#### *A. McMullen et al.*vs. *James Cathcart et al.*

It would, be replete with inconvenience to sanction a practice of hearing a cause piece-meal, or by detached parts. It is the duty of the plaintiff to be fully prepared at the hearing; and if from the death of a party and the want of time to'bring new parties before the Court, the cause cannotbe fully heard, leave will be given to postpone. J

A having an execution against B’s testator, B'borrowed money, giving A as his surety, and paid the money to A on the execution: B died insolvent, and A, as his surety, was compelled to pay the *money:*— Held, that the execution of A against the testator was satisfied to the amount of the money borrowed by B and paid to A.

*jBefore*Dargan, Ob. *at Chester, July,*1850.

Dargan, Cb. Hugh McMullen, late of Chester District, died in December, 1841, testate. He iras seized and possessed of a good real and personal estate at tbe time of bis death. By bis will, be directed that bis estate should be kept together and employed in agricultural operations, to be conducted by bis executors until a sufficient fund was raised for tbe payment of bis debts. In aid of tbe fund thus to be raised for tbe payment of debts, bis executors were authorized to sell certain lands of tbe testator in Lancaster district, and if both of these sources were insufficient to raise tbe adequate amount, tbe executors were authorized to sell any portion of tbe personal estate.' Tbe testator, after tbe payment of debts, gaye bis large and valuable plantation on tbe Catawba river, on which be dwelt, and tbe whole of bis personal estate, consisting of 26 negroes, stock, &c., to his two sons, Joseph J. McMullen and James C. McMullen, for life, and at their deaths-*118respectively, to such lawful issue of their bodies, as may be living at their death; with a power to the said Joseph and James C. McMullen, to sell the said estate, and to re-invest the proceeds of the sale, on the same conditions and limitations.

James Cathcart and Caleb Clark, sen., were nominated executors of the will. They declined the trust, and administration, with the will annexed, was granted to Joseph J. McMullen — James Cathcart, Robert Cathcart, Caleb Clark, and the complainant, James C. McMullen, being the sureties on his administration bond. Joseph J. McMullen having thus qualified, assumed upon himself the execution of the will, and continued to act in the character of administrator, with the will annexed, from the death of testator, in the early part of the year 1842, until his own death, which occurred on the 5th of October, 1845.

Joseph J. McMullen had a sale of some of the personal property, on the 15th of February, 1842, and hired out the negroes, and rented the land for that year and for 1843. His estate is also to account for the rent of land and hire of negroes, for the years 1844 and 1845, and for any choses in action or assets which may have come into his possession.

On the first day of December, 1843, the said Joseph J. McMul-len offered the Catawba plantation, consisting of about 1200 acres, at public sale, and became himself the purchaser thereof, at $9 90 per acre, he being at that price the highest bidder. This plantation he claimed, cultivated, and used as his own, to the day of his death. He divided the negroes, delivering about one half to his brother and co-legatee, James C. McMullen, one of the complainants. But whether this Avas intended as a final or provisional partition of the negroes, does not appear.

On the 5th of October, 1845, he died intestate and insolvent, leaving his wife, Mrs. Jemima McMullen, and two children, Alexander and Lucy McMullen, who are infants, and complainants in this bill. No application for letters of administration upon his estate having been made, James Witherspoon, ordinary of Lancaster district, where the intestate resided, has taken the posses*119sion and management of the estate, as a derelict estate, according to the Act'of Assembly, in such case made and provided.

After the death of Joseph J. McMullen, in 1845, Caleb Clark and James Cathcart, on 3d November, 1845, obtained letters of administration of the estate of Hugh McMullen, *de bonis non,*and with the will annexed, and assumed upon themselves the execution of that trust.

