#### The Bivingsville Cotton Manufacturing Company *vs.*Dr. James Bivings.

Motion to set aside a report and send the accounts back to the Commissioner, on the ground that the solicitor of the plaintiffs who attended to the reference was dead, and that plaintiffs being deprived of his information, were incapable of sifting the report without an investigation of the whole account *de novo:*— Motion, under the circumstances, refused.

Questions as to closing or continuing a reference are proper for the consideration of the Commissioner.

Exceptions should point out the particulars in which the errors complained of consist, and not be couched in general terms. '

BEFORE JOHNSTON, OH., AT SPARTANBURG-, JUNE, 1854.

The defendant had been the agent of the plaintiffs for about six years prior to December, 1843, when he was dismissed from their service; and this bill, filed the 20th April, 1844, was for an account. On the 1st February, 1842, the plaintiffs, on settlement of defendant’s accounts, had given him their note for twelve thousand two hundred and twenty-eight dollars, as for a balance then due him, payable one day after date. The bill prayed an account for the whole time of defendant’s agency. It, however, specified no errors in the settlement made when the note was given, but merely .stated the plaintiffs’ belief that in some way that settlement must have been erroneous. When the Company dismissed the defendant from their service, they appointed Messrs. Simpson Bobo, J. W. Miller, and A. W. Thompson, a committee to investigate the books of the Company. Mr. Thompson did not act, and on the 6th April, 1844, Messrs. Bobo and Miller reported, as the result of their investigations, that the defendant was indebted to the plaintiffs in a large sum of money — over forty-three thousand dollars— and thereupon this bill was filed.

*456The matters of account were referred to the Commissioner, and on the 7th June, 1853, he submitted his report upon the accounts, in which plaintiffs were charged (including the note) with . $844,234 75

And defendant with • $329,282 09

Leaving plaintiffs in debt to defendant, $15,002 66

. On the 9th June, 1853, Chancellor Dunkin passed the following order: . .

• “ The report of the Commissioner was filed on June 7, the reference having been closed twelve months since. It is ordered that- the complainants and defendant have thirty days to file their exceptions to said report, that the Commissioner appoint a time for hearing said exceptions so (that the same shall be heard' prior, to .the first-day. of, October next — that; the Commissioner then proceed to make up his report on the exceptions, and'that his'final report be filed of: record, and notice given to the,solicitors, on or before the first day of February next;” ■ ':

• 'Oirthé 7th July, 1853, the plaintiffs filed, seventeen exceptions to.the Commissioner’s report;' and on'the»29th January; 1854,. the'Commissioner filed his report on the exceptions. On the .three first exceptions the report is as follows-:

.“-Exception. 1st,, of complainants, is,; that .-the report gives only the * amounts of'.the Commissioner’s calculations, :when • it should-specify the items making these amounts, in order to be intelligible and comprehended.’ . . . :

: “In reference to this exception, the Commissioner would report, that Ay *an agreement of the solicitors of the parties,'*three blánk .books .wéfe obtained,-which, were laid off into columns with-'appropriate-captions, such, ás merchandize, yarn, cloth, &c.,' with reference at the top of each page, to the number and pages 'of the several day.books. : Under these different heads, the.amount of every.item, or items,.contained, in-the several ■daybooks' are entered,'in• figures, without specifying thé particular articles of merchandize, yarn and cloth, which were *457omitted, as the several items were examined by the counsel carefully, and passed upon. This course was adopted by the' parties with a view to save trouble, time, labor and expense, which would have been required to mention the particular items.

“ These books containing, as they do, transcripts in figures from the day books kept by the Company, are numbered books, No. 1, 2, and 3, to which all the parties have had access, and of which they have copies kept by themselves. This exception is, therefore, overruled.

