such a debt, by making every receipt'for rent, in discharge first of thé interest, then of the principal. Raphael vs. Boehm, 11 Vesey, 91. The mandate is to be interpreted according to the subject matter to which. it has been applied, and not in.a manner to cause injustice.

This is.not like the case of a decree directing annual rents; with theviewof compounding interest. The question now under consideration has been ruled as it is now decided, in Bennington vs. Harwood, 1 Turner and Russell, Ch. Rep. 477, a casé upon a master’s report of ah accoitnt,. under a decree that the master should set ah annual value by way of rent upon the premises, the mortgagee-being in possession; the master of. the rolls decided, that a mortgagee can never receive more.than his principal and interest; and says, ecnów if in the early part of the year a payment is madé to-him,“exceeding the interest which is then due, and he is nevertheless allowed interest on the whole of his principal down to-the end of the year, what is the profit which he derives from his mortgage, in the interval'between the date of that payment, sand the date of the annual rent? It is clear that a part of his.principal has been repaid to him, and yet he receives interest, upon the whole of it: in other words, he gets more than five per cent on the sum for which he is actually a creditor. Suppose that the sum paid to Eádón on the 2d February had been equal to the whole of the £500, with the arrears of interest calculated to that day, would he have been entitled to interest up tp the 5th of July? Is it possible that such should be the effect of a direction to make annual rents? The sums which a mortgagee in possession receiyes in respect of the mortgaged premises, at'times intermediate beiween the dates of the annual rents, must be applied, when they exceed interest, to the reduction of the principal;, and in the present case, that course is clearly prescribed, by the very words of the decree.” Now what was the decree in Bennington vs. Harwood? It was the usual decree against-a mortgagee in possession, containing the common directions, that the master should tax him the costs, of suit, and so1 set an annual value by way of rent, upon the premises, with further directions that the -sums received in February 1805, were to be applied forthwith, first - to the discharge of the then existing arrear of interest, and next to the ‘diminution of the principal. The master made the rest on the 5th July, instead, of doing so in February; and the counsel contended in that case-^-as counsel have'done in this — that a direction for annual rents, excludes all rents which are not annual. But that position was not sustained by the master of the rolls, on general .principles, though he concludes by saying in the present.case, “that Course is clearly prescribed by the words of the decree.” The defendant here is substantially a mortgagee in possession, having a debt due to him, carrying interest de die in diem; and must abide the. general rule for the application of payments to it.

: This then is not a case in which the defendant has been deprived .of a day's interest by'the master's report, nor one in which interest has been allowed upon rents, and profits; but a.case in,which the application Of a sum received by the creditor, is made to prevent, his whole debt from chawing interest after a part of .it was probably paid. Of this there is a violent presumption. The general principle is, as it was ruled in Breckenridge vs. BrOoks, 2 -A. R. Marshal, 341, that a mortgagee in possession is not to pay interest-upon rents;- but,as the.Chief Justice said in -that case, “We will not say . there may not be special circumstances which would justify allowing interest upon .rents received by a mortgagee. We "say in this, that whenever a mortgagee in possession, having a debt due to him, carrying interest de die-in diem, shall collect an amount of rent, which, will-extinguish the interest'and a part of the principal, that he is bound, so to apply it.” In FenwTek vs. Macey’s executors, 1 Dana Rep. 286, rents received by a mortgagee were directed tb be appliéd as they accrued, to kéep down the interest. In Reed. ps. Lansdale, Hard. 7, it was ruled that the equitable rule in redeeming vthen the mortgagee is in possession, is to charge the profits ,of the mortgaged property against the principal and interest. ,

., Having thus disposed of the exceptions to .the report, and considered the principal ¿rgument of counsel against its confirmation, w« remark, that there is nothing on the face of the report adverse from the defendant’s rights which should cause it to be set aside. Even with the computation of the rents as a credit on the 1st April, he.is still a gamier'; for the difference, between the calculation so made, and what would have been the amount he; would have received if the rents had beep credited on'the 1st November, is more' than compensated by the pse-pf large sums of, money received by him as rent, after the total extinguishment of his debt. ~ The com* •plainant,however., took no exception to the report; and it must stand good against her.

