Moore's Appeal

The opinion of the court was delivered, by

Thompson, J.

There seems to be no principle of law in this case, and we think the facts justified the decree.

When the pro rata sum was fixed by the auditor on the account of the sequestrator of the Hanover and Carlisle Turnpike Road Company as payable to the judgment of Bear and Woods for use, against the company, the executor of C. C. Moore excepted to the payment of that sum to the assignee of that judgment, or any part of it. Had the appellant coijie into court and disclaimed all but what would pay off the balance due him under the assignment, it would have been very wrong to have imposed any costs upon him. At the meeting before the auditor the exceptant admitted there was a balance due him of $75.49 on his assignment, and which he was entitled to out of the money in court.' But he refused any balance and went for the entire half of the whole dividend, on the ground of an absolute assignment of the entire interest of O. C. Moore in the judgment. This claim he failed to establish.( He had no absolute assignment of C. C. Moore’s interest in the judgment, and was only entitled to what would satisfy the debt and interest for which he held the assignment out of the dividend. His unfounded claim to more than this occasioned the contest, and it was proper he should pay costs. Mrs. Woods’s assignment had very little, if anything, to do with the controversy, so far as we can see; and perhaps because it was introduced by the executor or with his assent, and may have prolonged the contest, the court ordered the share of the money coming to the estate to bear its pro rata of the costs. Whether this was right or wrong it is needless to say, as there is no appeal on that side; but we think it was not far out of the way to do so, especially as the appellee’s exception was a little broader than his right.

Decree affirmed at the costs of the appellant.