overruled by the twenty-eighth rule of prac- chancery practice in Louisiana mean the rules tice for the courts of equity of the United prescribed by this court for the government of States. That rule provides for bringing wit- the courts of the United States, under the Act nesses before the master, for their compensa- of Congress of May 8th, 1792, ch. 137, sec. 2. tion, for an attachment for a contempt, when These rules recognize the appointment of a a witness refuses to appear upon subpoena; master; the court below, in making this referand the last clause of it, allowing the exami-ence, acted under them and the mandate, and nation of witnesses viva voce, when produced it could not, therefore, sustain the exception to in open court. We think the same reasons the master's report. On the second exception, which allow it to be done in open court permit it to be done by a master. But it is said the decree of the District Court does not provide for the payment of costs. This, too, is a point of practice, which we remark need not be a part of the decree or judgment, though it often is so; as the payment of them in most cases depends upon rules, and when rules do not apply, upon the court's order, in directing the taxation of costs.

We now proceed to examine the exceptions taken by the defendant to the master's report. The first, "That chancery practice has been abolished by a rule of the District Court of Louisiana, and that such proceeding is unknown to the practice of the court," is not an exception to the report, but a denial of the propriety of the reference to the master; also, of the court's authority to make such a reference under the mandate; and involves the assertion that the rule, if any such exist, may control the mandate and set it aside as a nullity. No such rule appears in the record. If any such exist, it certainly was disregarded in this instance (as it should be in every other by the court), or was not deemed applicable to a case like the one before it. We think the occasion, however, a proper one for this court to remark if any such rule has been made by the District Court of Louisiana that it is in violation of those rules which the Supreme Court of the United States has passed to regulate the practice in the courts of equity of the United States. They are as obligatory upon the courts of the United States in Louisiana as they are upon all other United States courts; and the only modifications or additions which can be made in them by the circuit or district; courts, are such as shall not be inconsistent with the rules prescribed. Where the rules prescribed by the Supreme Court to the circuit courts do not apply, the practice of the circuit and district courts shall be regulated by the practice of the High Court of Chancery in England. The parties to suits in Louisiana have a right to the benefit of them; nor can they be denied by any rule or order, without causing delays, producing unnecessary and oppressive expenses, and in the greater number of instances, an entire denial of equitable rights. This court has said upon more than one occa369*] sion, after mature deliberation upon able arguments of distinguished counsel against it, that the courts of the United States in Louisiana possess equity powers under the Constitution and laws of the United States; that if there are any laws in Louisiana directing the mode of procedure in equity causes, they are adopted by the Act of the 26th May, 1824, and will govern the practice in the courts of the United States. 9 Peters, 657. But if there are no laws regulating the practice in equity causes, we repeat what was said at the last term of this court in Ex-parte Poultney v. The City of LaFayette, 12 Peters, 474, "That the rules of

we need only remark that the master apprehended rightly the decision and mandate of the court. The payment to Morse by the defendant was not considered an expenditure on account of the property, nor on account of Livingston. It was intended to be excluded from the credits to which the defendant was entitled. The third exception has been already disposed of. It was only a permission to the master to certify that his report contained all the evidence taken under the reference.

The fourth and seventh exceptions, on account of their generality and indefiniteness, may be considered in connection. The first of them is that the master, in making his estimates and calculations, has not pursued the mandate of the court, and the seventh is that the master erred in all his charges against the defendant, and failed to allow the defendant his proper credits. In what particular the mandate has not been pursued is not stated. It is a general objection to the whole report, imputing to the master a misconception of the principles upon which the account was to be taken, and amounts to this, that the court shall see upon the face of the report and the master's proceedings, error against the defendant, it will correct it, though no exception has been filed. In this view of it the defendant shall be protected, if the court shall detect error in the report. As to error in charges, and a denial of proper credits to the defendant, we remark that without some specification of erroneous charge, and of disallowed credit, it is impossible to determine what the defendant objects to as a charge, or claims as a credit. Was any credit refused which was claimed, except that of the $1,000 to Morse? That, we have said, was rightly refused. Was he not allowed all other credits on the general account of expenditures? Did the defendant, whilst the reference was in progress, or after the report upon it was made, claim any credit by the exhibition of any account? Did he ask to introduce any evidence to the master in support of any credit? Did he claim any other credit than such as are to be found in the account, giving, on his own oath, a statement *of his expenditures, and of the rents [*370 of the property, from 10th August, 1822, to the 26th January, 1829? Nothing of the kind appears. On the contrary, there is in the report a statement by the master, which is conclusive of the fact, as it has not been denied, that the defendant, though repeatedly called upon, and after having repeatedly promised to give an account, and having had five weeks to furnish it, refused to give any account.