We notice in conclusion an objection to the report urged in .the ' defendant’s petition for a rehearing, and in the argument of the case. It is, that the decree of the Court below is inconclusive as to whom the property is to be reconveyed. . This is riot an objection which the defendant can be permitted to urge. When he shall obey the decree in reconveying and, surrendering the property, his responsibility will be at an end, As to the defendant, the decree of the Court is conclusive against all persons who may legally claim from him any interest on the property as devisee or heir of Edward Livingston. As to those, the law of Louisiana fixes their respective rights, and upon those rights, this Court has not, nór does it intend to_ adjudicate in‘this cause. The general rule certainly is, that all .persons materially interested in a suit, ought to be parties to; it, either as plaintiffs or defendants, that a complete • decree may be. made between those parties.. Caldwell vs. Taggart, 4 Peters, 190. But there are exceptions to this rule, and one of these is, where a decree in delation to the subject matter of litigation can be madej without a person ..who has an interest, having that interest in any way concluded by the decree. Bailey vs. Inglee, 2 Paige, 122. See'also, Joy and Wurts, Wash. C. C. R. 577; where the rule is comprehensively expressed, in respect to active and passive-parties; •and -where a party is not amenable to the process of the Court or where no beneficial purpose is to be effected, by making him a party, such interest must be a right in the subject of controversy which may be affected by a decree in the suit. ■ Such is the case as to. Cora Barton,,in this causé. The subject- matter is to-obtain from the defendant money decreed to be. due to Edward Livingston, and the surrender and reconveyance of. property forming a part of the real estate of Edward Livingston. After his death, his widow, as executrix, was made a party to the bill; and the decree in that suit, cannot, in any way determine the rights of Cora. Barton in her father’s es-tater Besides if there was any force in the objection it comes too late, for where a complainant omits to bring before the Court persons who are necessary parties, but the objection does not appear upon the face of the bill, the proper mode to take advantage of it, is by plea or answer. If the objection appears on the-face, of the bill, the defendant may demur. Mitchell vs. Lenox, 2 Paige, 280. The objection of a misjoinder of complainants should be taken either by demurrers or in the answer of the defendants: if is too late to urge a formal objection of this, kind for the first time at the hearing. Trustees of Watertown vs. Cowen, 4 Paige, 510. So also, it wás ruled in 3 Paige, 222. We might crowd this opinion with decisions to the same point, from .the English and American chancery, reporters.' But further the -objection cannot prevail, for it does not show that the process of the Court could reach Cora Barton. In Mallow vs. Hinde, 12 Wheaton, 193, it Was. ruled, that wherever the case may be completely decided as between the litigant parties, an interest existing in some other person whom the process of the Court cannot reach, as if such person be a resident qf another state, will not prevent a decree upon the merits. And, in the same case, it was decided, where an equity cause may be finally decided-as between-the parties litigant, without bringing others before the Court who would generally speaking be necessary parties, such parties may be dispensed with in the Circuit Court, if its process cannot reach them; as if they are citizens of another state. -But when the rights of those not before the -Court are inseparably connected with the claim of the parties in the suit,' the peculiar constitution of the Circuit .Court is no ground for dispensing with such parties. 12 Wheato, 194. In whatever point of view therefore the objection is considered, whether as to the'interest of Cora Barton in the suit, the time when the objection has been made, or-the manner in which it is made, in not showing that the process of the Court could have reached her, is of no moment ii? this case.

This Court, in regard to-her, only directs her name to be inserted in the-reconveyance, it having been ascertained by the master that she-is a forced heir of Edward Livingston, and -that fact being admitted by the defendant, and the admission of its correctness being the foundation of his objection. The fleeree of the Court below affirming the master’s .report, and directing a reconveyance of the property, is affirmed.

