Wilkinson County MsArchives Court.....Davis, Lewis June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

LEWIS DAVIS’ HEIRS vs. PATRICK FOLEY
IN CHANCERY

Upon an interlocutory decree of a Court of Chancery, referring an account to 
three persons, by name, as Auditors, or a majority of them,—it is no valid 
objection to the proceedings and the Report of the Auditors, that one of the 
three was never notified to attend. Had the exception to the absence of one of 
the Auditors been valid, it should have been taken before the Auditors.

Exceptions to the Auditors Report cannot be sustained, unless they were made 
and overruled before the Auditors, and certified by them to the Court.

A party cannot by exception to an Auditors report, impugn the decree directing 
the report to be taken. A party cannot by exceptions to the Auditors Report, 
rely upon new grounds of defence not set forth in the pleadings.

The practice of Auditors in this country, ought to be in strict conformity to 
the practice of the master in England, where no change is introduced by 
statute.


OPINION OF THE COURT

DELIVERED BY THE HONORABLE POWHATTAN ELLIS.

From an examination of the papers in this case, it appears that the 
complainants, Robert Davis, Lewis Davis, Susannah Guartly and Martha 
McCausland are the heirs and legatees of Lewis Davis, dec’d. The complainants 
state, that the said Lewis Davis, dec'd. "did, on or about the 3d of February 
1784, make his last will and testament, making certain devises therein 
specified, and soon after the execution of his will, departed this life. The 
complainants further state, "that the said testator at the time of his death 
was possessed of a considerable personal estate, all of which, Martha Davis 
the widow of the testator, after his death, reduced into possession, and 
continued in possession thereof, until the year 1790, at which time, said 
Martha intermarried with one Patrick Foley, of the county of Wilkinson, who 
thereupon took possession, of said estate, in right of his wife, and continued 
in possession until the 14th of May 1794, at which time a partial division 
took place, in pursuance of a decree of the Governor of the district of 
Natchez for thar purpose;—but the complainants set out in their bill, that the 
defendant Foley did not account to them in pursuance of the will of the said 
testator, which he was in conscience bound to do, as he could not legally or 
equitably hold that property, which the widow of the testator held subject to 
express conditions named in the will of the said testator, and by virtue of 
which she came into the possession of the property.

The defendant in his answer, denies all the material allegations set forth in 
the complainants bill.

At a superior court of law and Equity in Wilkinson county, November term 1813, 
this cause came on to be heard, and an interlocutory decree was obtained, 
ordering the defendant to account, and auditors were appointed for that 
purpose, who were to meet at a certain time and place—the party convening 
them, to give the opposite party ten days notice of the time and place of 
meeting. The complainants, gave the defendants notice, of the time and place 
of the meeting of the auditors—and they proceeded to take the account between 
the parties and reported the same to the court below, in conformity to the 
decree—to which report the defendants counsel excepted. At November term 1814, 
this cause was transferred to the Supreme Court of the territory for 
adjudication.

I have taken this view of the case, in order that the court may see the 
grounds upon which the interlocutory decree was founded, not that I deemed it 
material, because the court conceives itself confined to the exceptions taken 
to the report of the auditors.	The merits of the case will not be touched.

