Winder v. Diffenderffer
Opinion of the Court
Decreed, that Nicholas Hopkins be appointed trustee for the purpose of carrying into effect the will of Charles Rogers, deceased, in as full and ample manner as the defendants Merryman and Smith, and the plaintiff Hopkins were directed and empowered by the will of the deceased: provided, that Hopkins, before he acts as such, files with the
After the passing of this decree, Hopkins refused to take upon himself the trust; in consequence of which the plaintiffs, with the other devisees, by a petition signed by them, recommended Samuel Vincent to be appointed.
4th April, 1806.
Nicholas Hopkins, heretofore appointed trustee for the purpose of carrying into effect the will of Charles Rogers, having, in writing, refused to accept the said trust; it is, therefore, Decreed, on the recommendation of Sarah Rogers, Alexander and Ann Martin, Mary Lee, and James P. Boyd for Catherine Rogers, that Samuel Vincent be and he is hereby appointed trustee for the purposes aforesaid, with all and singular the powers vested in the former trustee by the original decree: provided, that before he shall act as trustee aforesaid, he shall file in this court, a bond with such penalty and security as was prescribed for the former trustee by the original decree.
This trustee gave bond accordingly; after which, Sarah Rogers, Alexander Martin, and Ann his wife, George Lee, and Mary, his wife, and Catherine Rogers, as devisees of the testator Charles Rogers, by their petition stated, that although the affairs of the estate were then unsettled; yet a division might be very advantageously made among them, subject to the payment of the debts of the deceased. Whereupon they prayed, that a-partition might be made, See.
22d November, 1806.
The Chancellor has considered this petition, and does not perceive how it can be complied with, consistently with the decree already passed, on which no report has been made by this trustee. The Chancellor refers the petitioners to the objections stated by him to the bill, soon after
The trustee Vincent, reported that there would be no necessity to sell any of the real estate of the deceased to pay his debts, as there was reason to believe, that they might be all satisfied from the personsl assets, in the hands of the administratrix, and with the rents and profits of the real estate, which would then soon be collected. And he also, some years after reported, that Sarah, who was the widow of the testator, was dead; and at the same time, returned accounts, in which he had, as he said, stated an account with her executor, and also with the deyisees.
18th May, 1810.
An account rendered by Samuel Vincent, trustee to the estate of Charles Rogers, has been laid before the Chancellor without any report, excepting what is stated in a short note, and in another seat with it, which are neither of them drawn in a formal manner, or calculated to explain the nature of the account. Ho vouchers are exhibited; but the account appears to be approved by the executors. The Auditor is directed to examine' and report on this account, and the statement made therewith, having reference to the proceedings-in court,under which Samuel Vincent Was appointed trustee,
In obedience to this order the Auditor reported, that he had stated an account between the trustee and the executors of Sarah Rogers ; from which there appeared to be due to them the sum of ¿672 9s. 0d; that he had stated another account between the trustee and the estate of the testator Charles Rogers, from which it appeared, that there was then in the trustee’s hands ¿61057 11s. 5d. arising from rents received by him, over and above the sum stated as due to the executors of Sarah Rogers; that it did not appear how this sum was to be distributed; or whether there were any debts due from the estate; and that the accounts had been stated by him without any proof or voucher, other than the trustee’s own-statements.
19th May, 1810.
On considering this report and the accounts therein referred to, the chancellor is of opinion,-that no order can, at present, be passed respecting the accounts exhibited by the trustee. But the subject will be again-considered on application of the parties interested, or any of them, or of the trustee for any' specific direction.
12¿/¿ September, 1810.
It is Ordered, that the said report and statements be confirmed; but before any application of the balance can be made, it is necessary for the court to be informed of the situation of the heirs, to whom their proportions ought to be paid, and their separate receipts, taken according to the will; although it is stated by the trustee, that, they conceive, they have nothing to do with the business. The trustee is directed to report to the chancellor the names, situation, and places of residence of the heirs; and any further knowledge which he may have obtained as to the debts, and the means of paying them; and the object, and present situation of the suit mentioned by him.
The trustee Vincent reported, in obedience to this order, that the testator Charles Rogers left, at the time of his death, the following children and devisees, namely, Sarah wife of Henry E. Bailey, Catharine wife of John Biffenderffer, who were then living; Ann wife of Alexander Martin, who died without issue about the 4th of May, 1807, after having by will given a legacy to her husband’s mother, and devised her estate to her husband’s daughter, who then resided in Massachusetts; and Mary the wife of George Lee, who by her will devised her estate to her husband, who was then living in Baltimore, died leaving no child. That Sarah the widow of the testator was then dead, after having by will bequeathed several legacies ; but what debts she owed, or what estate she left, except as before reported, this trustee could not say. That the debts of Charles Rogers had been all paid, that came to the trustee’s knowledge; except a small account in settling of which there had been some little difficulty, but of small consequence. That the devisees Bailey and wife, and Biffenderffer and wife instituted a suit in Baltimore county court claiming the whole estate, after the death of Ann Martin and Mary Lee as vested in them, under the will of Charles Rogers; and that suit was determined by said court in favor of Mrs. Bailey and Mrs. Biffenderffer by the opinion of the court, that the estate of said Rogers vested in them
15th December, 1810.
Since the order of the 12th of September last a report has been made by the trustee of the matters directed therein; by which it appears, that the debts of Charles Rogers have been paid; except an account of small consequence; and the executors of Sarah Rogers have informed the court, that they wait for the sanction of the account rendered by the trustee. On this part of the case the trustee is authorized and directed to pay to the said executors of Sarah Rogers the sum reported due to her representatives, being $227 83. As to the balance of §2,889 47 due to the heirs, the trustee is authorized and directed to pay one-fourth part thereof to Sarah Bailey, and to take her separate receipt therefor, according to the will of Charles Rogers ; and one-fourth part to Catharine Diffenderffer, taking her separate receipt therefor. For the two other fourth parts a further order will be given on the determination of the appeal in the suit mentioned in the report.
Some years after which, the trustee Vincent, in a letter, dated on the 23d of November, 1814, addressed to the chancellor, says, c I inform you of my resignation of the trust in the estate of the late Charles Rogers, and have given it into the hands of Mr. John Diffenderffer one of the heirs at law.’ There does not appear to have been any order passed upon this resignation; but on an application, dated on the 20th of December following, made by John Diffenderffer, in which, among other things, he says, * on examining the account of Mr. Samuel Vincent, trustee of the late Charles Rogers’ estate, I find, that he has charged a considerable sum of money to Sarah Bailey, Jinn Martin, and Mary Lee ; it appears to me, by
25th March, 1815.