This cause came on to be heard on the transcript of the record, from the Circuit Court of the United States, for the eastern district of Louisiana, and was- aggued by counsel. On consideration whereof, it is ordered, adjudged, and decreed by this Court,-that the decree of the said Circuit Court, in this cause, affirming the master’s report be, and the same is hereby, affirmed. And this Court doth order, adjudge, and decree that tlxel defendant do, on or before the tenth day of the ensuing term of the said Circuit Court, pay to the complainant, Louisa Livingston, the sum of thirty-two thousand nine hundred and fifty-eight dollars and eighteen cents, with interest thereon, at the rate of five per cent, per annum, from the 15th day of July, 1837, to the time of payment.' And this Court'doth further order, adjudge, and decree, that the said defendant Story, do on or before the 10th day of the next term of said Circuit Court, by deed convey to the said Louise Livingston, and Cora Barton, all the right, title and interest, in and ,to the premises in controversy, derived-to, and acquired by him, by the deed of conveyance made by the said Edward Livingston, with covenants of warranty against himself, and his heirs, and all persons claiming by, through-, or under him, the said- Benjamin Story, and that he deliver said deed into said Court, and that he deliver the possession of the-premises to said Louisa Livingston, her agent or attorney, on or before the tenth day of the next term of said Circuit Coqrt. And this cause is remanded to the said Circuit Court wjth instructions to.carry this decree into effect. And.it is further ordered, adjudged, and decreed, that said Circuit Court retain this cause upon the docket for the purpose of ascertaining, and decreeing the amount of the'rents of the premises from the first day of November, 1837, to thé time when possession thereof shall be surrendered according tó this descree, and with power to make such orders and decrees^as . may be •necessary for that purpose, and for the payment of the said rents from the said first day of November, 1837, to the time of the .surrender of the possession, with five per cent, interest on the said rents from the time said rents were received to the payment thereof. And this Court doth further order, adjudge, and decree, that the defendant do pay the costs in this Court upon this appeal, and the costs of the reversal of the decree of the said Circuit Court, by this Court, at its January term, 1837; and also such costs On'the proceedings in the said Circuit Court in this cause, as the said Circuit Court shall tax and order to be paid: and that the said Circuit Court do issue execution therefor.


source: Caselaw Access Project

author: Mr. Justice M Kinley

license: Public Domain

text:
    John Wilcox and others, vs. Crester Hunt and others.
    In the District Court of Louisiana, the defendant pleaded the plea of reconvention, which is authorized by the Code of Practice of Louisiana. The District Court, on the motion of the plaintiffs, ordered the plea to be stricken off. The Code of Practice of Louisiana was adopted in Louisiana, by a statute of that state, passed after the act of Congress of the 20th May, 1824-, regulating' the practice of the District Court of the United States for the eastern district of Louisiana; and the practice according to that code had not been adopted as part of the rules of practice .of .the District Court, when the plea was stricken off.. Held, that the plea was properly stricken out.
    Where, a deed of. trust was made to secure the payment of certain promissory notes, in an action upon the deed the nqtes maybe read in evidence to prove the amount of. the debt intended to be secured by the deed, without the notes having been assigned by the payees to the' plaintiffs, the trustees-in the deed. .
    The general rule is, that the allegations in the answer or plea in an action, and the proof, must agree. "Where there were no averments in a .plea, to authorize the proof offered' by a defendant, it was properly rejected by the Court-
    In Louisiana, when a contract having subscribing witnesses to it is proved to have been made out of the state, the state Courts.presume the witnesses reside at'the place where the contract was made, and are not subject to process issued out of those Courts. They therefore allowed secondary evidence to prove the contract. This being the settled doctrine of the Supreme Court of Louisiana, the District Court of the eastern district of Louisiana properly admitted evidence of the handwriting of the witnesses to a deed of trust, which had been executed out of Louisiana, to go to the jury.
    There is a material difference between the laws of New York and those of Louisiana, in relation to the dignity of instruments in writing. -Contracts made before a notary and tw.o witnesses, called authentic acts, are, by the laws of Louisiana, elevated above all • others. A contract under seal does not appear to be of greater dignity ini.ouisiana than one without seal; and those who sue in the Courts of that state-must abide the consequences of these rules. The validity and'interpretation of contracts sire to be governed by the laws of the country where they are made; but the remedy must be according to the laws of the country where'the suit is brought.
    IN error to the District Court of the United States, for the eastern district of Louisiana.
   Mr. Justice M Kinley

delivered the opinion o'f the Court

This case comes Delore this Court upon a. writ of error to the District Court ot the United States, for the eastern district of Louisiana.

The defendants in-error commenced their suit by petition in.the Court below, upon a deed, of’trust executed by Wilcox, one of the plaintiffs in error, in the state of New York; by which he covenanted, among other things, to pay to the defendants in error the sum of twenty-five thousand two hundred and six dollars and eight cents, being the amount of certain promissory notes, mentioned and enumerated in said deed of trust, payable to several persons in the city of New York. Others, té. wit, James B. Hulin,. Alfred Hennen, and E. Y. Joprdain, were made defendant's to- the suit, for the*p'ur- • pose of subjecting money in their hands, belonging to Wilbox, to the payment of the debt sued for, according to the mode of proceeding' in Louisiana. Wilcox pleaded a general denial, and the plea of re-convention, claiming damages of the plaintiffs below for breaches-on. their-part of the covenants in the deed of trust, to be set off against the amount sought to be recovered against him.