The parties were summoned to the reference by the master on the 6th of March. On the 8th, the defendant Story appeared in person, accompanied by counsel. Upon his suggestion, however, that one of his counsel was absent from the city, and that he had been so much occupied as not to have had leisure to com

Under such a claim he will be allowed nothing.
Methodist Episcopal Ch. v. Jacques, 3 Johns.
Ch. 81.

plete his account, with his request that the hearing should be postponed, though it was opposed by the complainant's counsel, the master adjourned the reference to give the defendant time to furnish his account, and to surcharge the account of the expenditures and rents up to the last of January, 1829. The right to correct any errors in that account was conceded to him, the account was given in evidence subject to such concession. Two witnesses were then sworn on the part of the complainant, without objection, and were examined by both parties. The meeting was then adjourned to the next day, the parties again attended, but the witnesses who had been summoned not being present, the defendant again suggested the pro-date, and established decisions. This would priety of adjourning for a few days, when he should be ready to present his account, which he had almost ready. It was assented to. The meeting was adjourned to the 24th of March. On that day the parties appeared before the master, a witness was examined on the part of the complainant, and the defendant again declared he had been prevented by important business from completing his account; and he requested a little more time to make it complete. The complainant's counsel consented to an adjournment to the 5th of April. On that day the defendant again requested further time; the case was continued to the 15th of April, and then the defendant said he did not intend to furnish any account, but urged that as the account of expenditures and rents up to the last of January, 1829, had been received as evidence, that it must be considered as conclusive of the expenditures which had been made on account of the property. This was allowed to be correct. We have, then, the refusal of the defendant to furnish an account, and proof that he did not claim any other credit than those in that account. With what propriety can a denial of credits be urged as an exception to the report? The defendant was the only person who could furnish an account of the credits to which he supposed himself to be entitled. He refused to do so. To allow him to say there is error in the report in this respect would permit him to take advantage of his own wrong, and to defeat the complainant's rights by artifice. Nor is the account of expenditures and receipts up to the last of January, 1829, now examinable (except as to mere errors in computation), either as regards the principal or interest; the defendant being concluded by his admission of it, 371*] *when he claimed the expenditures as a set-off against his own statement of the rents.

Six of the exceptions having been disposed of, the seventh only remains to be considered. It is, "that it appears from the master's report that the stores were rented from November to November, and he erred in assuming the 1st April as the period of payment of annual rent. It was said in argument that, computing the payment of annual rent in extinguishment of the defendant's debt on the 1st April, is in effect to deprive him of interest for a part of the year, as the aggregate of the rent was not in fact received; that it is to allow interest upon rents and profits, contrary to the mancertainly be so if the rent had only been received at the end of the year. But if the rents were payable at intervals in the year, and were actually so received; and if the half, or any other portion of the ascertained annual rent shall extinguish the interest upon the debt when it was received, and reduce the principle, why should the whole debt continue to draw interest? Surely, to allow this would be to vary the obligations of these parties to each other, differently from what would be their respective rights in any other case of a debt drawing interest upon which a payment had been made, which paid the interest and part of the principal. Is there any difference in the effect of a payment, whether made in person by the debtor, or if it arises from the income of his property? The correct rule in general is that the creditor shall calculate interest whenever a payment is made. To this interest the payment is first to be applied; and if it exceed the interest due, the balance is to be applied to diminish the principal. If the pay. ment fall short of the interest, the balance of interest is not to be added to the principal so as to produce interest. This rule is equally applicable, whether the debt be one which expressly draws interest, or on which interest is given in the name of damages. Smith V. Shaw's adm'r, 2 Wash. C. C. Rep. 167; 3 Cowen, note A, 87. This, then, being the rule, if the fact is probable in this case that the income of the property received at any time in the course of the year did pay interest and a part of principal, the defendant cannot complain; he being the receiver of the money, and refusing to give any account of the aggregate, or its parts when received, "if the master [*372 has taken a date for the computation of the aggregate rent as payment which places the parties upon an equality. Besides, the mandate does not restrict the right of the complainant What has been said of the fourth and seventh to a credit for the aggregate of the rent at the exceptions applies to the fifth, which is that a end of the year. It does not allow interest reasonable allowance should have been made upon the rent, but directs the rents to be apto the defendant for the costs and risk of col- plied to the payment of the sums incurred in lecting the rents. If under the mandate, any building and repairing; second, to the interest such allowance could be made, the claim for it on the sums which have been advanced on the should have been presented to the master sup- loan, or in the improvement of the lot; and, ported by evidence of what was the customary third, to the discharge of the principal of the compensation for such services, if the service loan. The fair inference from the silence of is not compensated by a law of Louisiana. A the mandate as to the time when the rents are mere claim for a reasonable allowance cannot to be credited is, that they are to be so when give a right to any, and of course is no valid they are received if the interest and part of exception to the report. It is the case of a the principal are paid. This is the general rule party before a master, who merely claims for for the application of payments, and is the general expenses, without stating particulars 'rule of equity which does substantial justice.