The next event was the levy and sale by the sheriff of Chester district of the Catawba plantation, and the negroes of the estate that had remained in possession of J. J. McMullen, being eleven in number. The sales were made to satisfy executions in force against the estate of the testator. A very large proportion of the indebtedness, to satisfy which the sales were made, was due to Caleb Clark himself, on an outstanding and old execution that had existed against the testator for years before his death. This was the senior execution. It had, before the sale, been assigned to the Bank for $4,500, with a guaranty by Clark to the Bank for its ultimate payment. The amount due to the Bank was not equal to the balance remaining due upon the execution. This balance belonged to Clark. After the sale, Clark and James Cathcart paid to the Bank the amount of its claim, and obtained a discharge. There were, at the time of the sale, other executions in the sheriff’s office, namely, one in favor of Robert Cathcart, one in favor of John Kennedy, one in favor of James R. Massey, one in favor of Wm. Dunlap, and one in favor of J. N. Smith. This last had been assigned to C. Clark, and belonged to him at the time of the sale.

William A. Rosborough, a former sheriff, testified, that when Clark lodged the execution in the case of C. Clark *vs.*Hugh McMullen, in the sheriff’s office, he informed him that there were several credits to go on it. He said he did not recollect the amounts, but he had a memorandum of them at home. The witness did not recollect whether’ this conversation occurred while he was' sheriff himself, or while he was acting as the deputy of his predecessor, D. G-. Cabeen. It was after the death of H. McMullen.

*120On the 5th of January, 1846, the Catawba plantation, containing about 1200 acres, and the negroes aforesaid, were sold by the sheriff to satisfy the executions aforesaid, then remaining in his office. On the day of sale, a claim was publicly set up to the land, or a part of it, in behalf of the grand-children of Mrs. Charlotte McMullen, wife of the testator, Hugh McMullen. This claim was interposed on the part of the children of her daughters, Mrs. Woodward and Mrs. Ciarle, both deceased. It seems that a portion of the Catawba plantation, known as the Leonard tract, containing about 200 acres, was the inheritance or real estate of Mrs. C. McMullen. She died in the life-time of her said husband. On her death, Hugh McMullen became seized of one-third, and James C. McMullen, Joseph J. McMullen, Mrs. Woodward and Mrs. Clark, (or their children representing them,) became entitled each to one-fourth of two-thirds. James C. and Jos. McMullen, had, by a deed duly executed, conveyed all their share or interest in their mother’s real estate, to their father, Hugh McMullen, in his life time. So that at the time of the sale, the only real claim outstanding against the title of the testator to the whole of the Catawba plantation, was that on the part of the Woodwards and Clarks to one-third of the two hundred acres, known as the Leonard tract.

These .adverse claims were made to assume a formidable and exaggerated aspect. The sale of the whole plantation was forbid by a written notice served on the sheriff. Neither the character nor extent of the adverse claims was explained. It was not shown how the adverse claimants derived their title. It is charged in the bill, and admitted by C. Clark, that he was fully acquainted with the nature and extent of these adverse claims.

D. G-. Stinson, testified, that he was present at a trial in the Court of Common Pleas for Lancaster, when Caleb Clark produced a deed of assignment by James C. and J. J, McMullen, to their father, of all their right in their mother’s part of the Leonard tract of land. Yet Clark made no explanations as to the nature and extent of the outstanding and adverse claims. He was asked *121to, consent that tbe sale should be postponed, in order that the adverse claims might be examined and ascertained. This he refused, and insisted that the sale should go on. His execution, the oldest in the office, was open for the full amount due upon its face, according to the original confession, though there were large credits that should have been endorsed upon it. At the sale, there was no explanation made as to the actual amount due upon the execution. It was originally for a large sum. It had been drawing interest fora great many years, (from 27th February, 1822,) and the amount apparently due was very large ; not less, in fact, than $9,000. All these circumstances tended in a very considerable degree to damp and injure^e'-aalei^ --They had such an effect upon the sheriff, (James PagE^i,) thhtVhe thought it best to offer only the right and interest^>ff'H)I^ivMcfflnllen iin the land. The land was thus offered — a ffipcLfe of Selling which* h¡ad 'a still further tendency to prejudice the t^tle'in the estifet^n^f bystanders and bidders, and to cool the ardof'of Co these circumstances, C. Clark became the purchaser1’ *ofjhe*Catawba plantation for the sum of $3,700, took sheriff^ raíles, and has been in the possession and use from that timé to the day of his death; and his heirs and representatives, since hjs death, to the present time, have continued to use and cultivate the said plantation for the benefit of his estate. This is a valuable property, and I am satisfied from the evidence, was worth, at the'time of the sale, $10 per acre, or $12,000.

