by the decree, in several parcels, by the acre, amounting to $6,352 63; which sales were, on the 10th of August, 1829, finally ratified and confirmed; and that he had also, as directed, given notice to the creditors of the deceased to bring in their claims.

After which, about forty creditors filed the vouchers of their claims. It appeared from the evidences of the claim of James Deale, that it was upon a note drawn in favour of, and endorsed by the deceased; and from those of the Farmers' Bank, that they were notes drawn by William Warfield in favour of, and endorsed by the deceased; or by John W. Clagett, in favour of, and endorsed by the deceased; or by D. Ridgely & Co. in favour of, and endorsed by the deceased. In relation to these claims, the affidavit of John W. Duvall, was taken and filed, in which he states, that from his own knowledge, William Warfield, then deceased, was insolvent; that he verily believed, and had so understood from others, that William Warfield, then deceased, David Ridgely, and John W. Clagett, who composed the late firms of Warfield & Ridgely, and D. Ridgely & Co. were insolvent, and unable to pay their debts; and that he verily believed, and from general reputation, the above mentioned firms, and the individuals composing them, have been considered as utterly insolvent, and were still so. And also, the affidavit of Robert Welch, of Ben. in which he stated, that from his own knowledge, and from what he had understood from others, he verily believed, that William Warfield, then deceased, David Ridgely, and John W. Clagett, who composed the late firms of Warfield & Ridgely, and D. Ridgely & Co. were insolvent and unable to pay their debts; that all process of writs of fieri facias against the said firms, and the individuals composing them, which came into his hands as sheriff of Anne Arundel county, were returned nulla bona; that he was a creditor to a large amount, of which he had never received one cent; and that from general reputation, the firms, and the individuals composing them, as above stated, have been considered as utterly insolvent, and were still so.

On the 25th of September, 1829, the auditor filed his report, made up to the 23d instant, in which he says, that he had stated all the claims which had been exhibited against the estate of the deceased; that he had also stated an account between the said estate and the trustee, in which the proceeds of sales were applied to the payment of the trustee's allowance for commissions and expenses, the

costs of survey and of suit; and dividends on all the claims so stated. But that the account was stated, subject to the following objections to particular claims. James Deale's, No. 3, and the bank's, No. 26, were founded on notes drawn by William Warfield, in favour of, and endorsed by the deceased to the present claimants. The bank's, No. 18, was on John W. Clagett's note, in favour of, and endorsed by the deceased to the present claimants. The bank's, Nos. 19, 20 and 25, were founded on notes of D. Ridgely & Co. in favour of, and endorsed by the deceased to the present claimants. The bank's, No. 21, was on Warfield & Ridgely's note, in favour of, and endorsed by the deceased to the present claimants. That those claims could not be allowed without proof of the insolvency of the drawers. That affidavits had been filed by the claimants, as evidence of such insolvency; which were deemed insufficient; because they spoke only from the belief of the deponents, and from general reputation. But individual opinion or general reputation, furnished no such clear evidence of the utter insolvency of the principal debtor, as to give to the creditor his equity against the estate of his surety. That the general testimony of the affidavit, that all process of writs of fieri facias, had been returned nulla bona, was not evidence of any return upon a judicial writ. That if any evidence, short of a discharge, under the insolvent laws, were admissible, there should be proof of nulla bona on executions issued by the claimants to collect the very debt then claimed; since the rule of the court required some evidence of the exercise of reasonable diligence on the part of the creditor, to enforce payment from the principal debtor; and did not permit the creditor to derive any assistance from the inconclusive acts of other creditors.

The auditor further said, that George Wells' claims, Nos. 39, 40, 41 and 42, were debts due from the deceased to Warfield & Ridgely, and D. Ridgely & Co., and assigned by them to the present claimant. That the deceased had in his life-time, endorsed sundry notes drawn by the said firms, which remain unpaid, and were then exhibited as claims against the deceased's estate; but as the assignee should take subject to all the equities which might have been raised against the claims, in the hands of the original creditors, no part of said claims should be allowed until the deceased's estate has been indemnified against the said endorsements. The amount of the endorsed notes greatly exceeds the amount of the aforesaid claims. The auditor further said, that A. & J. Miller's claim, No.

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44, originated after the death of the deceased, and ought not to be allowed; and in conclusion said, that he understood a distribution of personal estate had been made by the deceased's administrator; but no dividends were credited on George and John Barber's claim, No. 1; John W. Duvall's, No. 5, Charles T. Flusser's, No. 7; Henry Hammond's, No. 8; A. & J. Miller's, No. 13, 14, 35 and 44; Joseph Phelps', No. 16; John Randall & Son's, No. 27; C. Salmon's, No. 32; George Shaw's, No. 33; Anderson Warfield's, No. 37; George Wells', Nos. 39, 40, 41 and 42; or Henry Wilmot's, No. 43. Upon this report of the auditor, the case was submitted, as to all such matters as were not controverted.

15th May, 1830.-BLAND, Chancellor.—Ordered, that the report of the auditor be, and the same is hereby ratified and confirmed; and the trustee is directed to apply the proceeds accordingly. But all claims to which any objections whatever have been made, as therein mentioned, are hereby reserved until further order.

