Leitch vs. Cumpston, 4 Paige Ch. 476

The Chancellor. If the true construction Of the schedules, when taken in connection with the answer itself, is as contended for by the defendant’s counsel, it is not necessary to introduce any evidence before the master, as the defendant has a perfect remedy by excepting to the master’s report. Or the defendant may have the interest computed upon the several securities, from their dates under the special provision contained in the order of reférence, that the master shall calculate the interest and state the accounts in any form and upon any principles that either party shall request.

I apprehend, however, that thhe only fair construction which can be given to the schedules, when taken in connection with the body of the answer, is that which has been given to them by the master. Even if it could be fairly inferred that the securities received were on interest from their several dates, and that such interest was not included in the amount stated in the schedule, there is nothing in the answer to show that the guardian agreed to receive those securities, for the full amount due thereon, without any deductions for the risk and expense of collection.

And if the receipts of the guardian were referred to, they would throw no further light on that question ; except that it would appear from such receipts that, as to those securities, turned out by the defendant, which did not belong to the estate of the decedent at the time of bis death, the defendant was only entitled to the net proceeds thereof, after deducting the necessary expenses of collection. In the case of The Washington Insurance Company v.

Slee and others, which was before this court in March, 1832, and again in January last, it was decided that an answer by consent could not be modified or varied, in an essential part, without the assent of both parties to such order; although the court might give such further directions as were necessary to carry such order into effect, according to its spirit and intent. From the affidavits on the part of the defendant, it is higly probable that he is entitled to interest on some of the securities turned out to the guardian, to be computed from the dates of such securities respectively.

But it also appears, by the affidavits in opposition to this application, that the defendant has made other mistakes in his answer, which mistakes are to the prejudice of the adverse party. And the complainant’s counsel now consents that the order of reference may be varied, so as to permit the defendant to introduce evidence as to the actual amount due upon the securities turned out to the guardian, provided the defendant '‘will consent that it be still further modified so as to permit the complainant also to introduce evidence, to show the other mistakes which have occurred in the answer.

This is perfectly equitable and just; and the complainant’s counsel could not, consistently with his duty to his client, consent to the modification of the original order of reference on any other terms. The application on the part of the defendant must therefore be denied, with costs ; unless his solicitor, within ten days after notice of this decision, delivers to the complainant a written consent, that the master may take testimony, and correct his report if necessary, as to the items of account specified in the affidavits which have been read in opposition to this motion.

If such consent is given, the order of reference is to be varied accordingly; so as to authorize the taking of testimony as to the alleged mistakes on both sides. And in that event neither party is to have costs, as against the other, on this application.