Bartol, J.,
delivered the opinion of this court:
This cause was before this court at December term 1854, when it was decided that the award of 1848, relied upon by the appellants in their answers, was void for want of certainty. 6 Md. Rep., 135.
The award being thus removed out of the complainant’s way, we think the Circuit court was correct in treating the settlement of 1835, 1836, as final. Without entering at length into a repetition and discussion of the evidence on this point, it is sufficient to refer to the able and elaborate opinion of Chancellor Johnson, in 4 Md. Ch. Dec., 208 to 215. Whether the conclusions of the chancellor, upon this part of the case, as presented to him, were correct, it is immaterial now to inquire. The question discussed by him, was whether the arbitrators had transcended their powers in disturbing the settlement of 1836, and the chief difficulty in his way grew out of., the terms of the arbitration bonds, which are somewhat ambiguous, and might, without doing violence to any sound rule of construction, be understood as submitting, to the arbitrators, both the “paternal” and“ maternal” successions. The question before us however, is not as to the powers of the arbitrators under the bonds and agreement of submission. The award having been declared void, the agreement of submission, as a binding obligation, falls with it. Treating the arbitration bonds merely as evidence, we do not think they ought to' have the conclusive effect which has been ascribed to them in the argument. • Apart from the ambiguity in their language, and adopting the appellant’s construction of them, it by no [107]*107means follows, that because the parties agreed to submit to an amicable decision by arbitrators, all matters of account embracing items before adjusted and settled, they intended thereby to admit that a previous settlement, made many years before, was not intended at the time, to be final, or that it might be unravelled and re-examined by another tribunal.
Whatever may be considered the true construction of the arbitration bonds in this respect, we do not think they can have the effect of countervailing the other evidence in the cause, which, in our opinion, conclusively establishes the finality of the settlement of 1836, and precludes the appellants from re-opening the subject of the “paternal succession,” then adjusted and closed.
The appellants have asked a reversal of the decree of the 27th day of May 1858, on the ground that the Circuit court erred in refusing to allow them to file their supplemental answer, and ordering the same, with the exhibits attached thereto, to be taken from the files of the court.
Before the Act of 1854, the law was well settled in Maryland, by repeated adjudications, that the action of the court below on such an application depended upon its discretion, and could not be assigned as error, or be reviewed on appeal. Thomas vs. Doub, 1 Md. Rep., 324. Warren vs. Twilley, 10 Md. Rep., 46.
It has been contended that the Act of 1854, ch. 230, has altered the practice in this respect; under that Act, it is said, an application to amend is no longer addressed to the discretion of the court, but is matter ex debito, which may be reviewed on appeal.
We are not aware that the Act of 1854 has ever been judicially construed by this court; it was referred to in Warren vs. Twilley, 10 Md. Rep., 46, and also in Bowie vs. Stonestreet, 6 Md. Rep., 433, but without any expression of opinion as to the effect of its provisions. The best construction we have been able to give it, is, that it was intended to enlarge the time within which amendments may be made in proceedings [108]*108in equity. Formerly “the proper time to apply for leave to amend was before the cause was at issue.” Story’s Eq. Pl., sec. 886. The Act authorises amendments to be made at any time before final decree. They are still to be made “on application to the court”—“so as to bring the merits of the case fairly to trial.” The court, to which the application is made, must of necessity judge of the propriety of the proposed amendment. The language of the Act is not unlike that of the Act of 1809, ch. 153, allowing amendments in proceedings at law; and it has been decided that no appeal will lie from the action of the court, on application to amend under the Act of 1809. 7 Gill, 237. 6 Md. Rep., 508. We think the Act of 1854 must be construed in the same way; it does not in terms confer any right of appeal, and we think none exists, 'We have deemed it proper to express our opinion on the construction of the Act of 1854, although we are all of opinion that (he Circuit court decided correctly in refusing the application to file the supplemental answer in this case, and if the question were open before us on this appeal, we would affirm the decree in this particular, as well for the reasons assigned by the judge of the Circuit court as for the additional reason, that the petition for leave to file a supplemental answer avows the single purpose to be, to surcharge and falsify the settlement of 1835-6; which, as we have already said, could not be disturbed in this case. We are clearly of the opinion that the propriety of allowing the supplemental answer to be filed, depended upon its avowed objects and purpose, as stated in the petition, and not upon, other and distinct matters contained in the answer itself, and not referred to in the petition; they were irregular, and made without leave asked or obtained.