At the trial the Court ordered the plea of reconvention to be stricken out, to which Wilcox exeepted. This plea is authorized by the Louisiana Code of Practice, which was adopted by statute subsequent to the passage of the act of Congress of the 26th of May, 1824,- regulating the practice in the District Court" of the United States, for the eastern district of Louisiana, and which at the time of the trial had not been adopted as a rule of practice-of that .Court. It being a plea not authorized by-the rúles governing the practice-of the Court, it was properly- stricken out.

Three other bills of exceptions were taken at the trial to the rulings of tíié Court. • By the first, it- appears, the plaintiffs' offered to prove the signatures’ of the defendant Wilcox, and of the plaintiffs to the "deed suéd on." The defendant, Wilcox, objected to this evidence; "because it appeared by the deed that there were two subscribing witnesses to it. But the Court overruled the objection,, ahd admitted the evidence, upon the ground that, as the ..deed was executed in the state of New York, it was fairly presumable that the-subscribing witnesses resided there ;„ and which was a sufficient reason for letting in secondary evidence to prove the’ execution of the deed. When a contract is proved to have been máde out of the state of Louisiana, having subscribing witnesses to it, the state Courts presume that the witnesses reside at the place where the contract was made, and are.not subject to the process’ of the Court. They therefore allow-secondary evidence to prové. the execution of -the contract. 7 Martin’s Rep. N. S. 542. 8 Martin’s Rep. N. S. 379. 12 Martin’s Rep. 539. This being the settled.doctrine of the Supreme Court of Louisiana, the Court" below very properly permitted the evidence to go to the jury.

But it is contended by the plaintiff’s counsel here, that the contract having been made in -the state of New York, it ought, in all respects, to be governed by the laws of that state. There is a material difference between the laws of New York and those of Louisiana, in relation to the dignity of the instrument, sued on, in the Court below. Contracts made before a notary and two witnesses, called authentic acts, are by the laws "of the latter-state .elevated above all others.. A contract under seal does not appear to be _of greater dignity there than one without seal. * And those who sue in their Courts must abide the. consequences of .these rules. The validity and interp, etation 'of. contracts áre to be governed by the laws of the codntry where they are made; but the remedy must be according to the laws of the country where the suit is brought. 8 Peters’ Rep. 361.

B^r the second of these bills of .exceptions it appears the plaintiffs, offered to. read-the notes included.in the deed of trust, as evidence of the amount of debt due from the defendant Wilcox; to which he -objected, because they had riot been assigned to the plaintiffs by the payees. The objection was overruled by the Court, and the notes read to the jury. If the-action properly lay upon the deed of .trust, tp. which there appears to have been no objection-made, it was proper that the notes, which were included in the deed and made a part of it, should'have been read to the jury. The third and only remaining exception is,.to the offer on the part of the., defendant to prove, under the plea of general denial, a violation of the contract sued on,, by the plaintiffs, before the commencement of the suit; and a failure, on their part, to comply with its stipulations. This evidence was objected to by the plaintiffs, and excluded from the- jury by the Court. The general rule is, that the allegations in the answer or plea and the proof must agree '; and as there were,, no averments' in the plea to. authorize the proof, it was properly rejected by the Court. .From the best consideration we have been able' to give to this case,'it seems to us there is no' error in the record and .proceedings of the. District Court. The judgment is therefore .affirmed with .costs..

This cause came on to be heard on the transcript óf .the record from the District Court .of the United States for the eastern district of Louisiana, and was argued by counsel. Oh consideration whereof,. ,it is Ordered and adjudged by this Court, that the judgment of the said District Court in this cause be, and the same is hereby, affirmed, with costs and damages at. the rate of six per centum per annum.


