Egerton v. Reilly , 1 G. & J. 385 ( 1829 )

Eaiuye, J.

delivered the opinion of the Court.

However the decision in this case in itself may be viewed, it was certainly premature, and in this the equity jurisdiction below, committed an error.

Before the exceptions to one of the answers was disposed of, the court passed an order, directing the auditor to state an account of the amount of the debt due to the complainants, after deducting the debts due from the complainants to the defendant, Egerton, including the item for postage, according to the terms of the order filed in the cause; and subsequently ratified and confirmed the auditor’s report and statement thereon, excepted to by the defendants.

The exceptions to the answer béing decided on, the case should have been set down for argument on bill and answer, or a replication to the answers put in, and an opportunity afforded to the respondents to make out their defence by proof.

The real object of the order of the 29th April, 1822, and the transaction growing out of it, might then have been understood, and if Egerton’s right to apply a part of it to the discharge of Franeis P. Kefs account had not been substantiated by evidence, the auditor’s report rejecting it would have been free of exception, and the case of Egerton so far properly settled against him.

An opportunity to the Turners would also have been offered to shew, that their connexion with the transaction of the assignment of Kefs single bill, was fair and bona fide, and that the same was made to them for a valuable consideration, and without notice of any trust and confidence between Rebecca Key and Egerton, in relation to the debt due from II. G. S. Key to her.

We reverse the order confirming the auditor’s report, that the case may still take this course in Saint Marfs County Court, and what appertains to equity and justice may yet be done between these two parties in that tribunal.

Order reversed; and adjudged, ordered and decreed by the Court of Appeals, that the order of Saint Marfs County Court, as a Court of Equity, confirming the report of the auditor, be, and the same is hereby reversed and annulled, and that the said court-proceed in the cause, so that equity and justice may be done to the parties. Further adjudged, that the appellees pay the appellants their costs on this appeal.