Simmons v. Jacobs , 52 Me. 147 ( 1862 )

The opinion of the Court was drawn by

Cutting, J.

This case is presented on exceptions to the rulings of the Judge at JSTisi Prius, accepting the master’s report, acting under certain decretal orders of this Court, " by which it was ordered, adjudged and decreed that the master be required to inquire and report the amount due to the complainants, with just and equitable interest thereon ; and that, for the better taking the account, the master require the production of books, papers and writings in the custody or power of the parties relating thereto, under oath, and examine the parties thereto under oath, on interrogatories, or otherwise, as he shall direct.”

It appears that the master, in pursuance of the power thus conferred on him, has attempted to discharge his duty. He has inquired and reported the amount due to the complainants with just and equitable interest thereon, after the production of the books of the parties and their examination under oath, or so many of them as saw fit to obey his summons.

But it is contended by the respondents’ counsel, that the master has erred in not reporting all the testimony produced upon the disputed points before him, to this Court, for their supervision, and, for that cause, exceptions are taken to the acceptance of his report, which we will first proceed to consider. .

In this State we have no " Regula Generalis” in relation to the duties of masters in chancery; but, in each case, where a master is appointed, the rule for his guidance is the decretal order. He is not usually appointed to act merely as a commissioner to take testimony, which any ordinary magistrate might do, but as an officer of the Court to receive and adjudicate upon the force and effect of evidence produced before him, and thus to ascertain facts and form an opinion as to the law arising thereon, both of which constitute his findings, and are the only subject matter to be inserted in his report to the Court. So that, if his legal conclusions are not sustained by the facts found, the Court may interpose and correct the error. Thus, it has been decided, in Howe v. Russell, 36 Maine, 115, "a master in chancery is not bound to report the evidence upon which his determination was founded.” Again, "where it is refei’red to a master to examine and report as to particular facts, or as to any other matter, it is his duty to draw the conclusions from the evidence before him, and to report such conclusions only; and it is irregular and improper to set forth the evidence, in his report, without the special direction of the Court.” 1 Barb. Ch. Practice, 548, and authorities there cited.

This summarily disposes of much of the testimony taken since the acceptance of the master’s report, and overrules all motions and exceptions thereupon presented.

Again, it is contended that certain individuals named as respondents in the bill; viz.: Burgess, Snow and Badger, residing in the city of New York, were never legally notified of its pendency, and that they never appeared or answered either by themselves or counsel duly authorized; and consequently the bill cannot be sustained as against them, or the other respondents, for the want of proper parties. To sustain this proposition the counsel invokes the statute of 1862, c. 150, § 1, which is that — "No judgment of any Court shall be entered against any party unless such party has been legally served with process, or has appeared and answered thereto personally-or by attorney duly authorized.”

This should have embraced a proviso, that, if any attorney shall appear without authority, he shall be liable in damages to the party injured by delay, in consequence of such unauthorized appearance. If such appearance was through inadvertence, the careless and not the innocent party should suffer. But it is to be inferred, from the foregoing section, that it was intended to relieve both counsel and client from responsibility and leave the injured party without the means of redress. The statute would have been more perfect had it been more comprehensive. But we are to take the law as it is, and not as we might imagine it should have been.

