
    Between Sececa Sinnickson and Wife, appellants, and Jonathan Bruere et al., administrators of James Bruere, deceased, respondents.
    The court will not interfere with the report of a master, upon a question of fact submitted to him, depending upon the credibility ctf witnesses, unless the error of the master is satisfactorily and clearly made to appear.
    Jonathan Bruere and John H. Bruere, administrators of James Bruere, deceased, filed their bill of complaint in the Court of Chancery, on the 2d day of April, 1849, against Seneca Sinniekson and Ruth, his wife, to foreclose a certain mortgage, executed by the said Seneca and wife to the said James Bruere, bearing date the 10th day of April, 1827, to secure the payment of the sum of five thousand and one hundred dollars in one year from date, according to the condition of a bond in penal sum of ten thousand two hundred dollars.
    The defendants filed their answer to said bill on the 17th day of October, 1849; and on the 20th day of June, 1851, it was referred to Richard W. Howell, Esq., one of the masters of the Court of Chancery, “ to ascertain and report the amount due on the said mortgage, for principal and interest, after deducting all payments that have been made thereon, and that the master make his report thereof to this court with all convenient speed. And all further equity and directions are reserved until the coming in of the master’s report.”
    master’s report.
    In pursuance of an order of this court, entered in the above cause, bearing date the twentieth day of June, in the year of our Lord one thousand eight hundred and fifty-one (1851), I have been attended by the solicitors of the complainants and defendants, and, in the presence of the parties attending me, I have considered of the matters thereby referred to me. And the solicitor of the complainants produced before me the indenture of mortgage in their bill mentioned, bearing date the tenth day of April, in the year of our Lord one thousand eight hundred and twenty-seven (1827), and made and executed by Seneca Sinnickson and Ruth, his wife, to James Bruere, and which said mortgage was duly acknowledged according to law by the said Seneca Sinnickson and Ruth, his wife, and recorded as in the bill mentioned, as appears by endorsements thereon. And the said complainants’ solicitor also produced before me the bond intended to be secured by the said mortgage, the execution of which said bond and mortgage is admitted by the said defendants in their answer in this cause, and which said bond and mortgage are marked Exhibits A and B on the part of the complainants; and having examined all the evidence taken in this case, and which is submitted with this my report, I am entirely satisfied, and accordingly so report, that the whole amount of principal and interest due on the bond and mortgage mentioned in the complainants’ said bill is due and belongs to the estate of James Bruere, deceased, and that no part of the same is due to or coming to the estate of Richard Bruere, deceased, and that for this reason, the defendants are not entitled to any equitable offset for moneys due from the estate of the said Richard Bruere, deceased; and that if there is any such right of set-off, the said Seneca Sinnickson is largely indebted to the estate of the said Richard Bruere, on the estates in the county of Salem, and the advances referred to in the defendants’ answer.
    And I do further certify and report that it appears, from the evidence in the case, to my entire satisfaction, that the said Seneca Sinnickson is not entitled to any offset against the complainants by reason of the bond for £1000, mentioned in his answer, as given and due to the wife of the said defendants, Seneca Sinnickson and the said Ruth Sinniekson, the same having been long since paid off, according to the evidence in this case.
    And I do further certify and report that I find due to the complainants this day, for principal and interest on their said bond and mortgage, after making all proper deductions and allowances, the sum of ten thousand five hundred and forty-five dollars and fifty-eight cents, as will more fully appear by the schedule hereto annexed, and forming part of this my report.
    All which is most respectfully submitted.
    Richard W. Howell, M. C.
    
