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WALKER, ADM'R OF HOUSE ET AL VS. HOUSE. 59 well and faithfully execute the duties of the office conferred upon him. His report does not inform the court whether he did or did not do so, and the defendant has made this apparent omission to qualify, the ground of a special exception, and there can be no doubt that unless the Auditor did take the oath re- quired by the order appointing him, that his proceedings were wholly irregular, and the accounts stated by him, unless this objection be waived, cannot furnish the foundation of a decree. With this remark, the case as it now stands, might be dis- posed of, but in order to facilitate the future progress of the cause, I shall proceed very briefly to notice some of the excep- tions to the report. The defendant's first exception is directed against the discrim- ination which the Auditor has made in his account A., which is a copy or abstract of the balance sheet of the firm, and in which he places the assets in distinct columns, designating a portion as doubtful and others simply as "assets" without designation. The exception insists that many of the claims ranged under the head of "assets," are in fact doubtful or not likely to be re- covered. The Auditor, in a paper filed on the 18th of January, 1850, verified by his affidavit, states that this discrimination was made upon information derived from the defendant himself. But this statement of the Auditor cannot certainly be received as evidence, being ex parte, and not warranted by the terms of the order under which he was acting, which required that proof should be taken on notice to the parties. The court could not, therefore, undertake to charge the de- fendant with the amount of assets placed in the column desig- nated simply as such, nor can any settlement of the partnership accounts be made upon such basis. [Other exceptions, which are not deemed material to be re- ported, were then considered by the Chancellor and sustained. As to the objection to the Auditor's fee, the following are the remarks of the Chancellor.] The 25th exception objects to the amount of fees claimed by the special Auditor for preparing and stating the accounts. |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 4, Page 59 View pdf image (33K) |
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