#### *Robert S. Bailey, and*others, vs. *Ker Boyce and others.*

The defendant concurred with his co-executor in acts, as (1) an agreement to sell, and (2) an answer in Equity concurring in the prayer of the purchaser’s bill that the sale be confirmed, whereby the co-executor was enabled, without necessity, to sell the testator’s land on credit: the debt was lost through the neglect of the co-executor to record a mortgage of the premises, given to secure the payment of the purchase

■“ *money:*— Held, that defendant was liable, to a devisee, for the loss 5 but not liable to another devisee, who was also executrix, and as a party to the purchaser’s bill had also concurred in the prayer.

An infant not bound by a decree to which she was not regularly a party, may nevertheless affirm it and claim its benefit.

' Where one executor concurs with a devastating co-executor in an act by which the latter gets possession of the funds wasted or lost, and which without such act of concur-*188renoe could not have happened, the consenting, though innocent, executor becomes responsible for him who has committed the waste or default.

“Whero an answor, neither signed nor sworn to by the defendant, is filed in his name, and purports to be signed by his solicitor in his behalf, and the case proceeds to a hearing and judgment, such defendant is bound by the decree, unless he can shew that the solicitor who acted for him was not in truth authorized to do so.

Nor can such a decree be questioned, or treated as void, on a collateral issue : it must stand good until vacated on a proceeding instituted specifically for that purpose.

Evidence that the solicitor who signed defendant’s answer — not signed or sworn to by dafendant — had not been employed by him, reviewed and declared insufficient.

*Before*DargaN Ch. *at*Charleston, *June,*1852,

This case came up upon the report of Mr. Tupper, one of the Masters, and exception thereto. The report is as follows :

*“*The late George Henry appointed the defendants, Ker ■ Boyce and John Magrath, the executors of his last will and testament, both of whom qualified. In January, 1847, the complainants filed their bill in this Court, praying, among other things, an account of the estate of the testator. In investigating the matters of account, which have been referred to me, a question has arisen as to the liability of the defendant, Boyce, for a loss sustained by the estate of his testator, from the non-recording of a mortgage taken to secure a debt due to the said estate.

“ To the proper understanding of this question, the following statement is necessary: — George Henry, at the time of his death, which occurred in 1837, was seized of a lot of land on the south side of Market-street, in this city; in May of the year 1839, an agreement, in writing, was entered into between one Thomas D. Fell and the defendants, Ker Boyce and John Magrath, executors of the said George Henry, for the sale of the said lot to Fell for the sum of $2700, on the following terms: one-fourth of the purchase money to be paid in cash, and the balance in a bond, payable with interest annually, in one, two and three years, secured by a mortgage of the premises. After the execution of this agreement, it was discovered that the executors had no authority to sell the said lot, which had been devised by their testator to his widow and his infant daughter, in equal pro*189portions. For the purpose of securing a good title, Thomas D. Fell, on the 6th June, 1840, filed his bill in this Court, setting forth his agreement for the purchase of the said lot, the payment by him of the cash portion of the purchase price, and the execution of the bond and mortgage required by the terms of the said agreement, also the delivery to him of the possession of the said premises, the inability of the said executors to legally convey the said property, and praying the aid of this Court in perfecting his title to the same. To this bill, answers, admitting the allegations of the complainant and seeking a confirmation of the sale, were put in by the defendants, Ker Boyce and John Magrath, and also by William T. Woodward and Eliza, his wife, who was the widow of the said George Henry; and also by his infarit daughter, Ann Henry, by her trustees, Ker Boyce and John Magrath. The answers are all signed by the solicitor of the defendants, but not by the parties themselves. On the 8th June, 1840, an order was made, referring the case to J. W. Gray, to examine into the facts and report thereon. In compliance with this order, the Commissioner reported that, ‘George Henry, the testator, died siezed and possessed of the said lot of land situate on the south side of Market-street, in the city of Charleston, which it is proposed to sell to Thomas D. Fell, the complainant, for $2700. That by the provisions of the will of George Henry, his estate was to be equally divided between his wife and infant daughter; and in the event of his wife's marrying again, his executors, Ker Boyce and John Magrath were made trustees of his said daughter's share of the estate, part of which is the lot in questou.’

