The claimants *nke two exceptions to the report of the commissioner in this case, dated April 0, 1847, and they have set the cause down for hearing upon those exceptions.
The libellants also except to the report upon the ground that the commissioner had already on March 29, 1S47, made and filed his report in the cause, a copy of which duly certified by the clerk, had been delivered to them; and that the subsequent report made April 5, was unauthorized and void. They have set this exception down for hearing.
In respect to the latter exception, it is clear that the regularity or irregularity of the report of April 5 cannot be determined in this manner. An exception to a commissioner’s report goes to the merits of his decision, and reaches no further than to bring before the court for consideration, the adequacy of the grounds in law or fact, upon which the report is founded.
For the purposes of such investigation, the report must be assumed to have been made within the scope of the order of reference. An exceptive allegation to a proceeding in a cause lias, in the civil law, the character of a plea (Wood, Civ. Law, bk. 4, c. 3; 2 *180Browne, Civ. & Adm. Law, 361, 362; Betts, Adm. Pr. 4S), and cannot properly be employed in the admiralty practice to determine the regularity of the acts of an officer of the court, not incorporated in and constituting a substantive part of the proceeding excepted to (Betts, Adm. Pr. 38).
The case came before the court again in January, ISIS, upon exceptions to a further report of the commissioner, when the effect of the sale by auction, in fixing the value of the goods in their damaged state, was further discussed. See the report of the case [Case No. 3,042].The objection raised by the libellants, being extraneous to the merits of the case, should have' been brought forward by motion founded upon the alleged irregularity. Upon such motion the facts upon both sides would be brought out, and the court would be enabled to determine whether tho fact was as the exception charged, or was unjustifiable or injurious.
The exception taken by the libellants must be overruled, because it does not, as I understand it, touch the matter reported upon by the commissioner.
The first exception taken by the claimants is to the allowance of $232 by the commissioner as the amount of damages sustained by the libellants. It is urged that the proofs do not warrant an allowance for the injury tlie corks received on shipboard, or during their transportation, exceeding one cent and a half the gross; at which rate the amount would be less than $150.
A witness, experienced in the trade, gave it as his opinion that the corks could have been picked over by hand, before the sale, and the damaged ones separated from the sound, at an expense of about one cent per gross. If this course had been pursued, the corks would doubtless have sold to better advantage, and the loss sustained have been considerably reduced. It appeal’s, on the evidence, that this would have been a tedious and troublesome process, and I do not think it devolved upon the libellants to assume the hazard or cost cf the undertaking. It was the duty of the master if of any one, to separate the sound from the unsound, and deliver to the libellants that portion of the cargo which was sound, and compensate them for that which was deficient or deteriorated. In default of his so doing, the vessel must make good the damages ascertained by the testimony of competent witnesses, or determined by an actual sale of the merchandise.
Sale by auction is in the great marts of commerce so commonly resorted to by merchants to ascertain the value of deteriorated merchandise, that it may almost amount to an usage of trade. It furnishes, cheaply and promptly, all the accuracy which can be expected in any known measure of damages, and it is peculiarly fitting, in cases of this character, that the court should sanction and sustain it as the method best adapted to protect the interests of all parties concerned.
The present case, however, does not afford an occasion rendering it necessary to pronounce upon the sufficiency in law of the public sale to determine the value of these goods after the injury was received, because the witnesses wlm appraised the corks in their damaged condition, testified that they considered the prices brought at the auction sale to have been fully equal to their value. That value would show not only that the deficiency or damage was equal to $232, but, as I understand the evidence, that it may probably have considerably exceeded that sum.
The first exception of the claimants is accordingly overruled.
The second of the claimants’ exceptions relates to the form of the report, apd does not appear to have any practical bearing or effect, or to be entitled to weight.
The exceptions upon both sides are accordingly disallowed, without costs to either party.