Somerville v. Marbury's Adm'r ( 1835 )

Dorsey, Judge,

delivered the opinion of the court.

Two of the grounds upon which the reversal of the decree of the county court has been urged, are not necessarily connected with the merits of the controversy between the parties. The one is, that the cause was set down for final hearing by the defendants; whereas by the practice of the court of chan•cery the exclusive right of setting down a cause for final hearing rests in the complainant. There is nothing in this objection. By the settled practice of courts of equity in Maryland, after the return of the commissioner appointed to take the testimony, has remained in the office of the county Clerk, or Register in chancery, the time prescribed by the rules or practice of the court, it is competent for either the complainant or defendant, to set the cause down for a final hearing.

If this cause stood without further proceedings than the bill and answer, then would the objection be well founded. The complainant only in a cause thus situated, being authorized to set it down for final hearing.

The other ground assigned is, that the chancellor ought to have granted the prayer of the complainant made at the hearing, that the commission be remanded to the commissioner. Concede to us the unqualified power of reviewing the acts of the chancellor, when in the exercise of that sound discretion, which under the rules of his court, it is his duty to apply to applications of this character, yet we see nothing in the act complained of, that does not meet our entire approbation. From the circumstances and manner in which the application was made, no other fate could have been anticipated for it, but that which it received.

The only remaining point presented for our consideration is, whether the discontinuance of the first suit, instituted on the bond, in which the complainant was a surety, exonerated him from all further liability thereon. This question is so conclusively settled by the principles established by this court in the cases of the Planters’ Bank of Prince Georges’ County vs. Sellman, 2 Gill and Johns. 230, — and Sasscer vs. Young and Kemp, 6 G. and Johns. 243, that it should not be treated as a subject open to discussion in the courts of equity in this state.

DECREE AFFIRMED WITH COSTS.