STORY V. LIVINGSTON, 38 U. S. 359 (1839)

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U.S. Supreme Court

Story v. Livingston, 38 U.S. 13 Pet. 359 359 (1839)

Story v. Livingston

38 U.S. (13 Pet.) 359


Chancery. Strictly, in chancery practice, though it is different in some of the states of the Union, no exceptions to a master's report can be made which were not taken before the master, the object being to save time and to give him an opportunity to correct his errors or to reconsider his opinions. A party neglecting to bring in exceptions before the master cannot afterwards except to the report unless the court, on motion, see reason to be dissatisfied with the report and refer it to the master to reexamine it, with liberty to the party to make objections to it.

Exceptions to the report of a master must state, article by article, the parts of the report which are intended to be excepted to.

Exceptions to the report of a master in chancery proceedings are in the nature of a special demurrer, and the party objecting must point out the errors; otherwise, the parts not excepted to will be taken as admitted.

In a reference to a master for any purpose, the order need not particularly empower him to take testimony if the subject matter is only to be ascertained by evidence. And in taking evidence, although the better plan is to take the answers in writing upon written interrogatories, he may examine witnesses viva voce, the parties to the suit being present personally or by counsel, and not objecting to such a course.

The twenty-eighth rule prescribed for the practice of courts of equity of the United States provides for bringing witnesses before the master for their compensation; for attachments; for a contempt, when witnesses refuse to appear on a subpoena, and the last clause allows the examination of witnesses, viva voce when produced in open court. The same reasons which allow it to be done in open court permit it to be done by a master.

The allowance of costs is a matter of practice which need not be a part of the decree or judgment of the court, although it often is so, as the payment of costs is in most cases made to depend upon the rules, and when rules do not apply, upon the court's order in directing the taxation of costs.

If any rule has been made by the District Court of Louisiana abolishing chancery practice in that court, it is a violation of those rules which the Supreme Court of the United States has passed to regulate the courts of equity of the United States. Those rules are as obligatory on the courts of the United States in Louisiana as they are upon all other courts of the United States, and the only modifications or additions which can be made by the circuit or district courts are such as shall not be inconsistent with the rules prescribed. When the rules prescribed by the supreme court do not apply, the practice of the circuit and district courts shall be regulated by the practice of the High Court of Chancery in England.

The Supreme Court has said upon more than one occasion, after mature deliberation upon able arguments of distinguished counsel against it, that the courts of the United States in Louisiana possess equity powers under the Constitution and laws of the United States. That if there are any laws in Louisiana directing the mode of procedure in equity causes, they are adopted by the Act of 26 May, 1829, and will govern the practice in the courts of the United States. But if there are no laws regulating the practice in equity causes, the rules of chancery practice in Louisiana mean the rules prescribed by the Supreme Court for the government of the courts of the United States under the Act of Congress of May 8, 1792.

The correct rule as to interest is that the creditor shall calculate interest whenever a payment is made. To this extent the payment is first to be applied, and if it exceed the interest due, the balance is to be applied to diminish the principal. This rule is equally applicable whether the debt be one which expressly draws interest or on which interest is given as damages.

The mandate issued by the Supreme Court in a case decided by the Court is to be interpreted according the subject matter, and it is in no manner to cause injustice.

The general rule in chancery proceedings is that all persons materially interested in a suit ought to be parties to it either as plaintiffs or defendants, that a complete decree may be made between these parties. But there are exceptions to this rule, and one of

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them is when a decree in relation to the subject matter in litigation can be made without a person's having his interest in any way concluded by the decree.

When a complainant omits to bring before the court persons who are necessary parties, but the objection does not appear on the face of the bill, the proper mode to take advantage of it is by plea and answer. The objection of misjoinder of complainants should be taken either by demurrer or on the answer of the defendants. It is too late to urge a formal objection of the kind for the first time at the hearing.

On the second of March, 1837, the following decree of the Supreme Court of the United States was produced in open court in the District Court of the United States for the Eastern District of Louisiana. The cause had been taken by Mrs. Livingston, executrix, by appeal to the Supreme Court, and the decree of the district court reversed. 36 U. S. 11 Pet. 351.

"This cause came on to be heard on the transcript of the record from the District Court of the United States for the Eastern District of Louisiana, and was argued by counsel. On consideration whereof it is ordered, adjudged, and decreed that the decree of the said district court dismissing the bill of the complainant be and the same is hereby reversed and annulled, the court being of opinion that the transaction of 25 July, 1822, between John A. Fort, Benjamin Story and Edward Livingston was a loan to the said Edward Livingston secured by a pledge denominated an antechrisis in the law of Louisiana. And it is hereby further ordered, adjudged, and decreed that the cause be sent back for further proceedings in the court below, with directions that the cause be referred to a master to take an account between the parties. And it is hereby further ordered, adjudged, and decreed that in taking said account, there be allowed to the defendant all advances which shall be shown to have been made by him, or paid on account of a loan made to Edward Livingston on 25 July, in the year 1822, with the interest, which the said Edward Livingston agreed to pay of eighteen percent per annum, to be calculated upon cash advances from the time it was made until 5 August, 1823, and after that time at legal interest; and further that in taking said account, there be allowed to the defendant all reasonable expenditures made by the defendant and John A. Fort in building, repairing, and safekeeping of the property pledged by the said Edward Livingston, to secure the loan made to him on 25 July, 1822, and that the complainant be credited in such account with all such sums as the defendant, or John A. Fort, or either of them, have received from the said property, and that in taking such account, the rents and profits be applied first, to the payment of the sums necessarily incurred in building and repairing; secondly, to the payment of the interest on the sums which shall appear to have been advanced on the said loan, or in the improvement of the lot; and thirdly, to the discharge of the principal of the said loan. And if on taking said account it shall appear that there is a balance due from the complainant,

