The opinion of the court was delivered by
Rowell, J.Whether the insolvent debtors “ kept proper books of account ” or not, is conceded to bo a question of fact, as it must be from its very nature; for, being paraphrased, the *596question is, as said by the Supreme Court of Massachusetts, whether the debtors kept such books of account as would enable a competent person to ascertain with reasonable certainty the true state of their affairs. Wilkins v. Jenkins, 136 Mass. 38.
It is also conceded that the master has not found, as a substantive fact, that such books were not kept, nor is it claimed that it devolved upon the debtors to show that they were ; but it is claimed that from the facts reported this court can, and .ought to, infer and-find that such books were not.kept, and Durant v. Pratt, 55 Vt. 270, is relied upon in support of the claim.' But the cases are different. There the master reported evidence tending to show a payment, and left it to the court to say whether it showed it or not; and the court said it would consider the evidence the same as though taken under the former practice, and found payment. But here the master reports, not evidence but facts,'and submits those facts to the court, as if to have their legal quality determined. But the essential fact. is lacking to disentitle the debtors to their discharge, and the court will not find it, nor is it a necessary inference from what is found.
This court does sometimes, in its discretion and sua sjponte, send back cases to be recommitted to the master or the referee for more definite or further findings. But this is rarely done, and only when the court conceives that otherwise great injustice would be done. ■ .
We do not regard this case as one calling for the exercise of that discretion.
Decree affirmed and cause remanded.