Opinion. the ends of justice; to be in accordance with the high and responsible duties of the chancellor, and with the special duties of the commissioner. They are also in accord with the decisions of courts of the highest respectability, and of the greatest weight and influence. Kimberly v. Arms, 129 U. S. 512; Worrall's Appeal, 110 Pa. St. 349, 362; Boyd & Co. v. Gunnison & Co., 14 W. Va. 1; Handy v. Scott, 26 W. Va. 710; Smith v. Yoke, 27 W. Va. 639, and 2 Barton's Ch. Pr. 656. In Kimberly v. Arms, supra, Justice Field, in delivering the opinion of the court, said: "The information which he" (a master in chancery) "may communicate by his findings in such cases, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon, or disregard in whole or in part, according to its own judgment as to the weight of the evidence. It cannot of its own motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers. * * In Holmes v. Holmes, supra, in considering the finding of its commissioner upon a question of fact, where the evidence was very conflicting, the chancellor said: "Did the master arrive at a correct conclusion from the evidence? To determine this it is necessary to review and weigh the evidence. For this reason, the master's report is entitled to no special consideration beyond the soundness of his reasoning, and the advantage of seeing the demeanor of the witnesses while examined, which is of importance in judging of their credibility, when they contradict each other. But the report has not the position of the verdict on a motion for a new trial in courts of law. That will not be set aside merely because the court would have come to a different conclusion from the evidence." And the chancellor in that case, while admitting that the testimony in regard to the matter under consideration was "painfully conflicting" reviewed it, and arrived at a result, Opinion. which he expressed to be entirely satisfactory to himself, and yet different from that reached by the master. Counsel for the appellant, in the brief and especially in the oral argument, in support of their contention that the report of a commissioner, where the evidence is conflicting, is to be accepted as conclusive, cited and relied on several cases decided by this court. We have been at the pains of examining and considering not only such as were cited, but all others that could be found bearing on the question under discussion. We are not certain that they were intended to lay down a different rule as to the weight to be given to the report of a commissioner than we have above indicated; but if so, we have no hesitation in qualifying it in accordance with the views we have herein expressed. The question in the original case of Bowers' Adm'r v. Bowers et als., 29 Gratt. 697, to which all the other cases refer, was not what weight or effect should be given to the report of a commissioner in chancery, but whether an attorney could act as such commissioner in a suit in which he was of counsel. wisely decided that he could not. the judge, must be wholly disinterested. from all suspicion of interest or liability to bias. In discussing the importance of the office of commissioner in chancery and the responsible duties often devolving upon him, the learned judge who delivered the opinion of the court, by way of illustrating and enforcing how necessary it was that the commissioner should be wholly impartial, said: "He is confronted with the witnesses; he sees their deportment, their manner of testifying, their capacity for recalling and accurately detailing past occurrences, whereas the court, which only sees the testimony on paper, is denied the opportunity of applying these obvious tests of accuracy and fidelity. It was rightly and The commissioner, like He must be free "When, therefore, a question of fact is referred to a commissioner, depending upon the testimony of witnesses conflicting VOL. XCI-61 Opinion. in their statements and differing in their recollection, the court must, of necessity, adopt his report, unless in a case of palpable error or mistake. We do not understand that it was here intended to declare or prescribe a rule by which courts should be guided in dealing with the report of a commissioner. It is obvious from the language used that it was not intended to declare that the report should be conclusive, because of conflict in the testimony, in a case where the testimony was not taken by the commissioner, nor the witnesses seen by him when giving their testimony; for in such case, he, as well as the court, only sees the testimony on paper, and the court has equal opportunity with him of judging of the credibility of the witnesses. Yet the statement relied on for the contention of the counsel of the appellant is without qualification. If the court had intended, in the case cited, to declare a rule of such broad application as is claimed by them, that the report of the commissioner must be accepted as conclusive when the testimony is conflicting, then, out