Clarkson v. De Peyster

I perceive no reason for withholding from the complainants, until the result of their appeal shall be known, the amount reported by the master to be due to them and confirmed by the court; no exceptions having been taken to that report by the defendant. To that sum with interest, they are certainly entitled. The defendant himself, by not excepting, is precluded from disputing it; and the amount can not be reduced by the proceedings on the complainants’ appeal. The only question that remains, and it is one not without difficulty, is, who Is to bear the loss, should any be sustained, as probably will be the case, on the sale of the stock. This depends upon the nature of the payment made by the defendant, under the order of the court, to the Assistant Register, and with which the stock was purchased by the direction of the court. Was it tantamount to a direct payment to the complainants ? It appears to me that it was not. *508They had not the control of' it. It was deposited to the credit of the cause; and had there been a gain from the investment, the defendant would have been entitled to it. The stock was a mere security, as between debtor and creditor. And in such cases, the established rule is, that the debtor bears the loss if any arise. Let an order therefore be entered, that the defendant, within twenty days, pay to the complainants or their solicitor, the sum of 12,616 dollars and 82 cents with interest from the date of the Master’s Report, or that in default thereof, the Assistant Register sell the stock, and pay over the proceeds to the complainants, reserving any surplus, in case there should be any, beyond the amount of 12,616 dollars and 82 cents with interest.