
    Clarissa Gardiner and William F. Bowling vs. Richard B. Hardey and Edward Simms.
    
    December, 1842.
    B and G, as executor and executrix of the deceased husband of G, were sued at law upon a claim passed by the orphans’ court. B was returned cepi, and confessed judgment in 1835. G was returned non est — was arrested on tho renewal of tho writ, and also confessed judgment in 1836, ignorant of any defence to the action. In 1837, after she had been informed by her co-executor, who had possession of her husband’s papers, and after it was too late to move for a new trial, that he had searched her husband’s papers, and that no receipt could be found, she determined upon a search herself, and discovered a roceipt for the money claimed of her, given nine years before the action at law was instituted. Upon a bill filed to obtain relief, the fact of tho receipt being admitted by the answer, and no proof taken to avoid it: Held, that the judgments against both executors should be stricken out, and the action brought forward by regular continuances for trial.
    Where a witness is excepted to in tho Court of Chancery, as incompetent, on tho ground of interest — as being a defendant to tho bill, and as the legal plaintiff in an action at law sought to be enjoined, the court will consider tho admissibility of the witness under the circumstances, and not the suf. iiciency of the objections assigned.
    How far can the answer of a co-dofendant, the legal plaintiff in an action sought to be enjoined, but who has no interest in the controversy, responsive to the bill, be relied on as evidence for the other defendant, the real party in interest. Qn.
    Whore a defendant answers tho interrogative part of a bill, fully and distinctly, as put to him, and then proceeds to allege a variety of facts, not enquired of the bill, nor of which he had been interrogated, to do away the effect of his previous answer, such facts constitute matters of avoidance.
    Facts in an answer not responsive to tho bill, nor sustained by proof, at the final hearing of the cause are entitled to no consideration.
    When a defendant, executrix, at law had confessed judgment, and sought to sot it aside in equity, for the purpose of obtaining a new trial, on the ground of subsequent discovery of a receipt for the money claimed, the denial on oath of all previous knowledge of the existence of the receipt, and statement of the time and manner of its discovery by the complainant in her bill for relief, she being the custodiary of tho papers of her testator, must, in the absence of all proof impeaching its verity, be received by the court as evidence, and weighed in connexion with the other facts in the cause.
    Where the circumstances are such as to induce an executrix, desirous of acting in good faith, to confess a judgment against her deceased husband’s estate, the subsequent discovery by her of a receipt for the money claimed, of which she was utterly ignorant previously, will enable her to apply sueoessfully to a court of equity for a new trial at law, where the defence may be investigated.
    One administrator, in' no wise assenting thereto, is not liable for the consequonces of the negligence or misconduct of a co-administrator.
    Where executors were sued in a joint writ, but from a failure to arrest one of them, judgments were rendered against them at different terms, and one of them subsequently obtained a decree in equity for a new trial, that court must, to accomplish its own purposes, direct both judgments to be stricken out.
    Appeal from the Equity side of Charles County Court.
    The bill in this cause was filed on the 27th April, 1837, by the appellants, and alleged, that sometime in the year 1832, a certain Richard B. Gardiner, the husband of your oratrix, departed this life without a will; that letters of administration on his estate were granted to your oratrix and William F. Bowling ; that to March term of Charles county court 1835, two suits were instituted by Richard B. Hardey, use of Edward Simms, against your oratrix and orator, W. F. B., as the administrators of R. B. G. One suit was instituted on a single bill, signed and sealed by the said R. B. G., on the 11th March, 1829, payable to Richard B. Hardey, two years after date, for $1,815; and the other suit was instituted for the recovery of a balance of $419, appearing to be- due from the said R. B. G. to the said R. B. H., as his ward, with interest from the 13th June, 1817, true copies of both causes of action as filed in Charles county court, are herewith exhibited as a part of this their bill of complaint; that said claims were passed by the orphans’ court of Charles county, and to both affidavit is attached by R. B. H., of their justness and' correctness. And your orator and oratrix further sheweth unto your honors, that W. F. B. was returned cepi at March term of Charles county court, and that youi oratrix was not taken by the sheriff to that term of Charles county court; that he appeared by Peter W. Crain his attorney to both suits, and when asked by said attorney if he should resist the payment of said claims, he replied, that they appeared to be just, and he was not aware of any defence to be made to said suits, and instructed him to confess judgments in both cases; that judgments were accordingly confessed by the said attorney, as will appear by short copies of both judgments against said William F. Bowling, one of the administrators of Richard B. Gardiner, at August term of Charles county court, 1835, herewith exhibited as a part of this her bill of complaint; that subsequently, or at March term of Charles county court 1836, your oratrix was returned cepi to the suits of R. B. H., and was advised by her friends to employ Peier W. Crain as her attorney ; that upon reaching court and having an interview with Mr. Crain, she was much surprised to hear that her co-administrator had confessed judgments in both cases, and communicated to her attorney her distrust of the correctness of said claims ; that her late husband, R. B. G. had informed