| Volume 200, Volume 4, Page 254 View pdf image (33K) |
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254 HIGH COURT OF CHANCERY. pay his own, and the holder of cross paper may prove, under a commission, by taking Up his own note or exonerating the estate of the bankrupt. Counsel fees are allowed to trustees, but a party who occupies simply the char- acter of stakeholder will not be allowed such fees out of the funds in his hands. It is an established rule of the Chancery Court that the statute, of limitations runs against a claim or debt down to the time it is exhibited. Where a promissory note 13 secured by a mortgage, the mortgagee having the legal title, is not ousted by his note's being barred by limitations, because the debt only is barred and the party holding the title may retain his legal advantage. Parties who are entitled to be substituted in the place of such mortgagees, are entitled to the same exception from the operation of the statute with respect to proceeds of the mortgaged property. The principle of substitution places the substitute in alt respects in the place of the party for whom he is substituted. Where a fund is in court for distribution among creditors, the practice of the court is to allow creditors to come in at any time before a distribution has been actually made. So long as the fund is under the control of the court, it will let a creditor in who has been guilty of no negligence, and if necessary send the case to the Auditor to have a new account stated at his expense, notwithstanding no- tice to creditors has been duly given. But where a creditor has been notified and a reasonable time allowed him to support his claim by proof, and he fails to do so, an account rejecting his claim, if ratified, will not be opened at his instance to allow him to produce further proof, though the fund is still in the hands of the trustee. Where an order has been passed directing the Auditor to state a final account, still, if the fund has not been parted with by the court, creditors who had not come in at the period of the passage of such order will be allowed to do so, but new proof will not, after such order, be allowed in support of claims already filed, After an appeal is taken and an appeal bond executed and approved, no step in the cause can be taken which by any possible contingency can prejudice the appellant. An order distributing a fund among a certain class of creditors and excluding others, was appealed from by one of the parties whose claim had been ad- mitted to a dividend, but those excluded did not appeal. HELD— That after such appeal taken and bond given, the court cannot order the divi- dend allowed to one of the creditors not appealing to be paid to him. The court has the power to direct a fund in court to be invested pending an appeal, notwithstanding some of the parties interested in the fund may re- fuse their assent to such investment. [The first opinion of the Chancellor in this case is reported in 2 Md. Ch. Decisions, 25. Since that time other proceedings have taken place in the cause, and several important questions |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
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