The defendant was pz-operly charged with the $79.01. Instead of answering the bill, he let it be taken as confessed. That was an admission on his part, of every matezial fact stated in it. If he had wished to controvert the truth of any of the allegations of the bill, he should have put them in issue by plea or answer ; and not having done so, he was precluded from introducing evidence for that purpose before the Master.
When the Master has erroneously refused to receive testimony, the way to corz'ect the ezi'or is by a motion to the Court for an order requiring him to receive it, and not by exceptions to the report. Schwarz v. Sears, ante, 19.
The only remaining question is, whether the allegations of the bill were sufficient to chaz-ge the defendant, without further proof. The rule on this subject is this : If the allegations are sufficiently clear and positive to establish a fact without other proof, it need not be adduced; but if they az-e vague and indefinite, further pz'oof should be given. Williams v. Corwin, Hopk. R. 471. On looking into the bill, I am satisfied the allegations are sufficient. The bill states that the defendant received of Josiah P. Jewett, who owed the copartnership between two and three hundred dollars, a promissozy note against one Edward F. Gay, for $75, or thereabouts, to be applied on the partnership debt, and that he subsequently obtained a judgment for $75.33 on the note, which judgment was collected by him and applied to his own use. These facts are so clearly stated in the bill, as to leave no doubt the defendant would have put them in issue, if he could have denied them under oath. He must have been aware of *47the extent of the admission he was making, when he permitted the bill to be taken as confessed against him.
Exceptions overruled, and Master’s report confirmed.
A question subsequently arose concerning the costs in the suit, when the following opinion was delivered by the Court.
The Chancellor. It appears by the original and supplemental bills, both of which have been taken as confessed, that the defendant was altogether in fault; first, in refusing to apply the money he had received on the judgment against Gay, upon the copartnership debt due from Josiah P. Jewett; and, secondly, in taking and retaining possession of the books of account mentioned in the supplemental bill, which was the cause of the filing of that bill. The complainant was compelled by the improper conduct of the defendant, and without any fault of his own, to come into this Court for a settlement of the co-partnership business; and he must recover his costs against the defendant. Caldwell v. Leiber, 7 Paige R. 483.