McMillan, Adm'r, v. McNeill et al

Full title: B. C. McMILLAN, Adm'r., v . NEILL McNEILL et al

Court: Supreme Court of North Carolina

Date published: Jun 1, 1873

69 N.C. 129 (N.C. 1873)

Opinion

(June Term, 1873.)

Under the former system if an equity cause was set down for hearing upon the bill, answer, proofs, reports, accounts, exceptions, c., the Chancellor might himself find the facts and pronounce the law thereupon, and was not bound to adopt the facts reported by the clerk and master, nor to confirm his report, though no exceptions were filed thereto.

This was a SUIT IN EQUITY, commenced under the former system, in which a decree was made by Buxton, J., at the Spring Term, 1873, of the Superior Court of ROBESON county, from which there was an appeal by the defendant. The case is sufficiently stated in the opinion of the Court.

W. McL. McKay and N. McLean, for the defendant.

Leitch and N. A. McLean, for the plaintiffs.

READE, J.

This was an original bill in equity commenced before the Code, and governed by the old rules of practice.

It was referred to the clerk to take an account of the matters in controversy and report. The clerk reported a balance against the defendant of $168. The defendant filed exceptions, some of which were sustained, and it was referred again under instructions. The second report found the balance in favor of the defendant some $800. And no exceptions were filed by the plaintiffs. The usual course in such cases is to confirm the report and decree accordingly. The case was, however, set down for hearing upon the bill, answer, proofs, reports, accounts, exceptions, etc. taken in the cause, and the Court declares that there is nothing due either way to either party; and after declaring the rights of the parties, and how their business shall be conducted in the future, directs that each party shall pay half the cost. And from this the defendant appeals.

The question is, whether his Honor had the power to find and declare the facts and decide the law, or was he obliged to adopt the facts reported by the clerk, and to confirm his report in the absence of exceptions?

Under the former equity practice the Chancellor finds the facts and declares the law. "For the working out of details" he might refer to the master, or submit issues to a jury. But this was not to conclude, but to aid him. And the whole case was still under his control, with the little or much aid thus afforded by the report. Daniel's Ch. Pr.

We see no error in his Honor's finding of the facts or in his conclusions of law.

There is no error.

PER CURIAM. Decree affirmed.