{
  "id": 8300896,
  "name": "GERTRUDE E. HUNTINGTON late Gertrude E. Webb, Administratrix of the Estate of N. Webb, Deceased, and DAVID L. HUNTINGTON v. WILLIAM H. MOORE and WILLIAM C. MITCHELL",
  "name_abbreviation": "Huntington v. Moore",
  "decision_date": "1871-01",
  "docket_number": "",
  "first_page": "489",
  "last_page": "507",
  "citations": [
    {
      "type": "official",
      "cite": "1 N.M. 489"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [
    {
      "cite": "1 Wall. 423",
      "category": "reporters:scotus_early",
      "reporter": "Wall.",
      "pin_cites": [
        {
          "page": "684"
        }
      ],
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T17:54:22.823830+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "GERTRUDE E. HUNTINGTON late Gertrude E. Webb, Administratrix of the Estate of N. Webb, Deceased, and DAVID L. HUNTINGTON v. WILLIAM H. MOORE and WILLIAM C. MITCHELL."
    ],
    "opinions": [
      {
        "text": "By Court,\nWaters, J.:\nThis is a proceeding in chancery. The complainant, Gertrude E. Huntington (late Webb), filed ber bill in chancery on the twenty-second day of January, 1869, in the clerk\u2019s office of the first judicial district of this territory, against the defendants, and on the same day and year filed a supplemental bill. The object of the bill is to obtain a settlement of the interest of N. Webb, deceased, in the firms of Wm. H. Moore & Co., and N. Webb & Co., of which firms N. Webb is stated to have been a joint and equal partner with defendants, and doing business under the name and style of Wm. H. Moore & Co., at Fort Union, N. M., and under the name and style of N. Webb & Co., in Southern New Mexico, and at Franklin, Texas. The bill alleges that complainant, Gertrude E. Huntington (late Webb), was the wife of N. Webb, deceased, at the time of his death, and that he died at Franklin, El Paso county, Texas, October 15, 1866, and that she took out letters of administration of his estate before the probate court of said county of El Paso; and that afterwards ancillary letters of administration were granted her by the probate court of Mora county, N. M.; and that the defendants and the deceased entered into a copartnership some time in the year 1859, for the purpose of carrying on and transacting the business of post suttlers at Fort Union, N. M., and also general dealers in merchandise, and contractors, etc., for supplying troops stationed at the various military posts in the territory of. New Mexico; and that said Webb put into said firm the sum of fifteen thousand dollars.\nComplainant then alleges that she believes the terms of said copartnership were reduced to writing, and that, if not lost or destroyed, it is in the possession and under the control of the defendants, as it never has been in the possession of complainant; and that early in 1863 said copartnership was extended to Las Cruces, N. M., and El Paso county, Texas, under the style and name of N. Webb & Co., and that in both of these firms said Webb was an equal partner in the profits and losses. The bill charges that both of these firms were making large sums of money annually clear of expenses. It also sets forth that complainant made repeated efforts to obtain a settlement of the interest of said Webb, in the gbove-named firms, subsequent to his death and before the filing of her bill, but without avail. The bill also sets forth that complainant, Gertrude E. Huntington- (late Webb), is the sole heir at law of said Webb, deceased. The bill is very lengthy, and contains many statements concerning the property of the firms, and the amounts of goods and money on hand at the time of th.e death of said Webb.\nTo this bill defendants filed separate answers, although in substance the same. The answers deny that defendants entered into a copartnership with said Webb, in 1859, for the purposes specified in the bill; but sets forth the fact to be, that the defendants entered into a copartnership with said Webb for the purpose of carrying on a mercantile business as post sutlers, at Fort Union, New Mexico, said Webb to receive an interest of one eighth of the profits of said business for his business talent and for keeping the books and acting as cashier, and that said copartnership did not commence until May, 1861. The answer then denies that said Webb, at the time stated in said bill, paid into said copartnership the sum of fifteen thousand dollars, or any other sum whatever; and denies that said Webb was an equal partner in the business and to share equally with the defendants in the business; and denies that the terms of the copartnership were reduced to writing. The answer admits that from the commencement of the business in southern New Mexico and Franklin, Texas, as stated in the bill, under the name and style of N. Webb & Co., the defendants and said Webb were to share equally in the profits and losses of said business; but that in the business carried on at Fort Union, New Mexico, under the name of W. H. Moore & Co., said Webb was only to receive one eighth interest. The answer is very long, and coiitains very many statements that are immaterial in the consideration of this cause.