“ ‘ I find that Mrs. Henry has lately married again, and the interest of her said daughter is placed under the trusts of the will. That Thomas D. Fell has agreed to become the purchaser of the said lot of laud for the sum of two thousand seven hundred dollars, payable as follows: one-fourth cash, and the residue in a bond with interest payable annually, in one, two and three years from date, secured by a mortgage of the property; that as the executors have no power under the will to sell, *190and as the infant daughter of George Henry cannot consent to the sale by reason of her minority, a good title cannot be made without the aid of this Court. • I find that the property has been unproductive to the estate of Henry, since the great fire of April 1838, by which the buildings were consumed; and I have taken the testimony of a witness, who is well qualified to form a judgment of the value, and find that the price offered by Fell is a full and fair consideration, and I respectfully submit to your Honors that the said offer be accepted and the title made to the purchaser as desired.’

*“*Upon the coming in of this report, it was ordered,£ that it be confirmed, and that the Commissioner of this Court do make titles for the said lot of land to the said Thomas D. Fell, upon his complying with the terms of the contract, as set forth in the said report. The share of the infant, Ann Boyce Henry, to be held by the said executors under the trusts of the said will of the said testator, George Henry. And the costs and charges to be paid out of the estate of George Henry, deceased.’

“Subsequent to these proceedings, Thomas D. Fell mortgaged the said lot to the Bank of the State, to secure a loan negotiated by him under the Act for rebuilding the city of Charleston. Under this mortgage the lot was sold, and the proceeds applied to Fell’s debt to the Bank. The mortgage made by Fell to secure the payment of his bond to the estate of Henry, for the purchase of this lot, has never been recorded, and still remains unsatisfied. Upon these facts the complainants in the cause now before the Court, rely to charge Mr. Boyce with the amount of principal and interest due upon the bond given by Fell, for the credit portion of the purchase of the lot in Market-street. On the other hand, it is contended on behalf of Mr. Boyce, that he had nothing to do with the bond and mortgage from Fell, or with the proceedings instituted by him, to perfect his title. That in no way was he connected with either the possession of, or the default in not recording the said mortgage, and the evidence adduced in support of these positions, is relied upon to discharge him from all liability or loss resulting to the estate by *191reason of the said default. The testimony of Mr. Phillips, who represented Fell in the proceedings in this cause, establishes the fáct that Mr. Boyce was a party to the original agreement, between the executors of Henry and Fell, for the sale of this property. With this exception I have been unable to discover any thing to connect Mr. Boyce with this transaction. There is no proof that he knew of Fell’s having complied with the terms of this agreement. Mr. Phillips says : that he never saw Boyce on the subject, all his conferences were with his co-executor, John Magrath. It is true, that the answer .of the executors to the bill of Fell admits that he had complied with the terms of the agreement; but Boyce’s name is not signed to the answer, and the testimony of A. G. Magrath, who represented the executors, justifies the conclusion that Boyce knew nothing of the proceedings in this Court. He deposes, that about this time Ker Boyce was very frequently absent from the city; that John Magrath appeared to be acting executor of the estate of Henry; that the bond and mortgage of Fell were in John Ma-grath’s possession; and that he gave instructions as to the pro-ce dings referred to. The evidence of Mr. Gray strengthens this opinion. He says : “ I executed a title to Thomas D. Fell, of the lot of land in Market-street, on the 12th of June, 1840, upon satisfactory evidence being furnished me, that the terms of sale, as in the proceedings, had been complied with.” The evidence referred to by Gray, is a certificate signed *“*John Magrath, executor of the estate of George Henry,” in which he says: “ *I*have sold Mr. T. D. Fell the lot in Market-street, &c.” Mr. Gray further states, that the bond and mortgage executed by Fell were never in his possession ; that no money was ever paid to him, except his costs, which were paid by A. G. Magrath. The fact that Boyce may have remained passive, and not obstructed his co-executor in receiving the credit proceeds of the sale of this property, will not, I conceive, make him answerable for any default on the part of Magrath, and there is nothing before me which shews that the possession of the latter of the securities belonging to the estate of Henry, was *192the result of any act on the part of Boyce.. The interest claimed by the complainants in the proceeds of the sale of this lot is derived through Ann Boyce Plenry, the daughter of the testator, who was a minor at the time this property was sold by order of this Court. If it should appear that she was not, properly, a party to the proceedings under which this order was made, it may be that the complainants will find, in their present title to the land, a stronger reason than any here given, for the non-allowance of their claim.”