    Dated this twenty-fourth day of June, A. D. 1854.
    The substance of the evidence appears in the opinion of the court. The following exceptions were taken by the defendants to the master’s report:
    First. For that it appears in and by the said report, and the schedule annexed thereto, that the said master has not given credit to the said defendant for ten head of cattle of the value of twenty-five dollars each, and forty hams, of the value of one dollar and twenty-five cents each, amounting, in the whole, to the sum of three hundred dollars, sold and delivered by said defendant, Seneca Sinnickson, to the said James Bruere, in the month of June, 1842 ; whereas, it was proved by two respectable witnesses that the said cattle and hams, to that amount at the least, were sold and delivered by said defendant to the said James Bruere, on account of money due to said Bruere upon his said bond, upon which said schedule is founded ; and the said master ought, therefore, to have allowed the said amount as an additional credit upon said bond.
    Second. For that the said master, in said schedule, has calculated interest on said bond up to the tenth day of October, 1853, and then added the interest to the principal, and east the interest upon the whole amount of principal and interest from that time to the date.of said report, thereby charging said defendant yith interest upon interest; whereas, the said master ought not to have made any rest in said calculation in October, 1853, and ought not to have charged the said defendant with more than simple interest.
    At the October Term of the Court of Chancery, the exception to the master’s report was overruled and a final decree made in favor of the complainants, for the sum of ten thousand three hundred and thirty-four dollars and three cents, with interest from the date of said report and the costs of suit; and a sale of the mortgaged premises, to raise said moneys, was ordered.
    OPINION OP THE CHANCELLOR.
    The Chancellor furnishes the Court of Errors and Appeals with the following reasons for the decree made in this case:
    I overruled the exception, because the question presented involves a mere matter of fact, in determining which I am not satisfied that the master committed any error.
    The opportunity afforded the master in arriving at a correct conclusion was much more favorable than that afforded me. It is true I have the same evidence before me upon which the master made up his judgment. The testimony of witnesses, generally, appear all alike upon paper; and yet, every one at all acquainted with the investigation of controverted facts, where the evidence is conflicting, appreciates the importance of seeing the witnesses confronted with each other, and of hearing their testimony as they give it. Where a correct decision depends upon the degree of credit to be attached to the witnesses examined, the appearance and manner of the witnesses are almost indispensable in forming a correct and satisfactory judgment. I do not 'mean to be understood as saying that the decision of a master should be considered as conclusive upon a matter of fact; all I mean to say is, that before the court will interfere with the report of a master upon a question of fact submitted to him, depending upon the credibility of witnesses, the error of the master must satisfactorily and clearly appear. The court has always acted upon this principle, and I think it the only correct and safe one. I cannot say that it satisfactorily appears that the master has committed an error in the matter of this exception.
    The second exception is well taken. There is no reason why the master should have made a rest in the accounts in October, 1853: he should have calculated simple interest on the bond up to the date of his report.
    
      Kingman, for appellants.
    
      Randolph, for respondents.
   The opinion of the court, unanimously affirming the decree of the Chancellor, was delivered by

Green, C. J.

The original bill in this cause was filed to foreclose a mortgage given by Sinnickson and wife to James Bruere, in his lifetime, to secure the payment of five thousand one hundred dollars in one year from date. The mortgage is dated April tenth, eighteen hundred and twenty-seven.

The matter was referred to a master, to ascertain the balance due to the complainants upon the mortgage. The master made his report, dated twenty-fourth of June, eighteen hundred and fifty-four, stating an account between the parties, and finding due to the complainants the sum of ten thousand five hundred and forty-five dollars and fifty-eight cents.

The defendant excepted to the report, because the master has not given credit to the defendant for ten head of cattle, of the value of twenty-five dollars each, and forty hams, of the value of one dollar and twenty-five cents each, (amounting in the whole to the sum of three hundred dollars,) sold and delivered by Sinnickson to Bruere in June, eighteen hundred and forty-two.

The Chancellor overruled the exception, confirmed the master’s report, and made a final decree accordingly, in favor of the complainants. From this decree the defendant appealed. The sole question is, did the master err in rejecting the credit ?

