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SIMMONS v. TONGUE 351
inclined to think, that some proof, other than the oath of the
claimant, should be offered of its due execution.
That claims No. 52, 108,109, 110, 111, 11% 113, US, and
119, were proved. That claim No. 86 was formally proved, ex-
cept that the amount of the account in bar which was admitted to
exist by the affidavit, was not yet stated. That claim No. 87 was
the claim of one of the complainants which the auditor thought
should be considered as fully proved. That claim No, 101 was
formally proved; but from the copy of the list of debts due to
the deceased, before alluded to, it appeared, that there was an
account in bar which should be credited.
Proof had been filed of the insolvency of B. D. & R. Mullikin,
as was required to sustain claims No. 67, 69 and 70; but the ori-
ginal acceptances had not yet been produced. Additional proofs
had been offered in support of claim No. 127. And it now ap-
peared, that sundry assignments had been made by Tongue &
McPherson, on account thereof, which should be credited. The
auditor had not re-stated the claim, because he was not satisfied
that it ought to be allowed against the estate of the deceased part-
ner. Additional proof had also been offered to sustain claims
No. 114, 115, and 117, from which he bad re-stated the same as
No. 156, 157, and 158; No. 157 and 158 were proved, but No.
156 was not proved.
William Fowle & Co. as claimants No. 127, on the 2d of May,
1831, filed their exceptions to the auditor's reports. 1. Because
the evidence as exhibited and filed establishes, in behalf of these
complainants' claim, an original liability of Thomas Tongue, as
partner of Thomas T. McPherson. 2. Because it establishes a
distinct original liability of Thomas Tongue to these exceptants,
independent of the partnership of Tongue & McPherson. And 3.
Because it establishes a collateral liability of Thomas Tongue to
these exceptants, which operates as beneficially in favour of these
exceptants as an original undertaking.
On the 28th of May, 1831, Joseph Allen filed an exception to
the auditor's report, because he had rejected his, Allen's claim
No, 4, And on the same day Mary A. Allen, John Collinson,
Gideon G. Tongue, Rezin Estep, Harriet Waters, and Elizabeth
Allen, excepted to the auditor's report, because he had not allowed
their claims No. 5, 22, 35,153, and 154.
6th June, 1831—BLAND, Chancellor—This case standing
ready for hearing on the several reports of the auditor, and the
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