The next question presented by the record, is whether there is evidence in the case to show the amount due the appellee, on account of his wife’s share of the “maternal succession” and whether the decree below correctly ascertains that amount. Upon this question we are all of opinion the Circuit court decided correctly. We think the answer of Mr. Bradly to the [109]*109fourteenth interrogatory was competent evidence binding upon all the parties, and taken iu connection with the memorandum of agreement between the solicitors, attached to it, and the original answers of the appellants to the bill of complaint, in which they admit the ascertainment made by the arbitrators to be correct, is, we think, conclusive of the question of the amount due, and fixes it at the sum of $12,037.54, as of the 12th of January 1838. The decree directed the auditor to state his account, “from the pleadings and proofs now in the cause,” which the appellants have contended was error, insisting that the}'' ought to have been allowed to produce before the auditor any evidence relevant to the matter of the account. Such is the usual form of a decree for account; but it is no doubt competent for a court of equity, in its discretion, to restrict the auditor to the pleadings and proofs already in the cause, and unless it should clearly appear that material and pertinent evidence, which it was iu the power of the party to produce had been thereby excluded, it would furnish no ground for reversal. In this case it does not appear that the appellants had any such evidence to be produced before the auditor, and from the benefit of which they were deprived by the decree.
We come now to consider that part of the decree, rejecting the testimony taken under the commission returned on th^ 10th of May 1858. We think the deeds were properly rejected for the reason assigned by the court below; and, for the reason assigned by that court, we concur in the propriety of rejecting T.S.A. 1,2, 3, 4, 5 and 6. T.S.A.
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Bartol, J.,
delivered the opinion of this court:
This cause was before this court at December term 1854, when it was decided that the award of 1848, relied upon by the appellants in their answers, was void for want of certainty. 6 Md. Rep., 135.
The award being thus removed out of the complainant’s way, we think the Circuit court was correct in treating the settlement of 1835, 1836, as final. Without entering at length into a repetition and discussion of the evidence on this point, it is sufficient to refer to the able and elaborate opinion of Chancellor Johnson, in 4 Md. Ch. Dec., 208 to 215. Whether the conclusions of the chancellor, upon this part of the case, as presented to him, were correct, it is immaterial now to inquire. The question discussed by him, was whether the arbitrators had transcended their powers in disturbing the settlement of 1836, and the chief difficulty in his way grew out of., the terms of the arbitration bonds, which are somewhat ambiguous, and might, without doing violence to any sound rule of construction, be understood as submitting, to the arbitrators, both the “paternal” and“ maternal” successions. The question before us however, is not as to the powers of the arbitrators under the bonds and agreement of submission. The award having been declared void, the agreement of submission, as a binding obligation, falls with it. Treating the arbitration bonds merely as evidence, we do not think they ought to' have the conclusive effect which has been ascribed to them in the argument. • Apart from the ambiguity in their language, and adopting the appellant’s construction of them, it by no [107]*107means follows, that because the parties agreed to submit to an amicable decision by arbitrators, all matters of account embracing items before adjusted and settled, they intended thereby to admit that a previous settlement, made many years before, was not intended at the time, to be final, or that it might be unravelled and re-examined by another tribunal.
Whatever may be considered the true construction of the arbitration bonds in this respect, we do not think they can have the effect of countervailing the other evidence in the cause, which, in our opinion, conclusively establishes the finality of the settlement of 1836, and precludes the appellants from re-opening the subject of the “paternal succession,” then adjusted and closed.
The appellants have asked a reversal of the decree of the 27th day of May 1858, on the ground that the Circuit court erred in refusing to allow them to file their supplemental answer, and ordering the same, with the exhibits attached thereto, to be taken from the files of the court.
Before the Act of 1854, the law was well settled in Maryland, by repeated adjudications, that the action of the court below on such an application depended upon its discretion, and could not be assigned as error, or be reviewed on appeal. Thomas vs. Doub, 1 Md. Rep., 324. Warren vs. Twilley, 10 Md. Rep., 46.
It has been contended that the Act of 1854, ch. 230, has altered the practice in this respect; under that Act, it is said, an application to amend is no longer addressed to the discretion of the court, but is matter ex debito, which may be reviewed on appeal.