\nTo the answers of defendants, complainants filed replications.\nThe bill and exhibits, together with defendants\u2019 answers and exhibits, and everything pertaining to the cause, was, by a decree of the court below, on application of complainants, referred to a master in chancery, \u201cto take and state the accounts mentioned in the pleadings in this cause, and especially to take and state the accounts of the late firms of W. H. Moore & Co., Moore, Adams & Co., and N. \"Webb & Co., with the estate of N. Webb, deceased.\u201d The master was given full power under the decree to do and perform everything necessary to a full and complete investigation of the interest of N. Webb, deceased, in the above firms.\nIn pursuance of this decree the master appears to have proceeded to an investigation of the interest of N. Webb, deceased, in the firms above named, having before him during the investigation the solicitors for complainants and respondents, and after having heard the proofs and an examination into the affairs of said firms, makes his report to the effect that the interest of N. Webb, deceased, in the above firms of W. H. Moore & Co. and N. Webb & Co. was one third interest and that the estate of N. Webb, deceased, ivas entitled to one' third of the net assets of the firms of W. H. Moore & Co. and N. Webb & Co., which amounted to the sum of ninety-seven thousand five hundred and ninety-six dollars and nineteen cents, at the time of making his report, which was August 20, 1870.\nThe record shows a considerable mixing up of exceptions' and objections to the report, which will be considered hereafter in their proper order. During the progress of the cause the complainant, Gertrude E. Webb, intermarried with David L. Huntington, and on motion of the complainant the pleadings were amended accordingly and the cause alloived to proceed in the name of Gertrude E. Huntington, administratrix, etc., and David L. Huntington.\nThe court below confirmed the report of the master and entered up a decree accordingly. The defendants moved the court to set aside the decree and grant a rehearing, which was overruled. \u2022 Defendants then appeal to this court, and assign thirty-six causes for error why the decree of the court below should be reversed and complainant\u2019s bill dismissed.\nThe assignment of errors we will endeavor to consider as near as we can in the order in which they have been presented in the bill of errors. Before considering them, however, we desire to say now, that in the consideration of the cause before us, we will treat, as surplusage, everything in the bill that pertains to matters outside of what we -conceive to be the real object of the bill \u2014 a settlement of the interest of N. Webb, deceased, in the firms of W. H. Moore & Co. and N. Webb & Co. Consequently all that portion of the bill pertaining to the alleged heirship of Gertrude E. Huntington in and to the personal estate of N. Webb, deceased, will not be considered.\nThat is a question which more properly belongs to another proceeding after the interest of N. Webb, deceased, shall have been ascertained. It has nothing to do with the real object of the bill, and should not have been coupled with it. In like manner whatever may appear in the answers of defendants as responsive to that part of complainant\u2019s bill will be treated in the same way, and likewise the issues raised by the replication to said answers, which are altogether outside of the object of the bill. The chancery practice is that matters of defense not strictly responsive to the bill must be set up by a cross-bill, and not in ihe answers to the bill of complaint. With these observations we will now proceed to consider the alleged errors, except such errors as may be based on the heirship of complainant, and which we have regarded as surplusage.\nThe fifth cause of error assigned is; that \u201cthe court below erred in overruling the motion of defendants to amend their answer.\u201d By an examination of the record it will be found that the complainant filed a motion suggesting the marriage of complainant with David L. Huntington, and asking that the said David L. Huntington be made a party to the bill, and that the bill and proceedings in the cause proceed in the name of Gertrude E. Huntington, adminis-tratrix of the estate of Webb, deceased, and David L. Huntington, which motion ivas sustained. The motion of defendants referred to in this assignment of error was made for the same purpose, and subsequent to the motion made by complainant for that purpose. The motion ivas therefore properly overruled, as the object sought to be accom-plisliecl by said motion was already accomplished by tbe court sustaining tbe motion of complainants. In the overruling of the motion, then, the court below committed no error.\nThe seventh cause of error assigned is, \u201cthat the court below erred in not dismissing the bill, for the reasons that the bill charges that the letters of administration granted on the estate of N. Webb, deceased, in Mora county, New Mexico, were ancillary to letters of administration granted in El Paso county, Texas, and that it appears in proof that the letters of administration granted in Texas had been revoked by the probate court of El Paso county, and that the letters of administration granted in Mora county, New Mexico, became inoperative and void.