*“*Complainants’ 2nd exception. ‘ In order to ascertain the amount of yarn spun at the factory, it was necessary to have reference to the book in which these entries were made, called the doff book, and which was excluded, in the reference, from all the calculations.’ The doff book was the book in which entries were made of yarn spun before it was trimmed, bunched and baled. The defendant insisted, on the reference, that this book should be used in making up accounts. It was *objected*to, *hoivever, by the complainants' solicitors,*on the ground that it was not a Company book, but the agent’s own private memorandum book. The Commissioner, however, reports that he has examined, alone, the doff book — has found the aggregates of yarn made and cloth — of the first'from the year 1837 to 1843, and aggregated himself the yarn made for the year 1843, and the first month of the year 1844, and finds, on comparison of that with the amount he has reported, a difference in favor of the doff book of six thousand one hundred and sixty-nine pounds. That this difference of yarn reported is minus the amount of yarn exhibited in the doff book.

“ Taking the average price of yarn to be twenty cents per pound, it will make, in cash, the sum of one thousand, three hundred and thirty dollars and eighty cents.

“ The doff book exhibits an amount of cloth made less by five hundred and thirty-seven yards, than the report charges. Taking the average price of cloth to be nine cents per yard, *458■would make, in favor of the defendant, the sum of forty-eight dollars and thirty-three cents.

“ Exception overruled.

“Exception 3rd. No evidence exists before the Commissioner, showing that the defendant is not charged with all the amounts of merchandize, yarn and cloth received by him as the agent of the Company. The books of the Company were kept by its own clerks; and, if there were any errors, in the opinion of the Commissioner, they should be *designated*before he can correct them. Exception overruled.”

On the 6th June, 1854, the defendant filed two exceptions to the report, as follows:

1. “ That the Commissioner should not have credited the three items of credit on the note of complainants in favor of defendant, the same having been allowed as a charge against him by the Company in making up a statement of the accounts.

2. “That the Commissioner should have allowed interest on the note due James Bivings, for twelve thousand two hundred and twenty-eight dollars, from the time when it was made until the filing of the bill in this case; and on the balance then found to be due until this time.”

These exceptions the Commissioner also overruled, remarking as to the second, that he regarded the question respecting interest, as one for the Court.

The case came before the Court in June, 1854, upon the report and exceptions; and, also, upon a motion grounded upon affidavits to set aside the report and send the accounts back to the Commissioner.

The affidavits are, as follows:

“I do hereby certify that I have, at the instance of E. C. Leitner, added up several of the columns of the book of aggregates, which, I am told, is the basis of the report of the Com*459missioner in Equity, in this ease now pending in Equity between the Bivingsville Cotton Manufacturing Company and Dr. James Bivings, and have found large inaccuracies. In four pages I found the aggregate inaccuracies to amount to thirty thousand four hundred pounds of yarn, it being that much more than, aggregated on the page added, and I found several inaccuracies on another page widely differing from the additions in said book. May 7, 1854.

“D. C. Judd.

“ J. B. Tolleson, Clk. and Magfc. Ex. off.”

“Personally came S. Bobo, and made oath that he saw the book in the hands of Dr. James Bivings, in which the settlement was between him and the Company, of his property sold to the Company, in which it appears there were about twenty-one thousand pounds of yarn, and eleven thousand yards of cloth which he had on hand and sold to the Company. This he understands to be no where found in the Doff Book, and is than much m.ore than the Doff Book will show.

“ Simpson Bobo.

*“*January 8, 1854.

“ O. E. EdwaRDS, N. P.”

“ Personally came before (mo) E. C. Leitner, one of the complainants in this case, who, being duly sworn, made oath, that Maj. J. E. Henry had in charge the investigation of the accounts in which was involved the cause of action. This investigation was commenced under his care, and prosecuted to very nearly a consummation, and (he) died before its completion. Major Henry kept a private book for his guidance, and in many places made annotations. To complete and carry on the investigation, the complainants employed S. Bobo, Esq., but he declares be cannot do so understandingly, because he knows not the track, or course, which originated the objections which Major Henry entertained; and therefore cannot avail himself *460of any helps from his notes, and that Mr. Bobo not haying been present in the investigation before the Commissioner, declares he cannot understand the fairness or unfairness of the various claims and credits, without reinvestigating the whole matter, nor does deponent know of any solicitor who was present, and who could understand them, without reinvestigation.

“ E. C. LeitheR.

“ Sworn to and subscribed before me, this 8th June, 1854.

