McDaniels v. Harbour , 43 Vt. 460 ( 1871 )

The opinion of the court was delivered by

Barrett, J.

If exceptions to the master’s report had been filed (as by rule and usage should have been done, in order to raise questions as to the correctness of the findings upon the evidence before him,) it would not be the province of this court, nor of the court of chancery, to overrule or disregard his findings, unless for evident mistake on his part, or evident corruption whereby he had come to an unwarrantable conclusion as to the facts proved by the evidence that was before him. When the question of fact before him is to be determined by the preponderance of conflicting evidence pro and con, the court will not ordinarily overjudge the master as to such preponderance. See Thrall v. Chittenden, 31 Vt., 183. We waive the point taken by counsel for the orator in the argument on the omission to file exceptions to the master’s report, and attribute such omission to the manner in which the master in the close of his report addressed it and the evidence to the court of chancery, and consider the subject the same as if such exception had been duly taken and filed. Thus considering it, we see no warrantable ground for acting upon a state of the case different from that presented by the master’s report. In order for the defendant to prevail, as against the $500 in question, it was necessary to show thas it had become satisfied by the payment of the $448.

As he has failed to do this, the decree must be affirmed, and the cause remanded with a mandate accordingly.