\u201d\nWe can not see that the revocation of the letters of administration granted to complainants by the probate court of El Paso county, Texas, necessarily abates this suit. For all that appears to this court, letters of administration de bonis non may have been granted to some other person by the probate court of El Paso county, Texas, on the revocation of the letters to complainant, and the ancillary letters remain and be of such binding force and effect as if no revocation had taken place. It by no means follows that ancillary letters of administration become inoperative and void upon a revocation of the original letters of administration granted by the probate court of the county where the deceased was domiciled. Courts of equity can not be thus robbed of their jurisdiction by the action of a probate court in a neighboring state or territory; neither can a person holding ancillary letters of administration be deprived of the power of administering on the estate, within the jurisdiction of the probate court granting ancillary letters, in any such way. On final settlement of administration under ancillary letters, the administrator will be required to account to the administrator holding letters of administration from the court where the deceased was domiciled, and not before. There was no error committed by the court below in refusing to dismiss the bill. There would have been error bad the bill been dismissed under such a state of facts.\nThe eighth error assigned is, that \u201c the court below refused to dismiss the bill, for the reason that the records show that the suit had abated by the marriage of Gertrude E. Webb with David L. Huntington, and no new letters of administration had been taken out in the name of Gertrude E. Huntington and David L. Huntington, her husband, nor any new bond given as such administratrix.\u201d As before stated, complainant suggested her intermarriage with David L. Huntington, and asked that he be made a party to the bill, and that the proceedings in the cause be carried on in the name of Gertrude E. Huntington, administratrix, etc., and David L. Huntington. Defendants subsequently moved the court for the same purpose, which motion was overruled, the overruling of which wras assigned as error, and has been already considered. The defendants by this action, as appears oi* record, waived whatever error there might be, by asking that David L. Huntington, her husband, be made a party to the proceedings, thus acknowledging the right of the cause to proceed as above referred to. If defendants seek to take advantage of this, it should have been done at the time the marriage wras suggested, and in the proper manner, and then this court could examine into the error, if error rvas committed. Outside of this, however, it appears to be pretty well settled in equity practice, that when a feme sole is administratrix, and marries during the pendency of the suit, the suit is only suspended in its progress, until such time as the husband is made a party thereto, -when the cause proceeds.\nThe rule is otherwise at law. An abatement in the sense of the common law is an entire overthrow or destruction of the suit so that it is ended. In the case before us the record shows that steps were taken to have the bill amended on the intermarriage of Gertrude E. Webb with David L. Huntington. That a new bond should have been given by Gertrude E. .Huntington, administratrix, etc., and her husband, David L. Huntington, is a question we hold this court has nothing to do with. The matter of the bond belongs to tbe probate court under whose jurisdiction the estate is; and it is for the parties interested in the distribution of the estate and the proper probate court to settle whatever question may arise as to the sufficiency of an administrator\u2019s bond.\nThe ninth cause of error assigned is, \u201cthat the court below erred in overruling the motion to grant to the defendants thirty days in which to file their exceptions to the master\u2019s report.\u201d The disposition of this alleged error, will carry with it several of the other errors assigned and not yet disposed of, and settle one of the principal points in this case. As before stated, the bill, answers, etc., were referred to a master in chancery. By reference to the record it will be found that the master, after having heard and examined all matters referred to him, served, upon the solicitors of the respective parties,.notice to appear before him and make objections, if any they had, to his then draft report, giving them four days in which to file objections before making his final report. In response to this notice the counsel for defendants deny the right of the master to summon the defendants before him for the purpose of filing objections, and tells him that by the rules of the supreme court of the United States, they have thirty days in which to file exceptions after he has filed his report in the office of the clerk in which the suit is pending. The defendants having refused and failed to obey the summons of the master in appearing and filing objections to his draft report, the master proceeds and files his report in the office of the clerk of the court below.