Absent. LIVINGSTON, J. STORY, J. and TODD, J.
THIS was an appeal from the decree of the Circuit Court for
the Virginia district, in a suit in chancery brought by the trustees for the creditors of W. B. Magrader & Co. against Drummond's administrators, to compel the latter to account for funds put into the hands of their intestate by W. M. Magruder & Co.
The Defendants, in their answer, say they know no such firm or co-partnership as Wm. B. Magruder & Co. they cannot admit it, and hope the Complainants will be put to the proof of it. They have no knowledge of the deed of trust mentioned in the bill, and hope the Complainants will be required to make ample proof thereof. That W. B. Magruder was largely in debt to their intestate, and they believe the funds put into his hands by Magruder were intended to be applied to that debt.
The only proof of the deed of trust appearing in the transcript of the record, was a copy certified by one Gibson, who calls himself clerk of Baltimore county; without any certificate from the presiding judge that his attestation was in due form. It purported to be an assignment of personal estate only, and was not required by the laws of Maryland to be recorded.
P. B. KEY, for Appellants, contended,
1. That the Complainants have not shown any title to call the Defendants to account.
2. That on reversal this Court must dismiss the bill.
They claim as favored creditors at the expense of Drummond, who is an equally meritorious creditor of Magruder. They have no equity to be let in to new proof to make a new case.
If the Court below had dismissed the bill, relief could not have been given on a bill of review, unless new evidence, not known at the time of the first trial, should have been produced. This Court cannot send the cause back for a new trial; or if they can, they will not in favor of these exclusively favored creditors.
The cause is now placed on very different ground from that on which it appeared in the Court below. There the question was, whether the Defendants could set off a debt due to their intestate from W. B. Magruder, against this claim in the right of W. B. Magruder & Co.
The only question now is whether the Court below erred in giving a decree in favor of the Complainants without evidence of the execution of the original deed of assignment. The Court below could not have decreed in favor of the Complainants, unless they had been satisfied of the execution of the deed, or the proof of its execution had been waved by the other party. This Court, therefore, will presume that the execution of the deed was so proved, or the proof waved. Exhibits may be proved viva voce at the trial. It was not necessary to reduce the testimony to writing. Harrison Ch. Prac. 403. Laws of U. S. vol. 1, p. 68. vol. 6, p. 100. If incompetent evidence was admitted in the Court below without objection, it is no cause for reversal of the decree.
The execution of the deed was put in issue by the answer, and it ought to appear upon the record that it was proved. If the Complainants have failed to put the ...