
    Perkins v. Saunders and Wade, Executors, &c. of Power.
    Thursday, May 5, 1808.
    Appellate Practice — Commissioner’s Report — Waiver of Exception to.' — The Court of Appeals will not enter into an investigation of an account taken by direction of a Court of Chancery, when either no exception to the commissioner’s report was taken in the Court below, or not taken in such form as to enable this Court to decide on the principle of law or equity on which the item excepted to, was admitted or rejected.
    Eour suits which had existed between the parties in the Superior Court of Chancery for the Richmond District, were consolidated by the Chancellor at the hearing, and one decree pronounced, in the whole, founded on the report of the master commissioner ; each party to bear a proportion of the costs. Perkins appealed in all the cases.
    Several points were made by the counsel for the appellant; which, it was insisted by the counsel for the appellees, were all resolvable into the state of accounts between *the parties; and that the decree of the Court of Chancery was justified by the report of the commissioner.
    No exception was taken to that report in the Court of Chancery; and the only point on which all the judges of this Court expressed an opinion, was, how far it would be proper to enter into an investigation of an account taken by direction of a Court of Chancery, when either no exception was taken to the report of the commissioner, or not taken in such form as to enable this Court to decide on the principle of law or equity, on which the item excepted to was admitted or rejected. On this point JUDGES-ROANE and FLEMING, during the course of the argument, seemed to concur in the following opinion, delivered on Thursday, May 12, by JUDGE TUCKER.
    
      
       Appellate Practice — Commissioner’s Report — Exceptions — Waiver.—In Thompson v. Catlett, 24 W. Va. 540, it is said: “In a case properly referred to a commissioner his report upon the matters referred, if erroneous upon its face may be obj ected to on the hearing, although not excepted to; but unless it is excepted to, it cannot be impeached by adult parties on grounds relating to matters which maybe affected by extraneous testimony. If such adult parties fail to except to such report, it will be presumed they were satisfied with it, and acquiesced in its correctness, not only so far as it settles the principles of the account, but also in regard to the sufficiency o f th e evidence upon which it is founded; and these exceptions must point out the errors complained of with such reasonable certainty as will direct the mind of the court to them: and even when he does so, the parts not excepted to, unless erroneous upon the face of the report, are admitted to be correct, not only as regards the principles, but also as relates to the evidence on which they are founded. Perkins v. Saunders, 3 Hen. & M. 420; Wyatt v. Thompson, 10 W. Va. 645; Hyman, Moses & Co. v. Smith. 10 W. Va. 298; Alderson v. Nagle, 12 W. Va. 98; McCarty v. Chalfant, 14 W. Va. 531; Chapman v. Pittsburg & Steubenville R. R. Co., 18 W. Va. 184; Ward v. Ward, 21 W. Va. 262.”
      The principal case is also cited in this question in McCarty v. Chalfant, 14 W. Va. 558; Ward v. Ward, 21 W. Va. 271; Holt v. Holt, 46 W. Va. 397. 35 S. E. Rep. 24.
      See monographic note on “Commissioners in Chancery" appended to Whitehead v. Whitehead, 23 Gratt. 376.
    
   JUDGE TUCKER.

In these cases a variety of points were presented by the appellant’s counsel.

1st. As to the costs of one or two of these suits, the whole of which were consolidated at the hearing and one decree pronounced in the whole, and each party was decreed to bear a proportion of the costs. As no appeal lies for costs only, this point ought to be disregarded, even if not perfectly equitable, unless there be some other error in the decree. 2d. It was insisted a Jury ought to have been impanelled to assess damages against the executors for their misconduct in suffering suits to be brought and the property to be sold under execution. This is the first time I have heard of a suit-in equity for vindictive damages. 3d. That the executor R. H. Saunders ought not to be allowed the benefit of a compromise, or purchase which he made of a judgment and execution against his testator’s estate, by which he gained 24 dollars. The principle is in general true, and in this instance the executor ought not to have been permitted to take the benefit to himself; nor has he been allowed it, the commissioner on that account, as well as some others having allowed him no commissions.

*As to the remaining exceptions, they relate principally to the settlement of the accounts made by the commissioner with great apparent care and attention, and to which no exceptions were taken in the Court of Chancery. I have considered it as a settled principle, that this Court will not enter into an examination of accounts referred to a commissioner, and settled by him; unless an exception to them has been taken in the Court of Chancery, nor then, unless the exception be so stated as that this Court may decide upon the equitv, or legality, of the principle only, upon which the article is admitted, or rejected, without wasting their time in adjusting the particulars of a long and intricate account; a business which is the peculiar province of a commissioner and accountant; and which, if this Court were to admit themselves to be bound to engage in, would in a year or two put a total stop to the administration of justice in civil causes in this commonwealth. I am therefore of opinion the decree ought to be affirmed.

JUDGE ROANE thought the decree correct, and that it ought to be affirmed.

JUDGE FLEMING of the same opinion.

By the whole Court, (absent JUDGE LYONS,) the decree of the Superior Court of Chancery affirmed. 
      
       2 Fonb. 187.
     