But suppose, as was urged in argument, that the mandate had directed an annual application of the rent of the premises to the payment of the debt of the defendant, without specifying that the interest was to be calculated to a date contemporaneous with the last payment of the rent, and the debt was one carrying interest de die in diem. The mandate could only be executed according to the general rule in the case of such a debt, by making every receipt for rent, in discharge first of the interest, then of the principal. Raphael v. Boehm, 11 Vesey, 91. The mandate is to be interpreted according to the subject matter to which it has been applied, and not in a manner to cause injustice.

This is not like the case of a decree direct

What, then, is the case of the defendant in this particular? He has a debt drawing five per centum interest, yielding annually $1,135.55, and is in possession of the property of the complainant, giving a rent annually, after deducting $700 for repairs and taxes, of $8,000. But, it may be asked, by what means or evidence did the master ascertain the amount of rents, and that they were paid at such times, and in such amounts, as to justify the computation of the annual aggregate as a payment before the expiration of the year? First, he must have known that leases of houses are not made, either in Louisiana or elsewhere, for the payment of the entire rent at the end of the year; next, he had an account made by the deíendant, verified by his oath, showing that for seven years the rents of this property were re-ing annual rents, with the view of compoundceived by him, principally in monthly pay- ing interest. The question now under conments; in the year 1828 altogether so; and sideration has been ruled as it is now decided, then, at intervals of two, three, or four months, in Bennington v. Harwood, 1 Turner & Russell, in sums over seventeen hundred dollars up to Ch. Rep. 477, a case upon a master's report of three thousand. The rents received in Janu- an account, under a decree that the master ary and February, 1828, exceeded the amount should set an annual value by way of rent of interest upon the principal debt or loan by upon the premises, the mortgagee being in possix hundred dollars. The rent in that account, session; the master of the rolls decided, that a received on the 26th January, 1829, was $950, mortgagee can never receive more than his and the account states a thousand as due on principal and interest, and says, "now, if in the 1st of February, 1829. The amount of the the early part of the year a payment is made annual rent the master ascertained from the to him, exceeding the interest which is then tenants, who were witnesses before him, not to due, and he is nevertheless allowed interest on be less than eight thousand dollars. Let it be the whole of his principal down to the end of remembered that the question now is not the year, what is the profit which he derives whether the defendant shall pay interest upon from his mortgage, in the interval between the rents and profits, but the time when he shall date of that payment, and the date of the credit a payment upon the debt which dis- annual rent? It is clear that a part of his charges the interest and a part of the princi- principal has been repaid to him, and yet he pal. His debt was carrying interest, and there- receives interest upon the whole of it; in other fore his receiving the rents of the property at words, he gets more than five per cent. on the any time in a sum sufficient to pay the interest sum for which he is actually a creditor. Supand part of the principal, should be applied at pose that the sum paid to Eadon on the 2d the date when it was received. The defendant February had been equal to the whole of the could not claim an exemption from the opera- £500, with the arrears of interest calculated to tion of this general rule, in virtue of any re- that day, would he have been entitled to lation between himself and the complainant, interest up to the 5th of July? Is it possible as trustee, bailiff, attorney, or agent of the that such should be the effect of a direction to latter; who was always ready to pay when make annual rents? The sums which a mortcalled upon, who had not mingled the rents gagee in possession receives in respect of the with his own money, and not used it as his mortgaged premises, at the times intermediate own, or that it had been kept on hand to abide between the dates of the annual rents, the decree of the court. If he had been in *must be applied, when they exceed [*874 either of these attitudes, especially the latter, interest, to the reduction of the principal; and 373*] his own oath, if not controlled by *other in the present case, that course is clearly pretestimony and the circumstances of the case, scribed by the very words of the decree.” Now, would have entitled him to a continued ac- what was the decree in Bennington v. Harcumulation of interest upon the debt, without wood? It was the usual decree against a any credit of the rent, until the final decree mortgagee in possession, containing the comhad directed a sum to be paid to the com- mon directions that the master should tax him plainant. Under the circumstances of this the costs of suit, and so set an annual value by case, the defendant refusing to give any ac- way of rent upon the premises, with further count, yet admitting that he had received the directions that the sums received in February, rents, at intervals, in the year; when we con- 1805, were to be applied forthwith, first to the sider such to be the usual way of renting discharge of the then existing arrear of interhouses, he having agreed that the certificates est, and next to the diminution of the principal. of the tenants should be received as evidence of The master made the rest on the 5th July, inthe amount of rents respectively paid by them stead of doing so in February; and the counsel -the tenants having proved the amount of the contended in that case-as counsel have done annual rent of the premises-we conclude that in this-that a direction for annual rents, exthe master did right in assuming an inter- cludes all rents which are not annual. But mediate point in the year for the computation that position was not sustained by the Master of the annual amount of rent, in the absence of of the Rolls, on general principles, though he all proof when its parts were paid; and that concludes by saying in the present case, "that it was the fairest way of carrying out the sub-course is clearly prescribed by the words of stantial intention of the mandate of this court. the decree." The defendant here is sub