INDEX 585

PRACTICE IN CHANCERY— Continued.

23. When funds are in this court for distribution among creditors, and the
Auditor reports that certain claims have not been proved, or objec-
tions for want of proof are made to their allowance by parties inter-
ested, the case is again referred to the Auditor, with directions to state
a final account, from which all claims, not then sufficiently proved, are
to be excluded, and leave is given to supply the proof upon such terms,
as to notices, as may be deemed reasonable. Upon the coming in of
the report of the Auditor, made pursuant to this order, and after the
usual time given for filing exceptions, the report may be submitted for
ratification, and when ratified, all parties are concluded and the liti-
gation terminated. 16.

24. This is the general rule, but there may be cases in which it would and
ought to be relaxed, when the party seeking relief can show himself
free from blame or negligence. Ib.

25. Trustees under a deed, one of the trusts of which was, that after satis-
fying the purposes of the deed, viz. the payment of the debts of the ^,
grantor, the residue of the property should be held for the use of the
grantor, were appointed his trustees under the insolvent laws, and
acting in this double capacity, transferred certain stocks belonging to
the grantor (the complainant) to the defendant. All his debts hav-
ing been paid and the trustees directed by a decree of this court to
convey to him all the property they had not disposed of in performance
of their duty as trustees in insolvency: it was HELD—
That the complainant was entitled to maintain a bill in equity for
the recovery of the stock from the defendant, upon the ground,
that the transfer had been improperly obtained, and that the trus-
tees were not necessary parties to such suit. Williams vs. Savage
Mawu/actwring Company, 306.

26. A party being elected to examine witnesses upon their voir dire, is pre-
cluded from resorting to any other mode to show their interest in the
event of the suit. Ib.

27. The legal presumption, when the three years from the date of the de-
cree have elapsed, is, that it has been executed or satisfied, and the ap-
propriate remedy is, to revive it by bill of revivor. Franklin vs. Frank-
lin, 342.

28. The appearance of the defendants to the bill, and their submitting to
answer it, would be a waiver of any objection to the jurisdiction of
the court. Brooks vs. Delaplaine, 351.

29. Where a party sets up an agreement in his bill, involved under the stat-
ute of frauds, and the defendant, by his answer, denies the agreement,
it is not, perhaps, necessary for him to insist upon the statute as above,
but the complainant, at the hearing, must establish the agreement by
written evidence. Small vs. Omings, 363.

30. If the defendant admits, in his answer, the parol agreement, without in-
sisting on the statute, the court will decree a specific performance,
upon the ground, that the defendant has thereby renounced the bene-
fit of the statute. Ib.