It appears that the bill was duly served on all the respondents who resided within this State, and seasonably entered upon the docket of this Court, and at the same term counsel entered his general appearance, which, as the law then was, rendered an order of notice and service on the residents out of the State unnecessary. Maine Bank v. Hervey, 21 Maine, 38. And in Denton v. Noyes, 6 Johns. R., 296, Kent, C. J., remarks, — "By licensing attorneys, the courts recommend them to the public confidence; and, if the opposite party, who has concerns with an attorney, in the business of a suit, must always, at his peril, look beyond the attorney, to his authority, it would be productive of great public inconvenience. It is not usual for an attorney to require a written warrant from his client. He is generally employed by some secret confidential communication. The mere fact of his appearance, is always deemed enough for the opposite party, and for the Court. If his client’s denial of authority is to vacate all the proceedings, the consequences would be mischievous. 'The imposition might be intolerable.” Yet, our Legislature of 1862, against the decisions of their own courts, and that of others, composed of some of the most eminent jurists, endowed with great practical common sense and experience, have, for some cause, seen fit to tolerate by a general law this "intolerable imposition.” Well did the American jurist pronounce such a course of proceeding intolerable ; if, after a delay of years in Court, various issues raised and decided, and great expenses accumulated, the defeated party, as a last resort, could arrest the progress of justice and a final judgment, by the filing of a motion and offering evidence that he had been represented in Court by " an attorney not duly authorized.”

It may be urged, (but we do not find any foundation for such a proposition in the present case,) that the attorney may be either dishonest or irresponsible, and that it would be extremely unjust for a party to be so represented without his special authority. Dishonesty can hardly be imputed to attorneys, who for years heretofore have been admitted, under modern legislation, to practice in all our Courts, upon the presentation of a certificate from the selectmen of good moral character, and proof of the payment of twenty dollars each to the county treasurer. Under such legislation ignorance has been no bar to admission, but dishonesty always has. And, in the case last cited, the learned Judge further proceeds : — "If the attorney has acted without authority, the defendant has his remedy against him; but the judgment is still regular, and the appearance entered by the attorney, without warrant, is a good appearance, as to the Court. It was, therefore, wisely laid down by the K. B. in the time of Lord Holt, (1 Salk., 88,) that, if the attorney for the defendant be not responsible, or perfectly competent to answer to his assumed client, the Court would relieve the party against the judgment, for otherwise a defendant might be undone.”

We do not impeach the omnipotence of the Legislature for creating attorneys, as the world was created, out of nothing ; or the power to control such eccentric orbs within their appropriate spheres. Our province is rather to ascertain their orbits, and to harmonize their motions, if possible, with the movements of other bodies.

This brings us to the consideration of the docket entries referred to as a part of this case, and made before and after the recent enactment, viz. : —

"May term, 1858, action entered, and A. P. Gould enters his general appearance. August 4, 1858, notice of motion for leave to amend filed. September 21, 1858, notice of motion for want of answer filed. Answers of defendants to be filed by middle of vacation or bill to be taken pro-confesso.”

"October term, 1858, A. JP. Gould, on motion, is permitted by leave of Court to enter upon tbe docket that he limits his appearance so as not to embrace Ambrose 811010, Joseph 8. Burgess and Augustus II. Badger, alleging that he was never authorized to appear for them. This motion granted, subject however to complainants’ rights, and as no admission of the want of such authority. Demurrer filed by leave of Court. Bill taken pro-confesso. JP. Thacher appointed master.”

"January term, 1859, exceptions filed and allowed. July 17, 1860, order received from the Law Court. 'Demurrer dismissed as immaterial and exceptions overruled.’ ”

"May term, 1862, master’s report filed. On his own motion, A. JP. Gould has leave to withdraw his appearance as to Snow, Burgess and Badger and does withdraw. Exceptions by plaintiffs filed and allowed. Report of master offered for acceptance. Exceptions to report filed. Motion to set aside report filed. Exceptions to motion overruled. Report accepted. Exceptions filed and allowed.”

The Act which has been under consideration took effect on its approval by the Governor, which was on March 19, 1862 ; and the attorney for the New York respondents did not finally withdraw his appearance until the following May, after a hearing before the master, whose report had been presented for acceptance; although, at a previous term, he had that liberty, subject to certain responsibilities, which he did not see fit to assume. Under these and other circumstances, known to the Court and the parties, which will appear in an opinion of the Court, before referred to, on the demurrer, but not as yet reported, we have no hesitation in saying that the evidence offered for the pui'pose nf showing an unauthorized appearance was too late and inadmissible, and that the Judge committed no error in rejecting it.

