Lee vs. Pindle and wife, et al.-1842. same situation as if no appeal had been taken, and the cause had never been removed from that jurisdiction. We think the second objection of the appellant equally untenable and unfounded. No reservation of any equity for further directions was necessary in the first decree for a sale of the negroes, to warrant the court in granting full and complete relief to the appellee for the hire and annual value of the negroes, when the final decree was passed. The principle seems to be settled, that the court will not, on further directions, decide a question not reserved by the decree; the rule, however, does not prevent the court from giving interest on further directions, though the question of interest be not reserved by the decree. For this principle, see 2 Smith's C. P. 403, 404. The same principle which would warrant the allowance of interest without any reservation to that effect in the decree, would, we think, upon fair and reasonable grounds of analogy, sanction the allowance of hire and value for the negroes, without any reservation having been made upon that subject, when the decree for a sale was passed. Upon the appellant's third point, which charges error in the principles assumed by the auditor in stating the account, which was adopted by the decree of the Chancellor, we think the objection is well founded, so far as he has relied upon the estimates of witnesses, who did not know the negroes in question. Their estimates ought not to have been mixed up with, and allowed equal weight and influence, with the valuations of those who knew the negroes, and who testified from such, their personal knowledge. An average of hire and value founded upon such a principle, might work great and serious injustice. Proper allowances ought also to be made for the expense of maintaining and clothing the whole, as well those incapable of labor as those who were able to work. The hire of the negro man Abraham, who was drowned, ought to have been carried up to the time of his death; and ought not, certainly, to have been extended beyond that period, as a charge against the appellant. We think there was no error in the charge of interest on the annual hire or value of the negroes' services; at the expiration of each Lee vs. Pindle and wife, et al.-1842. year he was a debtor to that amount, and interest, we think, was properly charged upon it. We think that the appellants fourth point is clearly untenable. The will and codicil are to be construed together as one instrument, and are to be reconciled as far as practicable; but if there be any conflict or repugnancy between them, the codicil, as the last indication of the testator's mind, must operate in preference to the will. By the second codicil, the negroes are given to the wife for life, in language too clear to be misunderstood; and at her death the direction is equally explicit, that they are to be divided amongst the legatees therein named. If this construction be correct, the fifth point is wholly untenable; because the pecuniary legatees, and the personal representative of the widow, have no interest which can be affected by this decree, and are therefore not necessary parties to this suit. From the death of the widow, the hire and profits of the negroes' services ceased to be a fund for the payment of their legacies, and they were no longer interested in any question, touching that subject. For reasons already assigned, we think that the sixth point, which objects that the suit was prematurely brought, is wholly unavailing. Upon the death of the widow, the right of the specified legatees to call for a distribution immediately attached, and their standing in court cannot, of course, be impeached, upon the ground that their bill was prematurely filed. The seventh and eight points relative to costs, cannot be sustained. The principle is well settled, that the question of costs in Chancery is discretionary. At the time of the first decree, the costs were properly charged on the fund, because at that time no improper obstacles had been interposed by the appellant, to the attainment of the objects of the suit; but afterwards the case assumed a different aspect; andt he untenable and vexatious grounds of defence taken by the defendant, well warranted the Chancellor in the course which he pursued in his final decree upon the subject of costs, which was, that the defendant, Lee, should pay to the complainants their costs in that court. Upon the ninth point, we think there is error in Brooks vs. Brooke, Belt and Hodgkin.--1842. The distributive share of each the decree of the court below. legatee should have been liquidated, and finally settled by the decree, so as to prevent all future controversy and litigation upon the subject; an object which the Court of Chancery is always studious to accomplish, and which is the main and leading purpose of the rule, which requires that all proper parties should be made to every suit therein instituted. Upon these views of the case, disagreeing as we do with the Chancellor in the particulars mentioned above, we think that the decree of the court below ought to be reversed with costs, and the cause remanded for further proceedings according to the principles herein contained. DECREE REVERSED WITH COSTS. JOHN BROOKS vs. WALTER B. BROOKE AND JAMES B. BELT, ADM'R. OF EDWARD W. BELT, AND T. HODGKIN, ADM'R. OF ALEX. H. BOTELER.