On the application of John Diffenderffer, who married one of the heirs, and on the resignation of Samuel Vincent the trustee, the chancellor has examined the former proceedings. Before any further order ean be made it will be neeessary for him to be furnished with a transcript of the proceedings in the suit by Mrs. Bailey and Mrs. Diffenderffer which were carried to the Court of Appeals as mentioned in the report of Samuel Vincent.
This case having been again brought before the court, and some further explanations given as to the particulars mentioned in the last report of the trustee Vincent.
8th July, 1817.
It being represented, that there is an error in the report, as to the suits in the Court of Appeals mentioned in the order of March 25th, 1815, the' auditor may proceed to examine the reports and vouchers, without waiting for the transcript, and report thereon, giving notice to the'former and present trustee.
In obedience to this order the auditor, on the 23d of December, 1818, stated and reported several accounts as required, for performing which service, his legal fees amounted to $84. After which, the auditor, by his petition, stated, that the former trustee Vincent, and John Diffenderffer, who had been recognized by the court as trustee in the room of Vincent, although no order for his appointment appeared among the papers, had both of them neglected and refused to pay his fees, although Diffenderffer had always had in his hands funds of the estate to a large amount. Whereupon the auditor prayed, that Diffenderffer might be ordered to pay, &c.
18th October, 1819.
Ordered, that John Diffenderffer pay to the Auditor the sum of $84, on or before the 10th day of November next, or shew eause to the contrary; provided, that a copy of the petition and of this order be served on him before the 28th instant.
These are all the proceedings which appear to have been had in the case of Rogers v. Merryman, when Winder and wife instituted this suit against John Diffenderffer and others.
These plaintiffs, Winder and wife, by their bill, stated that Charles Sobers, after having made his will, as before set forth, died,
The defendant John Diffenderffer, by his answer, admitted, that Charles Rogers had made his will and died, leaving a large estate, and four daughters as set forth in the bill; that Sarah had died leaving the plaintiff Araminta, her only child, who had married the other plaintiff William; that this defendant had married Catherine, who was then dead, leaving the three other defendants, her children and heirs, who were all then minors; that the trustees, appointed by the testator Charles Rogers, had refused to undertake the trust, in consequence of whieh, an application had been made to this court, and a trustee appointed, as set forth in the proceedings in the case of Rogers i>. Merryman ; that this defendant had, from time to time, received from the trustee Vincent, sums of money, on account of the distributive share due to his wife; and there remained a large balance due to her; whilst the •other parties received considerable sums more than was due to them; that Ann Martin died on the 5th of May, 1807; and Mary Lee on the 21st of January, 1808, both without issue; that, at the request of the trustee Vincent, this defendant had taken possession of the property on Calvert and Baltimore streets; and also of sundry ground rents in the city of Baltimore, which he had a right to do under the will, after the death of Ann and Mary, whereby the .estate survived to his children, the heirs of Catherine ; that he
The three infant defendants put in their answers by guardian ad litem, in which they stated, that they had no knowledge of the matters set forth in the bill; and prayed, that their interests might be protected, See.
To these answers the plaintiffs put in a general replication; and commissions were issued to take testimony; under which the depositions of sundry witnesses were taken and returned on the 7th of September,-1827. After which the defendant John Diffenderffer with the consent of parties, was allowed to amend his answer; in which amended answer, he stated, that the devisee Ann, with her husband Alexander Martin, had executed a conveyance of the property devised to her, whereby she had docked the estate tail therein given to her; so that William Hitchborn became seized thereof in fee simple, in trust for her sole and separate use; after which she had, by her last will devised the property as therein specified and died.
1th April, 1828.
This case standing ready for hearing, and the solicitors of the parties having been heard, the proceedings were read and considered.
After an attentive consideration of the will of the late Charles Rogers, upon the true construction of which this controversy turns, it is my opinion, that he devised the property, mentioned in the complainants’ bill, to his daughters for life, with remainder to their children in fee simple; and upon the death of any one daughter, without children, then her share was to go to the survivors and their children. There is nothing in this will which shews it to have been the intention of the testator, that his daughters, or their issue should take an estate tail only. All four of his daughters are now dead, and two of them, Ann and Mary, have left no issue; consequently, the undivided shares of the property, in the proceedings mentioned, which were devised to the late Ann and Mary, must pass, in two equal parts to the testator’s grand-children, the one-half part thereof to the plaintiff Araminta, as the daughter and sole heir of the late Sarah; and the other half part thereof to be equally divided among Amelia Diffenderffer, Michael Diffenderffer
Decreed, that there be a partition of the lands, in the proceedings mentioned; and to the end, that this court may be enabled to make a just partition thereof; it is Ordered, that a commission issue to James Mosher, Benjamin C. Ridgate, Henry Didier, William F. Small, and Joseph Barling, authorizing them or any three of them to enter upon, walk oyer and survey the said land; and to divide the same, if it shall admit of division, according to the rights and interests of the respective parties ; that is to say, two-thirds of the whole of that which was devised to the said late Ann, Mary and Catherine, as in the proceedings mentioned, to be laid off as the portion of those who are to take on the death of the: and Mary, without issue; which two-thirds is to. two equal parts, one of which is to be allotted to me^Taintiff Araminta ; and the other half of the said two-thirds, t# said one-third of the whole, as the portion to whict the late Catherine are entitled, to be divided into ts one of which shall be allotted to the said Amelia Difi other third part thereof to the said Michael Diffenderfferj' remaining third part to the said Charles Rogers Diffenderffer; having regard to quantity and quality; and the said commissioners be directed in the commission to make out a plot and certificate of the said land, and of the divisions thereof, and an accurate description of the same, and of the several parts thereof, and of the value of each; and to the said commission there shall be annexed, as usual, an oath of office.
And it is further Decreed, that the said John Diffenderffer render a full and true account of the rents and profits of the property, in the proceedings mentioned, during the whole time the same has been, or may remain in his possession, or under his control. That the auditor state the account relative thereto from the evidence in the cause, and such other evidence as may be taken by either party before the commissioners Benjamin C. Ridgate and William Magruder of the city of Baltimore, on giving two days notice as usual; provided, that the same be taken and filed in this case on or before the fifth day of July next.
A commission was issued as directed by this decree; upon which the commissioners made a return, that they had made a par
26th July, 1828.
Decreed, that the lot of ground at the corner of Baltimore and Calvert streets, as mentioned in the return of the commissioners, be sold; that John Glenn and George Winchester be appointed trustees to make the sale, &c. the terms of which shall be, one-fifth part of the purchase money to be paid in sixty days from the day of sale, the other four-fifths within six, ten, fourteen, and eighteen months from the day of sale, with interest on each instalment from the day of sale, to be secured by bonds with approved surety, &c.
