#### Nancy M. Copeland *versus*Thomas Crane *et al.*

A bill in equity by the administratrix of a deceased partner against the surviving partner for an account, and the answer of the defendant, were referred to a master, “ he to take the books and papers of the partnership, examine the same, receive the evidence, hear the parties, audit and state the accounts, and report the facts material for the decision of the cause,” and the master examined the defendant on oath, without objection on his part. Held, that the defendant could not afterward except to the master’s report, that he was not authorized so to examine the defendant.

In stating the accounts under such order, the master is not confined to items specified in the bill or answer.

On a hearing before a master upon a bill and answer, general allegations in the answer, containing matters of belief and inference from facts not paiticulariy stated, are not conclusive, but may be controverted by testimony.

In slating an account between partners, the master is not obliged to state the disbursements on account of the firm, if the evidence is insufficient to show the whole amount and a partial statement would not lead to a satisfactory result.

If the master states the net profits at a gross amount, when the evidence, owing to the defendant’s neglect in keeping the books, is insufficient to enable him to state the items, and no objection is made at the hearing before the master, the defendant cannot afterward except to this mode of stating the account.

This was a bill in equity brought by the plaintiff as administratrix of the estate of Isaac Copeland ; in which she alleges, that in 1813 the intestate entered into the business of carpentry and machine-making, as a partner on equal shares with Thomas Crane, one of the defendants ; that she believes there never was any written agreement containing the terms of the copartnership'; that Thomas Crane was the agent of the company and had the keeping of the books, until the dissolution of the co-partnership, which took place by mutual consent in October, 1823 ; that during the last eighteen months of the copartnership, Jephthah Crane, the other defendant, was admitted into the same upon terms to the complainant unknown ; that the intestate died on the 15th of January, 1827 ; that the respondents have never stated the partnership account, and that they have refused to exhibit the books ; that the complainant believes, that upon a just settlement of the concerns of the copartnership there would be due to her, as administratrix, 1000 dollars ; that some proper person ought to be appointed to take the books and property of the copartnership and have the custody of the same for the benefit of all persons concerned therein ; and the *75complainant prays that the defendants may answer upon oath, and that an account of the partnership may be taken.

Thomas Crane, in his answer, states that there was no agent of the company, each copartner exercising the right of making contracts, and receiving and paying out money ; that only one book of accounts was kept by the respondent; that this book and the papers relating to the concerns of the copartnership have never been withheld from the intestate, or the administratrix ; that this book contains accounts of a considerable portion of the labor performed and the machinery manufactured by the firm ; that it does not contain an account of cash received and expended by the company, because the partners were in the habit of receiving payment for their work and machinery in considerable sums of money at a time, and when a payment was thus made, it was usual first to appropriate, by mutual consent, so much of the amount received as was necessary to defray the current charges and expenses of the firm, and to divide the residue equally between themselves ; thus the profits of the business being often divided, it became unnecessary to keep a particular account of their receipts and disbursements, and hence no settlement was ever made between the partners except on September 22d, 1817 ; that the respondent verily believes, that on April 22d, 1822, when Jephthah Crane was admitted a copart ner, the intestate had received his full share of all the profits arising from the business transacted by the firm of Crane and Copeland ; that during the continuance of the firm of T. Crane, Copeland and J. Crane, the respondent received in cash $4585, the property of the company, and that according to the best of his knowledge and belief, the company are probably indebted to him in the sum of $ 5609 ; that these sums are not stated with certainty, nor is it in the power of the respondent, at the present time, to determine accurately the balance which may be due to him ; that after the dissolution of the copartnership, Copeland presented an account, in which he acknowledged he had received $ 34-75 of the property of the company, and claimed of them $ 136-85, and no other account was presented by him ; that the intestate retained a considerable amount of tools and machinery belonging to Crane and Copeland, for which he never accounted, and that the respondent, for the purpose of recover*76ing his proportion of the property, and other demands against ^ie intestate, commenced an action against the administratrix, which is still pending ; that the respondent is desirous of making a final adjustment of the partnership concerns, and that he proposed to the administratrix, before she filed her bill, to submit the subject to arbitration, and that he is ready to pursue such course as the Court shall direct.