It is impossible that this sale should stand. The property was worth more than three times the amount it brought at the sale. It was an unconscionable speculation by the administrator, against the estate he represented. If the sale had been fail’, under the Act of 1839 C. Clark would have^been entitled to hold the property, and the title would have vested in him, on the condition of his being charged with and paying-the actual value at the time of the sale. But I do not think that the purchase was fairly made. And this is shown by the circumstances which I have narrated. I am satisfied, if the administrator, C. Clark, had performed his *122duty on that day, in stating the actual amount due to himself, and in clearing his testator’s title of the suspicions and doubts that were cast upon it, the land would have sold for a much larger price. The transaction wears, in my judgment, the appearance of finesse, and there was a concealment of circumstances on the part of the administrator, which prejudiced the estate, and secured to him the benefits of a great bargain.

This being my conclusion, the sale must be set aside, and the sheriff’s conveyance delivered up to be cancelled. And it is so ordered and decreed.

It appears from the answer of C. Clark and James Cathcart, that there was another small tract of land of testator’s, in Chester district, containing 40 acres, which was sold on the same day by the sheriff. This tract was bid off by Mrs. Jemima McMullen, (the widow of Jos. J. McMullen,) for what price does not appear. She transferred her bid to Richard Cathcart, by whom it was transferred to Caleb Clark, who took sheriff’s titles for the same, and still held it in his possession at the date of his answer. There being no allegations in the bill, impugning the sale of this tract of land, nor in fact any proof that it was not fairly sold, and for full value, it is not my purpose in this decree to disturb that sale.

.The negroes of the testator, sold by the sheriff on the first Monday in January, 1846, (eleven in number,) were all bid off by the other administrator, James Cathcart, with the exception of one negro boy named Horace. He was bid off by A.. Q. Hunovant, but the boy being anxious to go with his kindred, James Cathcart purchased him from Hunovant, at an advance upon his bid. The answer states, that some of the eleven negroes were old and some young. That they brought the aggregate sum of $4,414, equal to) an average of $416, and that this price was full and fair. It seems, on the same authority, that after the negroes were bid off by James Cathcart, and without any previous understanding to that effect, he and Caleb Clark agreed to divide the negroes. Under this agreement, the negroes were divided; James Cath-cart taking five at $1,865, and Clark taking six at the price of *123$2,549. The only evidence 'on the subject of the price of the negroes, besides the statement of the answer, is that of James Pagan, the sheriff, who made the sale. He says, that “the ne-groes sold, not for a high price, but for a pretty fair price, considering the time at which they were sold.” I see no unfairness in the sale of the negroes. They, as well-as the land, were sold under *bona fide*executions, at the suit of other persons than the administrators. There were no attempts or circumstances to de-prefciate their value, or to throw doubt and suspicion on the title. The price given was adequate, and though purchased by an administrator, we have seen, that, under the provisions of the Act of *18S9, (11*Stat. 62,) an administrator is permitted to purchase the property of his testator or intestate, under whatsoever authority the sale shall be made; provided, he gives the actual value of the property at the time of the sale. I see no reason, therefore, for the Court to interpose in regard to the sale of the ne-groes ; and so much of the bill as prays that the sale of the negroes be set aside, is dismissed. .

