Taylor v. Cawthorne, 17 N.C. 221, 2 Dev. Eq. 221 (1832)

Dec. 1832 · Supreme Court of North Carolina

17 N.C. 221, 2 Dev. Eq. 221

Lewis Taylor v. Archer Cawthorne.

Testimony in a suit in equity, must be reduced to writing, and if a party upon a reference to the clerk examine witnesses viva voce, instead of taking tlieir depositions, he must pay the costs of their attendance.

This was a bill originally filed in the court of equity for the county of Granville, for the purpose of having an account of a partnership business. The usual reference was made to the clerk and master of Granville court of equity, and a report made, which was, after the removal of the cause, set aside by consent, and another reference made to the clerk of this court, whose report was in every respect favorable to the plaintiff, and no exceptions were taken by the defendant.

Devereux, for the plaintiff,

moved upon the circumstances stated by Ruffin, Judge, in delivering the opinion of the court, that the defendant should pay the plaintiff his costs, and that the clerk in taxing them, should he directed to include the costs of witnesses who were examined before him.

JVhs/i, Badger and W. 1L Haywood, contra.

Ruffin, Judge,

after stating the substance of the motion, proceeded as follows: The court of equity requires all proofs to be in writing, for the purpose of allowing the judge full time for deliberation, and in order to give the parties the benefit of a bill of review,or an appeal to correct errors — the only exception relates to the execution of an exhibit, or the like. This is also the regular method of taking testimony to he read before the master. There 4s no rule that he shall not hear viva voce evidence, but only that lie shall not act on'any not reduced to writing; in order that the ground of his decision may he brought fully before the court. If a party then, for his own convenience or benefit, brings his witnesses before the master, instead of taking their depositions under a commission, he must bear the expense himself. The direction is therefore refused.

The costs of a suit to settle a partnership, are generally charged upon the partnership effects ; but improper conduct in one of the partners,may be punished by taxing him with them.

The report made by the clerk and master in Granville, having been set aside in this court, by consent of the parties, the allowance-for making itmust, for that reason, be paid equally by the plaintiff and defendant.

In general, the costs of a suit to settle a partnership, are to be paid out of the fund, or by the partners equally. But the conduct of the defendant subjects him exclusively to the costs. He was the acting partner, and failed to keep and render proper accounts. He made payments to the plaintiff of part of his share of the profits, but took notes for the sums as advances made by him, and commenced suits at law on them, when he owed the plaintiff a large balance over and above the amount of those notes. He has moreover deluded the plaintiff and the court, by depositing with the clerk documents pretended to he evidences of uncollected partnership debts, due in distant parts of the country, and has caused a receiver to be appointed, who reports, that after taking a long journey, he has been unable to find or hear any thing of such debtors, and has reason to believe that the claims are altogether feigned. Such conduct meets only with a small portion of the rebuke it merits, when it incurs the penalty of the costs of suit.

Per Curiam — Decree accordingly.