\nOn the filing of this report by the master, the counsel for the defendants moves the court for thirty days\u2019 leave in which to file exceptions thereto, which motion the court refuses. By the chancery practice, it is the duty of the parties, when summoned to appear before the master and file objections, if any they may have, to his draft report, as no exceptions on the hearing of the report will be considered except those based upon objections made to the master\u2019s draft report. The defendants, in the case before us, refused to appear and file objections to the master\u2019s draft report, and attempted to file exceptions to the report as filed by the master in the clerk\u2019s office, which the court below refused to have done, and we think properly. The practice is well settled that if no objections are filed to the master\u2019s draft report, no exceptions to the report will be entertained by the court.\nThe authorities on this point are numerous, and the practice so well settled that w,e deem it unnecessary to make any reference to them. And counsel for the defendants in the court below appear to have arrived at the conclusion, and present to the court the petition of defendants, asking the court to grant them leave to now file objections to the master\u2019s report, and in their petition state that if this permission is granted them, \u201cthey will at once, and within such time as the court or master in chancery may indicate, file their objections to the report of the master in chancery, for his action and the action of the court thereon.\u201d\nThis petition was supported by the affidavits of the counsel for the defendants, showing what the practice in chancery had been in this territory. On this petition and affidavits of counsel, the court below granted this request, and ordered that the report be referred back to the master, with liberty to the defendants to file their objections to the same, and authority to the master to consider the same, and with the consent of counsel of defendants, further ordered, \u2018 \u2018 that this cause is set down for hearing on. Monday next, on the pleadings, proofs, the master\u2019s report, and the exceptions thereto, if any there be.\u201d\nIn pursuance of this order, the master read the report. Counsel for defendants appeared before him and filed their objections to the same, and the record shows that some of the objections were sustained by the master, and others overruled. The master, after having passed upon the objections, filed his then draft report in the office of the court below. Immediately on the filing of this report, counsel for defendants moved the court for thirty days in which to file their exceptions to the master\u2019s report. After defendants\u2019 agreeing to have the cause tried on a day certain, it was asking the court indirectly to defeat, vacate, and set aside its own order, made at tbe solicitation of defendants\u2019 counsel, by referring the report back to the master, and setting the cause down for hearing on a day certain, \u201con the pleadings, proofs, the master\u2019s report, and the exceptions thereto, if any there be.\u201d No court having any respect for its own records, for the dignity and purity of a court of equity and the enforcement of justice, would for a moment entertain sueh a motion as presented by the counsel for defendants in this cause. Counsel for defendants claim that by the eighty-third rule of the supreme court of the United States, they have thirty days in which to file their exceptions to the master\u2019s report.\nIn our opinion, this rule has no application to the courts of this territory, and was not so intended. There is but one rule among the number that has any reference to courts in territories, and this is the ninety-second rule. The rules referred to by counsel are for the government of the circuit courts of the United States, when acting as courts of equity; and by reference to the first, second, and third rules it will be observed that the rules promulgated by the supreme court of the United States are not, nor can be, applicable to the practice in courts of this territory. It is claimed, however, that the district courts of this territory are regarded as circuit courts of the United States. The district courts of this territory, by the organic act, exercise the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested in the circuit and district courts of the United States, and in one sense may be regarded as circuit and district courts, and when the rules prescribed for the government of these courts are applicable to the practice in this territory, they no doubt will be governed thereby. The courts of this territory are clothed with sufficient power to prescribe and enforce their own rules.