NUMBER 26. ENTRY ON AN ADJOURNED EXAMINATION. DEPOSITIONS of witnesses produced, sworn, and examined, in the cause, before the Master, and at the place, in the title of these depositions severally named and expressed, on the journment. day of by ad NUMBER 27. DEMURRER OF A WITNESS BEFORE A MASTER. Title. THE Demurrer of A. B. a witness produced and sworn on the part of the plaintiff, before M. H. one of the Masters of this Court, to whom the above cause stands referred, on the day of This deponent being interrogated whether or not, a certain promissory note now shewn to him, purporting to be a note drawn by L. M. in favor of B. D. for the sum of $425, dated the day of and payable in one year therefrom, was not given upon an usurious consideration, and especially whether the consideration of such note, was or was not the sum of $400 lent and advanced to the said L. M. by the said B. D., and the sum of $25 added in such note for the use of such $400 for one year, or for forbearance of the same for such time. And further, if such was not the consideration, what was the consideration thereof,-answers, and says,-that he demurs thereto, and for cause of demurrer avers, that all the information and knowledge, now, or at any time possessed by this deponent, respecting the matters so inquired to, was acquired by this deponent, as Solicitor of the said B. D. since being retained by him to claim such note before the Master to whom this cause stands referred; and that this deponent has not acquired, nor possesses any information whatever respecting such matters from any person or persons, or in any manner whatever, save from the communications of his client the said B. D. made to him in consequence, and in the course of his professional employment before stated. And therefore this deponent submits to the judgment of the court, whether he shall make any further answer in the premises. Cutts v. Pickering, Ventris, 197. See the demurrer in Parkhurst v. Lowten, 3 Mad. Rep. 121, and Morgan v. Shaw, 4 Ibid. 54, and Parkhurst. Lowten, 2 Swanston, 194. To the Honorable James Kent, Chancellor of the IN pursuance of a decretal order of this Honorable Court, made in the above cause, and dated the first day of January, 1821, I the sube scriber one of the Masters of this Court, residing in the city of New-York, having been attended at several times by counsel for the complainants, and for the defendants, and having examined the evidence taken in chief in this cause, and taken the testimony of several witnesses produced before me, upon the matters directed to be inquired into by such order, and considered the same, I do report : That I have stated the account of the amounts due upon the two several bonds and mortgages mentioned in the said decree, and of the rents and profits of the mortgaged premises, since the 15th March, 1803, received by the defendant Wm. G. D. or which with ordinary care and diligence might have been received by him, the particulars and items of which accounts appear in Schedule A hereunto annexed and making part of this report. That in computing the amount due upon the said bonds and mortgages I have stopped the interest, upon the 11th March 1803, the day o the tender made by some of the complainants to G. D., of the amoun then due upon the said mortgages; conceiving that such tender was strictly made, and that the defendant had no reasonable cause, for refusing to admit the redemption sought. And I further report, that the complainants have claimed for rent of the premises, since the 1st April, 1809 the annual sum of $7 5,—that the amount actually received has been the sum of $70 annually, from Asa Matherson tenant in possession since that period. That it appears from the testimony of B. McV. that in April, 1809, he gave up the premises, but not being able to procure another place, offered to said W. G. D. $75 a year rent, to allow him to remain. That the premises were then let, or contracted to be let to A. M., and that said D. stated he would try to let him the said McVeagh have them at the sum offered, and afterwards, that he was unable to do it, on account of his bargain with M.-That the first lease to said M. was for the period of three years; and that it does not appear, that the said McV. or any other person, at any subsequent time renewed the offer of $75 or any other sum beyond the said sum of $70 rent actually received. Nor that any application was ever made to the said McVeagh or to any other person by said W. G. D. to take the premises at the said rent of $75 or any other advance. That from a consideration of the testimony upon that point, I am of opinion the sum of $70 was a fair and adequate rent for the premises, at that period, and has so remained to the present time.And that under these circumstances, I have disallowed the claim of the said Complainants; not conceiving this a case in which a mortgagee in possession should be charged beyond the amount actually received on the ground of wilful default, or defect of diligence. And as to such part of the decree as directs an account to be taken of the injury, waste, or deterioration of the mortgaged premises, or in the value thereof, by W. G. D. or by those under him, I report ; That I have taken the rule of the court to be that a mortgagee in possession is in Equity chargeable only for waste, technically so called, or wilful neglect, producing an injury and deterioration of the premises, but is not liable for a diminution of value, which may be accounted for by the lapse of time merely. And I find, that the premises were, in the month of March, 1803, at the commencement of the possession of the said W. G. D. in about the same situation as to fences and buildings, as at present. That a considerable quantity of timber, young, and old, was at that period upon the premises. That the whole of such timber has been cut down, and that the place is now entirely destitute of wood. But I find from the testimony of several witnesses, that the quantity of wood upon the place would not have been sufficient to supply the ordinary consumption for fire wood and repairs.