
    Kennedy v. Baylor.
    April Term, 1793.
    Equity Practice — Cause Heard on Bill and Answer-Effect. — If a cause is heard on bill and answer, the latter must be considered as true in all its parts.
    
      Same — Estimation oí Damages to Land by Commissioners. — Bill to foreclose. — The Court appointed Commissioners to ascertain the damages which the land sustained, whilst in the possession of the mortgagee, and deducted the amount reported from the payments made by the mortgagor. — Decree affirmed.
    This was a suit originally brought in the County Court of Berkeley, by Baylor, to foreclose the equity of redemption, which Kennedy had in a tract of land. Kennedy in his ^answer, claimed certain credits, and the court directed an account to be settled by commissioners, which being done, and returned, the record states, “that it appearing to the court, that the mortgagee had had possession of the land for some time, during which, it had sustained damage,” other commissioners are appointed, to value the same — -a second report, pursuant to the last order being made, the court, after deducting the amount of the damages so ascertained, from the sums found to be due by the first report, decreed the balance to the plaintiff — no replication was made to the answer, nor were any .exceptions taken to either of the reports.
    This decree was affirmed in the High Court of Chancery, from which an appeal was prayed to this court. '
    Marshall for the appellant, insisted upon the following errors in the decree.
    1st, The cause coming on, upon bill and answer, the latter must be considered as being true in every part of it; and therefore, the payments alledged by the defendant to have been made, ought to have been allowed by the commissioners, two of which were not.
    2d, The commissioners do not state when, or where they met to settle the accounts, or whether, .the defendant had notice of their meeting.
    3d, The decree is for more than the commissioners report to be due.
    4thly, and principally. — The rents of the land, and the injury it sustained, during the plaintiff’s possession, are referred to commissioners, instead of a jury to ascertain.
    
      
      Equity Practice — Cause Heard on Bill and Answer-Effect. — If there is no replication to an answer in a chancery cause everything stated in such answer is admitted to be true. Martin v. Rellehan, 3 W. Va. 482, citing 2 Dan. Pleading and Practice 966; Pickett v. Chilton, 5 Munf. 467; Kennedy v. Baylor, 1 Wash. 162. See monographic note on “Answers iniquity Pleading” appended to Tate y. Vance, 27 Gratt. 671.
    
    
      
      Same — Estimation of Damages by Commissioner.— Por the proposition that commissioners appointed by the court may ascertain the damages which land has sustained, whilst in the possession of the mortgagee, and deduct the amount reported from the payments made by the mortgagor, the principal case is cited and followed in Roberts v. Stanton, 2 Munf. 138.
      But in Eustace v. Gaskins, 1 Wash. 188, it is held that, the value and profits of land being in the nature of damages, must be ascertained by the jury, and not by commissioners.
    
   The PRESIDENT.

As to the first objection, there is no doubt, but that the answer in this case, must be considered as being perfectly true. But the counsel mistakes, when he supposes, that the payments insisted upon in the answer, have not been allowed.- All of them are, except a credit of wheat, the price of which the defendant could not ascertain, and perhaps did not, for that, or for some other reason bring before the commissioners.

The third objection is, that the decree is for more than the balance stated to be due by the report, and that too, with accumulated interest. But it does.not appear, that the interest upon interest, amounts to a greater sum, than that, for which a deduction is made by consent of parties, on account of miscalculation *of interest. As to the principal sum, it does by no means appear, that the decree is for more than the report makes it.

The decree therefore must be affirmed. 
      
      The court took no notice of the other objections. —Note in Original Edition.
     