\nIf we were to presume anything in connection with this motion asking for thirty days in which to file exceptions to the master\u2019s report, it would be, that it was interposed for delay, for it appears from the record that on the overruling of the motion, exceptions were immediately filed. On a full examination of this alleged error, we are unable to see that there was error committed by the court below, in overruling the motion askiug for thirty days, or that any injustice has been done the defendants by the overruling of said motion. The tenth and thirty-fourth causes of error assigned relate to the same subject, and will be considered together. They are to the effect, that the court below erred in overruling the motion to consolidate with,this suit the cross-bill of defendants against complainants and one Joab Hough-ton, and in not disposing at the same time of the issues raised upon the cross-bill and answers thereto.\nIf it is not understood, it may as well now be, that there is no such a thing known in chancery practice as a consolidation of the issues raised by a cross-bill and answers with the original bill and answer. To permit such a proceeding would be contrary to every precedent in chancery practice, and an attempt to defeat the very ends for which courts of chancery were instituted, by a confusion of issues, parties, and pleadings.\nThe cross-bill in the case before us brings into this suit a new party and new issues, and in fact is an original bill. In such a case, what is to be done ? Counsel for defendants say, Consolidate these causes, regardless of consequences. This we are not inclined to do, but will allow the cross-bill, if cross-bill it can be called, and the issues thereon raised by the answer, to be heard in accordance with the well-settled rules of chancery practice. Either party might have moved the court below so that the original and cross-bill, if cross-bill it could be, might have come on for hearing at the same time. This is the usual practice. In the case before us, however, no such motion appears to have been made, and the parties elected to proceed with the hearing of the original bill. In refusing, then, to consolidate the cross-bill and answer with the original bill and answer, we can see no error or injustice done to either party.\nThe twelfth cause of error assigned is, that \u201cthe court below erred in granting the motion of complainant for an order closing the proofs of this cause.\u201d By an examination of tbe record it will be found that tbe issues in tbe case before us were made up on March 23,1870, on tbe filing by complainants of their replication. Tbe motion to close tbe proofs was made on tbe fifteenth of August, 1870, nearly five months after issue joined. This would appear to be plenty of time for tbe parties to take the proofs, and is much longer than is given by many of tbe state courts in chancery proceedings. The motion to close tbe proofs was a mere formal motion, addressed to tbe discretion of tbe court, and we may presume that tbe court below, having in its possession all tbe facts and circumstances of tbe case, exercised its discretion for tbe advancement of justice. Nothing on the record appears to tbe contrary, and we are not disposed to interfere with tbe discretionary powers of a court, when tbe record does not disclose an abuse of that power.\nTbe thirteenth, sixteenth,' and eighteenth errors assigned have been disposed of in tbe consideration of tbe ninth, and need no further notice here. Tbe fourteenth and seventeenth causes of error assigned are to tbe effect that \u201c tbe court below erred in overruling a motion of defendants to suppress tbe depositions of one Joab Houghton and W. R. Shoemaker, filed as evidence in the cause.\u201d This motion, we think, was properly overruled, for tbe reason that said depositions contained evidence that could not well be suppressed under tbe rules of evidence. Tbe motion went to tbe entire deposition, and tbe court could not undertake to suppress them when it was apparent on tbe face of tbe depositions that a part of tbe evidence contained in them was legal. Subsequent to tbe motion, defendants filed other motions to suppress certain portions of tbe depositions of said Joab Houghton and Shoemaker, which motions were in part sustained, leaving the depositions, as we think, free from all exceptions and irrelevant matters.\nTbe fifteenth cause of error assigned is, \u201cthat tbe court below erred in overruling tbe motion of tbe defendants to refer tbe disputed fact of tbe interest of N. Webb, deceased, in tbe firm of W. H. Moore & Co., at Fort Union, N. M., to be passed upon by a jury as to that fact.\u201d This was wholly within the discretion of tbe court, and if the court had any doubts as to the propriety of submitting such a question, and from its own knowledge of the facts and circumstances of the whole case, that it was not proper that it should be submitted to a jury, we can see no good reason for interfering with that discretion. The authority of the master, under the decree of reference, to ascertain what interest N. Webb, deceased, had in the firm of W. H. Moore & Co., was incidental to a full discharge of his duty, and was absolutely necessary for the execution of the decree of reference and the pleadings in the case. The master leaving ascertained what that interest was, there could be no necessity for submitting this question again to the jury. This motion, like the one above referred to, if it meant anything, meant delay, and the court below, in the exercise of its discretionary powers, properly overruled the same.