McHenry v. Moore

Bryan, J., delivered the opinion of the Court. Heydenfeldt, J., concurred.

This cause was heard below upon a bill filed for an account, and a dissolution of co-partnership. The matters of account were sent out under the order of Court to a referee, to report upon their condition, to take testimony, and report facts to the Court. The referee reported a voluminous mass of testimony, somewhat contradictory in its character, his findings of the facts therefrom, and conclusions of law upon the same.

Exceptions were filed in Court to the findings of the referee, as being against the testimony, and upon the further ground that the referee had exceeded his powers in finding conclusions of law ; the Court set aside the report of the referee as far as it found the'facts, and applied the law, and proceeded upon the testimony reported to find the facts for itself, and render a decree upon its own findings. It is well settled, that a Court can interfere and set aside the report of a referee, upon the same ground as it will proceed to set aside the verdict of a jury ; so it has been held, that a Court of Chancery will set aside a report of a master or referee, not only where it is against the weight of evidence, but where the facts of the case are various and intricate, and the matters involved are in doubt and obscurity.” 1 Johnson's Cases, 280, and 1 Howard's Practice Reports, 144.

It was perfectly competent for the Judge sitting in the cause, where exceptions had been filed to the report of the referee upon the facts, (and the report had been set aside for cause shown,) to take up the testimony reported by the referee, find the facts, and render a decree in the cause. There was no other course to pursue—except that the Court should either order a re-reference, or take the cause up itself, upon the testimony which had been taken, and decide upon it. A Court of Equity had always the power when the report of a master was excepted to on account of its incorrect deduction of facts from the testimony, to, in its discretion, either refer the case back, or proceed upon the testimony reported, and find the facts, and render a decree accordingly.

Under our practice, the correctness of the order setting aside the report of facts found by the referee, if it was questioned and excepted [93]to, can be reviewed upon appeal after final judgment. The testimony taken does not satisfy us that the order setting aside the findings of facts by the referee was incorrect.