In the first place, it is contended by defendants counsel, that the report of 
the auditors, is irregular and illegal and ought to be set aside. "Because 
John R. Holliday, one of the auditors named in the decree to account, was not 
duly notified by the complainants, (who convened the auditors) of the time and 
place of the first meeting of the auditors or of the several times and places 
to which they thereafter adjourned, and that said J. R. Holliday, never 
attended any of the meetings of the auditors for that reason. This objection, 
it is contended by the complainants cannot be sustained because the report was 
taken and made in strict conformity to the decree, the only source whence the 
auditors derived their power. By referring to the decree, the court discovers, 
after the general order to account - "that John R. Holliday, John B. Posey and 
Duncan Stewart, Esq. be, and they are hereby appointed auditors to take said 
account, they or a majority of them, and that they, or a majority of them, 
report in writing to the next term of this court the balance due on said 
account. It is not contended that the defendant had not legal notice of the 
time and place of the meeting of the auditors, and as to the circumstance, of 
the absence of of John R. Holliday, one of the auditors mentioned in the 
decree to account, the court is of opinion, that this will not vitiate the 
report, because the other two auditors did not travel out of the limits of 
that power delegated to them by the interlocutory decree, authorizing so many 
persons or a majority of them, to do such an act, without stating or requiring 
that each one of the auditors should have notice of the time and place of 
their first meeting. If the court had have intended that each one of the 
auditors should have notice before the others could proceed to take the 
account, it would have been mentioned in the body of the decree. But suppose 
notice to have been an indispensible requisite, before the auditors could 
legally proceed to the discharge of their duties; we are of opinion, that it 
is too late to except to proceedings here, which should have been objected to 
before the auditors:—Having disposed of this preliminary question, the court 
will take into consideration the exceptions to the report of the auditors 
generally, and will consider them in two points of view: - First; is it 
competent for a party in filing exceptions to the report of auditors to impugn 
a decree of the court.

Secondly—Can exceptions to the report of auditors unless they were made and 
overruled before said auditors, and certified to the court be sustained?

First, is it competent for a party filing exceptions to the report of 
auditors, to impugn a decree of the court?

It is an undeniable and well established principle in Chancery 
proceedings, "nothing can be pleaded before auditors, contrary to what has 
been pleaded before, and which has been found by verdict because it would 
introduce either a contrary verdict, or two verdicts of the same kind, which 
is absurd. All the cases when the pleas have been rejected before auditors, 
were, because they might have been pleaded in bar; you shall not lie by and 
plead before auditors, what you might have before pleaded in bar. 3 Wilson 
Reports, 114 the case of Godfrey vs. Saunders.—By the will of the testator it 
appears, that after all just debts have been liquidated, and all the specific 
legacies satisfied, the real and personal estate, not otherwise disposed of, 
shall pass into the possession of the widow of the testator, to be equally 
divided between her and the four legatees as they respectively become of age, 
and it was upon this devise, that the Spanish decree of the 16th of January 
1794 was founded, in favor of the heirs of the testator, and when the cause 
came on to be heard, at the superior court of Law and Equity for the county of 
Wilkinson, the interlocutory decree rested upon the same ground; with 
instructions to the auditors, to make the Spanish decree of the 16th January 
1794, the basis of their report, which devise gives to the widow and legatees 
an equal portion of the land and negroes not specifically devised. When the 
auditors met in pursuance of their authority, they proceeded to take the 
account as directed, and reported accordingly.

From our examination of the exceptions, I find, that the sixth, seventh, and 
ninth are in opposition to the rule already laid down: - they are as follows:

6th. Because in the said report, each of the heirs is allowed a proportion of 
the use of the whole plantation, whereas, by law, they are not entitled at any 
rate to a proportionate use but of the half of said plantation.

7th. Because, the auditors did not take into consideration the rightful claim 
of the children of said defendant and his wife, to their mothers estate, 
against the said complainants, but allowed every thing to the said 
complainants wife.

9. Because, the said auditors have decided that the defendant was bound to pay 
rent for said plantation, and here predicated their calculations on that 
principle, when by law he was not so bound. It is only necessary to refer to 
the Spanish decree (upon which the inter1ocutory decree below is founded) to 
see that the exceptions already mentioned are in express contradiction to it, 
which says that the widow of the testator, and the former legatees, shall be 
entitled to an equal portion of all the real and personal estate not 
specifically devised. If this be a correct statement of the case as appears of 
record, how is it possible for the court to sustain the exceptions mentioned, 
unless it violates that salutary principle of the law, which was resorted to, 
to avoid the many inconveniences and absurdities mentioned in the rule itself?

Secondly: - Can exceptions to the reports of auditors be sustained, unless 
they were made and overruled before said auditors, and certified to the court 
as a part of the Report.

