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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 259   View pdf image (33K)
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OHIO LIFE INS. AND TRUST CO. VS. WINN & ROSS. 359
as security for the loan of his own paper, given in exchange
for it. The case is not within the principle of the cases re-
ferred to, which prove that the holder of cross paper may prove
under a commission, by taking up his own note, or exonerating
the estate of the bankrupt. 3 Denio, 187; 1 Eden on Bank-
rupts, 150, 160, 163; Byles on Bills, 343, 344; 4 Taunt,
200; 7 Term Rep., 565; 2 Term Rep., 100. It is not
enough to entitle Winn & Boss to a dividend that they show
the estate of Hancock & Mann will not be exposed to a double
charge. They must show that the estate of Jones has been
damnified by his paying his own notes issued for the paper of
Hancock & Mann. If none of these notes have been paid by
Jones, as stated by the Auditor, then they must be outstanding,
and the holders of them, and not Jones or his trustees, are the
parties who, by substitution, are entitled to participate in the
fund.
My opinion, therefore, is, that the trustees of Jones are not
entitled to dividends, simply because they hold the paper of
Hancock & Mann, and that unless they can show that the pa-
per of Jones, exchanged for it, has been paid, they must be ex-
cluded.
I am of opinion that the exception taken by the complain-
ants to the account stated by the Auditor between the mort-
gaged estate and dark & Kellogg, cannot be supported, and
the exception will be overruled.
The petition of dark & Kellogg, for the advance to them of
a fee to counsel, to be paid out of the money in their hands,
cannot be allowed except upon the ground of consent. No pre-
cedent for such an allowance unit be found, and it is readily
perceived that the principle upon which it is claimed would
make this court, in a great number of cases, the medium by
which the fees of counsel would be adjusted. Allowances of
counsel fees are made under the head of just allowances to
trustees, but it is believed that neither in this country nor in
England was a stakeholder, even viewing dark & Kellogg as
occupying simply that character, ever allowed counsel fees out
of funds in his hands.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 4, Page 259   View pdf image (33K)
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