her that he had settled with Mr. R. B. II, and that she could not pay the open account unless she was satisfied that it was correct; that her attorney then informed her that the assets of the estate were bound for the payment of the judgments confessed by her co-administrator, and unless she could show the incorrectness of the claim, it would be folly to contest, and that he would investigate the claim and ascertain its correctness; and further, that the single bill and account were both sworn to be correct by R. B. II, who was a reverend minister of the Roman Catholic church, and he concluded that they were correct; that her attorney then addressed a letter to William L. Brent, desiring to know the origin of both claims, when he received a letter from Edward Simms, informing him that one was for the real and the other for the personal estate, which letter is herewith filed and marked exhibit C, and made a part of this her bill of complaint. That at August term of Charles county court 1836, her attorney not knowing of any defence to be made, so as to overreach the judgment confessed by Bowling, one of the administrators of R. B. G., and ignorant of any receipt from R. B. H. to the said R. B. G., confessed the judgments without making any defence to the same, copies of which judgments are herewith exhibited as a part of this bill. And your oratrix further sheweth unto your honors, that she is not much acquainted with business, indeed she may with truth affirm, that she is ignorant in the forms of the law, and in consequence of a misunderstanding with her co-administrator, she has received no aid from him, but being convinced and satisfied of the injustice of the claim of JR. B. H. for the open account, she addressed several urgent letters to her attorney, begging an interview with him, in the hopes of being enabled to satisfy him of its incorrectness and obtaining redress; that said attorney did see her about 1st of April, and fully státed to her the nature of the claims, the manner in which the judgments were confessed, and also his opinion of their correctness, unless she could exhibit some settlement between Gar-diner and Hardey, or a receipt from Richard B. Hardey to Richard B. Gardiner, his guardian. Your oratrix knowing nothing of business when she wTith William F. Bowling administered on Richard B. Gardiner’s estate, submitted all the papers to Mr. Bowling to examine, expecting that he would communicate to her if there were any important receipts amongst them, but he either did not find the receipt of R. JB. H. to R. B. G. his guardian, or finding it, failed to avail himself of it and did not communicate it to your oratrix; that she then resolved to examine every paper connected with the business of JR. B. G., and about the 3rd of April, 1837, and since the confession of said judgments, she found a receipt signed by R. B. H. to R. B. G., his guardian, dated 15th of March, 1827, acknowledging the receipt of $3,247.88 in full for the real estate of the late John F. Hardey, and in full of dividend of the personal estate of the said John F. Hardey, deceased, it being in full, and duly acknowledged the same before Edmund Turner, a justice of the peace for Charles county, which receipt is herewith exhibited as a part of this her bill. Now your oratrix expressly charges, that she was ignorant of the existence of said receipt at the time the said judgments were confessed, and has not received the benefit of said receipt in consequence of her ignorance of its existence, and that the single bill was evidence and conclusive of all dealings between the parties; and she further represents, that believing the judgments in the single bill to be correct, she has proceeded to make payments to Edward Simms, in addition to the payments endorsed on the bond, to the amount of $750; that the money was paid, to be applied to the judgment in the bond, and expressly directed the credits to be so entered, but against the positive instruction of your oratrix. The said Edward Simms has given a receipt in one case without designating in the judgment one receipt to be applied in part payment of both judgments, and the third receipt against the wishes of your oratrix; and in violation of her instructions he has applied to his bond the judgment on the admitted balance, so far back as 1817. This conduct has excited the suspicions of your oratrix, and she has distrusted its correctness, and believes something was rotten, from their wish to credit the judgment on the open account, when she expressly charges her agent, Mr. Thomas E. Gardiner, to have it applied to the judgment on the bond, which receipts are herewith exhibited as a part of this her bill. And your oratrix further represents, that said Edward Simms, to whose use said judgments are entered, now threatens to issue fieri facias on both judgments, all of which is contrary to equity and good conscience. Prayer for an injunction, &c.; that all the money paid by your oratrix may be applied to the judgment on the single bill as directed by her,, and until it is so applied, she prays your honors to enjoin and prohibit them from issuing on said judgment, as it would be manifestly unjust; and also of subpoena to the said Richard B. Hardey and Edward Simms; that the said Edward Simms may answer particularly to the application of the payments, and that the said Richard B. Hardey, upon his corporal oath, may answer all and singular the matters and things herein contained, as fully and particularly as if he was again interrogated, of and concerning the same; and that he may fully and distinctly answer what consideration passed for the single bill executed by the said Richard B. Gardiner to the said Richard B. Hardey, for $1,815, and whether or not he executed the receipt herewith exhibited, and purporting to be in full satisfaction to his guardian, and whether said receipt did not include the balance appearing due of $419.65, and for which he has obtained judgment against the administrator of Richard B. Gardiner; and for general relief. This bill was sworn to by C. G.
    
