SEPTEMBER, 1807. Monday, Sept. 7, 1807. A decree being entered son not a par for the sale of IN these suits it appeared, from the report of the commortgaged property, of missioners appointed to sell the mortgaged property, that which a per- Benjamin Quarles was in possession of some of the nety to the suit groes whom he acquired after the mortgage was duly of is found to be in posses. record, and refused to give them up to the commissioners, sion; a rule to be sold according to the decree of this court heretofore may be made upon such pronounced. person; and, unless he The Attorney-General submitted to the court the course shews a par- to be taken. amount right in himself, Per Curiam. The usual course of the court has been the property to make a rule upon the person in possession, where (as in may be or dered to be this case) he is not a party to the suit; and, unless he delivered to the commis- shews a paramount right in himself, to order the property sioners act to be delivered to the commissioners acting under the deing under the decree; and, cree; and, if necessary, to enforce such order by an atif necessary, tachment. Let the rule be returnable to the next term. such order may be en forced by an attachment. Tuesday, Sept. 8, 1807. After a judg ment against an executor, Clarke against Webb and others. The bill in this case was brought for a discovery of the and a return assets of John T. Bickerton, deceased; and for the payof "no effects," on an ment of a judgment at law obtained against his executors, execution 2upon which a fieri facias issued, and had been returned gainst the goods and "no effects."-The executors, when they qualified, gave his testator, separate bonds. They and their securities being all dead, a suit in e- except the Hon. Peter Lyons; the persons made defendquity may be chattels of brought for a ants to the suit, were their representatives, (except those of discovery of the asets, to which suit the securities of the executor and all other persons, (how ever remotely concerned in interest,) against whom a decree can be rendered, ought to be made defendants, 1807. Clarke G. Winston, who died insolvent, and had none,) the repre- SEPTEMBER, sentatives of such of the legatees as were dead, and those legatees who were living. Mr. Lyons, as security for one of the executors, demurred, on the ground that a devasta Webb and vit had not been previously fixed upon his principal at law. Per Curiam. The rule of law as laid down by the Supreme Court in the case of Braxton v. Winslow, 1 Wash. 31. is well understood and admitted, that, at law, the security of an executor shall not be made liable for a devastavit committed by his principal, until it has been fixed upon him by a suit: but, although this be the case, at law,. yet, surely, a creditor, after a judgment and the return of an execution," no effects," may either proceed against the executors for a devastavit, according to the rule laid down in that case, or may bring his bill in equity to have a discovery of the assets: and such is the present case. The court should therefore entertain the cause, and settle all disputes between the parties: but, to do this, all the parties, (however remotely concerned in interest,) against whom a decree can be rendered, must be before the Court; and therefore, it was right, in this case, to make Judge Lyons a party. His demurrer must be overruled; and he must be directed to answer. Surely it is unnecessary to cite authorities to prove such plain principles. V. others.. Lindsay against Howerton. THE commissioners, in this case, appointed to the defendant's administration account, refused to some charges made for fees paid to counsel, because were for more than the law allowed. Wednesday, settle An executor eds in his for fees paid to counsel, notwithstanding those fees were more than the law allowed. SEPTEMBER, 1807. Lindsay V. Howerton. Per Curiam. There can be no doubt but that the defendant has paid those fees on account of his intestate's estate; and, as he could not do without the aid of counsel, whose conduct he could not regulate, he should be allowed the sums he has paid. The Court, in giving this opinion, is supported by the opinion of the former Chancellor, as ap pears by his notes in this very case, Saturday, Sept.19, 1807, A complain Degraffenreid against Donald & Co. THE complainant, in this case, claimed in his bill of ant whose remedy was injunction certain discounts against a judgment at law; complete at stating that he had failed to defend the suit, (which othercommon law, but who by wise he might have opposed successfully,) in consequence accident was of his attorney's sickness, and his own absence from the prevented from making commonwealth. The last mentioned allegations were neiit there, may ther admitted nor denied