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432 McKIM v. ODOM.
between the solicitors, the return of the commission had been de-
layed, at the instance, and for the convenience of the defendants,
in order that they might, if they thought proper, take any testi-
mony they wished; but that the plaintiffs were not to lose the
benefit of having the commission returned as before the December
term. At the following March term the case was again brought
before the court.
15th March, 1831.—BLAND, Chancellor.—On motion of the
plaintiff's solicitor, it is Ordered, that this case be and the same is
hereby referred to the auditor, with directions to state such an ac-
count as the nature of the case may render necessary; and such
other accounts as either party may require.
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After which the auditor, on the 3d of June, 1831, reported and
filed a statement of an account between John Odomy and the own-
ers of the schooner Beauty, shewing a balance of $ 5,634 82, to
be due to the plaintiff McKim. To which the defendants filed
exceptions, and the case was again presented to the court.
10th August, 1831.—BLAND, Chancellor.—This case standing
ready for hearing, and having been submitted on notes by the so-
licitor of the plaintiff, and no one appearing for the defendants
before the close of the sittings of the term according to the rule of
the court, the proceedings were read and considered.
Considering the pleadings as they now stand, and the manner
in which the case has been brought before the court, the general
replication has denied and put in issue every thing alleged by way
of avoidance in the answers. All which matters must, therefore,
be rejected; except, in so far as they may be found to have been
substantiated by proof. The auditor was correct, therefore, in
charging Odom with the whole amount of what he, in any way,
had admitted he had received as the proceeds of the sale, or for
the earnings of the schooner Beauty; and in rejecting all claims
for disbursements on account of that vessel of which there was no
evidence, other than the answers and mere exhibits of the defen-
dants.
There is, however, some evidence in support of some of the
claims made by the defendant Law, as ship's husband; and be-
sides as to these the plaintiff's solicitor, in his notes, has distinctly
admitted, that the defendants are entitled to a credit for, $ 453 23,
which has not been allowed by the auditor; and therefore, the au-
ditor's report must be rejected, and the plaintiff McKim must have
a decree for the balance.
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