-June Term, 1842. A bill which sets out the previous proceedings of the court as a portion of the facts out of which the complainants equity arises, though alleged to be on its face a supplemental bill, yet did not seek to alter or amend any decree or order passed in this cause, is neither a supplemental bill, nor a bill in the nature of a bill of review, but is an original bill. The general rule is, that a Court of Chancery has no power over the securities of a trustee of the court, but this has some exceptions. Where property is sold under a decree of a court of equity, the proceeds of sale are considered in the custody of the court, and no person, whether a party to the bill or otherwise, can maintain a suit at law for the recovery of any portion thereof, until the payment of a claim, thus prosecuted, shall have been awarded by the court, and notice of such award, and a demand of payment, shall have been made of the trustee or other officer in whose hands the funds may have remained as the fiduciary agent of the court. But where the trustee is delinquent, and having wasted the fund dies intestate, without any administrator, or estate on which administration could be had, and a claimant could not place himself in a situation to proceed at law, by obtaining a previous award against the trustee, accompanied with notice and demand of payment, then equity will afford relief against his securities. Evidence by an under clerk employed in the office of a clerk of the county court, that he had made a careful examination for a trustee's bond, of all the papers connected with the cause in which the bond had been given, and of all the other equity cases in the office since for the original bond, Brooks vs. Brooke, Belt and Hodgkin.-1842. and could not find it, and did not know where it was to be found, and that every bundle of papers in the office, and every part of the office, where he thought there was a possibility of finding it, he had also examined, and that he verily believes it to be lost, with proof that the bond once existed, is sufficient proof of its loss eo warrant the interposition of a court of equity as far as that fact would give it jurisdiction, but the loss of the bond was not material in this cause. Where mortgaged premises are decreed to be sold, prior incumbrancers not parties to the bill, nor before the court, are not bound to seek payment of their claims out of the proceeds of sale in the hands of the trustee to make the sale, and if not paid off, may prosecute their liens upon the lands sold, after the conveyance to the purchaser, notwithstanding he had paid the whole purchase money, and the land had been sold to him by the trus tee free from all incumbrances. Where a trustee under a decree wastes a portion of the purchase money, and dies in default, a second trustee was appointed, the court may order him to pay off prior incumbrances with the funds in his hands, without preju. dice to the right of judgment creditors having liens on the land to proceed against the securities of the first trustee to the extent of the funds wasted. By a decree under which a sale was made, the trustee was ordered to report the salo and to bring the proceeds of sale into court; disobedience to the latter branch of this decree is a breach of the condition of his bond, for which he and is his securities may be sued at law by any person who can show himself damnified, and clothed with the requisite authority to sue. A court of equity will do nothing to extend the liability of securities beyond the clear intent and import of their contract; but if to such an extent they cannot be held liable, by reason of fraud, accident, or mistake, it will to prevent a failure of justice, interfere, and enforce the execution of their contract according to its obvious meaning and design. Chancery jurisdiction was originally assumed upon the great principle, that without it there would be a total failure of justice, a court of law being incompetent to grant adequate relief. APPEAL from the Court of Chancery. The bill in this cause was filed by the appellant on the 25th August, 1837, and prayed subpœnas against Walter B. Brooke, Alexander H. Boteler, and Edward W. Belt, and commenced"The supplemental bill of complaint of J. B., shows, that upon a bill of complaint filed in Prince George's county court as a court of equity, by Lucy S. Brooke, complainant, against Walter B. Brooke, such proceedings were had, that on or about the 27th July, 1830, a decree was passed in the cause appointing Edward M. Dorsey, since deceased, a trustee, with Brooks vs. Brooke, Belt and Hodgkin.-1842. authority to sell certain mortgaged premises for the purposes mentioned in said cause, and by said decree, said E. M. D. was required, before he proceeded to execute the trusts thereby reposed in him, to file with the clerk of said court a bond with security, &c. as trustee, &c.; that the said E. M. D. accepted the said trust, and on or about the month of August, 1830, filed in said court a bond to the State of Maryland, executed by himself with the said A. H. B. and E. W. B. as his sureties, in the penalty of $5,000, with the condition, as required by said decree; that afterwards, the mortgaged premises were sold to Richard H. Brookes for the sum of $11,500; said sale duly reported and confirmed, and the greater part of the purchase money paid to the trustee, E. M. D.; that the mortgaged premises were sold clear of all incumbrances, and that the proceeds of sale greatly exceeded the claim of the complainant; it was by the said court, on or about the 26th October, 1830, ordered and decreed, that the trustee apply the necessary amount of the purchase money, when received, to the payment of incumbrances existing prior to the complainants mortgage, and that the residue of the purchase money be brought into court to be subject to further order; that in obedience to said order, the auditor of the said court, on or about the 11th January, 1831, made a partial report, and thereby applied parcel of the proceeds of the aforesaid sales to the payment of several claims against said estate; that on the 14th January, 1831, a certain Philemon Chew, on behalf of the creditors of himself, and a certain Henry M. Chew, theretofore trading under the style of Henry M. Chew and Company, filed his petition in said cause, and therein alleged, that he had theretofore, for the use of the creditors of H. M. C. & Co., recovered a judgment against the aforesaid W. B. B. for a large sum of money, upon which a writ of fieri facias was issued, and levied on the defendant's equity of redemption in the aforesaid property, and the petitioner therefore insisted, that the said judgment and execution bound the aforesaid property, and prayed, that the same might be paid and discharged out of the surplus proceeds of sales as atoresaid, and |