concurring.
The line of statutory enactments seems to indicate clearly that there are two distinct kinds of exceptions to an audit- or’s report. First,-exceptions of law; secondly, exceptions of fact; and these two classes of exceptions are so distinct, and differ so materially, that they are to be tried before different tribunals — the judge to hear and determine matters of law excepted to, and the jury, matters of fact. Code, §§3097, 3138, 3137, 4202, 4203.
In this case there are no separate exceptions of law and fact, but they seem to have been all blended together, making it very difficult to separate the errors of law, if any be charged, from the errors of fact. Section 3138 of the Code, expressly enacts that grounds of objection to rulings of the auditor on the admission and rejection of evidence because illegal, or on any other ground impeaching the propriety .of the report, “ shall be heard and decided by the court,” and that “ the report, when finally accepted, shall be admitted as evidence to the jury,” with instructions appropriate to each case.
It would seem, therefore, that all errors of law against the propriety of the report must be made before the report is accepted, so as to be evidence to the jury, and these legal points must be settled by the court before the result of the auditor’s calculations shall go to the jury. If any of these exceptions, on legal grounds, be sustained by the court, then the system is that the case shall be sent back to the auditor with instructions to hear the case over again and correct Ms report accordingly; and in 47 Ga., 414, the court seems to have adopted this view. There it is ruled that “ an analysis *581of sections 3042, 3082, 3083, 4143 and 4144 of Irwin’s Eevised Code (sections 3097, 3137, 3138, 4202, 4203 of the present Code) shows that when an auditor, or master in chancery, makes a report upon matters of account referred to him, the party against whom the report operates may file two classes of exceptions: first, for alleged errors of law on the part of the referee; secondly, for alleged errors in his report as to the facts found. The first is for the exclusive consideration of the court, under section 3083 (3138.) The facts found by the report are for the consideration of the court in the first instance, after which, if approved by the court, the report becomes prima facie evidence of their truth, subject to be overthrown by testimony before the jury.”
The same case decides that “ it is not necessary, under our practice, that an auditor should append to his report the evidence on which it is based.” In that case no evidence Avas appended, so that the report which is prima facie evidence, is not a report of the facts, but a report on facts; or, in other words, the result or conclusion which the auditor draws from the testimony before him.
Now, in the case at bar, the report was accepted by the court, and the order accepting it was duly passed and appears of record. That judgment, so accepting it, closed all questions of law which had been passed upon by the auditor, and left only issues of fact for the jury on the exceptions filed.
So that, strictly in law, if it be considered best to apply strict rules of law to this case, all exceptions of law to the auditor’s report had been passed upon and overruled by the court, and issues of fact only were left; and before the jury on the issues of fact, the report of the auditor on the facts, the results he reached, became prima facie evidence, and must control, unless overpowered by other evidence introduced on the jury trial. Well, no evidence in this case on the jury trial was introduced, except the defendant’s own testimony. That was very confused and uncertain, to say *582the least, and the jury had full power to believe or not believe it, as they should think right.
It can make no difference in principle that the judge was made the jury by consent. As judge, acting as the court, he ordered the report to be approved and accepted, before he tried the facts as the jury agreed upon by the parties. Then he took the case and tried it, or should have tried it, as a jury. The result is, that I concur in the general view which is presented by the chief' justice, and the conclusion to which he comes, to affirm the judgment on strict legal principles.
Under the application of these principles to the settlement of accounts, the auditor will discharge his appropriate duties and make the calculations, subject to review by the jury, and the legal principles on which he does this duty will be fixed by the court, subject to be reviewed by this court.
But if the legal exceptions, or exceptions of law, can be eliminated from their intermixture with the exceptions of fact, I think, on examining the exceptions thus mixed, these exceptions of law will be found to be but two.
First, ought this administrator to be charged with compound interest, under the facts, where he is so charged ? and, secondly, should he have been charged with the notes turned over to the receiver in 1869 ?
In respect to the first point, on examination of all the facts — those reported by the auditor as sworn to by witnesses before him, as well as that sworn to before the judge acting as a jury — I think that he should be so charged. The estate was certainly mismanaged. One plantation was left to take charge of itself and the executor took no interest in it at all. tie could not tell from whom he collected Confederate money, or from whom he got the bonds in which he invested that money. But the regular rule is to charge simple interest for seven years, and then compound, and that is all that was done in this case. As to the statute compounding intex-est being suspended during the wax*, it will *583be seen that this was done only during tbe existence of the stay law, and that act was declared unconstitutional, and therefore never did exist. See acts of 1862, p. 30; 37 Ga., 124.
In respect to the second point, I think that the presumption is, that these notes could not be collected after the receiver took them. This executor received them perfectly good and solvent, he held them ten years, he made no effort to collect them, and turned them over to the receiver by order of court but a few months before the bar of the limitation act of 1869. It was for him to show that they continued good and solvent till 1869, when he turned them over. This he did not do. Besides, it appears that the most important and largest of them were not good in 1869. Colbert was worth thirty to forty thousand dollars, much of it in Georgia, when the executor got his mote, and up to and during the war; and the witness swears that he thinks he had eight or ten thousand dollars of property im, Alabama left after the war. He was very rich in Georgia for years when the executor held the note. One witness thinks — only thinks — him worth eight to ten thousand after the war m Alabama, beyond the jurisdiction of the court, and even that evidence does not show what time after the war the witness thought him worth this sum in Alabama.
Besides, he owed the estate gold debts to a large amount, and paid them to himself in Confederate money when it was very much depreciated, in 1863 or 1864, which was allowed as legal; and if we depart from strict law and look to broad justice, examining his whole case ourselves, as auditors and jury de nemo, I am of the opinion, from the closest scrutiny I have been enabled to give the case as disclosed by the entire record, (and I have examined the whole record with care,) that the errors .which have been committed by the auditor and court below, if, indeed, any have been committed, in the executor’s behalf and to his advantage, are fully as great as any committed against him, if such have been committed; and that the law has not only been *584administered in respect to adherence to strict principle in a re-examination by the court, as a jury, of the auditor’s report, but that justice in a broader sense has been administered. I therefore concur in the judgment which affirms the judgment of the superior court.
~RT.iiimrT.-RY. Judge, dissented, but furnished no written opinion.