Again, the complainants are opposed by another Act of the same year, entitled — "An Act relating to equity proceedings,” approved March 19, 1862, which directs this-Court to appoint masters in chancery in each county, not exceeding five in number. Section 3 provides that — "No proceedings shall hereafter be had before any master in chancery, unless appointed under the provisions of this Act, and the case thereafter committed to him,” &c. This "statute became effective in thirty days after the recess of the Legislature passing it.” R. S. of 1857, c. 1, § 3. The case finds that the respondents’ counsel objected to the acceptance of the report, because the master had no authority to act, his original authority having been taken away by force of this statute. Upon this point we refer to the report of the master, who says, "that after due notice to all the parties, they all appeared before me in person, or by counsel, except Snow, Burgess and Badger, upon several previous days therefor appointed in the years 1861 and 1862, and especially upon the 15th, 16th, 17th and 18th days of April, 1862, upon which last mentioned day the hearing before me was concluded.” Have we legal evidence before us-, or was any such produced to the Judge, who ruled upon this question, as to the time when the Act took effect, or, in other words, when the Legislature took their recess? The burden of proof was upon the excepting party, and no such particular favor is to be extended to him, which would be in violation of all rules of evidence, and Operate to suspend all chancery proceedings before duly appointed masters, and render abortive, as in this case, all their prior investigations. It may be a historical fact that the pay-roll of the Legislature of 1862 was made up and embraced in a resolve of that year, in which it was declared that the session " commenced on the first day of January and ended on the nineteenth day of March.” Ordinarily courts do not notice -resolves unless produced in evidence. But, assuming that we recognize the resolve, the excepting party is not thereby benefited; for, even then, excluding the day on which the Legislature took their recess in the computation of the thirty days after such recess, the Act would not take effect until the nineteenth day of April, the day after the master closed his proceedings. Upon this point, therefore, the evidence offered, and, as subsequently produced, was inadmissible. Windsor v. China, 4 Maine, 298; Buttrick v. Holden, 8 Met., 233.

We next come to the consideration of that portion of the case, which embraces the real and only merits involved in the controversy, which is contained in the motion to set aside the report for error in conclusions of law upon the facts found. In order to present that question, it becomes necessary to recite so much of the bill and the findings reported as refers to that subject matter.

The complainants allege that, in 1854, they constructed the hull and spars of the brig Crimea, eleven-sixteenths of which they sold to the respondents, in proportions therein enumerated, embracing one-fourth to Hiram Robinson; that, in the fall of 1854, they fitted out said brig with the necessary sails and rigging and all the requisite fittings, and caused her to be duly enrolled, on Nov. 15th of that year; that, on the same IMov. 16th, said Hiram Robinson, being indebted to them in the sum of §1300, gave to them two notes, payable in equal amounts, one in three and the other in six months, with interest; and, to secure the payment thereof, conveyed to them, by a mortgage bill of sale, his one-fourth part of said brig, together with one-fourth of the masts, bowsprit, sails, boat, anchors, cables and all other necessaries thereunto belonging, with a warranty to defend the said one-fourth part of said brig and all the other before mentioned appurtenances against the claims of all persons ; that, prior to the enrolment,' Joseph W. Jacobs was appointed agent of the owners to manage the hire of the vessel and employment; that Hiram Robinson took charge as master, sailing on equal shares, and, on Nov. 17, 1854, he sailed for the port of New Orleans with a cargo of 1200 casks of lime purchased and shipped on owners’ account; that, on the 2d or 3d day after leaving Thomaston, Robinson was lost, and Alexander Robinson, the mate, took command, who arrived at New Orleans in the latter part of December, sold the cargo and accounted for the proceeds to Jacobs, the agent; that, while the brig was at New Orleans, Robert R. Snow was appointed master, who sailed on wages and performed several voyages, and paid over to the agent the net earnings ; that, subsequently, and while the brig was at New Orleans, by authority from the owners, Snow sold the brig for the sum of $10,000, who accounted to Jacobs, the agent for that sum, — that, on March 3, 1856, Rowland Jacobs, jr., was appointed administrator on the estate of Hiram Robinson, which was subsequently rendered insolvent; that the complainants, on May 10th of that year, took possession of the one-fourth, under their mortgage, and their title thereto became perfected and absolute on the 20th day of the July following. And, in conclusion, the complainants allege that Jacobs, the agent, still retains a portion of the funds belonging to them, or has inequitably paid it over to the respondents, and pray for each to account.