On an exception to the report, his Honor made the following decree:

Dargan, Ch. This case was submitted without argument. It comes before me on report and exception.' The Master’s report, as to the facts, is full and perspicuous, and no further statement is necessary.

The exception relates to the liability of the defendant, Ker Boyce, for a loss sustained by the estate of his testator, from the non-recording of a mortgage taken to secure a debt due to the estate.

The debt thus lost was for the proceeds of the sale of a lot of the testator, on the south side of Market-street, which was sold to one Thomas D. Fell by the defendants, Ker Boyce and John Magrath, as executors of George Henry, for $2,700, to be paid in the manner specified in a written agreement executed by the said defendants. Fell executed a bond for the purchase money, and a mortgage of the premises to secure the payment of the purchase money. This was the mortgage, the non-registry of which, occasioned the loss to the estate. The mortgage was otherwise irregular; for its execution by Fell preceded any conveyance of title to him.

After the execution of the agreement to sell, by the executors, it was discovered that they had no authority to sell, the lot in question having been devised by the testator to his wife and daughter, in equal proportions. On the 6th June, Í840, Fell filed a bill in Equity, setting forth the agreement, the payment *193by him of the cash portion of the purchase money, and his giving a bond, and mortgage of the premises, to secure the payment of the balance; and prayed for a confirmation of the sale, and for the aid of the Court in perfecting his title. To this bill, the defendants, Boyce and Magrath, filed answers, admitting the allegations of the bill, and also concurring in the prayer of the bill for the confirmation of the sale, and that the complainants should have good titles. The widow, and infant daughter of the testator, were also made parties to the proceedings, and filed answers. The answer of the testator’s infant daughter was put in by the trustee under the will, and was, therefore irregular. Whether she had a guardian *ad litem*does not appear.

The case was referred to Master J. W. Gray. On a favorable report from him, the Court confirmed the sale, and ordered titles to be made to Fell, by the Commissioner of the Court, on his complying with the terms of the contract, as set forth in the said report. Titles were executed, and delivered to Fell, in pursuance of this order; but no new mortgage was executed by him to the Commisioner, or to the executors ; Fell having, prior to the filing of the bill, complied with all the terms of the sale as set forth in the agreement. The construction which I put upon the decree is, that it intended to confirm the sale, and perfect the title, and to leave the bond and mortgage in the hands of the executors, to be disposed of in conformity with the devises and trusts of the will.

Subsequent to these proceedings, Thomas D. Fell mortgaged the said premises to the Bank of the State, to secure a loan negotiated by him under an Act for rebuilding the City of Charleston. Under this mortgage the lot has been sold, and the proceeds applied to the payment of the debt of Fell to the Bank. The mortgage to secure the debt due to the estate of George Henry, in consequence of its not being recorded, has been postponed to that in favor of the Bank. The debt due to the estate of Henry has never been paid, with the exception of the one-fourth of the purchase money received as the cash instalment. *194Fell is insolvent. John Magrath is also insolvent. And the question is, whether Boyce is liable?

The defence of Boyce rests upon the assumption, that the money, (cash instalment,) the bond and the mortgage, went into the possession of his co-defendant, John Magrath; that the whole transaction was managed by him; and that the loss has resulted from his default alone. The evidence adduced to establish the state of facts thus assumed, is, to my mind, inconclusive. But admitting the facts, as above stated, to be true, there are still other facts, having an important bearing upon the question, which are also indisputably true. Boyce *did,*jointly with his co-executor, execute the contract of sale to Fell. The bond and mortgage were given jointly to the two executors, Boyce and Magrath. On the bill filed by Fell for a confirmation of the sale, and for the perfection of his title, they both filed answers, and both concurred in a prayer that the sale should be confirmed, and the title of the complainant should be perfected.