    Exhibit A, — referred to in the aforegoing bill of complaint: The Estate of Richard B. Gardiner, deceased,
    
      To his ward, Richard B. Hardey, Dr. To $419.66, a balance admitted to be due by the accounts of the deceased, and to be allowed upon the production of thé proper vouchers. $419 66
    To interest on the above sum, from the 13th June, 1817, until paid.
    This account was verified by the oath of Richard B. Hardey, on the 12th December, 1833, and passed by the orphans’ court of Charles county.
    Two years after date, I promise to pay Richard Benedict Hardey, or order, eighteen hundred and fifteen dollars, with legal interest thereon, from this date, it being for value received. Given under my hand and seal, this eleventh day of March, eighteen hundred and twenty-nine.
    $1,815.00. Richard B. Gardiner..
    Received 23rd August, 1830, five hundred dollars.
    $500. R. B. Hardey.
    Received 19th of November, 1832, two hundred dollars.
    $200. Richard B. Hardey.
    Received April 12th, 1833, five hundred and seventy dollars on the within note.
    $570. Edw D> SlMMS-
    
      22nd JYovember, 1833. Received three hundred dollars. $300. Edw’d. Simms.
    $1,815 00
    Interest on $1,815, for 16 months, 12 days, to 23rd August, 1830. 148 33
    Amount, - 1,963 33
    
      August 23rd — By cash, - - - - 500 00
    Amount, ... 1,463 33
    
      Amount brought forward, - $1,463 00
    Interest for 27 months, to Nov. 19, 1832, - 196 56
    Amount, - 1,659 89
    
      Nov. I'dth, 1832 — By cash, ... 200 00
    Amount, - 1,459 89
    interest fo. 4 months and 23 days, 12th, 1833, 35 64
    Amount, ... 1,495 53
    
      April 12th — By cash, - 570 00
    Amount, ... 925 53
    Interest for 7 months to November 12th, 1833, 32 75
    Amount, ... 958 28
    
      November 23rd — By cash, - 300 00
    This note and the credits thereon were also verified on the 20th August, 1833, by the oath of 11. B. H., and passed by the orphans’ court.
    Exhibit B, — referred to in the aforegoing bill of complaint: Charles County Court, August Term, 1835:
    Richard B. Hardey, use of Edward Simms, vs. William F. Bowling, one of the Adm’rs. of Richard B. Gardiner. Debt. Judg’t. for $1,815 debt, and $1,815 dam’s, and costs. The dam’s, to be released on pay’t. of int. on the debt, from the 11th day of March, 1829, until paid. Pl’ffs. admit the receipt of $500 on the 23rd day of August, 1830; the sum of two hundred dollars on the 19th day of November, 1832; the sum of $570 on the 12th day of April, 1833, and the further sum of $300 on the 22nd day of November, 1833, in part.
    Cost, $7.30. Test, — John Barnes, Cl’k.
    