There were two tracts of land owned by Hugh McMullen, in Lancaster district. Both of these were sold by the sheriff of that district. The complainants charge in their bill, that these lands were purchased at very inadequate prices, for the benefit of the sureties to the administration bond of Jes. J. McMullen. There is no evidence before me of the quantity of these two tracts of land, their value, the prices at which they sold, at whose instance, or when they were sold, further than what is to be found in the answer of Clark and James Cathcart. *They*state, that the tracts contained about 500 acres each, that they were sold by the sheriff of Lancaster, under executions in his office, and that one of the tracts was purchased by Richard Cathcart for $65, and the other by the same party for $60. It is denied by Caleb Clark, in his answer, that the sale was made under his execution, or that he knew of the sale until some time afterwards. He says that he has been informed, that the sale was made under the execution of Wm. Dunlap. He further states,- that the sale of the Lancaster *124tracts was long anterior to tbe Chester sale, in the life-time of Joseph J. McMullen, the late administrator, and before the said Clark represented the estate, or bore any other relations to the estate than those of a creditor. There is no proof to the contrary of this statement, and if *it*is not to be taken as evidence, there is no evidence at all upon the subject. Richard Cathcart bore no fiduciary relations to the estate of Hugh McMullen, which would forbid his purchasing his lands at sheriff’s sale at an inadequate price. I say inadequate, though there is no evidence of inadequacy, besides the simple statement of quantity and price, from which I presume, that the price *was*inadequate. I do not know but that the sale was conducted in a maimer most perfectly fair. In the absence of proof, I am bound to conclude that it was. I perceive no grounds, therefore, for supposing that Richard Cath-cart had not a legal right to take titles for the land that he had purchased at sheriff’s sale, on the payment of his bid. Nor do I perceive any impediment, after he had thus acquired by contract of purchase a perfect right to take titles, to his transferring that right to Caleb Clark, on any consideration that might be agreed on between them. It will be remembered, that, at that time, Clark occupied no confidential position towards the estate. And if he had, after the right and title of the estate was gone, without default in the administrator, and before his administration, and had vested in a third person, there is nothing to forbid the administrator, under those circumstances, to purchase for his own benefit. The sale of the Lancaster lands *may*have been fraudulent; but if so, it has not been made to appear. There is, in the judgment of the Court, no ground for vacating or disturbing the sale of the Lancaster lands, and so much of the complainants’ bill as relates thereto is dismissed.

The original bill in this case was filed on the 21st May, 1847, by James C. McMullen, the son and devisee of the testator, and by Alexander and Lucy McMullen, the children of Jos. J. McMul-len, against Caleb Clark, James Cathcart, Robert Cathcart and Richard Cathcart. The prayer of the bill is, that the sales of *125the lands and negroes should be vacated, and for account and relief. The children of Jos. J. McMullen are interested and claim under the limitations of the will 'Of then* grandfather, Hugh McMullen. James Witherspoon is also made a party, because as ordinary he took possession of some portion of the goods of Jos. J. McMullen., He states that Jos. J. McMullen died insolvent; that there were some executions out-standing against him at the time of his death, by virtue of which the sheriff levied upon and sold all his visible property. He further states that the said Jos. J. McMullen, at the time of his death, was a practicing attorney, and that he had possession of various choses in action belonging to his clients, all of which the said Witherspoon has delivered over to their proper owners. He further states that the said Jos. J. McMullen was an attorney in copartnership with Thos. J. Wright, who survived him; and that the said Thos. J. Wright, as the surviving partner, was entitled to the possession and control of the choses in action, fees and costs due to the copartnership ; that besides these, there were no choses in action due to the said Jos. J. McMullen; that he has not received, and does not expect to receive, a dollar from the estate of the said Jos. J. McMullen ; and that the said Jos. J. McMullen is said to be largely indebted to the said firm of which he was a copartner.

After the said Caleb Clark and Robert Cathcart had filed their answer to the complainants’ bill, and before trial, 0. Clark died 10th January, A. D. 1850. The said .Robert Cathcart also died, in 1849, intestate, leaving his children^ John and Nancy Cathcart, his only distributees. The said Caleb Clark also died intestate, leaving his children and grand-children named in the bill of re-vivor, as his distributees, and Henry H. Clark has become his administrator. On the 23d March, 1850, the complainants revived their bill against the legal representatives, heirs-at-law and distributees of the said Caleb Clark and Robert Cathcart. On this state of the pleadings, the case came on for trial, all persons *in esse*with a possible interest, being parties before the Court. It is nowhere stated in the pleadings, nor shown in the evidence, *126that James C. McMullen, bas any children who may claim as remainder-men under the will of Hugh McMullen.

