GRAND ISLE, ant. These objections may be considered with the excepJanuary, tions taken directly to the report, and, in fact are enumerated

1843.

Mott

v.

among the special exceptions to it. These exceptions are nine in number, and are, that the commissioner neglected to Harrington. return the defendant's account; refused to order the production of defendant's books; allowed sums without any vouchers; allowed interest without stating grounds; allowed many items which ought not to be allowed; allowed large sums for time spent, without specifying particulars; allowed an account in favor of Harrington and Perrigo on defendant's own statement; allowed sums on accounts not submitted, and that the report was grossly partial and unjust.

The two last exceptions are not supported by a reference to the proceedings before the master, nor by any proofs. The order to the master to ascertain the sum due to the defendant, required him to take into consideration the defendant's claim for taxable cost and fees in the suit mentioned; and there is no foundation for the allegation that the report is either partial or unjust.

The other exceptions may be embraced in two classes, and will be determined by ascertaining the power and duty of a master in chancery, as Mr. Allen was a special master in this case. They relate to the duty of the master in ordering the production of books and papers, in making a special report or statement of facts, and in stating the evidence in support of the different facts which he was required to find. The object of referring an account to a master is for convenience, to have a full investigation of facts, which could not well be had before the court, or, as was said in Bax, exparte, 2 Ves.388, "because it is impossible for the court to take accounts originally, as that would so take up the time of the court, that justice could not be administered in other causes." Competent masters are appointed for this purpose, and the time and leisure which they can bestow upon the subject, enables them to investigate the facts, and state an account, more fully, and more for the benefit of the parties. The duty of a master is thus laid down by an eminent writer on the practice in chancery, Newland, 172, in which he is confirmed by Maddock and by Comyns, title Chancery, (W.2.) "The report of the master ought to be as succinct as may be, reserving the matter clearly for the judgment, and with

January, 1843.

Mott

V.

Harrington.

out recital of the several points of the orders of reference, or GRAND Isle, the debates of counsel; nor is he to make a special report upon the importunity of counsel or of their clients, unless he is required by the court so to do, or his own judgment is satisfied with the propriety of it; and if he does, he is not to set forth the evidence with his opinion upon it, but only to state the bare fact, for the opinion of the court, in the same manner as in a special verdict." And when a master is required to ascertain a particular fact, he must draw the conclusion himself, and not report the evidence; as when it was referred to a master to ascertain whether a person was dead, who reported that he had been absent fourteen years beyond seas and had not been heard from, it was referred back to the master to report whether the person was dead. Lee v. Willock, 6 Ves. 605. A rigid adherence to these rules, and a firmness in resisting the solicitation to state numerous facts and the evidence, would save our records from much useless matter, and the court the unnecessary labor of selecting the true points in controversy from a multitude of unimportant facts, and testimony, with which reports of masters, referees and auditors, are too frequently encumbered. A reference to a master would be worse than useless, if the whole investigation of the account, the facts in controversy, and the evidence in support of, and in opposition to the same were to be re-examined before the chancellor, and then again be heard and litigated, as to all the items of account, before this court, on appeal.

This view of the nature of a reference to a master to take an account, and his duty and power in taking the same, obviates the several objections raised to the report. The master did not require the production of the books and accounts, because he did not deem it necessary to stop the inquiry and have them produced, or that they were required for the purpose of determining the controversy. Had he deemed them necessary, or proper, for that purpose, undoubtedly he would have required their production. He did not make a special report or statement of facts, because he was not required so to do, by the decretal order, and was not satisfied, in his own judgment, of the propriety of making such report. He did not state the evidence upon which

1843.

GRAND ISLE, he was convinced of the several facts by him found, or the January, ground on which he made certain allowances, because it would not have been proper for him so to do. poses of all the exceptions which have been report.

Mott

v.

Harrington.

And this dismade to the

On a view of the whole case we can see no grounds, either in the petition, or in the exceptions to the report, why it should not have been accepted by the chancellor. It is sufficiently concise, and reports the sum due to the defendant; and a more particular report was not required, by the order of the court, nor by the difficulty or intricacy of the case. The decree of the chancellor in accepting the report, was, therefore, correct; and neither he nor this court can, with propriety, enter into an investigation, or examination, of all the claims or accounts which the commissioner was required to adjust.

An objection is, next, taken to the decision of the chancellor in allowing to the defendant the cost in this suit. As a general rule, undoubtedly the mortgagee is entitled to his costs on having his security redeemed. He may, however, be deprived of his costs, and, when his conduct is vexatious, he may be ordered to pay cost. When he sets up an unjust defence, insisting upon his deed as an absolute purchase, he may be deprived of his costs. I should have been well satisfied, in this case, if no costs had been awarded to the defendant. This was, however, a case where the allowance of costs was discretionary with the chancellor; and although I might have exercised this discretionary power differently, it would be no reason with me, for reversing a decree in this particular. Moreover, the general rule on this subject is, that there can be no appeal or rehearing, for costs only. This was decided by Lord Thurlow, in the case of Herdman v. Kent, 1 Brown, C. C. 140. This was stated to be the rule by Mr. Romily, in the case of Jenour v. Jenour, 10 Ves. 572, and recognised by Lord Eldon, in the case of Taylor v. Popham, 15 Vesey, 72; subject, however, to certain exceptions, which it is unnecessary to enumerate, as the case under consideration does not come within those exceptions. As the chancellor, below, thought proper not to allow cost to the orator, and the case was one where it was purely with

January, 1843.

in his discretion whether to allow cost or not, and his GRAND ISLE, decree is not to be altered in any other particular, we do not think that, consistently with the rules of equity as to cost, on an appeal, the decree, in this particular should be reversed.

The decree of the court of chancery must, therefore, be affirmed.

Mott

v.

Harrington.

The health ordinarily enjoyed by men of health, and the physical ability ordinarily possessed by men of sound bodies, constitute the "healthy and able bodied," within the meaning of the first section of the act of 1797, relating to legal settlement; and this, notwithstanding there may have been a casual and temporary illness, or bodily unsoundness, producing an occasional and temporary effect upon the capacity to gain a livelihood by bodily labor.

The deposition of a witness was taken, by reason of his disability to appear in court. He, nevertheless, appeared and testified on the trial. Held, that the deposition might be used as evidence in chief, in a subsequent trial of the same cause, the witness having, in the mean time, died; and that the admissible character of the deposition was not affected by a sworn repetition of the testimony the witness had given in court on the former trial.

THIS was an appeal from an order of removal by the town of Starksboro to the town of Hinesburgh, of one Lyman Bostwick and Rhoda Bostwick, his wife, made on the day of May, A. D. 1840. Plea, denying the settlement of the pauper in Hinesburgh, and trial by jury.

The plaintiff claimed the settlement of the pauper, Lyman Bostwick, in Hinesburgh, under the last clause of the first section of the act of 1797, on the ground that he resided there the term of one year, or more, while said act was in force, and that he was at that time, "a, healthy, able bodied person, and of quiet and peaceable behavior." The appeal was entered in the county court, at the June term, 1840, and the cause was tried at the December term of that year. A new trial having been granted, it appeared on the subsequent

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