Under the decree of the 7th of April, the parties took; and, on the 2d of September returned the depositions of sundry witnesses, and among them, that of the defendant John Diffenderffer, who consented to be examined as a witness on behalf of the plaintiffs. And the trustees, under the decree of the 26th of July reported, that they had made sale of the lot of ground, therein mentioned, to John Clarke for the sum of $27,200; which sale, after publication of the usual order unless cause shewn, was absolutely ratified on the 25th of November, 1828. And the distribution of the proceeds thereof, as stated by the auditor, was ratified on the 10th of December of the same year.
13th October, 1828.
Decreed, that the return of the commissioners and the partition by them made be and the same is hereby ratified and confirmed.
And it is further Decreed, that William S. Winder and Ararninta Winder his wife, in right of the said Ararninta Winder, shall hold in severalty and not jointly with the other parties to this suit, one third of the real and leasehold estate within the lines of Gallow Barrow and Rogers’ Inspection-, of the estate of Charles- Rogers deceased, and which is particularly designated and described by commissioners in their said return as follows,. &c.: (So in like form as to the others).
And it is further Decreed, that each of the before mentioned parties, among whom the property and estate herein before mentioned, has been divided; and to whom it has been adjudged to be held, in severalty by this decree, pay his or her own costs, to be taxed
The auditor reported on the 10th of November, 1828, that he had stated several accounts, some at the instance of the plaintiffs; and others according to the instructions of the defendant John Diffenderffer ; and had then stated an account marked D. agreeably to his own views of the justice of the case; in which he had allowed the trustee Diffenderffer a commission of ten per cent, as allowed to the former trustee; but he had charged interest on the balances in the trustee’s hands at the end of each year. As these balances consisted in part of interest, charged on former balances in hand, the trustee was thus charged with compound interest. But as this account might, in this particular, be questioned, he had stated another account, in which interest was not so charged. And that in continuation of each account he had distributed the balance, in the trustee’s hands, amongst the plaintiffs and the infant defendants; allowing the complainants one-third of the balances, and to each of those defendants one-third of the remaining two-thirds.
To these accounts the plaintiffs filed the following exceptions; They excepted to account A; because, interest is not properly charged therein; because, a credit is allowed for various sums for which no credit can, or ought to be claimed; because, a commission is therein allowed to John Diffenderffer ; because, a credit is allowed for rent, not received of Mrs. Sparks’ family, under a representation, that it was lost by default of the complainants’ solicitor, when, in truth, no such default ever existed, and no proof is made of it; and because, in other respects, the account is insufficient and defective and against the proof in the cause. They excepted to account B; because, interest is not properly charged therein; because, various credits are there given which ought not to be allowed said Diffenderffer; and because, the account is defective and unsupported by proof, They excepted to account D; because the trustee is allowed a commission of ten per cent.; because inte» rest is improperly charged, not a sufficient amount being allowed to the complainants; and because, the account is otherwise defective and against evidence. And they excepted to account E; because, the said John Diffenderffer is not therein charged with interest enough; and because, said account is otherwise insufficient, defective and against evidence.
After which the defendant John Diffenderffer by his petition, accompanied by an affidavit of Paul G. Hands in relation to the matter of the petition, stated, that since the report of the auditor, he, the petitioner, had discovered material and important testimony, requiring additional accounts to be stated, in order to bring a full and perfect view of the defendant’s case before the chancellor. He therefore prayed, that the case might be again sent to the auditor with leave to take further testimony, &c.
21 st February, 1829.
Ordered, that this case be referred to the auditor with instructions to state such further accounts as may be required by the parties upon the testimony in the case, and such other proofs as may be produced before him, on giving the usual notice: And either party may take testimony before the commissioners appointed for Baltimore county, or any justice of the peace on giving three days notice as usual; provided, that such testimony be taken and filed in the chancery office before the seventh day of March next.
The auditor reported, that under this order he had taken the deposition of Paul G. Hands, and as his testimony related altogether to the account of the trustee Vincent, he had corrected that account accordingly; and that he had, by the instructions of the defendant John Diffenderffer, stated another account, marked F, which differed from account B, returned with his former report. To this account the plaintiffs excepted. And, on the application of the plaintiffs,
Under the authority of this order the plaintiffs caused the cashier and book-keeper of the Mechanics’ Bank of Baltimore to be summoned to appear before the commissioners to testify; and to produce a statement of the account in the said bank of John Biffenderffer from 1815 to 1829. And the plaintiffs propounded to them certain interrogatories, which were returned by the commissioners and filed here on the 20th of April, 1829, and are as follows: First. Do you know John Biffenderffer, of the city of Baltimore, who is one of the defendants in this case; and how long have you known him ? Second. Are you now, and how long have you been an officer in the Mechanics’ Bank of Baltimore; and what office in said bank do you hold ? Third. Do you know whether the said defendant John Biffenderffer keeps his bank account in the said bank; and for what period he has so kept his account ? Fourth. Do you know whether he has, during the time his said account was kept in said bank, kept an account with any other bank in this city or elsewhere? Fifth. Have you recently, and at what time, examined the said account of said John Biffenderffer with said Mechanics’ Bank ? If you have, what was the state of said account at the several periods from the year eighteen hundred and fifteen to the present time when the same was balanced ? State the exact account of the balances at each of said settlements, and the times at which said settlements were severally made ?
The cashier appeared, and objected to be examined on those interrogatories. And the defendant John Biffenderffer also appeared, and objected to the examination of the cashier of the Mechanics’ Bank, upon the interrogatories filed by the complainant. First, because he is not a competent witness in this cause; second, because he has no legal right to exhibit the account of the said defendant with the bank, during the period referred to in the interrogatory; and third, because he objects to their putting the interrogatory to the cashier, or any other officer of the bank; or to the production of the books of the bank, or any copy thereof, until an order from the court has been obtained for that purpose. And the defendant John Biffenderffer, by his petition, filed with the return of the commissioners, prayed to be heard upon the matter.
4th May, 1829.
The matter of the petition of the defendant John Biffenderffer, standing ready for hearing
The execution of so much of the decree of the 7th of April, 1828, as directs the defendant John Diffenderffer, to render a full account of the rents and profits, is all that remains of this case5 and, consequently, no testimony ought now to be taken which is hot, in some way, pertinent to that matter.
In the argument, it was mainly urged, on the part of this defen*» dant, that these interrogatories went to discredit the testimony he had consented to give, at the instance of the plaintiffs, in September last; and that having been made a witness by the plaintiffs on their own behalf; they could not now discredit their own witness. And, in the next place, that the testimony called for by the interrogatories, was improper and irrelevant.
