TOWNSHEND v. DUNCAN. 79

to such an officer according to the ancient course; as if the case
had been referred to a master in chancery, or a special commission
had been issued to take testimony and state an account: which,
indeed, it is conceived, has been virtually affirmed by the act of
assembly directing the appointment of an auditor, and authorizing
him to administer an oath to all witnesses and persons proper to
be examined upon such account, (k) Consequently, all the testi-

(k) 1785, ch. 72, s. 17.—CHESELDINE v. GORDON.—This bill was filed on the
14th day of December, 1740, by Kenelmn Cheseldine against George Gordon and
Kenelmn C. Jowles, executors of George Forbes, deceased, and Ann Greenfield,
executrix of Thomas T. Greenfield, deceased, and Dryden Forbes, executrix of
Henry P. Jowles, deceased. The bill states that Kenelmn Cheseldine made his
will, by which be made sundry devises, and appointed his wife, the plaintiff's
mother, his executrix; and also appointed Thomas T. Greenfield, now deceased,
and the testator of the defendant Ann, and Henry P. Jowles, now deceased, and the
testator of the defendant Dryden, as guardians of the plaintiff, bis son and heir—
soon after which, he died seized and possessed of several tracts of land. That the
plaintiff was then about four years of age, and his mother and George Forbes entered
upon, or continued in possession of the lands which had so descended, or been
devised to the plaintiff; but that soon after, Thomas T. Greenfield, the testator of
the defendant Ann, and Henry P. Jowles, the testator of the defendant Dryden,
forcibly took possession of all the lands which had so descended, or been devised to
the plaintiff, and held possession thereof until after he attained his full age, and
recovered the same, from those who claimed under them, by actions of ejectment.
( Cheseldine's lesse v. Brewer, 1 H. and McH. 152.) That they sold timber from the
land, and took all the rents and profits thereof without rendering any account what-
ever, or paying any thing for the same; or allowing any thing for the support and
education of the plaintiff. Whereupon, it was prayed that the defendants might
render an account of the rents and profits, and the interest thereof, which were or
might have been of the plaintiff's lands; and that the plaintiff might be otherwise
relieved in the premises according to equity.

The defendants answered separately, but all nearly to the same effect. They
admitted that the said Kenelmn Cheseldine had made his will, appointing guardians
to his pretended children; and soon after died seized of several tracts of land; but
denied that he had, or could devise the lands in question to the plaintiff; because
they were held by him, as devisee in tail, from his father, with remainder over, on
failure of issue, to his three sisters; and, he dying without lawful issue, the lands
passed accordingly to the testators of these defendants. They further admit, that
when his alleged father died, he was about four years of age. These defendants in
answer, say, that a certain Mary Sheppard, the complainant's mother, who lived at
the house of his alleged father, at the time of his death, in a short time thereafter,
removed from it, and quietly delivered possession of the house and plantation to
Messrs. George Forbes, Henry P. Jowles, and Thomas T. Greenfield, on behalf of
themselves, and their wives, the devisees in remainder, without any demand of
dower, or other right therein; and that they entered upon, and took possession of
the lands, and received the rents and profits accordingly. These defendants further
admit, that the plaintiff brought an action of ejectment, and recovered as stated; but
allege, that no actual marriage was proved on the trial in that action, to have been
bad between the said Mary Sheppard and the said Kenelmn Cheseldine, the puta-