Brown County IL Archives Court.....Brockman, V Aulger 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 10:07 pm

Source: Records Of Cases Illinois
Written: 1850

T. S. Brockman, appellant, v. William Aulger and Sidney Parker, appellees.

Appeal from Brown.

In a bill for an account between partners, it is the duty of the master to 
state the accounts and include that statement in his report. (a) 

In case of reference to a master to take and state an account between  
partners, the parties and witnesses should be examined on oath, and their 
statements reduced to writing. (b)

If the party or a witness refuses to appear before the master, or to answer, 
the court. If informed, will punish for contempt. 

The master should require all books and other evidences to be presented, which 
will enable him to present a full statement, and strike a correct balance. 

After the report is prepared, it is proper for the master to hear exceptions, 
and correct his report, and if he disallows exceptions, these should be 
reported to the court, with the evidence relating thereto, to be heard. (c)

This was a bill in chancery, filed to obtain an account of partnership 
transactions. The proceedings under the bill, are fully stated in the opinion 
of the court. The third exception, taken in the Circuit Court, to the report 
of the master, is that "no report is made of the accounts between the parties 
on the partnership books."

The decree was pronounced by Minshall, Judge, at the March term, 1850, of the 
Brown Circuit Court.

N. H. Purple and John Bailey, for appellant.

Jas. W, Singleton and R. S. Blackwell, for appellees.

Caton, J. This was a bill filed for an account between partners. It states 
that the complainant owned a carding machine, and that the defendant was a 
wool carder by occupation. That they entered into an agreement, by which the 
complainant was to furnish the machine and to pay all the expense of running 
the same, except manual labor and repairs. And to furnish lard to be sold to 
customers. The defendant was to run the machine at certain specified rates, 
and to have one-third of the compensation received for carding, and the 
complainant two-thirds. The defendant was to sell the lard furnished by the 
complainant to such customers as should want the same, and to pay the whole of 
the money received therefor over to the complainant. In pursuance of the 
agreement, the defendant run the machine during the time specified. That the 
complainant complied with the agreement, and paid for the repairs. The 
earnings of the machine amounted to the sum of $1,404.72, which was received 
by the defendant, two thirds of which belonged to the complainant, and that 
the defendant received for lard belonging to the complainant, the sum of 
$40.66. That the complainant has repeatedly called on the defendant to account 
for the money thus received, and to pay over to him his proportion, but that 
he has refused to do so except the sum of $606.43, leaving the sum of $427.83, 
still due the complainant. That the defendant had the exclusive control of the 
business, and kept the books, and made the entries therein himself, to which 
reference is made, and of which a summary is filed with the bill.

The bill also states that the defendant is indebted to the complainant in the 
sum of $124.20, for goods sold, work done, money loaned, a bill of particulars 
of which is exhibited. The bill charges that the defendant refuses to account 
and to pay to the complainant the amount due him.

The bill was taken for confessed, and a reference was made to a master, to 
take and state an account between the parties.

The master reported that he was attended by the parties and their solicitors, 
and that the complainant proved "two items in his account against the 
defendant Aulger, amounting to fifteen dollars. The defendant Aulger then and 
there introduced and proved his account against the complainant, amounting to 
two hundred and eighty-four and sixty-three one-hundredth dollars. It 
therefore appears, from the accounts proven, that the complainant is indebted 
to the defendant, Aulger, in the sum of two hundred and sixty-nine and sixty-
three one-hundredth dollars, all of which is respectfully submitted."

Several exceptions were filed to this report, which were disallowed by the 
court, and a decree rendered in favor of the defendant for the amount reported 
by the master to be due him.

We think that the third exception, at least, should have been sustained. No 
account is, in fact, stated by the master, as was required by the order of 
reference. The accounts of the parties taken before him should have been 
stated in the report. Indeed, it does not appear that any account of the 
partnership transactions was taken by the master, but we should infer, from 
the report, that that was not done. The reasonable inference from the report 
is, that only some individual accounts between the parties were taken. Unless 
the defendant's account, which was heard and allowed by the master, was stated 
and sent up by the master in his report, it was impossible for the court to 
determine whether that was such an account as should have been allowed in the 
suit, and on which the defendant had a right to a decree for the balance in 
his favor. The existence of the partnership and of partnership transaction, 
and his liability to account as partner, was admitted by the defendant, by 
allowing the bill to be taken for confessed. Whether the defendant's account 
related to the partnership transactions, or with any thing stated in the bill, 
it does not appear. As the case stood, it was only upon such an accounting 
that the defendant could claim a decree for a balance in his favor.

As this case must again go before the master, it is not deemed improper to say 
a word in relation to the course proper to be pursued by him in taking the 
account. Particularly in case of a reference to a master to take and state an 
account between partners, it is proper, and even necessary, that witnesses, as 
well as either party, at the request of the other, should be brought before 
him and examined on oath, touching the partnership transactions, which 
examination should be carefully taken down by the master. And if a witness, or 
either party, refuses to appear in obedience to the master's summons, for that 
purpose, or refuses to answer a proper question, allowed by him, it is the 
duty of the master to report the contempt to the Circuit Court, whose duty it 
would be to punish the contempt.

The master should also require the production of all partnership books and 
papers, that by a full and patient examination, he may be able to state, with 
accuracy and precision, the true state of accounts between the parties. The 
report, too, should present a detailed statement of the accounts of all the 
transactions on either side, showing what items are allowed, striking a 
balance in favor of the party entitled to it. After the draft of the report is 
prepared, it would be proper, although by our practice, perhaps, not 
indispensable, that the parties, or their solicitors, should be again called 
before the master, to bear the report read, when either party has an 
opportunity to take exceptions to the report, which exceptions should be 
argued before the master, who allows or disallows them, and in case he allows 
any of the exceptions, he reforms his report accordingly. When exceptions are 
disallowed by the master, if the excepting party desires it, he sends up the 
exceptions disallowed, together with all the evidence relative thereto, when 
the exceptions stand for hearing before the court. This gives the master an 
opportunity of reconsidering the subject, before his report is finally made, 
and of making such alterations, as reflection and the suggestions of counsel 
may convince him are right; this saves much time and trouble in the Circuit 
Court, and frequently avoids the necessity of a re-reference. Although in our 
practice we have, by common consent, departed from the strict and technical 
rules of the English practice, in case of proceedings before the master, yet 
the substance of that practice is founded in reason, and tends to promote more 
exact justice, and ought not to be widely departed from.

The decree of the Circuit Court must be reversed, and the suit remanded for 
further proceedings.

Decree reversed.

--------------------
(a) Items of account admitted or not disputed, need not be set out in the 
master's report: Prince v. Cutler, 69 Ill., 267. But see Craig v. McKinney, 72 
Ill., 305. 

(b) McClay, adm'r, et al., v. Norris, 4 Gil., 370.

(c) Hurd v. Goodrich, 59 Ill., 450; Pennell v. Lamar Ins. Co., 73 Ill., 303.
Defects in the master's report should be taken advantage of by exception in 
the court below: Dow v. Seely, 29 Ill., 495. Exception to a master's report 
cannot be taken for the first time in the Supreme Court; Reigard v. McNeil, 38 
Ill., 401; Clark v. Laughlin, 69 Ill., 278; Hewitt v. Dement, 57 Ill.,
500.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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