Having vacated the sale of the Catawba plantation, I am next to enquire what is best to be done for the relief and satisfaction of creditors, and the adjustment of the conflicting claims of the various parties to the suit. I am impressed that the estate has been badly managed; but it is premature to express an opinion on this subject. From evidence before me, it appears that the indebtedness is large. The claims of the creditors are of course paramount to those of the devisees and legatees under the will. And I do not think that the debts can be satisfied without a sale of the lands and negroes.

It is therefore ordered and decreed, that the commissioner of this Court do proceed to sell the plantation of the said Hugh McMullen, on which he lived at his death, on a credit of one and two years, with interest from the day of sale; and the negroes that are, or have been in the possession*of the said James C. Mc-Mullen, on a credit of one year, with interest from the day of’ sale; and that the said James 0. McMullen deliver up said ne-groes to the said commissioner for this purpose. It is also ordered, that the commissioner take bond and personal security and a mortgage of the property to secure the payment of the purchase money, of both the real and personal estate, hereby ordered to be sold. And in reference to the said plantation, it is ordered, that the commissioner give only a quit-claim title to any part thereof, to which the right may be seriously disputed.

It is further ordered and decreed, that the administrator of Robert Cathcart and the administrator of Caleb Clark, -be enjoined from enforcing their executions at law against the estate of the said Hugh McMullen. It is further ordered, that all the other creditors of the said Hugh McMullen, whether by execution, by specialty or simple contract, be also enjoined from proceeding at law against said estate. It is further ordered and decreed, that *all*the creditors of the said Hugh McMullen do prove and establish their demands in this Court before the *127Commissioner in Equity, before tbe next term of tbe Court; and that tbe said commissioner give due notice thereof by advertisement in tbe newspapers; and that tbe commissioner report thereon at tbe next term of tbe Court.

It is also ordered and decreed, that the commissioner enquire and report tbe balance due on tbe execution of tbe said Caleb Clark *vs.*Hugh McMullen, after allowing all proper and legal credits and discounts; and that be also, in tbe same way, enqube and report tbe amount due upon tbe execution of Robert Cath-cart and tbe other executions out-standing against tbe estate.

It is further ordered and decreed, that the administrator of tbe said Caleb Clark account before tbe commissioner of this Court for tbe rents and profits of tbe plantation, (tbe sale of which is herein vacated,) from tbe time that tbe said Caleb Clark became a purchaser thereof, to tbe time of accounting, with interest on tbe annual balances.

It is further ordered and decreed, that tbe accounts of Joseph J. McMullen, as administrator with tbe'will annexed of Hugh McMullen, be referred to tbe commissioner, and that be report thereon; and if any balance shall be found due on tbe administration accounts of tbe said Joseph J. McMullen, it is ordered that such balance shall constitute a fund for tbe payment of tbe claims of creditors, and that for this object the estate of each of tbe four sureties on the administration bond of tbe said Joseph J. McMullen, shall be liable jointly and severally.

It is further ordered and decreed, that the amount that may be found due by Caleb Clark for tbe rents and profits of the plantation, as well as bis aliquot or fourth part of any balance that may be found due on tbe administration accounts of said Joseph J. McMullen, shall apply as a credit or payment on bis execution against tbe estate of Hugh McMullen, if so much be necessary. If all or a part should not be necessary for this purpose, it shall constitute a general fund for tbe payment of debts, or of tbe claims of- tbe devisees or legatees under tbe will. In like manner, it is ordered, that tbe aliquot or fourth part of tbe liability *128of the said Robert Catheart for any balance that may be found due upon the administration accounts of the said Joseph J. Mc-Mullen, shall apply as a credit or payment on his execution, against the estate of the said Hugh McMullen, if so much be necessary; and if not, then it shall constitute a general fund for the payment of the creditors or devisees and legatees under the will, as hereinbefore provided.