This is precisely the case of *Mathews*vs. Mathews, McM. Eq. 410. In.the latter case, the testator, George Mathews, devised the real estate in question to his five younger children. He appointed Mrs. Martha Ann Mathews his executrix, and William Savage Elliott his executor — of whom the latter alone proved the will, and acted in the execution of it. He sold the land to Edward Gamage, and afterwards filed a bill, in which Mrs. Mathews joined, for the confirmation of the sale. In pursuance of an order of the Court, the Master in Chancery executed titles to Gamage, received the purchase money, and paid it over to the executor, W. S. Elliott. On a bill filed by the devisees of the testator, George Mathews, against Mrs. Mathews, the executrix, for an account, it was decided, that she was accountable for the *devastavit*of her co-executor, (who was insolvent,) in regard to the fund arising from the sale of the real estate. This case is much stronger in favor of the party who did not receive the money, and who, personally, committed no *devastavit,*than the one now before me for judgment. In *195neither, was there a necessity to sell for the payment of debts. And in both, the innocent executor concurred with the devasta-' ting executor in an act, by which the latter was enabled to get possession of the fund, and which, without such concurrence, he could not have done. Chancellor Harpee, in his decree in the case cited, says, “ it is to be observed, that, as executors, they had nothing to do with the land. There does not appear to have been any necessity to sell for the payment of debts; and in procuring a sale of the land, they seem to have volunteered to act as trustees. And though it is said in the cases, that when a trustee joins in a receij^hr%0fíyh^a®®^ by which his co-trustee is enabled to receive d^¡t responsible, because it was necessary for b|m to join for conijlrmity— yet, in this case, I think there was/pltila^es0m£^|jl|^ to join; there was no necessity for her to volunteer as trastea” The case of *Brice*vs. *Stokes,*11 Yes. Eldon, and cited by Chancellor Harper, is em-,e-^eedingIy^trong one in support of his view of the subject. ^

In Toller’s Law of Executors, it is laid down as a well settled rule, that “ where, by an act done by one executor, any part of the estate comes to the hands of his co-executor, the former will be answerable for the latter, in the same manner as he would have been for a stranger whom he had enabled to receive it.” Upon this rule the Court founded its decree in *Johnson*vs. *Johnson,*2 Hill, Ch. 289. See also the case of *Crosse*vs. *Smith, 7*East, 246.

The case of *Atcheson*vs. *Robertson,*3 Rich. Eq. 132, was a case of personal estate where there was a testamentary authority to sell, and a necessity to sell for the payment of legacies, and where both the executors had equal authority. The act of one of them would have been as authoritative as the act of both. The receipt of one, in discharge of a debt due the estate, would have been good, even though the one giving the discharge on receiving the money, might not have been in possession of the note, or evidence of the debt. In that case, the two executors concurred in the sale of the personal estate. They both signed *196the account of sales returned to the Ordinary. They afterwards divided between them the notes which were given for the proceeds of the sale. One of them died insolvent, having committed a *devastavit;*and it was decided that the surviving executor was not accountable for the *devastavit*of his co-executor. But that case was clearly distinguished in the judgment of the Court from that of *Mathews*vs. *Mathews ;*and the latter intended to be left intact.

The exception is sustained. It is ordered and decreed, that Ker Boyce and John Magrath do jointly account for the sum of $2,700, the proceeds of the sale of the lot of the testator, in Market-street; with interest thereon, to be calculated in the same manner as if the purchaser, Thomas D. Fell, had paid the purchase money according to the terms of the sale, expressed in the agreement. It is further ordered and decreed, that the account be. referred back to Master Tupper, to be adjusted according to the principles of this decree.