To entitle himself to an allowance of the credit, it is incumbent on the defendant to show to the satisfaction of the court—

First. That the price of the articles sold was to be applied as a payment on account of the mortgage.

Second. That the payment has not been so applied.

First. The proof that the price of the articles sold and delivered by Sinnickson to Bruere was to be credited upon the mortgage at all, is not of the most satisfactory character. No receipt or written memorandum is produced in support of the claim. The testimony of a single witness is relied upon. That witness is the son of the defendant. His age at the time of the alleged transaction, does not appear. The credit claimed is in June, eighteen hundred and forty-two. The witness was examined in June, eighteen hundred and fifty-one, nine years after the transaction to which he is called to testify. Were the defendants seeking to recover the price of the goods sold, the claim would long since have been barred by the statute of limitations. The testimony of the witness upon this point is as follows : “ I remember my uncle, James Bruere, coming to my father’s house in May or June, eighteen hundred and forty-one or eighteen hundred and forty-two. He came after money. My father told him he had no money, but he had some cattle, which he would sell him.” After stating the purchase and delivery of the cattle and some hams, the witness adds: "I understood the price of the cattle and hams so taken by him was to be endorsed on the bond.”

This is the whole evidence that the articles purchased by the complainant were to be credited on the mortgage debt. The articles were not then delivered. The witness was not present at the delivery, nor does he know what subsequently transpired between the parties respecting the price.

This evidence of the mere wnderstanding of the witness, coming from the son of the defendant, after so great a lapse of time, without any explicit proof of what the agreement actually was, is not satisfactory, and affords a very insecure foundation on which to rest for proof of payment of a mortgage debt.

Second. But, admitting the sufficiency of the evidence to show that the articles purchased were to be credited on the bond, to what credit is the defendant entitled more than he has received ?

Two of the plaintiff’s sons testify that, soon after the alleged purchase in June, eighteen hundred and forty-two, ten or twelve cattle and about forty hams were delivered by the defendant to Bruere. Two witnesses on the part of the complainants, entitled to at least an equal degree of credit with the defendants’ witnesses, testify that there were, in fact, but five cattle delivered.

It further appears that, on the fourteenth of June, eighteen hundred and forty-two, the time of the alleged delivery of the cattle, there is a credit endorsed upon the bond of one hundred and thirty-one dollars, on account of interest. This, with the exception of twenty dollars received from a third person, is the only payment credited on the bond from March, eighteen hundred and thirty-nine, to May, eighteen hundred and forty-seven — a period of over eight years.

This credit is endorsed on the bond at or about the time of the delivery of the cattle. It appears by the evidence of the son that, at that time, the defendant had no money to pay upon the bond, and this is assigned as a reason why the cattle were offered in payment. If, then, the defendant had no money to pay with, and the cattle were offered as a substitute, how comes that credit upon the bond ? Is it not reasonable to conclude that the credit is, in fact, the price of the articles delivered in lieu of money ? True, it does not precisely correspond in amount, but the witnesses may have erred (as, in fact, it is obvious they did,) in regard to the number or value of the articles delivered, or a part of the price may have been paid in cash or applied to the payment of some other claim. This is more reasonable than to impeach the fairness of the credit on the bond.

It appears, moreover, that, within five months after this credit, the defendant gave his judgment bond for one thousand dollars, in payment of arrears of interest due on the mortgage. This credit is also endorsed upon the complainant’s bond. It is fair to presume that' the defendant’s attention was at that time specially called to the payments on the bond, to the arrears of interest, to the receipts either in his own hand, or endorsed on the bond. If there was error or omission in the credits, it should, and doubtless would have been corrected at that time. Under such circumstances, an attempt to correct an alleged error in the credits endorsed upon the bond, after the lapse of nine years, ought not to be regarded with favor.

There is no satisfactory evidence to show that the master erred in refusing to allow the credit.

The decree must be affirmed, with costs.

Cited in Clark v. Condit, 6 C. E. Gr. 323.  