“ T. O. P. VeRnon, 0. E. S. D.”

“ Simpson Bobo makes oath, that after the death of Major Henry, he was required to take his place in the investigation of the accounts — that he moved to open the investigation *de novo,*which was refused. Pie then, with the assistance of Major Dean, undertook to pursue the matter alone, and found it out of his power to understand it. This deponent does rot believe that the case can be investigated, for the complainants, properly, without opening the reference.

*“*S. Bobo.

“ Sworn to and subscribed before me, this June 8th, 1854.

“T. 0. P. VERNON, C.E.S.D.”

“ IP. J. Dean makes oath, that he did join Mr. Bobo in making an effort to look through the *looks,*with a view to *see if errors were made;*and became, and now is satisfied, that he cannot understand them without opening the reference generally, and going through all the books page by page.

“ IP. J. Dean.

*"*Sworn to and subscribed before me, this 8th June, 1854.

“T. 0. P. VERNON, C.E. S.D.”

“ IP. J. Dean makes oath, that, after the death of Major *461Henry, he examined the invoices and hills of goods, which it was alleged defendant had paid out and not charged to the Company. This deponent by making the calculation of interest, and comparing the amount charged in the *cash booh*at different times, was satisfied that Dr. Bivings, in many instances, had been credited twice for the same thing. But'upon appearing before the Commissioner on the exceptions, he was informed that the charges against Dr. Bivings had been made entirely from the books of the Company, *{not from the cash hoolc,)*and that these *bills*and *invoices*had been carefully examined, and none of them being found on the books out of which the credits to Dr. Bivings were taken, Major Henry had allowed every one of them. This cash book was not kept all the time of Dr. Bivings’ agency.

“ H. J. Dean.

“ Sworn to and subscribed before me, this 9th June, 1854.

“ O. E. EdwaRDS, N. P.”

The decree of his Honor, the presiding Chancellor, is as follows :

Johnston, Ch. It will at once occur to the mind that most of the grounds, set forth in these affidavits, are, properly, grounds of exception to the report, and not grounds for opening the reference again. Of this nature is the inaccuracy stated by Mr. Judd. With proper specifications, his statements might well have been converted into an exception; and certainly the Court will never open and send back a report where there is good ground to except, and the party omits to make an exception or to put it in proper form, by pointing out the precise errors complained of, so as to enable the Commissioner and the Court to see whether they exist, and to what extent. The same observation applies to the affidavit of Mr. Bobo taken before Edwards the 8th of June. Was the book by which the settlement was made, offered in evidence, or secondary evidence *462of it offered ? If it was not, whose fault was it ? If it was offered, then the failure to give proper effect to its contents, was ground of exception. The affidavit of Mr. Dean, of the 9th of June, shows what would have been ground of exception, if the cash hook had been made the basis of the charge against the Company, but this not being the case, the affidavit shows no error.

This brings us to the affidavit of Mr. Leitner and^the remaining affidavit of Bobo and of Dean. These may be understood to state that Mr. Henry, in his lifetime, had attended to the account, and that by his death, the plaintiffs were deprived of his information, and were incapable of sifting the report without an investigation of the whole account *de*novo.

The first observation upon this is, — either Mr. Henry had died before the report of 1853, or he was then alive. If alive, at that time, he contented himself with excepting to that report. If he was dead, then the plaintiffs were in the same condition in 1853, as they represent themselves to be in now: and they either made the same application to Chancellor Dunkin that they make to me, or they omitted to make it. If they made it, he failed to grant it, and the parties are concluded by his judgment. If they omitted to make such an application then, they are equally concluded, and not to be heard now. The effect of hearing them now, would be to give them an advantage by a delay arising from their own neglect.

The next observation is ; that if this application is granted on the ground that the plaintiffs have lost their first counsel, it will be difficult hereafter, in every case, to prevent the death of counsel being made a ground of going over every prior proceeding from the beginning; — and when would cases end on such terms ?

