Wytheville.

#### Stuart, Palmer & Co. v. Hendricks & als.

June 25th, 1885.

Chancery *Practice*— Report *of Commissioner.*— The principle is well established, that when a question of fact is referred to a commissioner, depending upon the testimony of witnesses conflicting in their statements and differing in their recollection, the court must, of necessity, adopt his report, unless in a case of palpable error or mistake. *Bowers*v. *Bowers,*29 Graft. 697.

Appeal from decree of circuit court of Hussell county, entered August 18, 1882, in the cause of W. A. Stuart, G. "W. Palmer and Joseph Jacques, partners, in the name of Stuart, Palmer & Co., complainants, *against*A. L. Hendricks and als., defendants.

The bill was filed in the court below to enforce the lien of a judgment recovered by the plaintiffs, and amounting originally to the sum of $1400. The bill admits that various payments have been made on the judgment, but alleges that a balance of $500, or more, is yet due and unpaid. This allegation the answers deny; and upon the issue thus made, the cause was referred to a commissioner for inquiry and report. The commissioner reported a balance due by the defendants of $313.25, and along with his report he returned the evidence upon which it was based. The plaintiffs excepted to the report, but the exceptions were overruled, and a decree was entered in their favor for the balance ascertained by the commissioner. Prom this decree they obtained an appeal.

*602*Houth Stuart,*for tbe appellants.

*White $ Buchanan,*for tbe appellees.

Lewis, P.,

delivered tbe opinion of tbe court.

Tbe sole question is, whether tbe defendants are entitled to a credit of $500, which they claim to have paid in tbe spring or fall of 1878. Upon this point tbe evidence is conflicting, but preponderates on the side of tbe defendants. The principal debtor, J. J. Dickenson, testifies, that in a conversation with J, E. McElheney, tbe plaintiffs’ attorney, in tbe spring or fall of 1878, tbe latter said to him: “Give me $500, and if on settlement it overpays tbe judgment, I will return you tbe excess;” and thereupon, he says be paid him $500, and took bis receipt,, which be has lost, and which he has been unable to findj though diligent search lias been made for it. This receipt be thinks be showed to tbe defendant, J. II. Dickenson, and tbe latter testifies that bis impression is, that among the receipts showed him was one for $500, paid on tbe plaintiffs’ judgment. He also testifies, that on more than one occasion, McElheney assured him that tbe judgment had been settled. And the witness, *~W.*H, Burns, testifies, that since tbe institution of tbe present suit,. McElheney informed him that tbe judgment bad been settled, or nearly so. On tbe other band, McElheney testifies, that in his conversation with J. II. Dickenson, he did not mean to say that tbe judgment had been paid, but that be bad agreed to look for payment to J. J. Dickenson. He also testifies, that be does not remember to have received from the latter a payment of. $500 on tbe judgment, nor does be believe that any such payment was ever made. He gives a list of tbe credits, and their respective amounts to which he thinks tbe defendants are entitled, as disclosed by an examination of bis books, but admits that one of bis books is lost, and was probably destroyed by fire. He is positive, however, that be paid every dollar he received on tbe *603judgment to one of the plaintiffs, W. A. Stuart; and the latter testifies, that he received from McElheney no such payment as that upon which the defendants rely. In this state of the proofs, the commissioner allowed the defendants the credit in question, and his action was confirmed by the decree complained of.

The case was thus materially strengthened for the defendants.-Eor the principle is well established, as declared by this court in a recent case, that “when a question of fact is referred to a commissioner, depending upon the testimony of witnesses, conflicting in their statements and differing in their recollection, the court must, of necessity, adopt his report, unless in a case of palpable error or mistake.” *Bowers’ adm’r*v. *Bowers,*29 Gratt. 697. And the reason is obvious: “ The commissioner is confronted with the witnesses; he sees their deportment, their manner of testifying, their capacity for recalling past occurrences, whereas the court, which only sees the testimony on paper, is denied these tests of accuracy and fidelity.” *Id.;*2 Daniel’s Chy. Pl. & Pr. 1299; Adams’ Eq. (5th Amer. ed.), p, 726, note 2. The decree is affirmed.

Decree affirmed.