#### *C. H. Colding*vs. *J. N. Badger and others.*

An order dismissing a bill for want of prosecution comes properly witbin the discretion of the circuit Chancellor; and the Court of Appeals will not interfere with his decision, unless it be grossly erroneous,

A commissioner cannot refuse to malte a report upon the ground that the evidence is either too obscure, or insufficient: the plaintiff has the right to require a report either for or against him; — to which, if against him, he may file exceptions.

Where a commissioner refused to make a report, on the ground that the evidence was too obscure, and there was laches, on the part of plaintiff, in failing to take proper steps to compel him to malee one; *Held,*that the bill was properly dismissed for want of prosecution.

*Before*Dunkin, Oh. *at*Barnwell, *February,*1851.

The original bill was filed on the 16th day of March, 1842, and a supplemental bill was filed on the 29th of August, 1845. The object of the bill was for an account of the estate of John Badger, and involved a very considerable mass of testimony in the way of receipts and expenditures. The defendants closed their references m January, 1850. The case stood on the docket as continued at February Term, 1850, by the complainant. It was stated that this was done in consequence of the absence of Mr. Patterson from indisposition. At that term of the Court, the complainant retained Mr. Owens, as assistant counsel for the prosecution of his case. Nothing further was done until the 14th -of November, 1850, when Mr. J. T. Aldrich, defendant’s solicitor, served the following notice on Mr. Owens: — “ The complainant in the above cause is hereby notified that the defendants have long since closed their references in this cause, and that, on the first day of January next, a motion, on the part of the defendants, will be made before the commissioner, to make up his report; and if it shall turn out that the commissioner is unable to make up a report, on account of the obscurity of the materials furnished him, then the complainant is further notified that a motion will be made, at the sitting of the Court, that the bill be dismissed for want of prosecution.”— About ten days before the Court met, the commissioner informed *369Mr. Owens that he should be unable to make up th.e report, for the want of materials, in the way of explanation and further evidence. Mr. Owens informed him that Mr. Patterson said there was no farther evidence to offer, and if the commissioner could not make up the report, he (Mr. O.) could not help it.

The commissioner stated to the Court that there were a great many vouchers, on the part of the complainant, that required explanation; and that he had been unable, from the obscurity of the evidence, to make up a report. His Honor, the Chancellor, ordered the bill to be dismissed, for want of prosecution.

From that order the complainant appealed, and now submit-ed that the cause ought to be restored to the docket, to be heard on its merits.

1. Because, at various meetings held before the commissioner, the complainant furnished all his evidence in relation to the matters of account, and rested his cause, awaiting the commissioner’s report.

2. Because it was the duty of the commissioner- to report on the evidence, in order that the sufficiency of the evidence might be submitted to the judgment of the Court, on exceptions to the report.

*Patterson, Owens,*for motion.

*J T. Aldrich,*contra.

JohNston, Ch.

delivered the opinion of the Court.

The case presented by this appeal came properly within the discretion of the Chancellor: and we should not be authorized to interfere with his decision unless it were grossly erroneous. So far from being so; we are all satisfied his discretion was very properly exercised.

We do not intend to say, that it was within the competency of the commissioner to withhold a report, upon the ground, that the evidence was either too obscure, or insufficient. Such a position would constitute him the exclusive judge of the evidence. The plaintiff had a right to require a report either for or against him; and if a report of the latter character were made, — he had *370a right to except to it, and to take the opinion of the Court upon the effect of the evidence submitted.

But the plaintiff required no report, — took no measure to obtain one, — either by rule or otherwise. And when we consider the length of time the case had been pending; the time which had elapsed since the evidence was closed; and, especially, when we consider, that after the explicit notice served on him in November, he totally abstained from taking any steps whatever ; we think there was conclusive evidence of *laches*on his part, richly entitling the defendants to their motion. Were they to be forever hung up in Court ? and, how else were they to secure themselves from interminable litigation than by moving for an order to dismiss the bill for want of prosecution?

It is ordered that the order be affirmed, and the appeal dismissed.

Dtjnkin, Ch. concurred.

*Appeal dismissed.*