Another observation is; that the knowledge of the facts of a case (whether relating to accounts or otherwise) must be ascribed to the parties to the suit, and not exclusively to their counsel. These parties filed their bill on the ground that there was error *463in the settlement they had made. Either they knew the facts which would exhibit the error, or they ventured recklessly to allege error without knowing whether the allegation was well founded or not. In the former case, the death of Mr. Henry has not destroyed the knowledge they had, and which brought them into Court; and, therefore, has not prejudiced them. In the latter case, they are entitled to no consideration; they brought a bill without knowing the grounds of it, or whether, in fact, they have been injured, and seek to prolong it, in order to fish up something to sustain it, of which they yet remain ignorant. The fact is, I believe, that all the affiants (with the exception, perhaps, of Mr. Judd,) were members of the Company, when the bill was filed, and were the very persons who should have known whether or no their settlement was erroneous, before they filed it. Mr. Leitner swore to the bill — Mr. Bobo was one of the most prominent agents of the Company in making the settlement, and was afterwards, a member of the committee appointed to investigate its correctness, and reported errors to the amount of many thousand dollars. This report led to the bill. How, then, can he be at a loss? But a very remarkable fact is, that during the investigation which took place under the bill, this report itself was abandoned as untenable; and yet the parties seek further time to seek out ground on which to stand.

When I consider the nature of the bill filed by these parties ; that it is a fishing bill, not alleging any specific errors in their settlement with their agent, but merely’seeking an account for the purpose of finding out whether there were errors or not; and that this suit has been kept on foot for ten years, during all which time the defendant has been kept out of the money, which they, by their voluntary and deliberate act, had promised to pay him; and that, now, after all this delay they come forward, and state that they are yet in the same state of uncertainty in which they filed their bill, — and ask that the defendant be still kept in suspense, while they make that investigation *464which they should have made before they came into Court,— and that this indulgence should be extended to them, notwithstanding their own neglect, in not bringing the account to a close in the lifetime of the late counsel; and their further neglect to make this motion before Chancellor Dunkin, but reserving it until this time, — by which a whole year has been lost, — when I consider all these matters I cannot hesitate to dismiss the motion; and it is ordered that it be dismissed.

I may add, however, that the same motion would appear, from one of the affidavits, to have been made before the Commissioner, and to have been refused by him. Questions as to closing or continuing a reference are proper for the consideration of that officei\ He has considered and refused the motion, as it was competent for him to do ; and I conceive his decision was no abuse of his discretion: on the contrary, I am of the opinion his judgment was sound.

This brings me to consider the report and exceptions.

íjí í}í ^4 íjí íjí

In deciding this case, I shall first, briefly, dispose of the defendant’s exceptions. *

By Chancellor Dunkin’s order, he was not entitled to except to the report, after the time limited in that order. If it were propei’, however, to consider these exceptions, I stated at the hearing, that I should, for the most part, agree with the Commissioner.

But, under the equity reserved, I am at liberty to decree interest to the defendant, on the balance of his note, and on so much of what was due him as is not embraced in that note; and I shall attend to that matter hereafter.

With regard to the plaintiffs’ exceptions, I may remark that, in general, they are well disposed of by the Commissioner’s report upon them.

In the argument of them, I allowed a range to counsel utterly against strict and wholesome rule. There was nothing really insisted on, but that the Court should permit these parties to *465come forward, at the hearing, and *orally*specify the errors which they had alleged in general terms in writing; as for instance, under the third exception, to state the particulars in which they conceived the Commissioner had miscarried in his calculations ; — and so of others of a like character.

Nothing is clearer, in the practice of this Court, than that a party, dissatisfied with a report of the Commissioner, must point out in his exceptions, the particulars in which the error complained of consists, in such way as to enable the Court to lay its finger on the very point where the inaccuracy lies, and correct it by a judgment confined to that point. But instead of doing this, (without which it was impossible for the Commissioner to apprehend the complaint of the parties, and to correct his errors, if he had inadvertently fallen into any,), the plaintiffs thought fit to couch the exceptions in general terms, — ■ reserving themselves for oral explanation before the Court. This was unjust to the Commissioner, — because, he was furnished with no means of rectifying his judgment, if it was wrong. It- was unjust to the opposite party; — because it was calculated to surprise him, and perhaps get an advantage of him, when, if he had been forewarned by a proper exception, he could have shown there was, in fact, no injustice in the report. And it was unjust to the Court; — because such a course, if allowed, would compel the Chancellor, to do the duties appropriate to the auditing officer of the Court, in addition to his own — always quite heavy enough — and would serve, notwithstanding all his diligence in the discharge of these extra duties, to betray him into the grossest errors — if from no other cause, simply from the hurry in which he would be obliged to take the account.

