Morrow v. Robinson

4 Del. Ch. 521

Opinion

Lore,

who appeared for the only one of the judgment creditors who was served with process, did not argue the case, and made no claim to the fund, being satisfied that the excutors were entitled to receive it. The other defendants, however, not beingserved or represented, a consent decree was not practicable.

Having held the case for sometime under advisement, The Chancellor considered that more than twenty years having elapsed since the judgment was rendered, and there being no evidence in the case that within the said period of twenty years, there had been any demand for the payment of said judgments, or either of them, or that there had been any payment of interest thereon or acknowledgment of the sum remaining unpaid, nor evidence of any fact or facts serving to rebut the legal presumption arising during such lapse of time that the said demands had been paid ; that, both in consideration of the lapse of time and legal presumption of payment arising therefrom, and from the allegations of the answer of George C. Robinson and Albert N. Robinson, taken as confessed under the decree pro confessa, the said judgments must be held to have been paid and discharged.

A decree was therefore entered directing the payment to George C. Robinson and Albert N. Robinson, as execu tors, of the sum- deposited in bank. It was further ordered, pursuant to the statute,

Footnotes

•

* that, before receiving the said sum, the said George C. Robinson and Albert N. Robinson should execute and deliver to the Register in Chancery to be filed in the cause, their joint and several obligation, to be taken in the name of the State of Delaware, but for the use of any person or persons who might hereafter be adjudged or decreed by the Court to be interested in, or entitled to the said sum of money, the bond to be in the penal sum of two thousand dollars with a condition that the obligors should, at all times, be fully bound to do and .perform any and all orders of the Court as might thereafter be made for or touching the said sum.

Note. This case though un contested presented some very interesting questions which, while it was under consideration underwent a careful and somewhat elaborate examination by the Court. There having been argument only on one side as appears by the report, it is proper to add here a reference to some cases upon the general subjects .involved, which were examined by the Chancellor which do not appear in the written argument filed. It is known to have been the purpose of the Chancellor to write an opinion, but this was never done, and there appear among his papers only the rough memoranda of his examination of the legal questions involved.

i. The authority was given to the solicitor of the complainant to appear for one or more defendants, upon the authority of a precedent referred to, when the like course had been adopted by Chancellor Harrington. In the case of Webster vs. McDaniel, et al., 2 Del. Ch. 297. the solicitor for the complainant, in a bill of interpleader, was permitted to appear for and argue the case for one of the defendants. The record of that case shows that the appearance was entered by special leave of the Court.

In a bill of interpleader the complainant being indifferent between the parties, the duty of his solicitor is ended, as such, when the bill is filed and he has no interest in the decree except that the bill shall be adjudged to be properly filed. Such an appearance for the defendant can, however, only be entered by special leave of the Court and upon consideration of the special facts of the case and the conclusion that the case is a proper one for granting the leave.

In Houghton vs. Kendall, et al., 7 Allen 72, upon a bill, in the nature of a bill of interpleader, filed by executors, and in which certain defendants were not represented, the following statement is made ;—“ At the argument, the “ children of Edwin were not represented, and the counsel for the executors, “ after reading the papers, were going on to submit their views upon the ‘‘questions involved: but the Court interposed, the Chief Justice saying that “ the whole duty of an executor, in a case like the present, is performed, “ when he has brought the parties in interest before the Court; and that, considering his relation to the parties and the fact that he cannot be allowed to “ charge the estate for the costs of an argument, he ought pot to take any part ‘‘ in the discussion. Subsequently, however, objection being waived, and “ some peculiar reasons appearing to show that there was no danger of collu- “ sion, the Court allowed the argument to proceed, remarking that this case “ must not be drawn into a precedent , as the rule which had been announced “ had been adopted by the Court upon full consideration.”

It is stated in a note to this report that “ subsequently, in March 1864, the “ Court passed a general rule that in bills by executors and trustees to obtain ‘ ‘ the instructions of the Court, and in bills of interpleader, or in the nature of ‘ ‘ interpleader, no solicitor or counsel for the plaintiff shall appear or be heard “ or act for and in behalf of any or either of the defendants.”

2. Upon the point that a general power of appointment, if executed, whether by deed or will, subjects the fund to the debts of the appointor, the following authorities may be referred to; 2 Wms. on Ex'rs, (4th Am. Ed.) (1435); 2 Sugd. on Powers (30). 2 Rop. on Leg. 1476; Bainton vs. Ward, 2 Atk. 172; Townshend vs. Wyndham, 2 Ves. Sr. 1-9; Harrington vs. Harte, 1 Cox 131; Jenny vs. Andrews, 6 Madd. 164; Elton vs. Sheppard, 1 Bro. C. C. 532; Phillips vs. Chamberlayne, 4 Ves. 53; Page vs. Leapingwell, 18 Ves. 463; Stretch vs. Watkins, l Madd. 252; Clough vs. Wynne, 2 Madd. 188; Haig vs. Sweney, 1 Sim. & Stu. 490; Earl vs. Givin. 1 Johns. Ch. 494

This doctrinéis recognized though with a criticism in I Sto. Eq. Jtir. 176, note I.

3. Upon the question of the presumption of payment, the following cases are to the point that the presumption may be repelled generally by circumstances explaining the delay. Bailey vs. Jackson, 16 Johns. 210, 214; Dunlop & Co. vs. Ball, 2 Cranch. 180; Jackson vs. Hotchkiss, 6 Cow. 401. Note the language of 1 Gr. on Ev. Sec. 39, and 2 Bouv. Law Dict. 313.

See as to the general nature of the presumption, Durham vs. Greenly, 2 Harring. 124, and State vs. Lord's adm’r, 3 Harrring. 421.

, The following authorities are directly on the point of insolvency. Hillary vs. Waller, 12 Ves. 266; Fladong vs. Winter, 19 Ves. 195; 1 Cow. & Hill's notesto Ph. on Ev. 506, also 512-13.

Rev. Code, ch. 95, Sec- 5.