It is further ordered and decreed, that it be referred to the commissioner to enquire and report the amount due by the complainant, James 0. McMullen, to the estate, for land rent and negro hire, during the administration of Joseph J. McMullen; and also, the hire of the negroes that have been in the possession of the said James 0. McMullen, from the time that the same were delivered into his possession to the time of the sale hereby ordered.

All the funds of the estate, from whatsoever source derived, shall be applicable to the payment of the debts, as the Court shall appoint and direct. The residue, if any remains, shall be a fund for division among the persons entitled under the will, whose rights as among each other, are hereby reserved for future adjudication by the Court.

From this decree the complainants appealed, on the grounds :

1. Because the Chancellor erred in refusing to set aside the sale of the slaves belonging to the estate of Hugh McMullen, made by the sheriff, and which were purchased by Caleb Clark, Esq., and James Catheart, administrators of the said McMullen, as the writs of *fi. fa.,*under which said slaves were sold, were satisfied before the time of said sale; or if not actually satisfied, they were satisfied in law, the said Caleb Clark and Robert Cath-eart, to whom all the executions in the sheriff’s office belonged, being large debtors to the estate of the said Hugh McMullen; and their indebtedness at the time of said sale, amounting to more than the balances due on said writs of *fi. fa.,*under which said slaves were sold.

2. Because the Chancellor erred in deciding that there was no *129fraud in said sale, and that the said slaves sold for a fair price, when from the proof in the cause, it is respectfully submitted, that said sale was fraudulent; the time when said sale was made, the large payments made on the executions under which they were sold, not being credited thereon, and other circumstances, show that the said sale was a mere contrivance to secure all the property of said estate to the benefit of said administrators, made below its value, and to the great injiu-y of the estate of which the said Clark and Cathcart were the trustees.

3. Because the said decree is erroneous in ordering a sale of the slaves in the possession of James C. McMullen, until it shall be' ascertained whether a sale of the same may be necessary for the payment of debts, and until it shall be ascertained what amount of assets are in the hands of Joseph J. McMullen, as former administrator of said estate, and the proceeds of the sales of the land, ordered to be sold by said decree may be insufficient for that purpose.

4. Because the Chancellor erred in dismissing, without prejudice, so much of the bill as relates to the sale of the lands in Lancaster, inasmuch as the complainants stated at the hearing of the cause, that they were not prepared, and would not go into that part'of the case, and would not and did not offer any evidence or argument in that part of the case.

Upon so much of the decree as directed the commissioner to enquire and report the balance due upon the judgment of Caleb Clark, the commissioner reported as follows :

“ Mr. Clark’s judgment and execution was for $3,310, with interest thereon from the 27th February, 1822. Mr. Clark had received various sums of money on account of Mr. McMullen, which were not credited on said execution. At the reference, Mr. Clark furnished a statement of a settlement of his claims against Hugh McMullen, made with J. J. McMullen, the administrator, on the 13th March, 1844. In this statement he credits his execution with the following sums received, to wit: June 6, 1838, $3,310.00; April 6, 1838, 293.00 ; January 9, 1842, 2,000.00.

*130“ According to the calculation then made, the balance due at the time of the last payment was $2,735.75. But to this statement was added some balances due to Mr. Clark on former settlement, viz: one of $485.80, Noy. 6, 1835, and one of $103.00, due March 13, 1830, and other amounts, which, with interest thereon, and on the above balance of execution, made the amount of $4,038.87, due to Mr. Clark, on the said 13th March, 1844, the day of the settlement. On the part of the complainants, it is alleged that the balance of the accounts are not allowable, as they are not sustained by evidence of the former settlement referred to, and were barred by the statute of limitations anterior to the testator’s death. It appears to the commissioner that these objections are fatal, and that the balance of these accounts cannot be allowed to Mr. Clark. On the other hand, it is urged by the defendant that the sum of $2,000, acknowledged to have been received on the 19th January, 1842, should not be allowed as a credit, inasmuch as the money was never actually received.