I have never before been called on to decide upon any such Objections; nor have I met with any case where similar objections have been made by a party, to the further progress of the examination of witnesses, either in the English books, or among the records of this court. Yet, from the manner in which this case has been treated, the right to have the responses to the interrogatories withheld, until such objections, made by a party to the suit, could be decided on by the court, seems to have been conceded on all hands. Nothing was said about the right of a party to make such objections ; or as to their effect when made; or as to the time and manner in which they were to be brought before the court and determined. And yet these are matters, which certainly ought not to be overlooked in a case of the very first impression. The determination called for, it is evident, must be of great importance, as regards the course, and practice of this court. Looking to those consequences, I deemed it proper to hold the matter under advisement until I could bestow upon it a careful consideration.
The mode of bringing testimony into a Court of Chancery, differs from that by which it is brought into a court of common law; and the manner of collecting proofs in the Maryland Court of Chancery is, in many respects, diiferent from that pursued by the English court. But the object in all is, or should be, to arrive at the truth, with the least possible expense and delay; and, consequently, all the established forms of judicial proceeding, in relation to this subject, should be made to bend in subservience to this great object. When an issue, as to any matter of fact, has been made up in chancery, a commission may be obtained to collect proofs in
In England, the interrogatories, intended to be propounded to the witnesses, must accompany the commission, or be handed to the commissioners before they actually begin to execute it.
When the commissioners have met, and they and their clerk, have taken the prescribed oath, which requires them to keep the testimony taken by them secret, until it shall be legally published, and they are prepared to proceed, they then exclude every one else from the apartment in which they sit, and call in only one witness at a time, to whom they propound the interrogatories in succession. And, after examining the witness on each interrogatory, they carefully take down in writing what he declares in relation thereto.
After the publication, but not before, either party may exhibit articles against any witness of his opponent; and obtain a commission to take testimony in support of his articles impeaching the credibility, or the competency of the witness,
From this mode in which the English Court of Chancery has the testimony of a witness taken, it is manifest, that it would be utterly impracticable, before publication, to suspend the examination until objections to the competency of the witness, or the relevancy of the testimony was determined; because a’ party cannot, from the general notice given him by his opponent, that such and such persons will be called as witnesses, be prepared to shew the incompetency, or to discredit any one of them without hearing, or knowing the nature of his testimony. Although the incompetency
It is a fundamental principle of our law, in criminal matters, that the accused shall have a public trial; and it is manifestly beneficial to all, that the administration of justice, as well civil as criminal, should be open and public in every stage, and in all its branches. It is one of the greatest safeguards of the rights of the citizen, that all judicial officers should be subjected to the salutary influence of public opinion; while on the other hand publicity is the best and the strongest protection, that an upright faithful officer can have or desire,
Hence it is fair to conclude, that this mode of collecting testimony, under a solemn injunction of secrecy, was an ecclesiastical contrivance; and that it may be regarded as one of the papal perversions of the mode of administering justice,
The mode of collecting testimony in the Court of Chancery of Maryland has been altered and materially improved. The whole proceedings under a commission to take testimony have been thrown open; all secrecy has been abolished; and each party is required to he notified, and has a right to be present, and to have his interrogatories publicly propounded to the witnesses,
It is evidently as a consequence of the rule which requires the testimony of the witnesses to be taken'in secret, that the English practice has rendered it necessary to have all the interrogatories delivered to the commissioners before the examination is begun; and hence, it is almost impossible to avoid, that senseless and unnecessary verbosity, tautology, and scandal, the introduction of which the ancient orders, regulating the English practice, so earnestly and repeatedly endeavour to prevent,
It would seem to be by no means impracticable, under our public mode of examination, to allow a party to the suit to make objections to the competency of witnesses, or to the relevancy of their testimony; and to have the examination suspended until the court should decide upon their validity. In a court of common law this course of proceeding is attended with little delay and no inconvenience ; because the parties and witnesses being before the judge who is to decide; the point may be instantly discussed, judgment immediately pronounced, and the examination proceed or otherwise, at once. But according to the mode of taking testimony in chancery, similar despatch could not possibly he had. The examination must stop, the commissioners, parties and witnesses, who had been assembled, at much trouble and expense, must disperse; the commission, with all the proceedings under it, shewing the objection, must be returned to the court; and then the parties must have a day to be heard; without which it would be unfair to pronounce judgment upon any such objection. Now it is perfectly manifest, that such a course would be open to the greatest abuse. The parties might multiply, and in various forms reiterate objections.of this kind, so as not only to delay; but actually to render it almost impossible to bring the examination of the witnesses to a conclusion; and the expenses might be reduplicated and increased to an enormous amount.
For these reasons, therefore, as in England, where an order has been passed, which is granted as of course, for the examination of a co-defendant as a witness, his examination cannot be suspended
But if it appears, that such an objection has been made, at any time, previous to the hearing, either before the commissioners, the auditor, or a justice of the peace, authorized by a special order to take testimony, it must be considered as sufficient notice to put the opposite party upon his guard to meet and repel it, either by a release at the time, so as then, as in cases at common law, immediately to remove the influence of interest from the mind of the witness; or to overcome the objection if he can by other proof. But if no such release be then given, nor other proof be then taken; and it should appear, at the hearing, that the witness was interested the objection must be sustained, and he cannot be then released and re-examined; nor can the hearing of the case be postponed for the purpose of taking any other proof, of which the party had been thus apprised, might be called for; and which it had been in his power to have taken and brought in; as it must be presumed, that he had waived the benefit of that of which he had failed to avail himself, and of which he had had full knowledge,
I shall, upon the received principles of the English practice, hold the party or his solicitor strictly responsible for the. propriety and pertinency of the interrogatories propounded by him to the witnesses. And although commissioners should not confine themselves strictly to the letter of the interrogatories; but ought so to take down every thing, that the whole truth may plainly appear; yet, they should not insert any matter from a witness, not properly and substantially pertinent to the interrogatory propounded,
This witness has assigned no reason for his refusal to answer; and his situation is no otherwise described than by his being designated as the cashier of the Mechanics’ Bank. It is neither expressly declared, nor to be inferred from any thing which does appear, that the witness has rested his refusal to answer upon any one of the established legal protections. It is clear, that he cannot demur, because the questions- asked him are
The act of Assembly upon this subject relates to the documentary evidence in possession of a party to a suit;
In this case, the examination has not been attempted to be taken
In regard to the authority given by the order of the, 21st of February, 1829, to take the depositions of witnesses before a justice of the peace, I am aware that there has been some doubt and difference of opinion as to the mode of requiring a witness to attend and testify in such cases; but nevertheless a witness has been compelled to attend before a justice of the peace and to have his depoposition taken in a case depending in this court, under an order giving the justice authority thus to act as a commissioner,
Whereupon it is Ordered, that the time allowed for taking testimony under the order of the 21st of February last, be and the same is hereby enlarged; provided, that the testimony so taken be returned and filed in the chancery office, on or before the 19th instant. And it is further Ordered, that the said objection of the said witness; and also those of the defendant John Diffenderffer, be and the same are hereby overruled; and the said witnesses are hereby required to answer forthwith and fully to the said interrogatories propounded to them, or either of them.