On the 18th May, 1830, the claimant, James Deale, excepted to this report; first, because it did not appear from any part of the proceedings, that Beale M. Worthington was surety for William Warfield; and if Worthington was a surety, it was not necessary to prove the insolvency of Warfield; and second, because the affidavits of Duvall and Welch, afford sufficient evidence of such insolvency. And on the 20th of May, 1830, The Farmers' Bank of Maryland, a creditor, also excepted to this report; first, because there was no evidence that Beale M. Worthington was surety on the notes which are the foundations of said claims; and did not receive a valuable consideration thereof; and second, because if he was, the proof was sufficient of the insolvency of the other parties. And on the same day, George Wells, a creditor, in like manner excepted; first, because if the objections to claims Nos. 3, 18, 19, 20, 21, 25 and 26 be valid, the estate would be released from the said endorsements; and therefore, the auditor's reasons for rejecting the exceptant's claims would cease; and second, because if the objections to Nos. 3, 18, 19, 20, &c. should be over-ruled, it does not appear that this claimant had notice at the time of the assignment, of said endorsements.

10th June, 1830.-BLAND, Chancellor.-This case standing for hearing, on the exceptions to the auditor's report, the solici

tors of the parties were fully heard, and the proceedings read and considered.

The general principles, referred to by the auditor, as the foundation of his objections to the several claims for which the deceased became liable only as an endorser, are these: That wherever it appears, from the voucher filed by a creditor as evidence of his claim, that the deceased was in any way jointly liable with others, the creditor must shew whether or not the deceased was equally bound as a co-debtor, or as principal, or surety, or whether he was bound with others as a co-surety. If he was bound as principal debtor, then the creditor is allowed to come in for the whole amount of his claim. But if the deceased was only bound as one of two or more principal debtors, then the creditor must shew that the other principal debtors are insolvent, or he will not be allowed to come in for the proportion which such other principal debtor might have been made to pay. If the deceased was only a surety, then the creditor must shew that the principal is insolvent, or he will be excluded altogether. And if the deceased was one of several sureties, then the creditor must not only shew that the principal is unable to pay, but that the other sureties are insolvent, or he will not be allowed to claim more than the equitable proportion for which the deceased was liable. If these facts and circumstances do not necessarily or sufficiently appear from the vouchers, filed as the foundation of the claim, then the burthen of explanation and proof is thrown upon the creditors, and that, too, by the ex officio act of the court, without any suggestions or objection to that effect being made by any other creditor or party in the case.

When I came here I found that these principles had been considered as long settled; but I have never been able to persuade myself to approve of them; and now, after some years of observation, I am satisfied that they occasion much embarrassment and delay in the administration of the real assets of deceased debtors; and oftener than otherwise result in absolute wrong and injustice. to creditors against whom not the slightest misconduct can, in any manner, be imputed. I shall, therefore, as their correctness and true application have been called in question by these excepting creditors, take this occasion to examine the reasons and grounds upon which they have been rested.

It would seem that these principles, in relation to the administration of the real assets of deceased debtors, had been first introduced in the time of Chancellor Hanson. Speaking in refer

ence to this subject, in an order passed on the 20th of March, 1800, he says, 'there is no proof relative to the circumstances of George Garnet, or the two other securities, William Clayton and Nathan Wright. When claims are exhibited against an infant's estate, and it appears that the debt was due from the deceased and another, or others jointly, it has been the Chancellor's uniform practice to allow only the just proportion to come out of the infant's estate. The practice is founded on this consideration, that, on an application by creditors, for the sale of an infant's estate, it is a matter of sound discretion, whether or not the Chancellor will decree a sale. He is governed by circumstances. In case of a debt due from the ancestor or devisor jointly with another who is solvent, the Chancellor might say I will not decree a sale, or I will not suffer you to receive your debt from the infant's estate, because you have it in your power, or had it in your power, since the ancestor's or devisor's death, to recover your whole claim from the other debtor. But the Chancellor conceived, that to avoid circuity of action, and do justice to all, it was proper to charge the infant only his just proportion; or to admit the claim against the estate for only a just proportion, Were Garnet, William Clayton, and Nathan Wright all insolvent? Was one of them solvent, and the others not? Have any steps been taken to recover from them? It is certain, perhaps, that they are now protected by the act of limitations; but is this a reason wherefore Clayton's estate is to be charged with the whole?' (d)

During the whole time of Chancellor Kilty, these principles appear to have been continually recognized as the settled law of the court; and in one case of a creditor's suit, where he himself was the originally suing creditor, he evidently acquiesced under them, although they were opposed to his own interest; and asked a decision from the judge, to whom his case was necessarily submitted, founded upon their admitted correctness and established authority. (e) But although they appear to have been so repeatedly recognized by Chancellor Kilty, yet I have met with no case, in which he has given any reasons by which he had conceived they might be sustained.

Chancellor Johnson, in an order passed on the 10th of April, 1822, in a creditor's suit, addressing himself immediately to this subject, says, 'the complainants except to that part of the auditor's

(d) Hindman v. Clayton, ante 341.—(e) Kilty v. Brown, ante 222.