Herring v. . Murphy , 70 N.C. 164 ( 1874 )

FbaesoN, C. J.

It is really painful to see how a spirit of litigation can indnee parties to incur costs and consume the time of the Courts, after it is clear, that the difference in the result, taking it either way, will only be a few dollars and cents, so that “ the play is not worth the candle.” Such are the words of Lord Mansfield in deciding a case like onrs.

The first report, shows a balance against the defendant of $407.30, May 15th, 1872.

To this the defendant files ten exceptions and the Court seeing that most of them merely involved matter of calculation, sends the matter again to the Commissioner, who after giving due consideration, to the ten exceptions, and correcting his calculations, reports a balance against the defendant of $505.97, a difference of $1.35, but reducing the exceptions to three, instead of ten, the defendant being content to let seven of his exceptions pass off, as fully answered by a difference of $1.35.

So our labor is brought down to the consideration of three questions:

1. The defendant was not notified of the re-commitment. If this means that defendant was not notified of the fact, that the matter had, by an order in the case, been referred back to the Commissioner, it assumes gross laches on his part. If it means that he was not notified oí the time, at which the Commissioner would review his report, and was taken by surprise, it was necessary to lay a foundation for the exception by an affidavit of the fact of surprise.

2. Because the scale (in reference to Confederate money) adopted by the Commissioner is not correct. This seems to be the only ground on which the defendant rests; and as presenting a question, which effects the merits, when scrutinized it amounts to but little.

The Commissioner applies the scale to receipts and payments at the time money was received or paid out; this on a general view would seem to be fair, but, it is argued, “ the receipts were first in point of time and the scale was depreciating all of the time, so it makes a difference against the defendant.”

That is true, provided he had kept the identical bills in hand, but he does not allege that this was the fact, on the contrary it appears by the facts reported, that the defendant received the greater part of the fund $553.83, in August 1862, when there was but little discount, and in the absence of any allegation that he did not use the money, we assume that he did so, and having had the benefit of the money, at a high figure, we can see no reason for objecting to the plan of the Commissioner, — apply the scale to receipts and disbursements, at the dates, respectively.

3. *' Because the Commissioner does not state fully the evidence on which his report is made.” The Commissioner reports, that the evidence upon which he stated the account “was the reports of the defendant as guardian to the Court, one voucher for defendant, (which is allowed) and defendant’s affidavit” So the report does set out the evidence.

The other clause of the exception, to-wit: “ The report ought to state the facts and circumstances of the guardianship assumed during the war” is so indefinite and general as to be beyond the reach of judicial investigation.

We see no error in the ruling of his Honor, by which the exceptions are overruled, the report enforced and judgment accordingly. Let this be certified.

Per Curiam. Judgment affirmed.