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34 TESSIER v. WYSE.
assets then in her hands to the amount of $5,712 34. The claim
of S. Smith & Buchanan, and the assignment of it to Tessier;
the giving of the bond by Rachel Wyse and John M. Wyse
to Tessier, not as a payment, but merely as a collateral security, as
stated in the bill, were fully established by several witnesses. It
was also shewn, that judgments had been confessed; but that they
remained ineffectual, as stated, because the bond had been lost by
the attorney of the plaintiff Tessier. It was further shewn, that a
mortgage had been made, as stated, to George Riston. That in
the petition filed by Rachel Wyse and John M. Wyse in this court,
for (he sale of the testator's real estate, called Deer Park, it was
stated, that S. Smith & Buchanan had a claim against his estate;
and that after the payment of that claim; deducting the commis-
sions to the administratrix; and the widow's third, the other two-
thirds left for the support of the children, would be wholly inade-
quate for that purpose; so that their interests and necessities
required a sale of the lands as directed by the testator. On the
1st of October, 1816, a decree was therefore passed directing a
sale; which sale, as admitted by the answers of some of the defen-
dants, was accordingly made. It was further shewn, that Rachel
Wyse was dead; that administration de bonis non, with the will
annexed, had been granted to Joseph Allender; who on the 23d of
January, 1824, returned an inventory of the property which had
come to his hands, amounting to f 2,293, consisting of negro
slaves, cattle, household furniture, and some other articles.
7th September, 1830.—BLAND, Chancellor.—This case standing
ready for hearing, and having been argued by the plaintiff's soli-
citor, and submitted without argument by the solicitor for all the
heirs of the late William Wyse, and no solicitor appearing for the
other defendants, before the close of the sittings of the term ac-
cording to the rule, the proceedings were read and considered,
The claim of the plaintiff Tessier, as stated in the bill, has been
fully established. But the defendant Riston, in his answer, alleges,
that the plaintiff Texier, by his negligence and misconduct, has
lost all right to any portion of either the real or personal estate of
the testator; and that his only remedy is against the person of the
defendant John M. Wyse. And the defendant William A. Wyse,
denies that S. Smith & Buchanan now have, or ever had any such
claim as the real estate of the testator could be charged with.
From these allegations it is clear, that these defendants do not
rely upon the statute of limitations, or any lapse of time as a bar
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