Under this order the witnesses were again called before the commissioners, and answered the interrogatories. And extracts from the books of the Mechanics’ Bank, of the account of the defendant John Diffenderffer, were produced as required; all which were returned by the commissioners on the 10th of June, 1829.
1th October, 1829.
This case standing ready for hearing, on the exceptions to the auditor’s report, and for final hearing on the decree to account, the solicitors of the parties were fully heard, and the proceedings read and considered.
I take it to have been finally settled by the judgment of the court, in the case of Rogers v. Merryman, to which the widow and the four daughters of the late Charles Rogers, were all parties; first, that the debts of the testator had been all properly and correctly paid by the trustee Vincent, and that a share of the surplus left, after their payment, having been ordered to be paid to Catherine Diffenderffer, who had been a party to that suit, before her marriage, is conclusive upon her, and those claiming under her; because, so long as those orders of the 12th of September, and 15th of December, 1820, remain in full force, and they are not now revisable, she, or any one claiming under her, cannot be permitted, in any way, to question the correctness of the manner in which the debts of Charles Rogers, deceased, were paid, which had been so distinctly noticed, considered, and confirmed by those judgments of the court. And in the next place, that it has been finally determined by the judgment of this court, as indicated by the orders of the 25th of March, 1815; the 8th of July, 1816, and the 18th of October, 1819, that this defendant, John Diffenderffer,
These positions, which have been established in that case, appear to me to furnish a very satisfactory answer to the claim of the representatives of Catharine Diffenderffer deceased, to be substituted for and allowed to take the place of the creditors of Charles Rogers deceased, on the ground of their having been improperly paid with their funds; and upon that ground to have certain sums withheld for their use from the distribution now about to be made; and also to the objection, that John Diffenderffer is here claiming only as the natural guardian of his own children and in opposition to the plaintiffs; since those proceedings shew, that he stands here as a trustee, so constituted by the authority of this court, for the benefit of all the devisees under the will of Charles Rogers deceased.
But, passing over all the proceedings and final adjudications in the case of Rogers v. Merryman, let us return to the decree, in this case of the 7th April, 1828, by which the defendant John Diffenderffer has been called upon to account for the rents and profits for the whole time the property has been, or may remain in his possession. The statements reported by the auditor, and the exceptions of the parties present two distinct subjects for consideration; first, the claims and pretensions of the representatives of the late Catharine ; and second, the liabilities of and allowances to this defendant John Diffenderffer.
It has been urged, that the debts of the late Charles Rogers were paid, contrary to the directions of his will, by the trustee Vincent, out of rents and profits which ought to have gone to the late Catharine; and, consequently, that she or her representatives, to the extent of the rents and profits to which she was entitled, and which had been so misapplied, ought now to be allowed to take the place of those creditors as against these funds in the hands of this trustee, and which are now about to be distributed.
This stand is taken upon the ground of substitution ; and it can only be maintained by means of those principles by which a surety, or one who has been placed in the condition of a surety is allowed to take the place of the creditor against the principal debtor; or by the help of those principles by which securities or assets are mar
It is a well settled general rule, that no one can be allowed to intrude himself upon another as his surety; and therefore if a man voluntarily pays the debt of another, without any agreement to that effect with the debtor, he cannot take the place of the creditor, or in any way recover the money so paid of the debtor; because the law does not permit one man thus, officiously, and without solicitation, to intermeddle with the affairs of another.
This general right of a surety has, to a certain extent, been affirmed by an act of assembly,
The doctrine of substitution embraces only those cases where there is a principal debtor and a surety by express or implied contract; or where, for the benefit of commerce, a man is allowed officiously to place himself in the condition of a surety; or where he has by mistake, as in the case of an executor, made payment as if he had stood in that situation. Now before any of the principles, upon this subject, can be brought to bear upon the case under consideration, it must appear, that the plaintiff Jlraminta, or those under whom she claims were the principal debtors; or that the trustee Vincent was the principal; and that Catharine, or those claiming under her, were their sureties; and that those claiming under Catharine are now here asking to be reimbursed, as such, out of the funds of their principal now in the hands of the court.
But the assumption of any such statement would be in direct opposition to all the proofs in the case. Vincent was a trustee appointed by this court for the benefit of all concerned in the estate of the late Charles Rogers; and if he misapplied the rents and pro
But the representatives of the late Catherine, insist on having the securities, or these assets, now; about to be distributed, so marshalled as to reimburse them to the amount of their share of the rents and profits which had been misapplied by. the former trustee, Vincent.
The marshalling of securities is only made where the debt is so secured as to give to the creditor the means of obtaining payment out of two funds, and others can reach only one of them. In such case the court will compel the creditor who holds the more comprehensive security to obtain payment, as far as practicable, out of the fund which the other creditors cannot ■ reach; so as to leave the other fund to be distributed among the creditors holding more limited securities.
Marshalling of assets respects two different funds, and two different sets of parties, where one set can resort to either fund, and the other only to one. As where there are real and personal assets, and judgment and simple contract creditors; the real assets will be applied to the satisfaction of the judgment creditors; so as to leave
It has, however, been argued, that the amount misapplied by the trustee Vincent, came to the use of those under whom Araminta claims; And, therefore, that it ought to be deducted from the share now about to be awarded to her.
If it had been shewn, that the trustee Vincent had fraudulently misapplied the funds, and that Araminta, or those under whom she claims, had participated in the fraud; or that Vincent had paid money, properly belonging to the late Catherine, or her representatives, to Araminta, or those under whom she claims, who had received it, knowing it to be such, then there would have been a strong equitable ground for deducting the amount so received, for the benefit of the representatives of the late Catherine, from the amount now about to be awarded to Araminta. But there is no proof whatever of any fraud in Vincent, or of any participation in it by Araminta, or those under whom she claims; or of their having received any sums of money, knowing it to be the money of the late Catherine; or that it was money to which they were not justly entitled.
Upon the whole, therefore, I am of opinion, that no deduction whatever can be made from the share to which the plaintiff Araminta is entitled; because, of any misapplication of the rents and profits in payment of the debts of the late Charles Rogers, or on account of any other misapplication of them by the former trustee Samuel Vincent.
Having thus disposed of the claims of the representatives of Catherine Biffenderffer, deceased, it only remains to determine the extent of the liabilities and allowances of the defendant John Biffenderffer.