Defendant, Boyce, appealed for the following reasons :

1. That the default or miscarriage by which the mortgage of Fell was lost, was not committed by him.

2. That he was not responsible for the other executor. If the other executor had received the money and lost it, this defendant would not have been bound. That the other executor received the bond, and lost it — and for the same reason, the defendant is not bound for the loss of the bond.

3. That the complainant, Eliza Britton, was as much a party to the proceedings in Equity, as this defendant, and defendant is not bound to indemnify her against the miscarriage of that suit.

4. That the only act which he did was innocent and lawful, for which he is not answerable at all, and much less for remote and consequential damages.

*Peligru, Lesesne,*for appellant,"

cited'Hill on Trustees, 310; *Attorney General*vs. Randall, 2 Eq. Ca. Abr. 742; *Jacomb*vs. Harwood, 2 Ves. sen. 267; *Leigh*vs.' *Barry,*3 Atk. 583 •, *197*Shipbrook*vs. *Hinchinbrook,*16 Ves. 477; *Bacon*vs. *Bacon,*5 Ves. 331; Lewin on Trustees, 241.

*Brewster,*contra,

cited Wms. on Ex’ors., 1548; *Underwood*vs. *Stevens,*1 Meri. 712; *Saddler*vs. *Hobbes,*2 Bro. Ch. R. 97, note c, 98 note, Perkins’ edit.; *Chambers*vs. *Minchin,*7 Ves. 186; *Nelson*vs. *Carrington,*4 Munf. 332; *Hauser*vs. *Shopman,*2 Ired. Ch. 594; *Clark*vs. *Clark,*8 Paige, 393; 2 Story Eq. §, 1283, et seq.

The opinion of the Court was delivered by

Dakgan, Ch.

It is very clear that the infant daughter of George Henry was not properly represented in the proceedings instituted by Thos. D. Fell, against the executors and devisees of the said George Henry, for the purpose of perfecting his title to the lot which had been previously sold to him by the executors. The infant devisee had no *guardian ad litem:*but an answer was filed in her name by the trustees appointed by the will. She would not be bound by the decree, for every formality requisite to bind an infant, by the judgment of the Court is wanting. Nevertheless, it is unquestionable that she may affirm the contract irregularly made in her behalf, and seek a recovery of the purchase money.

It is not denied, but that the legal propositions by which the defendant, Boyce, is made liable in the circuit decree, are correctly expounded. Nothing can be clearer upon the authorities, than the principle, that where one executor concurs with a devastating co-executor in an act by which the latter gets possession of the funds wasted or lost, and which without such act of concurrence could not have happened, the consenting, though innocent, executor becomes responsible for him who has committed the waste or default.

The law being thus clear, the only question open to discussion is one of fact. Did Boyce concur with his co-defendant, Ma-gratlagm the sale and the judicial proceedings by which the testers real estate, devised to his wife and infant daughter, was conveyed to Fell ? If there be no such evidence, he must *198be discharged ; but if there be satisfactory evidence, of such concurrence on his part, he must be held accountable.

In the first place, it is worthy of remark, that there was no necessity to sell this lot for the payment of the testator’s debts. The personal assets in the hands of the executors were more than ample for this purpose. I do not perceive that it would help the case of the defendant, Boyce, if such necessity to sell had existed: though some of the cases seem to lay stress on this fact. Nor was there any necessity for a partition at that time. Neither of the two tenants in common was moving for a partition. It was, therefore, merely a voluntary and speculative sale, brought about by parties who had no interest or title in the property.

But the question, as I have said, is as to the concurrence of Boyce. .The evidence on this point is, to my mind, irresistable. I will not comment upon it in detail, but will attempt merely to group together the principal facts. John Phillips, who was counsel for Pell in the proceedings in Equity, instituted for the purpose of perfecting Fell’s title to the Market-street lot, says : “ There was a written agreement between Thomas D. Pell and Ker Boyce, and John Magrath, for the sale of this property by the said executors to the said Fell. This agreement was submitted to witness by Fell, upon which he instituted the proceedings in Equity to obtain titles to said property.” Mr. Phillips also says, that “there was a mortgage to John Magrath and Ker Boyce, as executors.” It is hardly to be presumed, that Fell would have executed a mortgage of the lot, without first having obtained titles or some written agreement by which he thought the lot was assured to him.