We are not aware that the Act of 1854 has ever been judicially construed by this court; it was referred to in Warren vs. Twilley, 10 Md. Rep., 46, and also in Bowie vs. Stonestreet, 6 Md. Rep., 433, but without any expression of opinion as to the effect of its provisions. The best construction we have been able to give it, is, that it was intended to enlarge the time within which amendments may be made in proceedings [108]*108in equity. Formerly “the proper time to apply for leave to amend was before the cause was at issue.” Story’s Eq. Pl., sec. 886. The Act authorises amendments to be made at any time before final decree. They are still to be made “on application to the court”—“so as to bring the merits of the case fairly to trial.” The court, to which the application is made, must of necessity judge of the propriety of the proposed amendment. The language of the Act is not unlike that of the Act of 1809, ch. 153, allowing amendments in proceedings at law; and it has been decided that no appeal will lie from the action of the court, on application to amend under the Act of 1809. 7 Gill, 237. 6 Md. Rep., 508. We think the Act of 1854 must be construed in the same way; it does not in terms confer any right of appeal, and we think none exists, 'We have deemed it proper to express our opinion on the construction of the Act of 1854, although we are all of opinion that (he Circuit court decided correctly in refusing the application to file the supplemental answer in this case, and if the question were open before us on this appeal, we would affirm the decree in this particular, as well for the reasons assigned by the judge of the Circuit court as for the additional reason, that the petition for leave to file a supplemental answer avows the single purpose to be, to surcharge and falsify the settlement of 1835-6; which, as we have already said, could not be disturbed in this case. We are clearly of the opinion that the propriety of allowing the supplemental answer to be filed, depended upon its avowed objects and purpose, as stated in the petition, and not upon, other and distinct matters contained in the answer itself, and not referred to in the petition; they were irregular, and made without leave asked or obtained.
The next question presented by the record, is whether there is evidence in the case to show the amount due the appellee, on account of his wife’s share of the “maternal succession” and whether the decree below correctly ascertains that amount. Upon this question we are all of opinion the Circuit court decided correctly. We think the answer of Mr. Bradly to the [109]*109fourteenth interrogatory was competent evidence binding upon all the parties, and taken iu connection with the memorandum of agreement between the solicitors, attached to it, and the original answers of the appellants to the bill of complaint, in which they admit the ascertainment made by the arbitrators to be correct, is, we think, conclusive of the question of the amount due, and fixes it at the sum of $12,037.54, as of the 12th of January 1838. The decree directed the auditor to state his account, “from the pleadings and proofs now in the cause,” which the appellants have contended was error, insisting that the}'' ought to have been allowed to produce before the auditor any evidence relevant to the matter of the account. Such is the usual form of a decree for account; but it is no doubt competent for a court of equity, in its discretion, to restrict the auditor to the pleadings and proofs already in the cause, and unless it should clearly appear that material and pertinent evidence, which it was iu the power of the party to produce had been thereby excluded, it would furnish no ground for reversal. In this case it does not appear that the appellants had any such evidence to be produced before the auditor, and from the benefit of which they were deprived by the decree.
We come now to consider that part of the decree, rejecting the testimony taken under the commission returned on th^ 10th of May 1858. We think the deeds were properly rejected for the reason assigned by the court below; and, for the reason assigned by that court, we concur in the propriety of rejecting T.S.A. 1,2, 3, 4, 5 and 6. T.S.A. 9, 10 and 14 were properly rejected as irrelevant.
As to T.S.A. 7, 8, II, 12, 13, 15". 16, 17, we do not concur with the Circuit court in the reasons assigned for rejecting them, and think they ought to have been received. It is not good ground for rejecting evidence, admissible per se, that it is cumulative of other evidence in the cause. But in this case the appellants were not prejudiced by the the rejection of this proof, inasmuch as all the items of payments in T.S.A. 7, S, [110]*11011, 12, 13, 15,16 and 17,-were otherwise proved and allowed in the account. The appellants were entitled to the benefit of the memorandum attached to T.S.A. 17, in the decision of the question of the application of payments, and in determining that question, we have considered that in connection with the other proofs in the cause. The general rules regulating the application of payments have been correctly stated by the judge of the Circuit court. In this case we have had some difficulty in reconciling the conflicting evidence on this subject, furnished by the acts and admissions of the parties. But after a careful examination of the pleadings and proofs, a majority of this court, (Mr. Justice Tuck dissenting,) concur in the opinion expressed by the judge of the Circuit court on this question, and adopt the reasons assigned by him.
Apart from the memorandum attached to T.S.A. 17, we think there could be no doubt of the correctness of the ruling of the court below on this question, and in the opinion of a majority of this court, that memorandum ought not to have a conclusive effect.in determining the application of the payments, because, first, it Was made with a view to a settlement by arbitration, and secondly, because it was manifestly erroneous in some particulars, as the list to which it was appended contains items of payments on account of stock, which had no connection with the account of the “maternal succession.”
) It follows from what has been said, that the decree of the 27th of May 1858, ought to be affirmed.