But I did feel much anxiety to relieve these parties, (in a matter where such an amount was involved,) from all suspicion of mistake; — and I, therefore, permitted them to designate some of the points at the hearing. It was alleged by them, that the addition of the *items,*composing charges of yarn, &c., *466merchandize, &c., against -the defendant, was grossly defective; and that the books, from which the Commissioner had extracted the charge, would shew that the defendant was greatly undercharged by the report. It will be remembered, as the Commissioner states, that three blank books were procured, one for each party, and one for the Commissioner, into which, under appropriate heads, were transferred, in figures, the amounts of merchandize, cotton, yarn, cloth, &c., charged in the different day books, with reference to the number and page of the day book. As these entries were made in thede books, they were constantly compared, and the different columns then added up, and the results compared; and then, the footings of these columns were aggregated, under proper heads, and carried into the report. It appears that after Mr. Henry’s death, and, as I understand, after the report was made out, one of the plaintiffs’ counsel obtained the book of aggregates kept by the Commissioner, — and from his hands it passed into the hands of Mr. Leitner. The defendant still retained his own book, — and that of the plaintiffs still remained in the possession of Mr. Henry’s family. At the hearing, the book of the Commissioner, — which he had let go out of his hands, — was produced and appealed to by plaintiffs’ counsel, to show that the items set down in its different columns, exceeded, largely, the additions at the foot; and that by this means the charges in the report against the defendant fall far short of what they should have been. The items were looked into, and it did, at first, appear that the footing in the book was wrong, and, of course, the report, based on it, must be erroneous. But, upon a suspicion being expressed, that that book had been altered, Mr. Henry’s book was sent for, — the defendant produced his book, ■ — and, above all, the original entries, day books, &c., were looked up, and it was demonstrated, that the book, brought forward to show the errors in the report, was, itself, grossly altered. The book of the defendant and the book of Mr. Henry agreed together; and both agreed with the original *467entries ; and the footings in these two corresponded with the column of figures above them, and with the footings of the Commissioner’s book. But the items in this last book had been altered, so as to disagree with the foot additions of them. Thus was demonstrated one of the basest falsifications, *(by*somebody,) of evidence ever presented in a court of justice. After this, I gave no further credit to that book; and, of course, all efforts to specify errors in that manner ceased.

I ordered, that all the books be kept in the custody of the Commissioner; and in case of an appeal, they must, (in his custody,) accompany the case into the Court of Appeals.

In all other matters, I believe the observations of the Commissioner, in his report on the exceptions, are sufficient to sustain his original report; and the exceptions are hereby overruled. This point alone required to be set out, as it occurred in Court. The Commissioner had no interest to falsify the book. The effect of the alteration, was, to set aside, and not sustain his deliberate judgment; — attained after much labor and'careful investigation; and, independently of this consideration, no one who knows him, would, for one moment, couple his name with the suspicion of such an act. The *defendant*had an interest directly against the falsification of the book ; and besides, he had no opportunity, (as I understand the facts,) to make the alterations. Who made them, no one but the perpetrator certainly knows : and it is only to be regretted, that one guilty of such an offence cannot be dragged forth to the punishment and infamy he so richly merits.

I have remarked that I should attend to the question of interest, in the judgment I am about to pronounce in this case. The note was given in settlement up to the 1st of Feb., 1842, as appears from its terms, which are as follows :

“ $12,228 00 : One day after date the Bivingsville Manufacturing Company promises to pay James Bivings twelve thousand two hundred and twenty-eight dollars; being the *468amount due for cash borrowed, his services, negro hire, &c., after deducting the amount (per account) of the company against him. This entered as a settlement up to date, Feb. 1, 1842.