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it is hereby further ordered, adjudged, and decreed that the defendant pay to the complainant such balance within six months from the time of entering the final decree in the cause, and shall surrender and reconvey the said property to the complainant or such person or persons as shall be shown to be entitled to the same, and if upon the taking of said account it shall be found that any balance is due from the estate of the said Edward Livingston, deceased, to the defendants, it is hereby further ordered, adjudged, and decreed that on paying, or tendering to the defendant the said balance, he shall deliver up the possession, and reconvey to the person or persons who shall appear to be entitled to the same, the property so pledged to secure the aforesaid loan. And it is further ordered, adjudged, and decreed that in case a balance shall be found due to the defendant, and shall not be paid within six months after a final decree of the district court upon the master's report, then the property shall be sold, by order of the district court, at such time and notice as the said court shall direct, and that the proceeds be first applied to the payment of the balance due the defendant, and the residue thereof to be paid to the complainant."

The mandate of the Supreme Court, conforming to this decree, was filed in the district court by the counsel for Mrs. Livingston, and by an order of the district court the case was referred to a master in equity, Duncan N. Hennen, Esq., to examine into and report upon the account according to the principles and rules established on the judgment of the Supreme Court.

Various proceedings took place in the district court, after the order of reference to the master for an account.

The counsel for the defendant moved to strike from the docket, the complainant's suit; because,

1. Edward Livingston, the former complainant herein, departed this life on the ___ day of _____ and before the hearing of this cause in this Court at the spring term thereof, in 1836.

2. The said Livingston departed this life before the making or enrollment of the decree herein at the spring term of the year 1836; consequently the court could not then entertain and jurisdiction of the cause.

3. This cause has never been regularly revived in the name of the present complainant -- nor could it be so revived by the laws and usages of chancery, the complainant claiming as a devisee.

On 18 December, 1837, the district court, after argument overruled this motion.

On the same day, the report of the master was filed. This report contained, at large, all the evidence produced before the master, with an account by which a balance of thirty-two thousand nine hundred and fifty-eight dollars and eighteen cents, was found due by Benjamin Story to Mrs. Livingston, executrix, on the first of November, 1837.

On the second of January, 1838, exceptions to the master's report were filed by Mr. Story.

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1. Because chancery practice has been abolished by a rule of this Court, and such proceeding is unknown to the practice of the court.

2. The master has erred in not allowing to the defendant the thousand dollars, with interest, paid to Morse, or some part thereof.

3. The master's report does not show that it reports all the evidence taken before the master.

4. The master, in making his estimates and calculations, has not pursued the mandate of the Court.

5. It appears from the master's report that the stores were rented from November to November, and he erred in assuming 1 April as the period of payment of annual rent.

6. A reasonable allowance should have been made to Story for the costs and risk of collecting the rents.

7. The master erred in all his charges against the defendant and failed to allow the defendant his proper credits.

These exceptions were overruled by the district court, and the court decreed that Benjamin Story do pay to the complainant the sum of thirty-two thousand nine hundred and fifty-eight dollars and eighteen cents, and that the master's report be in all other respects confirmed and that the defendant conform to the decree of the Supreme Court in this case.

A petition for a rehearing was afterwards presented to the district court by the counsel for the defendant, which, after argument, was overruled, and the district court made the following decree:

"The petition for a rehearing having been overruled, it is ordered, adjudged and decreed that the defendant, Benjamin Story, do further surrender and reconvey the property described in the bill of complaint as"

"all that parcel of ground situated on the batture of the suburb St. Mary, between Common and Gravier Streets, measuring eighty-two feet fronting Common Street; one hundred and twenty-six feet, or thereabouts, fronting Tchaptoulas Street, one hundred and forty-six feet, or thereabouts, fronting New Levee Street, and bounded on the other side by the lot of ground belonging to Messrs. Livermore, Morse, Miller and Pierce, containing one hundred and twenty feet or thereabouts, together with the buildings, improvements, and all other appurtenances to the same in any wise belonging or appertaining to Louise Livingston, widow and executrix and devisee of Ed. Livingston, deceased, and to Cora Barton, daughter, and forced heir of said Ed. Livingston, in conformity to the decree of the Supreme Court of the United States and to the decree heretofore made in pursuance thereof by this Court."

The case having been transferred to the Circuit Court of the United States for the Ninth Circuit and Eastern District of Louisiana, the defendant prosecuted this appeal.

Page 38 U. S. 364

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