author: Mr. Justice Story

text:
    Ann Lupton, Appellant, vs. Phineas Janney, Executor of David Lupton, the younger, deceased, Appellee.
    The executor of 1. filed.- his. accounts in. thé Orphans Court of .Alexandria, in 1818 and 1818, and' settled his final, amount in 1821. No exceptions .were taken to the accounts. In November, 1831, a subpoena, wás issued against the executor, -and in June,. 1833, a bill was filed by the devisee and legatee against the executor, the object of which . was to surcharge and falsify the accounts filed and settled in the Ofphans Court. The bill did.not charge the executor with fraud; but imputed negligence, which was alleged to amount to a devastavit No' reason was given or facts stated to excuse the long delay and laches in bringing the bill. Held,- that the lapse of time from the settlement of the accounts of the executor was a bar to this proceeding.
    Nothing is more clear than, tire general 'rulé, that ex parte settlements of accounts by exe« cutors in the Orphans Court, being matters within'the acknowledged jurisdiction of the Court in the administration of estates, are prima facie evidence of their correctness, and. • the onus probandi is upon .those who seek to impeach, them. If they seek- to impeach them, it should tie by a suit brought, recenti facto, within a' reasonable time, arid, at farthest within the period prescribed ,by the' statute of limitations for actions at lawpn maters of account; -or' else assign some ground of exception or disability-within the analogy of the statute, to justify^ or 'excuse the delay. ' Otherwise it will be' imputed to their voluntary laches,'.and relief will not be given by á Court o.f equity.
    ON appeal from the Circuit Court of the United States, for the county of Alexandria, in the district of Coluinhia.
    A hill was filed on-a subpoena, which had issued from the.Circuit Court on the fifth day of November, 1831; by Ann Lupton, thé splé devisee and legatee of David Lupton the younger,:for the purpose of surcharging and falsifying the accounts of the executor, Phineas -Janney, which had been settled, in thrée accounts rendered by him to and aÚo ed by the Orphans. Court of Alexandria.. The first account .was rendered-and was settled on the 26th of October, 1816. The second account was settled on the. 16th of April, 1818, and on the 5th of January, 1821, ihe-executór renderéd and settled his final account. The bill of the complainant was filed on the 4th day of June, 1833. '
    The complainant' alleged that the executor was chargeable with certain debts due to the estate of the testator,.which he had failed to collect, and for goods of the estate sold by him, the amount .of which sales had not been paid to him. Certain credits had been given in the accounts of the executor to .parties not entitled to them; and, in an amended bill, facts are charged which amounted to a devastavit, which it was alleged were not; satisfactorily contradicted by an amended answer. There was no imputation or' charge of fraud in the executor; but it was asserted, that gross negligence was to he imputed to the executor, for which he was answerable de bonis propriis.
    The answers' of the defendant denied all the allegations in the complainant’s bill, material to charge him as executor of David Liipton the younger.