i£ The administrator, J. J. McMullen, credited himself with the sum of two thousand dollars in his returns to the ordinary, and which Mr. Clark also exhibited as a voucher at the reference. It appears that the payment was made by J. J. McMullen giving his note in Bank for $2,000, with Clark and Robert Catheart as his sureties, and that the money drawn on that note was applied to the payment of Mr. Clark’s note then in Bank for the same sum. This note was renewed several times with some payments until the 2d April, 1845, when it was protested for $1,300, which balance with interest and protest, was settled by Mr. Clark giving his own note in Bank for $1,359.37, on the 19th November, 1845. Mr. Clark insisted that his execution should be credited with only $640.63, the amount paid by J. J. McMullen on his note, as the other sum of $1,359.37 was not really paid. The commissioner inclines to this view of the case, and is of opinion, that only $640.63 should be credited on the execution instead of $2,000.”

*131• To tbe report of the commissioner the complainants and the defendant, James Oathcart, excepted on the ground:

Because the commissioner erred in not crediting the execution of 0. Clark with the sum of $>2,000, on Jahuary 19, 1842, being the amount of C. Clark’s-note in the Camden Bank, paid by J. J. McMullen on that day.

The report was heard, upon the exception, before his Honor, Chancellor Wardlaw, at July sittings, 1851. His Honor overruled the exception, and the complainants and James Oathcart appealed.

*(xregg McAliley,*for complainants.

*Soylston,*contra.

The opinion of the Court was delivered by

Dunkin, Ch.

The first ground of appeal is an attempt to urge the principle of *SimMns*vs. *01oil,*(2 Bail. 60,) to a case not within that rule of law, or the reason of it. It is true that Caleb Clark and James Oathcart, together with -two other persons, were sureties on the administration bond of Joseph J. McMullen, deceased. But at the time of the sheriff’s 'sale in January, 1846, J. J. McMullen had been dead but a few months — no account had been taken of his administration — no default ascertained — nor his inability to discharge his debts established. In this Court all these should appear before any actual indebtedness could be said to exist on the part of his sureties. Their liability to the estate of Hugh McMullen, deceased, was purely contingent, and afforded-no ground for the legal inference insisted on, that, in January, 1846, they were in possession of assets belonging to that estate. The distinction is adverted to in *O’Neall*vs. *Herbert,*McM. Eq. 499.

The second ground is answered by the facts detailed in the Chancellor’s decree. The sales of the slaves were made under the authority of other executions in the sheriff’s office as well as those' of Clark and of Oathcart. “ There were no attempts,” says he, “to depreciate their value, or to throw doubt or suspi*132cion on the title. The price given was adequate.” This Court concurs in his conclusion that there was no ground to invalidate this sale.

The third ground of appeal is well taken. It is now conceded that the order for the sale of the slaves in the possession of James C. McMullen was premature, 'and may prove unnecessary. It is, therefore, rescinded.

The Chancellor decreed that, from the evidence before him, he saw no ground to impeach the sale of the lands in Lancaster district. Robert Cathcart was the purchaser of those lands at sheriff’s sales, and he was originally a defendant in the suit. He died before the hearing of the cause, to wit, in January, 1850, and though a bill of revivor had been filed against his infant heirs, they'had not had an opportunity to answer or defend the cause. The fourth ground is because the Chancellor erred in dismissing the bill as to the sale of the Lancaster lands, “ inasmuch as the complainants stated ’at the hearing of the cause, that they were not prepared, and would not go into that part of the case, and would not and did not offer any evidence or argument on that part of the case.”

It may not be amiss to repeat what is said in *Bierdermann*vs. *Seymour,*17 Eng. Ch. R. 594, that “ it is the duty of the complainant to come fully prepared at the hearing to ask the Court for a decree, and if he is not so prepared, and the suit appears defective from his default, it is then a matter of discretion or indulgence to grant him leave to supply the defect.” So, if the cause is not ready for hearing in consequence of such casualty as here occurred, and the want of time to bring the new and necessary parties into Court, leave would be given to postpone the cause. But it would be replete with inconvenience to sanction a practice of hearing a cause piece-meal, or by detached parts. It is manifest, however, that the error in this case originated in a misapprehension on the part of the Solicitor, and, moreover, as the heirs of Robert Cathcart, deceased, were not, in fact, represented, they would not be bound by the decree. So much of the *133decree, therefore, as dismisses the claim is opened, and the matter ordered to be set down for bearing ón the proper parties being represented.