of regard for consistency, it would at least have limited it to cases where the commissioner personally examined the witnesses or saw them when testifying. But the court did not mean to declare or prescribe any rule. Whether the report was to be accepted as conclusive in all cases of conflict of testimony, or in what cases of conflict of testimony the court should not interfere with it, or whether the court should not in all cases examine and weigh the testimony to test the correctness of the conclusion of the commissioner, was not the question there involved, nor the subject of the decision. That was not in the mind of the court, or the learned judge who delivered the opinion. It was merely a general statement to illustrate the dignity and importance of the office of commissioner in chancery, from which we do not mean, by anything stated in this opinion, in any wise to detract. We do not, therefore, think that the case of Bowers' Adm'r Opinion. v. Bowers et als., supra, is authority for the rule contended for. The statement there made, which it is attempted to give such general application, may possibly have been so applied in the subsequent cases, (Stuart, Palmer & Co. v. Hendricks et als., 89 Va. 601; Jones v. Degge, 84 Va. 685; Porter v. Young, 85 Va. 49; Robinson v. Allen, 85 Va. 721; Bowden v. Parrish, 86 Va. 69; Armentrout et al. v. Shafer, 89 Va. 566; Magarity v. Succop's Adm'r, 90 Va. 561; and Moore et al. v. Butler et al., 90 Va. 683), in which it is quoted for such rule. Apparently this is true. It is not however wholly clear. But if it was intended in these cases to lay down a rule so general and of such broad application as contended for, we are well satisfied from the reports of this court, that it is contrary to the practice in chancery prevailing prior thereto, and is calculated to work injustice. It would be giving too great weight to the findings of the commissioner, and supplant the authority of the court. So, if the cases referred to, were intended to prescribe so broad a rule, we would be constrained to withhold our assent from it, and return to the long established practice in this State, that the report of a commissioner is always subject to review by the court, and only to be accepted as conclusive when the testimony, though conflicting, is evenly balanced, and the report is supported by the testimony of competent and unimpeached witnesses. A different rule, such as was contended for by the counsel of the appellant, would be a convenient one, save the court from much labor, and often relieve it of an arduous and irksome task, but it would be inconsistent with our views of the nature of the office of chancellor and his duty, and of the office of a commissioner in chancery, and might, and often would, defeat the right. The commissioners in this State are generally lawyers or other competent men, who are both skilled accountants and also capable of weighing testimony and drawing correct conclusions from it, but it is Opinion. nevertheless true that there are some communities where it is not always practicable to appoint to the office capable and proper men. We cannot concede, therefore, that because the testimony in the case at bar is conflicting, the judge of the Circuit Court erred in not accepting the report of the commissioner as conclusive, but considered the exceptions to it, examined the evidence, and reached a conclusion adverse to the finding of the commissioner. A great part of the testimony was taken before the appointment of the commissioner, and before he had any connection with the case. He had no opportunity to see those witnesses, or to observe their manner of testifying. He thus possessed no advantage over the judge. of the court in judging of their testimony and the conclusions to be drawn from it. The record shows that the reports of the commissioner were not acted upon during the session of the court, when, on account of the pressure of business and the limited time available for their consideration, the examination would necessarily have been imperfect, but that on the return of each report the cause was taken by the judge for decision and decree in vacation, that he might have ample opportunity to consider fully and carefully the matters in controversy and to decide them after mature deliberation. His action, in disposing of the many exceptions taken by the plaintiff and defendant respectively to the original and reformed reports, aggregating one hundred and nine, evinces, as disclosed by his decrees, great care and pains. Some of the exceptions were wholly sustained and others wholly overruled, while others were sustained in part and overruled in part, and the parts sustained or overruled particularly specified, thus manifesting the great labor bestowed on their consideration, the minuteness of his examination, and the thoroughness of his action. And it was the work of a judge of long and wide experience on the bench, and eminent for his learning and ability. The |