It has been urged, on his behalf, that he cannot be considered as a trustee; because he took possession of this property in no other character, than as the natural guardian of his children. Admitting that he did so. He himself states, that he held their
It has been contended on behalf of John Diffenderffer, that he is not chargeable with interest at all'; while on the other hand, compound interest is claimed of him.
Legal interest is the measure of damages which the law allows in all cases for the detention of money; which the holder is made to pay where he is in any default in not paying, or applying the money in his hands as he was bound to do.
In this case, one of the accounts of the rents and profits has been stated with annual rests, at the instances of the plaintiffs: and the statement has not been objected to. It is more favourable
But it is objected, that interest should not be charged on the interest computed as a portion of the balances at each of those rests.
From all that has been said upon this subject, I take it, that interest upon interest, or compound interest may be charged in three kinds of cases; first, where with the knowledge and permission of the debtor his whole debt, principal and interest, has been paid by a third person or his surety; because, as to such third person or surety the interest is the same as the principal sum lent,
The equity of the last rule is founded upon the fact of the beneficial application of the money to the trustee’s own use in violation of his trust, and to the prejudice of the cestui que trust; and therefore, it must appear, that the nature of the trust required the trustee to make the funds which came to his hands productive as soon, and to as large an amount as practicable in the mode prescribed, or in
In the case under consideration, it very satisfactorily appears to have been the duty of the defendant John Diffenderffer to have applied the rents and profits, received by him, for the benefit of all the devisees of the late Charles Rogers; and that, instead of doing so, he deposited them, as received, in bank as his own, drew them out, made purchases, and used them for his own use and benefit exclusively. What advantages he derived from those rents and profits, thus mingled with his own money, from the time of their being deposited in bank, has not been shewn; but such a management must have been very beneficial to himself, and greatly injurious to the devisees. Such a course of conduct by any one, standing as this defendant John Diffenderffer did, bound to make the funds received by him productive, or constantly useful to those entitled to them, cannot he tolerated by this court. I am therefore, of opinion, that he has been correctly charged with interest on the whole amount including principal and interest found to be in his hands at each rest.
The next inquiry is as to the allowances which should be made to the defendant John Diffenderffer. In England, trustees are never allowed anything as a compensation for their trouble;
The Court of Chancery is peculiarly and absolutely civil in its institution, and in all its modes of procedure. It is confined to cases of distributive and commutative justice alone, and. has no jurisdiction whatever over torts or crimes. It dispenses no favours, nor does it administer vindictive justice in any form,
It is clear that this trustee, John Diffenderffer, is entitled to some commission, and as his claim to such compensation cannot be affected by a reference to those circumstances, upon which he has been charged with compound interest, it follows, that the amount of his commissions can only be determined by a consideration of all other circumstances connected with the discharge of his duty as trustee. It appears from the proceedings, that he has had, in all respects, as complicated and troublesome an estate to deal with, as ever was committed to the management of a trustee of any denomination. His receipts have been very numerous, many of them small; and the collections and disbursements, it is evident, must have been attended with much trouble ; and, therefore, upon every principle of analogy, apart from considering him as the successor of the trustee Vincent, to whom ten per cent, had been allowed, I am of opinion, that ten per cent, commission is a reasonable compensation, and shall therefore ratify the statement of the auditor, which makes that allowance.
Whereupon, it is Decreed, that the statement D, making a part of the auditor’s report, filed on the 10th of November, 1828, be and the same is hereby ratified and confirmed ; and all other statements at the same time reported by the auditor, together with his report of the 26th of March last, be and the same are hereby rejected; and’all the exceptions of the parties at variance with the statement D, are hereby overruled.
And it is further Decreed, that the defendant John Diffenderffer, pay unto the plaintiffs William S. Winder and Araminta, his wife, or bring into this court to be paid to them, the sum of $13,060 58, with legal interest thereon, from the 8th day of November, 1828, until paid or brought into court.
And it is further Decreed, that the defendant John Diffenderffer, pay unto the defendant Amelia Diffenderffer, or bring into this eourt to be paid to her, the sum of $8,707 05, with legal interest thereon, from the 8th day of November, 1828, until, paid or brought in.
And it is further Decreed, that the defendant John Diffenderffer, pay unto the defendant Michael Diffenderffer, or bring into this court to be paid to him, the sum of $8,707 05, with legal inte- • rest thereon, from the 8th day of November, 1828, until paid or brought in.
And it is further Decreed, that the defendant John Diffenderffer, pay unto the plaintiffs, and to each one of the other parties, their costs in this suit arising under the said decree to account to be taxed by the Register.
See the report of this case as disposed of by the Court of Appeals, 3 G. & J. 311.
The ex parte proceeding by petition under the act of 1785, ch. 72, s. 4, applies only to cases where a testator has left ‘real or personal estate to be sold for the payment of debts, or other purposes,’ and there is no one appointed to make the sale; or he who has been appointed to do so, neglects or refuses to execute such trust. This, it is proper to recollect, is not a case where the testator had left his estate to be sold for any purpose. And it has been provided, that on the death of a trustee, having no beneficial interest in the lands, the heir at common law shall succeed to the trust estate so held; 1831, ch. 311, s. 11.
Forum Rom. 127.
Beam’s Orders, 184; 1 Harr. Prac. Chan. 456,485.
1 Harr. Prac. Chan. 441.
3 Blac. Com. 449; 1 Harr. Prac. Chan. 462. In the year 1707, among many other complaints made against the proceedings in chancery, it was alleged, ‘that commissioners to examine witnesses, and their clerks, were not upon oath, which lets them at liberty to discover evidence, and introduces perjury, new commissions,
1 Harr. Prac. Chan. 476.
1 Harr. Prac. Chan. 458.
Forum Rom. 147; 1 Harr. Prac. Chan. 511.
Purcell v. McNamara, 8 Ves. 326.
King v. Daly, 1 Ves. 270. In the matter of Lord Portsmouth, Coop. Rep. 106. The Chancellor’s case, 1 Bland, 681, note ; 4 Laing’s His. Scotland, 254. ‘It is, however, to publicity more than to every thing else put together, that the English system of procedure owes its being the least bad system a3 yet extant, instead of being the worst. It is for want of this essential principle, more than anything else, that the well meant labours of Frederick and Catherine, in the field of justice, have fallen so far short of the mark at which they aimed,’ per Bentham, Park. Hist. Co. Chan. 5. T know that it is one of the best securities for the honest exercise of a judge’s duty, that he is to discharge that duty in public.’ — Per Eldon, Chancellor; Wellesley v. Beaufort, 3 Cond. Chan. Rep. 9.
Adam’s Rom. Ant. 241, 255; Kennett’s Rom. Ant. 153.
