William H. Lyles vs. Henry D. Hatton, et ux., 6 G. & J. 122

Dorsey, J., delivered the opinion of the court. We think the county court was right in overruling the exceptions filed to the report of their auditor. The negligence of the appellant, (which is wholly unaccounted for,) in leaving the estate unsettled from the year 1815 to 1825, and then in sulfering the case to remain before the auditor for several years before any statement was reported to the court, render him justly chargeable with interest.

The order of the Orphans court, under the circumstances in which it was made, ought not, like an injunction against payment, to be regarded as a sufficient ground for the suspension of interest. But the court erred, in the mode which they adopted to carry their decision into effect.

Instead of decreeing that the complainant pay the respondents, the amount ascertained to be due by the auditor’s statement, and that the injunction granted be dissolved, and the bill dismissed with costs to the complainant; the decree ought not to have dismissed the bill, but perpetuated the injunction, as to all the residue of the judgment, except the amount ascertained to be due by the auditor’s report, as to which, the injunction should have been dissolved; and for that sum with the accruing interest, the defendants should have been left at liberty, to proceed on their judgment at law.

Under the present decree for the unqualified dissolution of the injunction, the defendants are left at liberty to coerce the payment of their entire judgments at law, and in addition thereto have a right to collect by execution, the amount awarded to them by the auditor’s statement. This it is apparent was not the intention of the county court. But there is another defect in the proceedings, which will prevent this court from passing a final decree in the ease. Emily Hatton has never answered the bill, nor does any reason appear in the record why she has not been compelled to do so.

There is an error in the auditor’s calculation of interest on the sum awarded to be due by Trueman Tyler, having calculated interest from the 4th of June, 1823, instead of the 4th of June, 1825. But this mistake forms in the present aspect of the case, no ground for the reversal of the decree. It is not so specifically pointed out by any of the exceptions, pursuant to the provisions of the act of 1825, as to satisfy this court, that the court below made any determination thereon.

That Emily Hatton one of the defendants may have an opportunity of answering the complainant’s bill; we feel ourselves enjoined by the provisions of the Act of Assembly of 1832, ch. 302, to remand this case to Prince George’s county court, as a court of equity. remanded for further proceedings.