majority">The Chancellor :

This case having been submitted on the part of the complainant, and the solicitors of the parties having presented their views, in writing, the proceedings have been read and considered by the Chancellor.

It appears, that upon a bill filed by the defendants, as administrators, with the will annexed, of Alexander Forsyth, against Rachael Forsyth, certain property was decreed to be sold, and the complainants in that case, being appointed trustees to make the sale, sold the same, and that Rachael Forsyth represented by the complainant in this case, became the purchaser. That by the report of the Auditor in the first case, there appeared to be due the said Rachael, the sum of $1,208 76, which report was ratified by the Chancellor’s order, passed on the 10th of March, 1837, and this bill is filed to enforce the payment of the sum.

The answer of the defendants in this case, and the evidence, shows that Rachael Forsyth did not comply with the terms of sale, and that the property was subsequently sold by her, through an agent, to Mrs. Helena Stewart, with an agreement that the purchase money should be applied to the payment of incumbrances and other debts due by the said Rachael Forsyth, and that these incumbrances and debts exceed by $233 40, the sum which had been awarded her in the case first mentioned, so that, in point of fact, she has been overpaid that sum. It is objected, to be sure, that this agreement being by parol, is void under the statute of frauds, but even if the statute would, under any circumstances, apply to such an agreement (which is not admitted) the acts of part performance by the defendants in the the case, would clearly take it out of its operation. It would be making the statute an instrument of fraud, to allow it to defeat an agreement which has been performed to the extent to which this has been.

Philip C. Frieze and Henry F. Frieze for Complainant.John Glenn and David Stewart for Defendants.

It is, therefore, clear, that the plaintiff in this case can have no relief against these defendants, even if he has adopted the mode in which, if the merits were with him, he could be entitled. I am by no means sure, however, that he has adopted the proper proceeding. The money which was awarded to Mrs. Forsyth resulted from proceedings in the case of Glenn and Stewart, (the present defendants) against her. The audit referred to, and upon which this complainant now seeks to recover, was made in that case, and I am strongly inclined to think, that instead of filling an independent bill, the regular and proper course was by petition in that case. I can see no reason why a new suit should be brought, when it was certainly in the power of the court, in a way much more summary, and much less expensive, to enforce the order in the first case, unless sufficient grounds against it could be shown.

But, although the plaintiff in this case can have no decree, the defendants cannot have one for their over payment. The bill was not filed for an account, but for a specific sum of money, nor was the order passed by this court on the 26th of April, 1847, in the nature of a decree to account, which would make both parties actors. The object of that order was to ascertain by a report from the Auditor, whether the defendants had paid or extinguished this particular claim, and not that the parties should account with each other. The bill, therefore, in this case will be dismissed with costs.

[No appeal was taken in this case.]

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