Bush and Massey interposed a claim against the estate of Hugh McMullen, deceased, for moneys which they had paid on account of the Lancaster lands purchased by'them from Hugh McMullen, and which had been taken from them for defect of title in their vendor. The Chancellor ordered the claim to be investigated by the commissioner. It is noiy asked, and it is so decreed, that the commissioner have leave also to report, whether any of the payments, alleged to have been made by Bush and Massey, were received by Joseph J. McMullen as administrator of Hugh McMul-len deceased, and not heretofore charged - against him, and that he have leave to surcharge him accordingly.

The only remaining ground of appeal is that submitted on the part of James Cathcart. It appears that, at the death of Hugh McMullen, and for some time previously, Caleb Clark held an execution against him to a large amount. On the 2d January, 1842, Calfeb Clark having a note of $2000 falling due, or then due, in the Bank of Camden, applied to Joseph J. McMullen, who was then the administrator of his father’s estate. McMullen put his individual note in the Bank of Camden, with C. Clark and Robt. Cathcart as his sureties, which note was discounted, and the proceeds applied to the payment of Clark’s note in that institution. Clark gave to J. J. McMullen, as administrator of Hugh McMul-len his receipt for two thousand dollars on account of his execution. In the returns of J. J. McMullen to the ordinary he credited himself with this payment as made on account of the estate? and Mr. Clark exhibited it as a voucher at the reference. He also furnished» at the same time a statement of a settlement of his claims against Hugh McMullen, deceased, which he had made with J. J. McMullen, his administrator, on the 13th March, 1844; and in this statement Clark credited on his execution this payment of $2,000, as made 9th January, 1842. McMullen’s note -to the Camden Bank was several times renewed with the same *134endorsers, and several payments thereon were made by him ; but, on the 2d April, 1845, the last renewal of $1,359.37 was protested for non-payment, and was taken np by Clark’s note for that amount. It was insisted, and so the commissioner hesitatingly determined, that Clark’s execution against Hugh McMullen should not be credited with the $2,000, but only with $640.63, the difference between that sum and $1,359.37 ; and the exception in this respect was overruled.

This is not like the case of *Dogan*vs. *Ashbey,*1 Rich. 36, where a note agreed to be taken in payment on a judgment was held to be payment, although that would be sufficiently decisive of the case. There was no individual indebtedness on the part of J. J. McMullen to Caleb Clark. But the latter holding an execution against Hugh McMullen deceased, J. J. McMullen borrows money from a third person, pays it to Clark on account of his execution, takes his receipt to that effect, and enters it as a credit in his account as administrator, and, two year's afterwards, in an adjustment or settlement of the amount due on the execution, the credit is set down and admitted *by*Mr. Clark. It was no substitution, but an actual payment. Three years after the payment, McMullen fails to pay to the third person the money which he had borrowed and paid on Clark’s execution. In reference to the credit on the execution, is it of any importance that Clark was one of the persons who had become security for the loan which McMullen made in, 1842 in order to enable him to pay the execution ? If, in January, 1842, the amount due on Clark’s execution against Hugh McMullen deceased, had been $2,000, would not his receipt to the administrator for that sum have entitled the administrator, not only to credit in his account, but to have had satisfaction entered on the judgment ? In order to raise the money to pay the judgment, J. J. McMullen had not only incurred an individual liability which did not before exist, but he had involved another person besides Mr. Clark as his surety. It appears to the Court that the payment of the $2,000 on 9 th January, 1842, was an extinguishment of the execution of *135Caleb Clark to that extent, and sbonld bave been so regarded in taking an account of the amount due.

It is ordered and decreed, that tbe decrees of the Circuit Court be modified as herein before expressed, and that, in all other respects, the same be affirmed.

JohNSton, Dargan and Wardlaw, CO., concurred,

*Decree modified.*