514 POST v. MACKALL.—3 BLAND.

late after the auditor has made a report in favor of the claims
they have thus attempted to oppose.

The auditor can be considered in no other point of view than as
a ministerial officer of the Court; upon whom the Legislature has
not, nor cannot confer any portion of the judicial power assigned
by the Constitution to the Chancellor. The auditor is not only
subject to the control of the Court, but it is also made his duty to
state such accounts as may be desired by either party. The audi-
tor adjudicates upon nothing; but merely puts in order and pre-
pares the materials upon which the Court is to decide. His report,
therefore, either for or against any claim, can in no manner affect
the rights of any party. Dorsey v. Hammond, I Bland, 464; Town-
shend v. Duncan, 2 Bland, 45.

According to the course of the Court, in a creditor's suit the
Statute of Limitations may be relied on, at any time, by a party
or a creditor who has neither done nor permitted any act to be
done which must be considered as an express or tacit wan er of
such a ground of defence or opposition to the claim. Welch v.
Stewart, 2 Bland, 41. In this case the right to rely upon the
Statute of Limitations has been, in no manner, waived by the
Bank of the United States, or by any other of the claimants by
whom it has been insisted upon.

From this general review it appears, that claims, No. 1, 2, 3, 4,
5, 11, 14, 20, 25, 27, 28 and 37, cannot be affected by any reliance
upon the Statute of Limitations in opposition to them; that claims
No. 8, 16, 17, 22, 32, 33, 35 and 36, may be barred as against the
whole estate so far as the Statute of Limitations has been relied
upon against them; that claims No. 6, 9, 10, 12, 13, 15, 18, 19,
20, 21, 23, 24, 26, 29, 34 and 37, cannot be barred from having
recourse to the personal estate by a reliance on the Statute of
Limitations in opposition to them, although they may be barred as
against the realty; and that claims No. 5, 6, 14, 18, 19, 20 and 28,
having been established by absolute judgments against the ad-
ministrator of the deceased have a right to go against the per-
sonal estate apon that foundation.

Upon recurring to the exceptions of the parties, it will be seen,
that on the 2d of March, 1831, the day on which the auditor's
report was filed, the claimants No. 1, 2 aud 3, relied on the Statute
*of limitations in opposition to claims No. 5, 6, 7, and 8;
525 that the claimants No. 4, 5, 6, 7 and 8, by their exceptions
filed on the 27th March, 1831, relied on the Statute of Limitations
in opposition to claims No. 1, 2, 3, 9, 10, 11, 12, 13, 14, 15, 16,17,
18, 19, 21, 22, 23, 24, 26, 27, 29, 32, and 33; that on the 25th of
January, 1832, the claimants No. 9, 10, 12, 13, 14, 15, 16, 17, 21,
23 and 24, by their exceptions, relied on the Statute of Limitations
as a bar to claims No. 5, 6, 7 aud 8; and that on the same day