pensation, interest, and advances. Suit in equity was brought by A. against S. & S. for such balance, and, upon exceptions to the master's report to whom the cause was referred, it was held:

2. EFFECT OF NEW UPON OLD' CONTRACT.

The defendants cannot retain the bonus of $3,520.32 for indersing A.'s paper. The contract subsequently drawn up between the parties, while embracing several of the subjects of the former contract, made no provision as to its effect on this item, and to that extent superseded it.

8. AMOUNT OF RECOVERY BY PURCHASER OF NOTE AT DISCOUNT.

The defendants having purchased for themselves, and being now holders in their own right of the notes of A. to B., are entitled to be allowed their face value, $20,000, although they paid B. but $13,000 for them, and although A. supposed that the purchase was made in the service of their mutual and respective interests, and that only what was paid for them would be charged as an advance under the contract. Even if the defendants had expressly told A. that they would buy the notes and let him have them for what they cost, it is difficult to see where there is any consideration to bind them to do it.

4. CONCLUSION OF MASTER NOT WARRANTED BY THE FINDING-REVISION OF FINDING BY COURT.

The master having disallowed the defendants' claim of $20,000 stipulated profit, exceptions thereto were sustained, it appearing that, although the master found the fact that the full agreement, in fixing the prices for stone, provided an increase large enough to cover the $20,000, he did not find any agreement of the parties to so include it. Ou recommitment the master found that the parties so agreed, and the court refused to review his finding. The court will not revise a finding of the master, upon disputed questions of fact, determined as matters of fact upon conflicting testimony.

6. CONSTRUCTION OF CONTRACT.

The defendants are not entitled to any allowance for repairs on machinery furnished and operated by the orator. The contract that defendants shall furnish necessary machinery and machine shops, except blast machines and rubbers, and keep the same in repair, construes itself further on, in the same connection, by declaring that the orator shall only be liable to pay for certain specified things, not including repairs.

6. Los MUST FALL ON EQUITABLE OWNER OF THE PROPERTY LOST. A cargo of the stone having been lost while in transit to its destination, the loss must fall on the orator, the equitable owner of the stone; not on the defendants, who were owners for their own security merely, and beyond that held the legal title for the orator's benefit. 7. RATE OF INTEREST DETERMINED BY THE LEX LOCI CONTRACTUS INTEREST NOT DUE ON MONEY DETAINED UNDER TRUSTEE PROCESS. The contract being made in Vermont, the orator could recover at most only 6 per cent., the legal rate of interest in that state; and it

appearing that after payment by the government, and during attempts at settlement between the parties, the balance due the orator from defendants was attached on trustee process, and still remains under the attachment, the defendants are not liable for any interest, since the detention was not wrongful, and the money due did not constitute an interest-bearing debt at the time of the attachment.

8. EFFECT OF OPENING JUDGMENT "INTEREST," AS COMPENSATION FOR SERVICES, VALID THOUGH USURIOUS.

The question of interest having been opened by the exceptions of defendants to the master's allowance of interest to the orator, the question of the allowance of interest at 9 per cent. to the defendants is opened, though no exceptions were taken thereto by the orator. Such allowance is valid, though interest above 6 per cent. would be usurious and void, because the finding of the master is conclusive that the extra 3 per cent. was a bona fide compensation for services of defendants not otherwise compensated, and not a mere cover for usury.

9. TIME FOR FILING EXCEPTIONS.

The month given by the rule of court for filing exceptions does not begin to run until there is a report on file to which exceptions can properly be addressed.

10. APPORTIONMENT OF COSTS-CHARGES OF STENOGrapher not TAXABLE COSTS.

Both parties having prevailed and failed to some extent, upon the items disputed and litigated, the costs will be apportioned according to the relative importance of the items in dispute won and lost by the respective parties, and the time and expense spent upon each. The charges of the stenographer procured by the master, to take down the oral testimony of witnesses upon the hearing before him, are not part of the taxable costs of suit.

11. SERVICE OF SUMMONS UPON LITIGANT, WHILE UNDER PROTECTION OF AN ORDER OF THE MASTER, A CONTEMPT OF COURT.

One of the defendants having gone to Iowa to attend the taking of a deposition, under order of the master, the orator caused service of summons to be made upon him, in a suit in the state court, for same cause of action involved in this suit. Held, such action was a contempt of court, whether so intended or not, and the suit having been removed to the federal courts, a stay of execution in this suit, until evidence of the discontinuance of the Iowa suit was filed, was granted the defendants, and they were allowed the expenses of such suit, including reasonable counsel fees, imposed as a fine against the orator.

In Equity.

A suit in equity for an account against the defendants for moneys which complainant claimed respondents had collected for his use from the government of the United States, for

work done under contracts with the United States, whereby Bridges, as contractor, and as assignee of other contractors, had agreed to erect marble head-stones for soldiers' graves. The contracts were let by the secretary of war, in December, 1873, to four contractors: Samuel G. Bridges, Thomas P. Morgan, and C. S. Jones, each about one-third of the headstones for the graves of known soldiers, and to De Witt C. Sage, blocks for the graves of unknown soldiers. Jones refused to perform the part of the contract let to him, and it was again let to Morgan. After the contracts were let, and before December 18, 1874, Bridges became the assignee of the contracts of Sage, had purchased a part of Morgan's, and had made a conditional contract with Morgan for the purchase of the balance of Morgan's and Jones' contracts.