1 Hallam’s Mid. Ages, ch. 7; 1 Lond. Jurist, 251
3 Blac. Com. 54; Park’s His. Co. Chan. 20, 49.
1 Bro. Civ. Law, 478; The William and Mary, 4 Rob. Ad. Rep. 381.
Cooth v. Jackson, 6 Ves. 12.
In Maryland, as in England, in all cases where evidence was proposed to be collected, under an ordinary commission for that purpose, the commissioners and clerk’s oath, sent with the commission, required them to swear, that they would not publish, disclose, or make known to any person the contents of any of the depositions until publication should be passed; Kent v. Emory, 22d May, 1769, Chancery Proceedings, lib. W. K. No. 1, fol. 332; Mackall v. Morsell, 5th March 1770; ibid, fol. 224; Cockey v. Hammond, 26th August, 1774, ibid, fol. 332; Howell v. Fell, 21st May, 1783, Chancery Proceedings, No. 2, fol. 17; Usher v. Brown, 28th February, 1786, ibid, 591, And the oath directed to be taken by the register of the High Court of Chancery of Maryland in the year 1670, required him also to swear, that he would not publish or shew, directly or indirectly, the depositions to any person, before publication, without warrant from the court, Chancery Proceedings, lib, O. H. fol. 34. In the year 1824, an eminent London solicitor, in speaking of the course of chancery proceedings in England, in this respect, declared, ‘ that no real remedy for the present evils of the equity jurisdiction .existed, but in the general substitution of public viva voce testimony for the present system of secret written evidence,’ Park’s His. Co. Chan. 453, 561, 566. But, in Maryland, under a commission to audit and settle accounts, neither the commissioners nor their clerks were sworn to secrecy; and therefore, in such cases, the depositions of witnesses brought before such commissioners were always taken publicly in presence of the parties if they chose to attend ; Clapham v. Thompson, 1 Bland, 123, note; Dorsey v. Dulany, 1 Bland, 465, note. Nor, as it would seem, was there any injunction of secrecy in taking testimony under a
Moorhouse v. De Passou, 19 Ves. 433.
Purcell v. McNamara, 8 Ves. 326; Wood v. Hammerton, 9 Ves. 145; Mill v. Mill, 12 Ves. 408.
Forum Rom. 129; 1785, ch. 72, s. 14.
These observations may seem to be at variance with that general rule of law, by which all our courts of justice are governed, in all cases, by which each party has thrown upon him the burthen of supporting his own case, and of meeting that of his adversary without knowing, before hand, by what evidence the case of his adversary was tobe established, or his own opposed. Wigramon Discovery, 93; Willan v. Willan, 19 Ves. 591; The King v. Holland, 4 T. R. 691. That rule however, operates only so far as to protect a party from being compelled to set forth the proofs and circumstances he means to offer in support of his own case at the trial* But in courts of common law nothing is more frequent, than, after a witness has been examined, to call another to discredit or contradict what the previous witness had testified. The only difference between that mode of proceeding, and this, under a commission, is, that, under a commission, time may be allowed to send for and take the opposing testimony; but, that, in a court of common law, such testimony must be introduced during the trial and without delay. It might seem, that the removal of the mischief of surprise, by a public examination, would be more than counterba
Cooth v. Jackson, 6 Ves. 30.
Whitelocke v. Baker, 13 Ves. 515.
Beam’s Orders, 25, 71, 184, 272, 311, 492,
Whitelocke v. Baker, 13 Ves. 515.
Lingan v. Henderson, 1 Bland, 241.
1 Harr. Prac. Chan. 478.
Lee v. Atkinson, 2 Cox. 413 ; Murray v. Shadwell, 2 Ves. and Bea. 405.
Cockey v. Hammond. — 25 ih of January, 1775. — The plaintiff’s second interrogatory to be asked of Lancelot Todd, is; ‘Are you to gain or lose any thing in case the decree in chancery is for, or against the complainant John Cockey !’ And then just previous to the heading of the commissioners’ return is the following entry, ‘Mr. Hammond the defendant, objects to the testimony of Lancelot Todd, as being interested in the eyent of the canse; and, therefore, desires he may not be examined on his interrogatories.’ After which, follows Todd’s deposition, in which he answers thus, ‘secondly, that he was not to gain or lose anything by a decree in chancery in favour of the complainant.’ Nothing further appears in the case, as to this objection. — Chancery Proceedings, lib. W. K. No. 1, fol. 829.
Strike’s Case, 1 Bland 96; Harwood v. Harwood, 1806, per Kilty, Chancellor, M. S.; Johnson v. Berry, 1810, per Kilty, Chancellor, M. S.
Callaghan v. Rochfort, 3 Atk. 643; Vaughan v. Worrall, 2 Swan, 400.
Fenton v. Hughes, 7 Ves. 290 ; Purcell v. McNamara, 8 Ves. 326 ; Wood v. Hammerton, 9 Ves. 145; Queen v. The State, 5 H. and J. 232; 1 Bro. Civ. Law, 478; said to he otherwise in criminal cases; State v. Norris, 1 Hayw. Rep. 438.
Moorhouse v. De Passau, 19 Ves. 433; S. C. Coop. 300; Harrison v. Courtauld, 4 Cond. Chan. Rep. 499.
Clarke v. Turton, 11 Ves. 240.
4 Inst. 278; Whitelocke v. Baker, 13 Ves. 515.
Sandford v. Remington, 2 Ves. jun. 189; Cooth v. Jackson, 6 Ves. 41; Eastham v. Liddell, 12 Ves. 201; Mill v. Mill, 12 Ves. 408; 1 Harr. Pra. Chan. 455.
Bolton v. Corporation Liverpool, 6 Cond. Chan. Rep. 515; Greenough v. Gaskell, 6 Cond. Chan. Rep. 518; Falmouth v. Moss, 5 Exch. Rep. 158.
Smithson v. Hardcastle, 1 Dick. 96; Wardel v. Dent, 1 Dick. 834; Vaillant v. Dodemead, 2 Atk. 524; Nightingale v. Dodd, Amb. 583; Parkhurst v. Lowten, 2 Swan. 194; Davis v. Reid, 7 Cond. Chan. Rep. 488; McKenzie v. Towson, 1806, per Kilty, Chancellor, M. S.; Singleton v. Edmondson, 1806, per Kilty, Chancellor, M. S.
Ashton v. Ashton, 1 Vern. 165. — Earl of Salisbury v. Cecil, 1 Cox. 277; Brace v. Ormond, 1 Meriv. 409; Freeman v. Fairlie, 3 Meriv. 43; Bolton v. Corporation of Liverpool, 6 Cond. Chan. Rep. 513.
1798, ch. 84.
Hall v. Wirt, 1806, per Kilty, Chancellor, M. S.