\nThe remaining errors assigned, except errors two, three, and' thirty-six, relate principally to the confirmation of the master\u2019s report; hence will be considered together. They all resolve themselves into one question, which is, should the master\u2019s report have been confirmed? Counsel for defendants have, in a very able manner, presented numerous authorities to show that the court below erred in the confirmation of the master\u2019s report, and entering up a final decree. We have carefully examined most of the authorities referred to, and have bestowed a vast amount of labor in the consideration of this question, and although some of the authorities referred to have some bearing upon the question before us, yet we are unable to see that any error has been committed or injustice done to the defendants, that would justify this court in reversing the decree. We might stop here and pronounce the judgment of the court; but as there were some questions raised in connection with the master\u2019s report which deserve notice, we will briefly give our reasons for having arrived at the conclusion just stated above. Counsel for defendants claim that there was no evidence in the case before the master that would justify him in arriving at the conclusion that N. Webb, deceased, had a one third interest in the firm of W. H. Moore & Co. The bill charges that Webb had one third interest in this firm.\nThe answer denies this, and alleges that he had but' one third interest in the firm of N. Webb & Co. and one eighth interest in the firm of W. H. Moore & Co. This averment in the answer of one eighth interest in the firm of W. H. Moore & Co. is not responsive to the bill, and under the rules of equity practice must be proven. The fact that the answer is sworn to does not affect this principle of having to prove, strictly every matter not responsive to the bill: See Brightly Dig. 314, 858, and authorities there cited, and 2 Sumner, 489. While the rule is, that it takes two witnesses to overcome a sworn answer when responsive to the bill, yet it is well settled that when not responsive the averments in the answer are not entitled to any more weight than the averments in the bill 1 Wall. 423, 684. The answer then of itself not being conclusive as to the one eighth interest in the firm of W. H. Moore & Co., the master, under the pleadings, was compelled to find the interest to be one third or one eighth, and, in arriving at a conclusion, had to be governed by the evidence brought before him. He reports the' interest of N. Webb, deceased, to b\u00e9 one^ third in the firm of W. H. Moore & Co. This report is based upon the finding of the facts before him, and this court will not review the report of the master as to his finding of the facts, only for error of law appearing in the report.\nThe thirty-sixth cause of error assigned is for error on 'the face of the record. In the consideration of this -error we have given the record a full and thorough examination with the following result: The first error apparent on the face of the record to be considered occurs on schedule A, annexed to the master\u2019s report. The error is merely clerical, and appears patent upon the face of the report. In marshaling the assets of the firm of N. Webb & Co., the master charged as assets the sum of seventy-six thousand one hundred and five dollars and sixty-three cents, as debts due and owing to the firm at Webb\u2019s death, that being the total shown by exhibit A filed by defendants as a statement of debts due and owing. In this sum was included the amount of \u201cexpense account\u201d and \u201ctrain account,\u201d which were assets, and which were deducted from the amount of exhibit A aforesaid, and properly determined the actual amount of debts due and owing to the firm at fifty-six thousand two hundred and twenty-one dollars and fifty-six cents. In making the calculation of fifty per cent, of debts to be allowed as uncollectible, the master deducted the amount of the accounts of N. Webb and wife from the amount of the original statement of debts, instead, as it should have been, from the actual amount of debts found by deducting \" expense account\u201d and \u201ctrain account\u201d from the amount of said statement as above stated. The master thus allowed for uncollectible debts fifty per cent, of forty-seven thousand seven hundred and sixty-two dollars and forty-six cents instead of fifty per cent, of twenty-seven thousand eight hundred and seventy-eight dollars and ninety-nine cents; thus allowing as un-collectible fifty per cent, of \u201cexpense account\u201d and \u201ctrain account,\u201d which were not charged or regarded as assets. In other words, crediting these accounts in full once and fifty per cent, of them again. This correction being made, makes the amount to be deducted from gross assets of N. Webb & Co. fifty-nine thousand and sixty-four dollars and forty-four cents, instead of sixty-nine thousand and six dollars and eighteen cents, as stated by the master, and leaves net assets ninety-six thousand five hundred and sixty-one dollars and seventy-three cents, and the amount due N. Webb at his death from the firm of hi. Webb & Co. three thousand eight hundred and forty-four dollars and sixty-seven cents, instead of five hundred and thirty dollars and seventy-six cents, as found by the master.