      The defendant also pleaded in his answer, an amended answer, as follows:
    “ This respondent admits that the complainant was not present at, •nor summoned, to attend the said settlements. But he is advised and avers that'the said settlements were legally made before a Court having full jurisdiction in-the matter, in the due and regular exercise of its jurisdiction; and the respondent relies on the said settlements in bar of the jurisdiction of this Court, as a Court of original jurisdiction, in the case stated by the complainant, in the same manner as if the same were specially pleaded.”
    Also,,“This respondent is advised that an act of the General Assembly of the State of Virginia, passed the 8th day of March, 1826, entitled “An act for the limitation of actions against persons acting in a fiduciary character, and their sureties,' and other purposes/ is a complete bar to any proceedings’ against him. in that state, and was so when the said amended bill was filed.”
    In November, 1838, the Circuit Court made a decree dismissing the complainant’s bill; from which decree this appeal- was prosecuted.
    The case was argued by Mr. Semmes for the appellant; and by Mr.- Jones, with whom was Coxe, for the appellee.
    Mv Semmes argued the cause on alLthe matters contained in the bill;' but the Court having decided the case on the limitation imposed by time on the complainant’s right to recover, the argument on the point decided is alone given. ■
    Mr. Semmes for the appellant:
    ’ In reference to the ground of defence assumed- in the .amended answer,-that.the lapse of time intervening between the settlement of the respondent’s accounts and the institution of this suit is a bar to any decree for opening .those accounts, it may be observed, that the general rule under’which edjuity’denies 'a stale, demand is not indiscriminate or universal in its application: time is not alone sufficient Every case is to be decided on its- own basis, and it is in the sound discretion of the court, on weighing the circumstances, to say if they will grant or deny, the relief. There is not and there cannot be in the mere lapse of time a peremptory bar, where no express statute of limitations governs the case. In discouraging stale demands for the peace of society, Court? of equity have established a necessary’ rule, but that necessary rule is still a plastic one, suitable, to cases as Courts may’judge it proper, the necessity of its-application depending on many circumstances extrinsic and independent of-the lapse of time. ..Thus equity will not dose its dobrs in favour of a fraud, though time may have long passed, since it was committed,- Where an executor’s or administrator’s accounts have been settled in the proper court, ex parte; without nc ticé to egatees or parties in distribution; the timé within which ^ >.\H to surcharge and falsify will be entertained, is extended. Whether the original parties to the transactions sought,.to be opened, be alive or dead, is another material consideration; in the former case the remedial functions of the. chancellor being more easy, and in the latter case, less easy of access.
    Notwithstanding, however, the pliability of the rule, and ' its adaptatiori to cases according to their exigency and inherent equity, the Courts have, in mahy cases where there were .no rebutting circumstances of .presumption, intimated, if not expressly fixed, a terminus to this lapse of time. Thus they will in general presume the payment of a bond, the extinguishment of k trust, and the surrender of a deed, after an’ acquiescence of twenty years ..by the parties .in interest. A mortgage will be presumed discharged after the same lapse of time; and an adverse possession of twenty years will bar a bill in equity for the conveyance of the legal title. Yet even this rule, if rule it strictly be, is not inflexible. Courts frequently step beyond its limits, in- cases where an obvious equity invokes its exception.
    Should this rule apply to the case at bar ? The appellant shows that at the time these accounts were settled in the' Orphans Court, she resided out of the- jurisdiction of the Courts in the District'of-Columbia — that she was the sole legatee <3f her husband the testator — that the executor whom she now seeks to charge was a brother-in-law of the testator, and that she had unbounded confidence in him — that his executorial accounts, were ail settled ex parte, and without notice of any kind to her. She shows acts of gross omission to .collect debts, and culpable negligence on the part of the executor, amounting to a devastavit. She shows that he has lost from- tentó fifteen thousand dollars to her husband’s estate by his neglect. Moreover, the original parties are all ..’alive — thé appellant, ,the legatee, and cestui que trust; and’the appellee, the executor, and trastee. The lapse of time, from the settlement of the final account to the issue of the subpoena, is ten years and ten months — to the filing of the bill about twelve years. The lapse of time, from the devastavit charged to the filing of the bill, is about sixteen years.
    It is not necessary to cite authorities in regard to the defence against stale demands, nor-to show the various modifications that doctrine has undergone -in its application to different cases. One or two cases from Virginia may, however, be i quoted,' as ruling the present question. The Courts of that staj:e allow an. executor’s accounts to be opened after a much greater lapse ofhfime than twenty years, and even after the death of the original parties. In Burwell’s Executors vs. Anderson’s Administrator, &c., 3' Leigh, 348, the Court held lapse, of time no bar, though thirty-one years had passed since the first testator’s death. The executor of the distributee of the testator’s widow was allowed to file his bill against the representatives of the executor of the first testator, surcharging and falsifying the accounts which had been settled, after a lapse of thirty-one years, and time was held no-bar. The cases of Hudson et al. vs. Hudson’s Executor, 3 Rand.. 117, and Todd et-ux. vs. Moore’s Administrator, 1 Leigh, 457, though the relief prayed was denied under the peculiar circumstances,, establish the general principle for which we contend.
    Mr. Jones, for the appellee, contended,
    that even, if the matter of the bill came at all within the cognizance' of the Circuit Court for original relief in equity, yet neither the bill'itself, nor ■any thing disclosed in the progress of the cause, lays any Sufficient foundation for the interference>of equity .in th® matter; but, on thecónttáry, all the pretences for charging the executor by surcharging and falsifying the past settlement in tfie Orphans Court, are strictissimi juris, at best; and it is positively uhconseientious and inequitable for the complainant tp set up after her long acquiescence, with actual Notice and knowledge of the circumstances that give colour to the principal objections now. raised against the past settlement.
    •¿.'That far less than the actual .length of time during which she •implicitly acquiesced in the settlement before she filed her bill, would, under the eircuifistances of the case, have presented a positive bar in equity to charges against the executor, so strictly penal in their grounds and their consequénces, calling . for forfeiture rather than restitution; and so entirely clear of all imputation of fraud, as those Upon which, aloné she has founded her claims.
    ' ■ The settlements in the' Orphans Court, made by the executor, are prima facie evidence of their correctness. This is on the. supposition that the parties interested in them had notice of the settlements. If they had not -notice, or it was not supposed, they had had notice; the accounts Would not. have been allowed to be filed.