On discovering that the executors had no power under the will to sell and convey the real estate, Fell filed his bill, as has before been stated. He made the executors and the testator’s widow and infant daughter (who were devisees) defendants. He charges in the bill, that the two executors had enteredJmto an agreement to sell him the lot for the sum of $2,700, to^f'paid in certain instalments. He asserts that they had let him into *199the possession, in pursuance of the agreement. He prays that the Court would decree him a title, in conformity with the terms of the agreement. The two executors filed a joint answer: in which they admitted all the allegations of the complainant’s bill, and concurred in the prayer thereof: that Fell should have his title perfected by a decree of the Court. Here it would seem, that there was evidence of Boyce’s concurrence, which sophistry could not assail, nor scepticism doubt.

But the zeal and the ingenuity of counsel, has raised a question on this evidence. On an examination of the joint answer of Boyce and Magrath to the bill of Fell, which is of record, it appears that neither of them signed the answer; nor was the answer sworn to. It was signed *“*A. G. Magrath, defendant’s solicitor.” It is contended that this answer is no evidence of Boyce’s concurrence, because there is no evidence that A. G. Magrath was his solicitor, or was authorized to sign an answer for him. The negative parol evidence, on this point, is very inconclusive. The validity of the objection must, therefore, rest upon the abstract proposition, that a defendant is not bound by a decree of the Court, unless his answer has been sworn to, or signed, or there be proof that the person who signed the answer for him was, in fact, his solicitor. It requires but little reflection *to*perceive, that the doctrine contended for, would be exceedingly dangerous, if admitted. It would render null many decrees, and subvert many titles. I think it has been a very general practice, in many parts of the State; and, perhaps, in no place more common, than in this city, to consider the answer as sufficient, if signed by the defendant’s solicitor. If the answer was not sworn to, it, of course, could not be evidence for the defendant. And if the plaintiff desired a discovery from the defendant, he would except to the answer for this omission. It so happens, that in the very case I am now considering, there are several answers not sworn to, or signed by the defendants in person. I do not justify this loose and reprehensible practice, which, doubtless, leads to many evils and abuses. These, I can not now pause to notice. But what I would say, is this, *200that where an answer has been filed in the name of a defendant, and purports to have been signed, by his solicitor, in his behalf, and the case proceeds to a hearing and judgment, such a defendant is bound by the decree, unless he can shew that the solicitor, who undertook to act for him in the premises, was, in truth, not authorized to do so. Neither can such a decree be questioned, or treated as void on a collateral issue, but it must stand as the decree of the Court, until it is set aside and vacated, on a proceeding instituted specifically for that purpose. Every Court must be presumed, when it proceeds to deliver its judgment, to have adjudged the fact, that the parties to be affected by its judgment, were properly represented before it; and upon this presumption the decree must stand, until it is reversed by a competent jurisdiction. Chancellor Harper has considered this subject in *Winslow*vs. Barry, and we suggest, that his opinion be reported in connection with this case. (a)

*201Ker Boyce, therefore, in this case must he presumed to have been a proper party in Fell *vs.*Ex’ors of Henry. And that Mr. Magrath was duly authorized by him, to represent him in the premises. This is a presumption well supported by the evidence of Mr. Magrath, who says, that he “ was employed to represent the executors.” He says further, that *“*he was employed in the usual way to represent these parties.” The conclusion of the Court is, that Boyce’s concurrence in the sale to Fell, has been sufficiently proved : and the further conclusion of the Court, as a matter of law, is, that he is liable for the neglect, or omission of his co-executor to record the mortgage, from which loss has accrued to the estate.