Amey v. Long, 9 East. 484; Earl of Salisbury v. Cecil, 1 Cox, 277; The Princess of Wales v. The Earl of Liverpool, 1 Swan, 114; Walburn v. Ingilhy, 6 Cond. Chan. Rep. 508; Bolton v. Corporation, of Liverpool, 6 Cond. Chan, Rep. 513; 3 Blac. Com. 382; 1 Harr. Prac. Chan. 450, 474; Ringgold v. Jones, 1 Bland, 90, note.
1826, ch. 222; 1829, ch. 159; Park. His. Co. Chan. 361.
Onion v. McComas, ante 83; Purvince v. Ogden, Chancery Proceedings, 1804, fol. 49.
Townshend v. Duncan, ante 81.
Wardel v. Dent. 1 Dick, 334; Hennegal v. Evance, 12 Ves. 201, Bradshaw v. Bradshaw, 5 Cond. Chan. Rep. 122; Bryson v. Petty, 1 Bland, 182, note ; Forum Rom. 118 ; 1 Harr. Prac. Chan. 447.
1824, ch. 133.
Stokes v. Lewis, 1 T. R. 20.
Chitty on Bills, 164.
Randal v. Cockran, 1 Ves. 98; Ex parte, Rushforth, 10 Ves. 414; Pothier Obli. p. 2, c. 6, art. 4; Just. Inst. by Cooper, 612.
1763, ch. 23, s. 8.
.) Meluy v. Cooper. — This bill was filed on the 7th of December, 1803; it states that a mill, &c. the property of James Tilghman, had been sold under a decree of this court, by Hugh Sherwood, as trustee; that James Cooper became the purchaser, who agreed to receive the plaintiff, Meluy, as a joint purchaser with him of the one half; each to pay one half of the purchase money; that Cooper took possession and died, without having paid any part of the purchase money; that the whole purchase money had been since paid by the plaintiff, but no deed had been obtained from the trustee, Sherwood; and that the plaintiff has a lien on Cooper’s half for the purchase money, which he, the plaintiff, became bound as surely to pay,
On the 12th of February, 1804, the infant heirs of James Cooper answered by their guardian ad litem: and the trustee, Sherwood, also put in his answer, by which they admitted the truth of the allegations of the bill. Upon which the case was submitted ; and on the 13th of February, 1804, a decree was passed that the property be sold, &c. After which the infant defendants, by William Atkinson, their guardian, petitioned that the decree might be opened, and that they might have leave to amend their answer.
1st March, 1804. — Hanson, Chancellor. — Not even an affidavit of the truth of the matters stated in, or annexed to the petition. The Chancellor, therefore, cannot at present comply with the prayer of the petition.
On the 2d of April, 1804, a similar petition, with an affidavit of the truth annexed, was filed; and the plaintiff, Meluy, afterwards filed a counter petition, upon which the case was again submitted.
1st May, 1804. — Hanson, Chancellor. — The Chancellor has considered the said petitions. The former, although intended to prevent the execution of a decree, is neither an application for rehearing a cause, nor a bill of review. It is a request that a decree may be opened, and that another answer may be admitted, and fresh proceedings be had. In fact it was an application to set aside a decree, regularly passed on the bill, answers, and proof, without suggesting any error in judgment, or discovery of facts; and that, too, is expected to be done without hearing the other party or calling on him to answer. A similar application the Chancellor does not recollect ever before to have received or heard of. If it should succeed, the precedent thereby established, might render decrees of little value indeed; as a defendant, against whom a decree should he passed, might obtain an order for annulling the proceedings; or, at least, infant defendants might have that advantage.
When a decree is passed, the parties are no longer in court. Suppose the Chancellor to pass an order for opening the decree, as is prayed, what are to be the subsequent proceedings ? It may be said, the Chancellor is to act according to his discretion, to prescribe the time for putting in an answer by another guardian, &c. &c. But under what law, usage, or practice, should he act! On a bill of review, permitted to be filed, or an order for rehearing, the practice is established. But the present application, as has already been observed, is neither a bill of review nor a petition for rehearing. In a word, it appears wholly unprecedented, as well as improper.
Mr. Meluy, however, hearing of the application, has filed a petition against it. Perhaps this petition may be considered as a voluntary answer to the petition of Mr. and Miss Cooper by Mr. Atkinson, calling himself their guardian. Mr. Meluy has, in his petition, made a proposition which appears reasonable, viz. to have an account stated by the auditor.
And it is, therefore, adjudged and ordered, that the auditor of this court, on the 15th day of June next, proceed to state an account between the deceased, father of the petitioners, Thomas and Ann Cooper; provided the said Atkinson shall come before the auditor for that purpose; and that the said trustee, appointed to sell the said property, shall not proceed to a sale until further order.
The Chancellor thinks proper to declare, that he passes this order merely because the said Meluy has, by his petition, offered to have the sale postponed, and to have an
On the 16th of June, 1804, the parties not having appeared before the auditor, the foregoing order was annulled, and the trustee ordered to sell, &c.
.) Mickle v. Taylor, 1806, per Kilty, Chancellor, M. S. Theob. Prin. and Sur. 259.
.) Robinson v. Tonge, 3 P. Will. 400. Theob. Prin, and Sur. 233. Ex parte, Street, 1 Bland, 532, note.
1 Mad. Chan. 250.
X Mad. Chan. 6X5.
2 Fonb. 423
Hammond v. Hammond, post.; Sheppard v. Starke, 3 Mun. 41.
Davis v. Walsh, 2 H. & J. 344
2 Fonb. 438.
Sammes v. Rickman, 2 Ves. jun. 37; Ringgold v. Ringgold, 1 H. & G. 12; Latimer v. Hanson, 1 Bland, 51.
Co. Litt. 172, a.
Newton v. Bennet, 1 Bro. C. C. 359; Rocke v. Hart, 11 Ves. 59 ; Raphael v. Boehm, 11 Ves. 92, S. C. 13, Ves. 408 & 591; Tebbs v. Carpenter, 1 Mad. Rep, 290; Attorney-General v. Solly, 2 Cond. Chan. Rep. 528; Ringgold v. Ringgold, 1 H. & G. 12.
Sykes v. Hastings, 11 Ves. 363.
1798, ch. 101, sub ch. 10, s. 2.
Nicholls v. Hodges, 1 Peters, 562.
1 Fonb. 2; Peake v. Highfield, 1 Russ. 560; Nash v. Nash, 4 Ecclesi. Rep, 357; Singery v. Attorney-General, 2 H. & J. 497; Fornshill v. Murray, 1 Bland, 484.
1 Fonb. 3; 2 Fonb. 423.
Sammes v. Rickman, 2 Ves. jun. 37; Adye v. Feuilleteau, 3 Swan. 87, note.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.