      1 ’There was notice. -The time of settlement of the accounts of an executor is fixed and limited.' This is sufficient tq show that every one.'who had an interest- in the account's had a knowledge of them, or' might, have known .of their having been filed. At all times the accounts were open to the inspection of any' one who might tbinlr proper to examine them.
    Sixteen and a half years from' the. settlement of the first account, and- twelve and a half from the filing of the final account, - had elapsed before.the bill in this case was exhibited. While it is admitted that as to persons acting in a.fiduciary character there is no limitation in cases of fraud, this principle does, not apply when no fraud is charged; and .none is charged or. imputed in -this case. - It is contended, that after a reasonable time, the settlement in the Orphans Court, by the executor, is a bar.
    All the matters set up in the complainant’s bill were proper for examination on exceptions to the accounts of the executor in the Orphans Court; and will the Court, after twelve years of silence, allow a party;' passing.by the Orphans Court, and neglecting to use the means of redress which that Court would have afforded for any misfeasance or omissions of the executor; to come into the. Circuit Court by an ori.giual.bill, and set up these matters ? When a technical devastavit is charged against an executor, without an allegation of fraud, it is a tort, and there is a limitation. This is not claimed to be the rule in cases of fraud.
    The Court declined hearing Coxe for the appellee.
   Mr. Justice Story

delivered the opinion of the Court.

This is a case of an appeal from a decree of the Circuit Court of the county of Alexandria, dismissing a bill in equity brought by the appellant, Ann Lupton, the widow and devisee of the testator, David Lupton. The bill was first filed in June, 1833, although a subpoena was issued in November, 1831, and' it seeks to open the accounts of the administration, upon the allegation of certain errors' and omissions therein, as they were settled in three successive accounts of the executor, rendered ex parte, and allowed in thé Orphans Court of Alexandria, in October,-1816, in April, '1818, and in January, 1821. The bill charges, among other things, that the estate was charged by the executor with the payment of a supposed debt of $4459 43, to one Peter Saunders, without any sufficient or legal evidence that it was in fact due. It also charges that the executor omitted to collect of John M‘Pherson and. Son a debt due to the ‘ estate of $4083 50, upon their note; and .also specifies certain credits which have been omitted to be given by the executor; and contains a general allegation that other debts have been lost to the estate by. the negligence of the executor.- The prayer of the bill is in effect to open the accounts, with general liberty to , surcharge and falsify. There is no charge in the bill that the executor has been guilty of any fraud; nor any reason given, nor facts stated, to excuse the long delay and laches in bringing the bill. The answer denies all equity, and. insists upon the correctness of the accounts as settled, and contains a full explanation, in reply to the specific charges of the bill. It also relies on the settlement of the accounts in the Orphans Court; and the lapse of time, as a bar- to the suit.

'{’he opinion which wé have formed upon this last point, renders it wholly unnecessary for us to consider several others- which have been discussed at the bar; and especially the objection, that the Orphans Court has exclusive jurisdiction Over the matters in controversy. Wé place this case Avholly upon the .ground of the lapse of time since the accounts were settled in the Orphans Court, a period, from twelve to.sixteen'years before the filing.of the bill; the total omission of the bill to state any facts, or circumstances to account for or excuse this long delay; and the absence of any suggestion of fraud in the settlements. Nothing is more clear than the general rule that ex; parte settlements of .accounts-of this sort, in the Orphans Court, being matters Avithin the acknowledged jurisdiction of the Court in the administration of estates, are prima facie evidence of their own verity and .correctness; and the onus probandi is upon those who seek to impeach them. If they seék to impeach them, it should be by a suit brought recenti-faeto, within a reasonable time; and at farthest; within the period prescribed by the statute of' limitations for.actions at law upon matters of account; or else to assign some ground of exception- or disability, within the analogy of the statute, to justify or excuse the delay. Otherwise it will be imputed to their own voluntary laches; and Courts of equity are never active in lending their aid to stale and neglected claims, for the known maxim of such Courts is, vigilantibus., non dormientibus leges subveniunt. We .do not deem it necessary to refer to any authorities on - this point, as it has been so long and so fully recognised in this Court; and upon this short ground, we are'all. of opinion that the decree of the Circuit Court dismissing the bill ought to be affirmed, with costs.

Thjs cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county of Alexandria, and was argued by counsel. On consideration whereof, it is ordered and decreed by this Court, that the decree of the said Circuit Court in this cause be, and the same is hereby, affirmed, with costs.