In conformity with that decree, accounts were stated by the auditor, and on the sixth day of November 1858, the Circuit court passed a final decree in the cause, ratifying the auditor’s accounts, Nos. 3 and 4, and overruling the exceptions thereto filed by the appellant, Charles B. Calvert. From this decree an appeal was also taken, and the several questions involved in it have been considered by this court. We do not concur in the reason assigned by the Circuit court for overruling and excluding the exceptions to the auditor’s report. Being filed before the action cf the court on the report, and before the [111]*111cause was submitted, they were in time, and ought to have been considered; and they are properly before us for decision. The first ground of exception taken was, that the appellants “had not been notified of the stating of the account.” Under the decree, requiring the auditor to state the account from the proofs already in the cause, no notice was necessary. The only object of notice is, to enable the parties to produce proof before the auditor, which in this case was not admissible.
The second, third, fourth and fifth exceptions are sufficiently answered, by what has been said by us in considering the decree of the 27th of May 1858.
The sixth exception is too general in its terms, to gratify the requirement of the Act of 1825, ch. 117, sec. 2. But conceding that it is sufficiently specific to be considered by this court, we have not discovered any thing in the record to sustain it.
As to the seventh exception, it may be observed, that it is not in the province of the auditor to tax the costs in his account; but his having done so is no ground for reversal, inasmuch as the subject of costs was specially disposed of by the decree below, and will be provided for by the decree of this court.
The eighth exception is not sustained by the record. The decree does not charge the amount ascertained by the auditor against the executor, but declares what sum is due and to whom, and also declares in what manner its payment is provided for, and directs the execution of the trust for that purpose.
In examining the decree of the 6th of November 1858, we find the Circuit court committed an error in directing that interest should be paid on interest which had accrued, and in that respect, the decree will be corrected by this court, so as to charge interest only on the principal sum ascertained by the auditor’s account.
Affirmed in part, and reversed in part, and cause remanded by the following decree.
This cause standing ready for hearing, was argued by the [112]*112respective solicitors and submitted, and the proceedings have been read and considered. Whereupon, it is this 26th day of November in the year 1861, by the Court of Appeals of Maryland, ordered, adjudged and decreed, that the decree of the Circuit court for Prince Georges county sitting as a court of equity, passed on the 27th day of May 1858, and from which one of these appeals was taken, be and the same is hereby affirmed. And it is further ordered, adjudged and decreed, that the decree passed in the same cause by the said Circuit court, on the 6th day of November in the' year 1858, and from which an appeal was also taken, be, and the same is hereby reversed, in so far as it ascertains the interest and costs chargeable against the appellants. And it is further adjudged, ordered and decreed, that the auditor's report and account filed on the 31st day of August 1858, and the auditor’s report and account filed on the 20th day of September 1858, (the said accounts being numbered respectively, 3' and 4,) be and the same are hereby ratified and confirmed, and that the exceptions thereto filed by the appellant, Charles B. Calvert, be and the same are hereby overruled and disallowed for (he reasons stated in (he opinion of this court. And it is further adjudged, ordered and decreed, that the sum of $12,037.54, (twelve thousand and thirty-seven dollars and fifty-four cents,) is due and payable as principal to Charles B. Calvert and Robert E. Lee, the trustees under the marriage settlement between the complainant, Charles H. Carter, and his deceased wife, Rosalie E. Carter, which appears in the proceedings; and that the further sum'of $5455.45, (five thousand four hundred and fifty-five dollars and forty-five cents,) of interest on the said first mentioned sum to the 20(h of August 1858, is due and payable to the complainant, Charles H. Carter, and that the payment of the said two sums amounting to $17,492.99, (seventeen thousand four hundred and ninety-two dollars and ninety-nine cents,) is provided for and secured by the deed of trust of George Calvert proved in the cause, bearing date on the 11th day of November 1837.
[113]*113(Decided November 27th, 1861.)
And it is further adjudged, ordered and decreed, that the defendants, Charles B. Calvert and George H. Calvert, trustees under the said deed of trust, do forthwith proceed to execute the powers vested in them by the same, for the paying and satisfying the said sum of $17,492.99, (seventeen thousand four hundred and ninety-two dollars and ninety-nine cents,) with interest, on the sum of $12,037.54, (twelve thousand and thirty-seven dollars and fifty-four cents,) a part thereof, from the twentieth day of August 1858, till paid, (which interest the said Charles H. Carter will be entitled to receive,) and, for that purpose, do immediately sell the property mentioned in, and conveyed to them by said deed, or so much thereof as may be necessary to that end.
And in order that this decree may be carried into effect, the cause is hereby remanded to the Circuit court for Prince George’s county.
And it is hereby further ordered, adjudged and decreed, that the costs which accrued prior to the first appeal, and the costs of that appeal, be paid by the appellants as decreed on the former appeal; and that the costs which have accrued since the decision of the first appeal, both in the court below and in this court, shall be paid by the parties in equal proportions, the appellants paying one-half thereof, and the appellees the residue.