390 MACKUBIN v. BROWN.—1 BLAND.

Upon these principles, therefore, it is ordered, that the excep
tions of Eli Marriott and others, are sustained, and that of
Stockett and wife is rejected. And the auditor's report, and
statements No. 1, 2, 3, and 4, are approved; and the statements
No. 5, 6, and 7, are rejected. And it is further ordered, that the
trustee, Nicholas Brewer, jun'r, forthwith proceed to make sale of
the real estate of the late Basil Brown, as directed by the orders
of the 6th of July, 1826, and of the 8th of March, 1827.

On the 20th of March, 1828, Rezin Hammond, the displaced
trustee, filed his petition, in which he states, that being the exeeu- .
tor of Matthias Hamniond, who was administrator of Basil Brown,
and trustee for the sale of the real estate of Basil Brown, he had
paid to Eli Marriott the sum of $138, in part satisfaction of his
claim against the estate of the late Basil Brown, to the amount of
which he claims to be considered as the equitable assignee of Eli
Marriott; and prays that the present trustee may be ordered to
pay the amount to him out of the share awarded to Marriott. This
petition was submitted without argument.

BLA^D, C., 24th March, 1828.—At no period, and in no part of
all these proceedings does it appear, nor has it before been even
intimated, that this petitioner had anjs such claim as that now set
up by him; or any claim whatever against Eli Marriott. It does
not very distinctly appear, whether the petitioner claims in his
own right, or in his representative character of executor. But in
either way, if the claim has any real existence whatever, it is a
mere legal one; it has not a shadow of equity about it. It is for
* money lent and advanced to Marriott, for which the peti-
418 tioner may sue at law. But this delinquent agent of the
Court, after having been removed, now asks to have the sum he
alleges he has paid Marriott, allowed as a payment made while he
was trustee, without any authority, or even pretext of authority,
from this Court. Most certainly it cannot be allowed to him as a
payment made as trustee. The petitioner takes another ground,
which is, that he may be considered as an equitable assignee. But
if he who had paid money, as set forth in the petition, could be
let in as an equitable assignee, then all the other creditors of Mar-
riott must be allowed to come in upon the same terms. But that
could never be permitted. Whereupon it is ordered, that the
petition be dismissed with costs.

A sale having been made by the trustee, and ratified by the
Court, the auditor reported a distribution of the proceeds among
the claimants, which was ratified on the 22d September, 1828, and
the trustee directed to apply the proceeds accordingly, and the
case thus finally closed.