\nThe second error on the face of the record to be considered occurs in schedule B, annexed to the master\u2019s report, and consists in charging as assets of W. II. Moore & Co., goods, wares, etc., on hand at Webb\u2019s death, ninety-four thousand seven hundred and fifty-eight dollars and sixty-one cents, tbe consideration dne for wbicb is included in a statement of debts due and owing to tbe firm, filed by defendants with tbeir answers, and included in amount found as assets. Tbe amount due from Moore, Adams & Co., for goods, etc., being considered as assets, it was error to charge also tbe value of goods for wbicb sucb payment was due. Tbe responsibility for tbis error clearly rests with tbe defendants. Tbey having furnished exhibits and statements, as appears of record, showing amounts with wbicb tbe respective firms were chargeable; tbe master bad a right to regard sucb exhibits as fair to tbe parties filing tbe same, and tbey not being objected to by complainant as unfair or imperfect exhibits, it was reasonable and proper for tbe master to take tbe totals, without scrutinizing tbe items of sucb exhibits. These errors appear never to have been referred to in tbe proceedings before tbe master, and no objections or exceptions to tbe same were taken in tbe court below; mention of it was first made in tbis court. Tbe error is chargeable to tbe defendants alone. But equity requires its correction. Tbe deduction of tbe value of tbe goods; wares, etc., chargeable as assets M>m 'the total of assets found by tbe master, leaves gross assets, three hundred and ninety thousand four hundred and eighty-five dollars and seventy-seven cents, and net assets, two hundred and thirty-six thousand three hundred and sixty-three dollars and sixty-three cents, of wbicb N. \"Webb\u2019s interest, and tbe amount due bis estate at bis death from tbe assets of tbe firm of W. H. Moore & Co., after deducting tbe amount of accounts of W. H. Moore & Co. against N. Webb and wife, was fifty-seven thousand seven hundred and thirteen dollars and twenty-one cents, to wbicb add amount due from assets of N. Webb & Co., three thousand eight hundred and forty-four dollars and sixty-seven cents, makes total due N. Webb at bis death tbe sum of sixty-one thousand five hundred and fifty-seven dollars and eighty-eight cents.\nAnother error appears, wbicb appears necessary to be corrected. Tbe master charged interest commencing two years after tbe death of N. Webb. Interest should have been charged from sis months after his death. The account, properly stated, stands thus:\nAmount due N. Webb\u2019s estate from assets of N. Webb & Oo., at time of Webb\u2019s death .... $ 3,844 69 Amount due at same date from assets of W. H.\nMoore & Co. 57,713 21\nTotal due N. Webb at his death, which was October 15, 1866.$61,557 88\nInterest on this amount from April 15, 1867 (six months after death of N. Webb) to August 20, 1870 (date of master\u2019s report), at six per cent. per annum. 12,362 87\nTotal.$73,920 75 From this deduct $1000, paid by defendants to complainant by order of court made October 11,1869. 1,000 00\nLeaves due estate of N. Webb, deceased.$72,920 75\nSo that the decree of the court below should have been for seventy-two .thousand nine hundred and twenty dollars and seventy-five cents, instead of ninety-seven thousand five hundred and ninety-six dollars and nineteen cents, as found by the master, and decreed by the court.\nWe now come to the second and third causes of error assigned, and which relate to the action of the chief justice at chambers in granting an order for the payment of one thousand dollars by defendants to the complainants. This sum appears to have been credited by the master in his report to defendants, and whatever error there might have been in the granting of this order by the chief justice at chambers, can not now, in any way, affect the rights and interests of these defendants. For by the judgment of this court they are found to be owing the complainants, as the legal representatives of the estate of N. Webb, deceased, the sum of seventy-two thousand nine hundred and twenty dollars and seventy-five cents, and this credit having been allowed them, and no injustice done the defendants, it is unnecessary, so far as the purposes of tbis suit are concerned, to pass upon these alleged errors.\nHaving examined fully all the errors assigned excepting those based on the pleadings, which have been regarded by the court at the outset as surplusage, we are unable to see that any errors have been committed by the court below. The judgment of the court below is, therefore, affirmed, with the corrections herein made; and the defendants, in the opinion of the court, being chargeable with the errors corrected by this court, judgment will be entered against them for costs.\nThe other judges concur.",
        "type": "majority",
        "author": "Waters, J.:"
      }
    ],
    "attorneys": [
      "Tompkins and Nolle, for the defendants and appellants.",
      "Elkins and Wheaton, for the plaintiffs and appellees."
