Are the master’s findings in this case conclusive ? It has been held in this State, following the general rule of courts of chancery, that the findings of a master as matters of fact are conclusive. Mason v. Y. & C. R. R. Co., 52 Maine, 83; Simmons v. Jacobs, Id., 147; Bailey v. Myrick, Id., 132. The doctrine thus stated was true as applicable to those cases, but it would not apply in cases where objections were taken before a master and overruled by him, and exceptions taken afterwards, based on such particular objections. In such case the objections should, if requested by the party making them, be presented in the report, and although it would be irregular for a master, even at the solicitation of parties, to report the testimony instead of his conclusions and findings upon the testimony; still, where objections are taken and overruled, the master, if so requested, should annex to his report so much of the evidence as bears upon such overruled objections, so that exceptions may be raised thereon. Taking the two reports together, it is evident enough that the present exceptions are properly before us. Being before the court in this way, the master’s conclusions, if depending upon a conflict of testimony, would have every reasonable presumption in their favor, and are entitled to as much weight as the verdict of a jury, and are not to be set aside or modified without clear proof of error or mistake on his part. Sparhawk v. Wills, 5 Gray, 423; Dean v. Emerson, 102 Mass., 480.
Notwithstanding these favorable presumptions in behalf of the master’s report in this case,'we are of the opinion that his finding which disallows the item of $700 as a credit upon the mortgage, upon the ground that it was a .payment not upon the contract .secured by the mortgage, but upon certain usurious contracts out; •side of it, is not sustained by any legal evidence in the case. The ■error consists in admitting the answer of the defendant as evidence 'in his behalf upon the point in controversy. The correctness or ■error of such admission depends entirely up on1 the question whether ■or not that portion of the answer which sets out a special agreement of the parties to appropriate the $700 on usurious contracts *19was responsive to the bill. We think it was not. The rule is thus stated by Story: “The plaintiff calls on the defendant to answer an allegation of fact which he makes; and thereby he admits the answer of that fact.” The complainants in this case make no allegation about this payment, or any other payment whatever; and do not even allege that any payments were ever made; but merely call upon the respondent for a true account. At most they would be regarded as calling uponhimin a general way for a statement of such payments, if any, as have been made upon the mortgage note, and not for payments not made upon it. The claim of the respondent is, that the $700 was to be appropriated upon a contract distinct and independent of the mortgage note; otherwise he would not come within the principle of the case of Rohan v. Hanson, 11 Cush., 44, on which his counsel relies; for, if it is admitted that the sum was taken or reserved as usury upon the mortgage note, it would have to be accounted for as a payment on such note in this bill for redemption. Hunt v. Goldsmith, 1 Allen, 145.
The answer would be responsive so far as its general denial goes that any payments (but one) were ever made upon the mortgage note, but that statement is clearly overcome by evidence of subsequent admissions made by the respondent himself. It is inferable from what occurred at an interview between the parties, that the construction which the respondentwould give to these matters would be, that he should be allowed his principal and interest at twelve per cent, upon the several notes, and that all the sums receipted for should apply to that sum total, rather than that the $700 should be specifically applied upon the contract for extra interest. Inasmuch then as the respondent cannot testify through his answer; and it has been decided, he cannot as a witness, as see this case in 59 Maine, 361; and there is no other proof whatever to support^the position claimed by him, the $700 item must be carried to the credit side of the account as stated by the master, and the $400 item stand as it is. To make this correction the court can modify the report without referring it back to the master. Taylor v. Reed, 4 Paige, 561.
*20It was suggested at the argument, that if the $700 must be appropriated upon any note it should be upon an unsecured note of $2,500,'held by the respondent against the ancestor of the complainants. Parties can make such appropriation as they please; but if the law shall make the application of the payment, there must be some established or admitted claim to make it upon. The master does not report to us the existence and validity of any such note, nor was he by the respondent required to do so. No such claim can be assumed by us to exist.
The respondent’s exceptions are overruled. The complainants’ exceptions sustained. The report of the master to be modified by the court, so that upon the payment of the sum ascertained by the master, less the $700 and interest from November 1, 1858, the complainants will be entitled to redeem.
Decree accordingly and for costs.
Appleton, C. J., Cutting, Walton, Dickeeson and Babrows, JJ., concurred.