The Court is further of the opinion, that there is merit in the third ground of appeal of the defendant Boyce. Mrs. Eliza Henry (testator’s widow, now Mrs. Britton,) was also an executrix of the will of George Henry. She was a party to the bill of Thomas D. Fell. She assented to and concurred in the sale. The very same principle which subjects Boyce to liability, ought to exempt him from liability to her for her part of the loss.

The judgment of this Court is, that the defendant, Boyce, is to account only for the moiety of the purchase money of the said lot, which belonged to Anna B. Bailey, the infant daughter of the testator, George Henry. And so much of the Circuit decree as orders an account for the moiety of the purchase money of said lot, that was due to the testator’s widow (now, Mrs. Britton,) be reversed; it is ordered and decreed, that the *202Circuit decree be so modified: that in all other respects it be affirmed, and the appeal be dismissed.

Dunkin and Ward law, CC.1 concurred.

Johnston, Ch. being connected with some of the parties, did not sit in the cause.

*Decree*modified.

(a)

**The following is the opinion of Chancellor Harper, in the case of Winslow *vs.*Barry.

Hauper Ch. But, with respect to Mrs. Winslow, it is urged, that a married woman can not alienate her inheritance in any other manner than that pointed out by the Act of Assembly upon the subject. But there is no doubt that she may alienate it by the sanction and decree of a Court of Equity, and the decree made by the Court does sanction and confirm her conveyance, and settle the title of the parties. It is argued, as I understand it, that she ought not to be considered a party to that suit, because her answer does not appear to be signed or sworn to; and authority was quoted to shew that these are requisite. But this is a misconception. It is said, 4 Bridg. Dig. 26, Title, Answer VI., 122, referring to Bunb. 251, — that “ a defendant ought to sign his answer, or for such default an injunction may be continued. But *guare,*whether if plaintiff takes an office copy of the answer it is not a waiver of that informality.” It would seem from this that it is for the plaintiff’s security that the signing is required. In *Barley*vs. *Pearson,*3 Atk. 439, it was moved to suppress an answer for want of being signed.— Upon a search for precedents it was certified, that there were precedents both ways ,* some signed and some not signed by the parties. In support of the motion was urged the difficulty of convicting for perjury, in case of a false answer. Lord Hardwick© acknowledged the difficulty, but refused to make the order, as there were precedents both ways. He said, however, that he would consider of some method of making the practice uniform in future. This was in 1746; accordingly in 1748, (2 Atk. 290,) he made an order reciting the difficulty, and directing in future all answers to be signed by the party. There isa similar rule in the Court of Hew York. Blake’s Ch. 118. How it might be well to enforce the order of Lord Hardwicke, by directing the officer not to file the answer until it is signed and sworn to ; or by directing it, on motion, to be taken from the file during the pendency of the suit. But no one has conceived that this is ground for vacating a decree once pronounced. As to the swearing, that is evidently a matter for the security of the plaintiff, which he may waive, if he will. But surely, it is not for the defendant, or those claiming under him, to take advantage of the informality of his own answer. If, in point of fact, Mrs. Winslow was not served with process, or apprised of the suit, and did not authorize the appearance by Counsel, it is possible that she, or her heirs, a majority of whom, by the by, are before the Court seeking to support the deed, might, by proper proceedings for the purpose, and by shewing those facts, set aside *201the decree; if indeed she had not afterwards recognized the fact of her being a party to the suit, by the deed of separation of 1825, reciting it, and by what is called her will. Or they might perhaps hare a remedy against the oounsel who signed without authority. But, undoubtedly, while the decree stands unreversed upon the record, I am bound to respect it. Such was the decision in *Cruger*vs. *Daniel.*Tho presumption is, that all persons were regularly made parties, whose rights appear to be decrood upon as parties. Any other practice would plainly be pernicious and impracticable. I must then declare the rights of the parties established, according to tho provisions of tho deod.

*Ex parte J. D. L. Vandersmissen and Louisa Catharina*Colleton, *his wife.*In Eq. January, 1829: Decree Book 1827 to 1830.

Application to take answer from off file, because not signed or sworn to, comes too late after decree. It seems, that if the proceedings are acquiesced in, the defendant is bound. Before Hakpek, Oh.