Jephthah Crane likewise put in an answer.

The cause was referred to Erastus Worthington, as a master in chancery, “he to take the books and papers of the late partnership, examine the same, allowing both parties access thereto, receive the evidence, hear the parties, audit and state the accounts, and report to the Court all the facts he may judge material for the proper understanding and decision thereof.”

In the master’s report it is stated, that the defendants answered on oath such interrogatories as were proposed to them ; that numerous witnesses on each side had been examined upon oath; that the only books and accounts kept by the copartners are two books in the leger form, and the bills of charges against the firm ; that these bills do not designate when or by whom they were paid ; that the books do not contain all the accounts of machinery sold, or of work done by the copartners, and do not show when or by whom money was received; that T. Crane managed their affairs abroad, made the contracts (with the advice of Copeland when he was present,) was the general receiver of the money, and paid most of the bills and expenses ; that T. Crane stated, that when he divided the profits, no attempt was made to bring into view all the items which were necessary to be known before a correct division of the profits could be made ; that neither party exhibited an account containing all the items by which a true balance could be ascertained ; and that they resorted to estimates of a general nature, to substantiate their claims. And the auditor stated an account, showing a balance of $ 36 due to the plaintiff.

Thomas Crane took several exceptions to the report.

1. Because the master states that the defendants were examined before him upon oath, upon certain interrogatories, whereas it does not appear that he had any authority to examine them 'n that manner.

*772. Because the master states certain outstanding debts due from the copartners, and reports that they should be paid by T. Crane ; whereas no such debts are mentioned in the plaintiff’s bill, nor are they in any manner put in issue by the pleadings in the case.

3. Because the master allows the plaintiff $ 185 for money paid by her, or her intestate, on account of the copartners, whereas it is nowhere alleged in her bill that any money was paid by the intestate, or the plaintiff, on account of either of the copartnerships.

4. Because the case being heard on bill and answer, the answer of T. Crane is conclusive evidence of all the facts contained in it ; nevertheless the master permitted other evidence to control it.

5. Because T. Crane, in his answer, states that the money received during the first partnership, was from time to time divided between the copartners, and that he verily believes that the intestate had received his full share of all the profits arising from the business transacted by them, yet the master, though the hearing was upon bill and answer, allows the intestate $458 as profits arising from business transacted during that copartnership.

6. Because T. Crane, in his answer, states that there is a balance due from the last copartnership, yet the master, upon a hearing upon bill and answer, finds a large balance against Crane.

7. Because the master states that it was proved by Isaak Copeland, that he had a just claim against T. Crane and the intestate for the rent and use of a lathe and engine, whereas it appeared by the testimony (as stated in the exception) that no rent was due from T. Crane.

8. Because the master does not state the amount of disoursements proved to have been made during the last copartnership

9. Because, the master found, upon insufficient evidence, that one third of the profits of the last copartnership amounted to $ 860, when in truth the facts proved that the profit could not have been half of that amount.

*Leland*

supported the exceptions.

*78As to the first exception, he cited Blake’s Ch. Pr. 222 *Remsen*v. *Remsen,*2 Johns. Ch. R. 501.

As to the second and third exceptions, he cited *Carneal*v. *Banks,*10 Wheat. 181 ; *Harding*v. *Handy,*11 Wheat. 103 ; *James*v. *M'Kernon,*6 Johns. R. 543 ; *Stuart*v. *Mechanics’ &c. Bank,*19 Johns. R. 496 ; 8 Com. Dig. (by Hammond) 120; Coop. Eq. Pl. 12; *Consequa*v. *Fanning,*3 Johns. Ch. R. 587.