By a reference to the authorities in relation to the second point, the court 
finds but little difficulty in giving its opinion, from the clearness and 
precision of the law, as laid down in all the books we have 1ooked into. I 
find the doctrine of reports in Blakes Chancery practice, page 256 which 
states — when the draft of the report has been duly considered, and either of 
the parties is prepared to attend the master thereon, he may take out a 
summons underwritten, to settle the draft of the masters report, upon which 
attendance, if either of the parties conceive that the interest of his client 
has not been properly attended to, or that the master has erred in making up 
his report, he must bring in objections in writing to the report. See 2 Mad. 
388 - Blakes Chancery 223 and the case of Renison vs. Remson 2 John’s. Ch'y. 
Rep’ts. 502. But if no objections are brought in, the master will settle the 
report, and return it in due form according to directions. And further, if a 
party neglects to bring in objections to a masters report, he cannot 
afterwards except to it, but is confined to such objections as were overruled 
or disallowed by the master. See Newland 172-2 Mad. 389 and the cases before 
cited.

From this exposition of the law, it evidently appears, that the defendant has 
failed in every essential requisite before the auditors; to entitle him to 
protection under the exceptions he took to their report—and as this is the 
case, the court deems it unnecessary to set out the other exceptions filed by 
defendants counsel. The practice which should be observed by our commissioners 
and auditors in this country, ought to be in strict conformity to the practice 
of the master in England, because we professed to be governed by the same 
rules and laws, unless the intervention of a statutory provision supercedes 
the obligation of the common law.

The practice to take exceptions at the time of making up the reports, has not 
been heretofore pursued in this state in every instance. But hereafter, it is 
expected the rule will not be departed from.

The court, from the whole view of the case, taking into consideration that the 
Spanish decree of the 16th January 1794, was made the basis of the report of 
the auditors, are of opinion, that this report is just and equitable. The 
exceptions to the report must be overruled and the cause remanded to Wilkinson 
county for trial.

The system of equity jurisprudence in this state, has been greatly improved, 
by the labors and assiduity of the present able Chancellor of Mississippi, and 
by various statutory enactments. The great delay, which is the reproach of the 
Chancery Courts of England, exists to a less extent in this state, and it is 
hoped, that the improvement here, in this respect, will be progressive. The 
most striking objection to Chancery Courts, is, the delay produced, and 
expense incurred, in the trial of cases in equity, that have heretofore been 
tried at common law. It strikes the mind, as a singular anomaly, that one 
court should be constituted to try causes upon technical principles, 
precluding an investigation of the merits of such	cases, and required to 
render judgments contrary to justice, and that another tribunal must be 
organized, to retry these same causes, and pronounce a wholly opposite decree. 
Thus, it has been decided, that if A sells a tract of land to B, with general 
warranty of title, and there should be an ascertained failure of title, to a 
part of the land, nevertheless, that A can obtain a judgment in the courts of 
common law, for the whole amount of the purchase money, and B be required to 
resort to a court of equity for relief, and the case be probably remanded to a 
jury, under the direction of the same common law court, to ascertain the 
extent of the injury sustained by the partial failure of title, which verdict, 
would probably govern the Chancellor in his decree. Now, wherefore, the 
necessity of this delay and expense, and why not permit a jury in the first 
instance, to investigate the facts, and render a verdict conformable to 
justice? other amalgous cases might be cited, in which great delay is 
produced, and expense incurred, by denying to the courts of common law, the 
power to investigate the merits of the case. In Louisiana, and other 
countries, where the civil law prevails, the merits of the cases are 
investigated and determined in one court. There seems to be no insuperable 
obstacle to the adoption of their forms of administering justice, without 
incorporating into our system their principles of jurisprudence. This has in 
fact been accomplished in several of the states of the American Union, by 
extending the powers of the common law courts, so as to enable them to decide 
upon equitable principles. The chancery system, arose in England, from the 
techialities introduced into the courts of common law. But wherefore the 
necessity of introducing these technicalities, or why not remove them in this 
as in several other states of this Union, by extending the powers of the 
common law courts, so as to investigate at once the merits of the case? The 
framers of the constitution of this state have decided differently, and it 
therefore becomes the duty of all, to co-operate in rendering our present 
chancery system, as perfect as possible, and if causes must be tried and 
decided upon their demerits first, and their merits afterwards, it is 
certainly advisable, that the tribunals which pronounce these opposite 
decrees, should be separate.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 43-48.

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