in the answer. be relieved On the final against the hearing he was relieved against part of the judgment; and judgment, but ought to a question then arose concerning the costs. pay the costs in Chancery. The Court decided that, since the plaintiff's defence was at law, and he had not made it there, he should pay the costs here. Campbell and Wife against Winston and others, and Henry against Winston and others. A settlement IN these cases, a decree had been made for the settle(by commissioners ap- ment and division of Patrick Henry's estate; and the compointed by the Court of missioners appointed had reported the administration acChancery) of an administration account, without notice to the legatees or distributees, is against the constant course of the court. 1807. counts of the executors, to which Campbell, by counsel, SEPTEMBER, objected, upon the ground, that they had been settled by the commissioners, without notice to the legatees. Per Curiam. A settlement of such accounts, without Campbell and others. notice, is against the constant course of the Court, and must Winston and be set aside, and the report recommitted. Dunscomb against Dunscomb and others. Monday, Sept.21,1807. The only estate of infants having a successor, IN this case the only question was, whether the Court could, under the will of Andrew Dunscomb, deceased, ap- trustee ap pointed by point another trustee, in the room of the one appointed by will to mathe testator, as she was dead; the circumstances being the nage the following: The testator in the commencement of his will desired died, and there being his wife Philadelphia Dunscomb "to be put into possession no provision in the will "of all his property both real and personal for her use, in for the ap"trust," &c. After specifying the various trusts, which pointment of were chiefly for the benefit of his children, he concluded a court of equity will with these words: "I constitute my wife sole executrix, appoint one. “leaving it with her and at her pleasure to appoint an In this case agent or agents to assist her. From her well-known at- the trustee appointed by "tachment to her children, I confide in her care of what the court was may come into her hands, and also of an application ac- required to give bond ❝cording to my will and desire as expressed herein." No and security, provision was made in the will for the appointment of another trustee in case of her death. She intermarried with ance of his William Dawson, and afterwards died intestate. for the faithful perform duty, in a pe. nalty double the amount of the trust ble to the The bill was filed on behalf of Andrew Bedloe Dunscomb, one of the infant children, by William Dawson, his estate, payanext friend, praying this court to appoint another trustee judge of the in her room, and making the other children defendants, court and his who filed their answer by Philip Duval, their guardian, office. specially assigned for that purpose; in which they expressed their consent. successors in SEPTEMBER, Per Curiam. The only doubt grows out of the will: 1807. but it may be done, upon giving bond with approved secuDunscomb rity to the Judge of this Court and his successors in his Dunscomb office, conditioned to discharge the duties imposed by the and others. testator's will upon the former trustee, which remain un performed, for the benefit of the testator's children. The penalty of the bond should be equal to double the value of the trust estate. Philip Duval was accordingly appointed, and gave bond. and security in the form prescribed by the Court. Thursday, Sept 24,1807. All the trus tees appoint Lee against Randolph and others. ROBERT RANDOLPH and others, who were appoint ed by a will ed by the last will and testament of Charles Carter, of to manage an act, a court estate for a Shirley, trustees for the benefit of his daughter, Anne Hill married wo Lee, wife of Henry Lee, having declined acting, a bill was man, having refused to filed, on her behalf, by John Minor, as her next friend, of equity will against the trustees and her husband, for the purpose of appoint a obtaining from this Court the appointment of a new trustee; which was accordingly done, and a like bond, with the one directed in the case last reported, was ordered to be trustee in their room. A like bond was taken in taken in this case. this case, as in the last. In the Fall Vacation, 1807. The Judge in Dawney against Wright and others. THE decree in this case, pronounced at the last term, vacation can- was interlocutory; and now Mr. Botts, counsel for the not grant appeals from defendants, applied to the Chancellor, at his chamber, for interlocutory an appeal. decrees. By the Chancellor. The 59th section of the act con(a) Rev. Code, cerning the High Court of Chancery,(a) regulating api vol. p. 68. |