Ridgely’s Notebook I, 106
Orphans’ Court of Delaware, Sussex County.
July, 1817.
Page 323
Appeal from decree of the Register. Account and exception filed. Account passed July 1, 1810. William Polk died April 19, 1801. Inventory dated July 2, 1801. Letters of administration dated May 28, 1801.
This case was partially heard at April [Term], Some evidence was then given, and then continued.
The exception is that the accountant has only charged herself in her said account the appraised value of the following articles of property mentioned in the inventory, which she sold for a considerable advance in price, and for which advance she ought to have charged herself. Then follows long list of articles stating the appraised and the advanced price for which they were sold. See evidence given last term as to this advance.
July 24, this case came on again. Wells for appellants Cooper and Clayton for appellee.
Mr. Wells gives in evidence account current between Peter Robinson and Sarah Polk closed May 10, 1806, by her receipt for balance in which she is credited with Negro Levin £75. No particular date to this credit; appraised at £37.10. With Negro Scipio £75. No particular date; appraised at £55.
Here the book of account of Burton Robinson was offered to prove the price of an article sold by administratrix. Objected to by appellee’s counsel.
THE CHANCELLOR.
The books are not evidence. They could not be at all in this case. Mr. Robinson, if he were here, might refresh his memory with them, but he would be the witness. Besides, the book has not been sworn to.
Rejected.
The appellant’s counsel then offered a book of Burton Robinson and George Robinson, the guardian, merchants, to show in the account between the said merchants and Sarah Polk the price of some articles they purchased of her at vendue. Objected, that the book is no evidence. It cannot be received between these parties. It is no book of accounts between parties to this suit. The transaction between Mrs. Polk and these gentlemen has no relation to these parties.
Page 324
THE CHANCELLOR. This book is no evidence. It is not offered in a matter between the parties to the account kept in the book. Besides, the list of sales is better evidence, and that should be offered and not this inferior evidence, unless such list is lost or will not be produced on notice.
[These exceptions had been filed with the clerk of the Orphans’ Court on October 10, 1816. On February 13, 1817, appellant filed an additional exception that accountant’s allowance of $62.22 for sundry repairs was unjust and extravagant.]
THE CHANCELLOR. This last exception being objected to, and this being the first occasion on which any objection was made to additional exceptions, it is right that a decision should be made that the course proper on such cases may be known and pursued. On the first exercise of the appellate jurisdiction in matters of account passed by executors, administrators or guardians, and ever since, the exceptions have generally been filed in the Register’s office. This practice is conformable to the spirit of Section 16, Article 6 of the Constitution. The exceptions lay the groundwork of the appeal. They come up with the account and with the citation give notice to the accountant of the particular charges or allowances in the account objected to and enable the accountant to come prepared to investigate and support such charges or allowances. Afterwards to file exceptions in this court would produce injustice or delay by a surprise on the party. The additional exception ought not to be allowed and cannot be now inquired into. . . .