-That the young timber could not have been preserved, if fire wood was taken from the premises, and that a considerable quantity of wood has been taken from other pieces of land belonging to said W. G. D. for the consumption of the place, by his permission; under these circumstances, I have found no reason to charge the said defendant with any sum of money on the ground of such destruction of the wood, nor, in my opinion, does the testimony supply any ground to charge the defendants by reason of any improper cultivation, or undue exhaustion of the farm. And as to such part of the decree as directs the master to take an account of the value of the beneficial and permanent improvements, now existing, if any, which the said W. G. D. hath caused to be made upon the said mortgaged premises, I report : That I have taken the rules of the court to be, that additional permanent improvements upon the premises, made by a Mortgagee in possession, shall be paid for only by their value at the time of the redelivery of possession, but that he shall be allowed the actual costs of necessary repairs, whatever may be the existing value of the subject upon which they were made. That the allowance of the same is to be determined by their necessity for the preservation of the premises in the same condition, or the producing of the rent charged to the mortgagee. And further, that I have not considered the omission of the decree to provide for an allowance for necessary repairs, as precluding me from making it, according to their cost. And having examined the testimony as to the expenditures of the said W. G. D. and work performed by him upon the premises, with a view to these rules, I find-that an early period of the possession of B. McV. as tenant of said D. and as it appears during the first year, the said D. employed said McV. to build about fifty rod of stone fence, upon the premises, and allowed him fifty cents a rod for the same, and that the amount was credited upon the rent payable by said McV. that such price allowed appears to have been reasonable. That at that time, the fences were in a decayed condition, and that such piece of stone fence, is at the present time considerably sunken and out of repair, and the premises as to fences, are in about the same repair, as when McV. took possession,-that consequently the allowance, if any, which could be made for the same, by its existing value, as a permanent improvement would be very trifling-but that I have considered the same as a necessary expense for the repair of the premises; and as a cause of the increase of rent afterwards received and actually charged, and have therefore allowed the same.. And I further find, That during the first three years the possession of A. M., as tenant of said D., after J. McV.; and as it appears during the second year of such possession, the said D. built a small piece of stone wall upon the premises, stated by A. M. to have been between ten and twenty rod, and the cost of which was about the sum of five shillings a rod; that the same is now out of repair, and in a decayed condition; but that I have allowed its actual cost, conceiving it a necessary repair. And further, that it appears, that the said A. M. has advanced the money for the payment of taxes upon the premises, and receipts are taken to himself. That he has stated in his testimony in chief, that he is to be allowed for the same by W. G. D., the leases to him not containing any covenant for the payment of the same by himself, and that there is an unsettled account between himself and said Denniston,—and that I have allowed the amount of such taxes to said D., so far as any proof of payment has been produced to me. And I further report, that I have considered the defendant W. G. D., previous to the 1st April, 1811, as a creditor, by the bonds and mort gages held by him, and by his disbursements on the premises, receiving partial payments in liquidation of his claim, by means of the rents and profits, that I have not allowed interest upon the rents up to that time, nor upon the disbursements of the defendant W. G. D.; and interest upon the bonds and mortgages being stopped previous to the commencement of the reception of the rents, such partial payments have gone in extinction of a dead sum; and therefore I have not found it necessary to make any rest in the account, before such last mentioned date. And I find that on the said first day of April, 1811, the total of the rents received had fully discharged the total amount in any manner due to the said W. G. D., according to the allowances made by me, and that there was a balance then in his hands of $19,50. That from that time I have considered the said defendant W. G. D. as becoming a naked trustee, retaining monies in his hands, which the complainants were entitled to receive, and therefore chargeable with interest on his annual balances. And I have stated the residue of the account with annual rests, and in schedule B., to this report annexed, have stated an account of interest upon the annual balances, the total amount of which balances is the sum of $627,22 cents, and of interest $222, making together the sum of $849,22, which sum I report chargeable to the defendant W. G. D. All which I respectfully submit. prepared by M. H. Esq. the Master to whom this cause stands referred. 1st OBJECTION.-For that in the computation of the interest due upon the bonds and mortgages mentioned in the report, the Master has stopped the interest on the 11th day of March, 1803, which ought to have been allowed to this time according to the decree, and at the same time the Master has charged the defendant W. G. D. with the whole rents and profits of the premises in question down the time of making his report. 2d. For that an allowance ought to have been made to the defendant W. G. D. for the value of the fire wood furnished by him to the tenants |