We have seen that the bill was entered in Court, as also a general appearance for the respondents; that, at a subsequent term, for the want of due diligence in the performance of all acts required of them, under our rules for practice in chancery, the bill was taken pro-confesso, and the master appointed,- whose report is now legitimately before us for the correction of errors as before stated.

That report exhibits a comméndable degree of labor, patience and impartiality, and, upon the principal point raised, a sufficient finding as to facts to enable us to correct his conclusions if erroneous, which-we proceed to consider.

It is contended by the complainants that, before the sale of the hull and .spars, they furnished for the vessel a portion of her top fixtures, and had an account denominated " top bills,” for which they have chai’ged in their exhibit a certain amount, one-fourth of which sum they claim should be accounted to them by the owners in proportion to their ownership, in consequence of the insolvency of Hiram Robinson and as a pro rata contribution for his quarter part of the top bills. And that proportion we understand to have been allowed to the .complainants in the master’s report, upon the evidence reported by him as follows, viz.: — "It also appeared in evidence that, by universal custom and usage, when a party purchases a part or the whole of the hull and spars of a vessel then building, he, the purchaser, is liable for the proportion of the top bills belonging to said part or the whole, .whether the top bills have been previously purchased or not.”

It is unnecessaiy to consider the number of witnesses by which such custom was attempted to be proved, for it militates in no degree against the proposition of the respondents, but corroborates it; which is, .that Robinson’s quarter should contribute in such proportion, and that his insolvency conferred no responsibility on the other part owners to make up and pay over to the vendors such defalcation.

In order to test the principle, let it be assumed that the builders had completed the vessel in every particular x'or sea, and then sold the hull and spars in certain proportions; could they subsequently recover by force of the custom the value of the rigging from such purchasers, who might be solvent when the bills for such rigging might be presented ? If so, every person, who might purchase a part of the hull, would thereby become a partner with those who might subsequently purchase the remainder, thus constituting them co-partners instead of tenants in common.

Besides; inequity appears from the master’s report in another view. The respondents have been charged with Robinson’s defalcation in the non-payment of his one-fourth of the top bills, notwithstanding which, the complainants •have been credited with the same one-fourth.of -the proceeds of the sale of the vessel including all, both ‘below and above deck; the effect of which would.be to receive payment first by a contribution by the part owners, and secondly by their reception of the same share, embracing .hull, sails and rigging. This is attempted .to be justified by -reason of the sale and mortgage. The -sale was the hull and spars and the mortgage, the same including the rigging, &c. The latter, so far as it regards tbe respondents, could not alter or change the relations between the vendors and their co-tenants.

The master’s report, therefore, is incorrect in charging the respondents with Robinson’s debt for the top bills, and at the same time allowing, the complainants for one-fourth of the proceeds derived from the sale of the vessel, including the same articles purchased and charged as "top bills,” thus indirectly receiving payment twice for the same thing.

Consequently the exceptions in this particular are sustained. Report recommitted to the same master to be revised and reformed, so as to comply with the principles herein enunciated. Upon his report, thus amended and accepted, costs are allowed to the prevailing parties, and a decree is to be entered in conformity with such amended report.

Rice, Appleton, Davis, Kent and Walton, JJ., concurred.