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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 276   View pdf image (33K)
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276 HIGH COURT OF CHANCERY.
By the decree of the 9th of May, 1851, the bill, so far as it
relates to, or sought to recover for, or in respect of this note,
was dismissed; though as to other matters, not then decided,
it was retained, with liberty to the complainant to amend her
bill by making a new party. And by the order of the 9th of
February, 1852, sending the cause to the Auditor for an ac-
count, he was expressly restricted in stating the accounts to
the questions left open and undecided by the opinion and decree
of May, 1851.
With regard to this note, therefore, there has been a final
adjudication upon this bill; and I cannot see how it could be
amended, for the purpose of raising the question of the appli-
cability of the note, as an asset in the bands of the defendant,
to the payment of the pecuniary legacies.
If, upon the original bill, the complainant's title to the note
in question, as a gift from her father to her, had been the only
question presented, and the Court, entertaining the opinion
which has been pronounced, had dismissed the bill absolutely,
there could of course be no doubt that an amendment under
such circumstances could not be made. The bill being gone,
there would be nothing to amend; and if any remedy re-
mained to the party, other than by way of appeal, it would
have been by filing a new bill. Does it make any difference
that the bill was retained for the purpose of litigating other
matters embraced in it, altogether unconnected with it, and
distinct from the claim to this note ? In my opinion, it does
not. The bill, with reference to this note, is no longer before
the Court; nor could any question with regard to it be liti-
gated here after the decree of May, 1851. The complainant's
second exception, therefore, which objects to the report of the
Auditor, because he has not charged the defendant Davis with
the sum of $1,139 08, the proportion of said note which would
be applicable to the payment of the complainant's legacy of
$5,000, if said note is to be treated as an asset for the pay-
ment of the legacies, as shown by the account C, must be over-
ruled.
The account A, shows the sum which Mrs. Hitch is entitled

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 3, Page 276   View pdf image (33K)
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