David Dahtzler, Pres’t.

SimpsoN Bobo, Sec’t. B. M. Co.”

The following credits are endorsed on it:

$168 29. Feb. 8, 1842, received one hundred and sixty-eight dollars and twenty-nine cents of this note ; [entered by Bobo.]

$45 72. Feb. 1,1842; error in settlement, forty-five dollars and seventy-two cents. •

$962 03. April 1; amount of property purchased as set forth in the account and entered on the book, nine hundred and sixty-two dollars and three cents.

$3,617 40. Feb. 26, 1844; received on the within three thousand six hundred and seventeen dollars and forty cents.

It appears that the defendant remained in the service of the Company sometime after this note was given, before he was dismissed. The account now taken by the Commissioner, extends up to the time he quitted their service, and at the latter time a balance is struck in his favor of fifteen thousand and two dollars and sixty-six cents. From this, if the amount of the note be deducted, which was a merger of the account *pro tanto,*the Company owed him, besides, the note, the sum of two thousand seven hundred and seventy-four dollars and sixty-six cents. This latter sum he is entitled to; and it would be easy to decree it to him, but that it may be subject to some modification arising in the following way, which is connected with the note.

It will be remembered that at the date of the different credits on the note, the defendant was still in the Company’s service.

It may be, (and the probability arising from the times in which the credits on the notes are endorsed is,) that a portion, *469of all of the credits, except perhaps that of April 1, arose from the application to the note of property or funds of the Company in defendant’s hands, as agent. If this is so, (and it can only be made to appear by farther inquiry how this matter is,) the defendant should not be charged, by so much, for the funds or property in his hands, as has been done, The amount should be deducted from the charges against him, or the credits should be taken off the note. Justice will be done by directing a further inquiry to ascertain the facts, — and, as far as the credits are shown to have originated in the application of funds or money included in the charges against the defendant in the account, by allowing the amount to be deducted from those charges, — at the same time permitting the credits to remain on the note to extinguish it and to stop interest on it *pro tanto.*This inquiry is hereby directed. The account already taken is to stand: and to be in no respect altered or affected, except as it may be affected by the result of this limited inquiry. The credits on the note may diminish the amount set out on its face ; but the result may be to add to the two thousand seven hundred and seventy-four dollars and sixty-six cents, due him at the foot of the account.^ Whatever balance is due on the note, at the last credit, must be computed, with interest, up to the date of the supplemental report hereby directed. The balance at the foot of the account, as above explained, to be then added, reserving the question of interest on it, or any part of it, for his time, services, &c., till the coming in of said report.

Eor these sums the defendant will he entitled to a decree against the Company: with the right to use the bond heretofore directed to be given by them as a condition of going on with this suit, and all the regular process of this Court, to enforce his demand.

The costs to be paid by the Company, — excluding from that liability the defendant who was sued by them.

The defendant to be at liberty to move for any order proper, *470or necessary to compel performance of, or carry into effect this decree.

It is ordered that the foregoing stand as, and it is hereby made, the decree of the Court.

The complainants appealed, and now moved this Court to reverse the decree on the grounds:

1. Because, by the decree, the defendant gets more than he claimed either hy his answer or his own accounts, kept while agent of the company.

2. Because the case should have been sent back to the Commissioner to have the book of aggregates, made out by the Commissioner, added correctly, as it appeared to the Court most evidently incorrect to a large amount.

3. Because the Commissioner ought to have been required to charge the defendant with the difference in the amount of cotton yarn and cloth sold, and the amount made as appeared by the books kept by the defendant himself.

4. Because from the whole case made by the complainants, the reference should have been re-opened and the accounts re-examined.

5. Because the decree is in other respects erroneous, and ought to be modified or reversed. *>*

*Perry, Thompson, Bolo,*for appellants.

*Young, Dawlcins,*contra.

Pee, CüRiam.

This Court concurs in the decree from which the appeal is taken: and it is ordered, that the decree be affirmed and the appeal dismissed.

JoiiírsTON, DüNKIN, Dargan' and Wardlaw, CC., concurring.

*Appeal dismissed.*