Bridges began purchasing stone from Sheldons & Slason, of Rutland, Vermont, to fill his contract, in April, 1874, at $1.25 per stone; and in October, 1874, upon becoming assignee of Sage's contract, made an agreement with Sheldons. & Slason to furnish stone for that contract at 81 cents per stone. In order to purchase the contract he had to give security for its performance, and Sheldons & Slason became the security upon an offer by Bridges to give a bonus in three propositions of $3,520.32. He agreed to pay for stone, furnished under the Morgan and Jones contracts, $1.30 per stone. On December 18, 1874, Bridges made a proposition in writing to Sheldons & Slason, proposing that they should furnish the marble for all the contracts, and the means to carry them on; and proposing to give them one-third the profits-guarantying profits to them to be at least $20,000. Sheldons & Slason accepted the proposition in writing as folfows:

"The price heretofore agreed upon for head-stones and blocks is not to be considered as included in the $20,000 mentioned in this as above. We assent to this proposition; full agreement, in accordance, to be hereafter executed.

"SHELDONS & SLASON.

"The understanding is that the full agreement referred to above may be modified and made so as to fix the compensa

tion of S. & S. by a definite price per head-stone and block, in addition to the price heretofore agreed upon. This, in lieu of the one-third interest, but not of the given sum of $20,000. S. G. BRIDGes. "SHELDONS & SLASON."

Bridges, in purchasing Morgan's contracts, gave him four notes, of $5,000 each, payable five, seven, nine, and eleven months after December 24, 1874, respectively, secured by an order on the government for payment out of four of the cemeteries assigned. These cemeteries were not completed, and there was no possibility of completion at the times the notes were due; and in May, 1875, Morgan having proposed to take from Bridges $15,000 for the $20,000 of notes, Bridges made application to Sheldons & Slason for the advance of so much. Charles Sheldon went to Washington, and upon seeing Morgan offered to give $10,000 for the notes instead of $15,000, which Morgan refused to accept. Sheldon increased the offer to $13,000, and would give no more. Thereupon Bridges, without the knowledge of Sheldon, gave his note to Morgan for $2,000, and thus made up the $15,000 demanded by Morgan; Sheldons & Slason giving notes for $2,500, $2,500, $4,000, and $4,000, respectively; and Morgan gave up the notes to Sheldon, Bridges not being present. Sheldon required Morgan to indorse the notes to Sheldons & Slason.

On May 20, 1875, a contract was drawn up in pursuance of the proposition of December 18, 1874, (Bridges meantime having completed his contract with Morgan so that he had all the contracts to fill,) between Bridges and Sheldons & Slason, dated back to December 18, 1874, wherein Sheldons & Slason agreed to furnish marble, means, power, and machinery necessary to fulfil the contracts; Bridges to do the work necessary to finish the stone, and erect them in the cemeteries. And under the contract the prices for head-stones were increased so that Sheldons & Slason were to receive for head-stones furnished under Bridges' contract, $1.41 per stone; under Morgan's and Jones' contracts, $1.46 per stone; and under Sage's contracts, 90 cents per block, and six cents commission upon each stone purchased from others, and to

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receive 9 per cent. interest on advances until repaid, and 9 per cent. interest on the price of stones, 60 days after shipment, until paid.

It was agreed that all moneys paid by the government under the contracts should be paid to Sheldons & Slason under powers of attorney from Bridges. After paying themselves, compensation for stone, advances and commissions, they were to pay the balance remaining in their hands to Bridges, and until the stone were set in the cemeteries they were to remain the sole and absolute property of Sheldons & Slason. The contracts were completed in June, 1877.

In June, 1875, a cargo of stone loaded in the schooner Almaretta was lost off the Bahama islands. The cargo was in part loaded on deck. The policy of insurance was an ordinary marine policy. No extra premium had been paid for deck loading. After the loss the insurance company returned the premium and refused to pay any insurance. The cargo was a total loss. Complainants claimed the loss should fall on respondents under the contract, and respondents claimed the loss should fall on complainant.

The cause was referred to a master to hear and determine.
The other necessary facts appear in the opinion.
Gillmore Anderson and Prout & Walker, for orator.
Daniel Roberts and W. H. Smith, 1or defendants.

WHEELER, D. J. This cause has been heard on the report of the master, evidence returned therewith, exceptions by the orator and the defendants respectively, and arguments of counsel. The exceptions, especially those of the defendants, are too numerous to be conveniently treated and understood by their several numbers or in numerical order. The items to which they apply, so far as separate reference to them is either necessary or deemed to be proper, are taken up somewhat in the order in which they are presented by the report.

1. As to the item of $3,520.32 for indorsing paper and meeting liabilities, presented for allowance by the defendants. This item is made up of three sums, severally offered in writing by the orator to the defendants, for indorsing some and guarantying other of his paper, and furnishing him stone