As to the fourth, fifth, and sixth exceptions, he said that until a replication is filed, the statements in the answer are taken to be true ; and the respondent’s belief is evidence. Com. Dig. *Chancery, M;*Coxe’s Dig. 148 ; *Leeds*v. *Marine Ins. Co. 2*Wheat. 380 ; *Dale v. M'Evers, 2*Cowen, 118 ; *Barker*v. *Wyld,*1 Vern. 140.

*S. B. Ward, contra.*

The master had authority to examine the respondents upon oath, the whole subject of the bill and answer being submitted to him by the order of court; but without so comprehensive an order he would have the same power, under the particular circumstances of this case. The facts were known to the respondents, but the plaintiff is an administratrix, and could not have such knowledge. Com. Dig. *Chancery, P*7 ; Hoffman’s Master in Ch. 14, 15 ; Beames’s Orders, &c. *p.*24, *order*53, and *p.*31, *order*70.

The respondents did not object to the examination, and it is now too late for them to except. *Huse*v. *Lawes,*Bunb. 93 ; *Ex parte Bax, 2*Ves. sen. 388.

The answer was not full and complete, and was therefore subject to be controlled by testimony. *Le Neve*v. *Le Neve,*3 Atk. 649 ; S. *C.*1 Ves. sen. 66.

Wilde J.

delivered the opinion of the Court. Several exceptions have been taken to the report of the master, none . of which, we think, can be sustained.

The first exception is, that the defendants were examined upon oath, on interrogatories before the master, he having no special authority by the order of reference thus to examine them.

The order is very general, and does not specify the principles upon which the accounts were to be taken by the master But neither party objected to the form of the order, or it *79would have been drawn up, perhaps, with more precision. But this exception cannot be allowed, because it is not founded on any objection made before the master. Exceptions are always to be confined to objections disallowed or overruled by the master. Here we understand the defendants submitted to an examination, and it is too late to question the authority of the master.

In the second and third exceptions it is alleged, that the master, in auditing and stating the accounts, considered and allowed certain items not mentioned in the bill. But in so doing, we do not perceive that he exceeded his authority. The bill prays that a full and just account should be taken of the partnership concerns, and the master was directed to state such an account, and to report all the facts touching the same, which he might judge material. And this clearly authorized him to examine and state all the partnership accounts, whether the items were mentioned in the bill or not.

The fourth, fifth, and sixth exceptions are founded on the supposition that the master’s report is directly opposed to material facts and allegations contained in the answer of one of the defendants, as to which he contends the answer is conclusive. Thomas Crane states, in his answer, that he verily believes that Copeland had received his full share of all the profits arising from the partnership concerns, and that there was a balance due to the said Crane. Now it seems quite clear that such general allegations, containing matters of belief and conclusions from facts not particularly stated, are entitled to little or no weight in a hearing on the bill and answer. The answer is only conclusive as to facts directly and particularly averred ; and not as to matters of belief, unless the grounds of belief are disclosed, and are deemed sufficient. Now it appears by Thomas Crane’s answers to interrogatories put to him by the master, that he was ignorant of, or did not recollect, the material facts, a knowledge of which was requisite to justify his belief as stated in his answer. The decision of the master, therefore, on this point is unquestionably correct.

The remaining exceptions relate to the master’s report of the evidence, and the inferences drawn therefrom. It is objected, that the amount of disbursements is not stated. The *80answer is, and we think it satisfactory, that the evidence was insufficient to show the full amount, and that a partial statement could not lead to any satisfactory result.

It is also objected, that the net profits are stated at a gross amount, without stating the items. But this mode of stating the account was necessary, arising from a defect of evidence, and at the hearing was acquiesced in by both parties. If the amount of these profits could not be ascertained with perfect certainty, it was owing to the neglect of Thomas Crane, who kept the books, and received the profits. He therefore has no just cause of complaint, since it was his duty to render a true and exact account of the expenditures and profits.

*Exceptions disallowed.*