    ],
    "corrections": "",
    "head_matter": "GERTRUDE E. HUNTINGTON late Gertrude E. Webb, Administratrix of the Estate of N. Webb, Deceased, and DAVID L. HUNTINGTON v. WILLIAM H. MOORE and WILLIAM C. MITCHELL.\nMa-keeks or Defense not Responsive to Bill, Hqw Set up. \u2014 Matters of defense in a suit not strictly responsive to the hill must be set up by a cross-bill, and not in the answer.\nMotion to Amend Properly Refused, When. \u2014 The overruling of a motion of the defendants to amend their answer to a hill so as to add, as a party to the suit, the conrplainant\u2019s husband, she having intermarried with him after the commencement of the suit, is not erroneous, where such party has already been added on the motion of the complainant.\nAncillary Letters of Administration not Revoked, How. \u2014 Where letters of administration gx-anted in another state, where the intestate was domiciled, are revoked, such revocation does not affect ancillary letters which have been, in the mean time, taken out in this territory by the same person, nor is a suit previously brought by such administrator in this territory on behalf of the estate abated by such revocation.\nWaiver of Objection as to Marriage of Female Plaintiff. \u2014 Where a female plaintiff in a suit in 'equity marries pending the suit, and the defendant afterwards moves to amend so as to make the husband a party, he thereby waives any objection that the suit ought to have been dismissed because of such marriage, although the motion is overruled because the husband has already been made a party on the complainant\u2019s motion.\nMarriage of Administratrix, Effect of. \u2014 The marriage of an administra-trix, plaintiff in an equity suit, it seems, merely suspends the suit until the husband is made a party, while at law it puts an end to the action.\nSueeicienoy oe Administrator\u2019s Bond does not Aeeect Suit. \u2014 The question as to whether or not an administrator has given a sufficient bond is not one with which a court of equity, in which such administrator has sued, has anything to do.\nFailure to Object to Draet Retort oe Master in Chancery. \u2014 Where a party to a suit in chancery, which has been referred to a master, refuses to comply with the master\u2019s summons to appear and file objections to his draft report, it is the settled practice that no objection made by such party to the report after it is filed will be heard.\nRules oe United States Supreme Court not Applied to Territorial Court. \u2014 None of the rules adopted by the United States supreme court, except the ninety-second, apply to territorial courts. Therefore, rule 83, giving thirty days to except to a master\u2019s report, has no application to those courts.\nConsolidation oe Cross-suit and Original Suit. \u2014 There is no such thing in equity practice as consolidating the issue, raised. by a cross-bill and answer with those raised by the original bill and answer, although the bill and cross-bill may be heard together.\nOrder Closing Prooes. \u2014 The supreme court will not disturb a decree in the court below, because that court made an order to close the proofs five months after the issues were made up, where no abuse of discretion appears.\nUeposition not Suppressed which Contains some Legal Evidence. \u2014 It' is not error to refuse to suppress a deposition as a whole, when a part of the evidence contained in it is legal.\nReeusal to Submit Question to Jury in Equity Suit. \u2014 It is within the discretion of a court of equity to submit a particular question of fact to a jury, but its refusal to do so is not error, particularly after a reference of the whole case to a master, and a finding by him on that question, as necessarily involved in his report.\nMatter not Responsive to Bill must be Proved. \u2014The rule in equity is that matter in an answer not responsive to the bill must be proven, even though the answer is sworn to.\nMaster\u2019s Bindings oe Eact not Reviewed. \u2014 The supreme court on appeal from a decree, will not review findings of fact in the master\u2019s report in the court below.\nAppeal from the district court of the first judicial district. The opinion states the case.\nTompkins and Nolle, for the defendants and appellants.\nElkins and Wheaton, for the plaintiffs and appellees."
  },
  "file_name": "0489-01",
  "first_page_order": 501,
  "last_page_order": 519
}