      Charles County Court, August Term, 1835:
    Richard B. Hardey, use of Edward Simms, vs. William F. Bowling, one of the Adm’rs. of Richard B. Gardiner. Dam’s. Judg’t. for $1,500 — released on pay’t. of $419.66, with interest thereon from thel3th day of June, 1817,until paid» Cost, $8.90. Test, — John Barnes, Cl’k.
    
      Exhibit C, — referred to in the aforegoing bill of complaint; Charles County Court, March Term, 1836:
    Ríchard B. Hardey, use of Edward Simms, vs. Clarissa Gardiner, Adm’x. of Richard B. Gardiner. Debt. Judg’t. for $1,815 debt,- and $1,815 danFsv and eosts. The dam’s, to be released on pay’t. of int. on the debt, from the 11th day of March, 1829, until paid. PFff. admits the rec’t. of $500' on the 23rd day of August, 1830; the sum' of $200 on the 19th day of November, 1832; the sum of $570 on the 12th day of April, 1833, and the further sum of $300 on the 22nd day of November,. 1833, in part.
    Cost, $6.35. Test, — John Barnes-, Cl’k.
    
      Charles County Court, August Term, 1836:
    Richard B. Hardey, use of Edward Simms, vs. Clarissa Gardiner, Adm’x. of Richard B. Gardiner. Dam’s. Judg’t. for $1,500, dam’s, and eosts. The dam’s, to be released on-pay’t. of $419.66, with int. thereon from the 13th day of June, 1817, until paid.
    Cost, $7-05. Test,-John Barnes, Cl’k.
    Exhibit D, — referred to in the aforegoing bill of complaint:
    
      Washington, 10th May, 1836.
    
      Peter W. Crain, Esq. Sir, — Col. Brent called on me this morning for explanations respecting the judgments against the estate of Richard B. Gardiner; the open account you will perceive was for amount due Richard B. Hardey,for and on account of balance for the personal estate; the note was given for the share of the land. All of which I have more fully explained to Mrs. Gardiner when she visited the city last.
    Respectfully yours, ob’t. Edward Simms.
    Exhibit E, — referred to in the aforegoing bill of complaint:
    Received this 13th March, 1827, of Richard B. Gardiner,. my guardian, thirty-two hundred and forty-seven dollars eighty-eight cents, in full for the real estate of the late John F. Hardey, deceased, sold under an order of the honorable justices, of Prince George’s county court. At the same time, received: my full proportion of dividend of the personal estate of the said John F. Ilardey, deceased, it being in full.
    Richard B. Hardey.
    Acknowledged by R. B. II., before a justice of the peace..
    Exhibit F, — referred to in the aforegoing bill of complaint :' (Copy.) Estate of Richard B. Gardiner, deceased,
    
    , To his ward, Richard B. Ilardey, Dr;. To $419.60, balance admitted to be due by accounts of deceased, ------- $419 60*'
    To interest on the above sum of money, from the 13th June, 1817, until paid.
    Passed by the court. Test, — H. Brawner,
    
      Feb. 13th, 1833. Register of Wills for Charles County.
    
    To amount of the above, with interest to 13th June,
    1835,.......$872 77
    Balance on note to 1st July, 1835, is - - 756 27
    $1,629 04
    On the back of the above is thus written, to wit:
    1835, Sept. 11 th. Received of T. E. Gardiner, two hundred dollars on the within claim, now due from the estate of the late R. B. Gardiner. Edw’d. Simms.
    Exhibit G,- — referred to in the aforegoing bill of complaint:. Washington City, 13th January, 1836. Received of Mrs. Clarissa Gardiner, three hundred and fifty dollars, on account of my claim against the estate oí Richard B. Gardiner, late of Charles county, State of Maryland, deceased.
    $350. Edw’d. Simms.
    Exhibit H, — referred to in the aforegoing bill of complaint: $200. Received, Washington, October 22nd, 1836, of Thos. I. Gardiner, Esq., two hundred dollars, on account of two judgments obtained against the estate of Richard B. Gardiner, deceased. Edw’d. Simms.
    Injunction and subpoena issued accordingly.
    
      At August term 1837, R. B. H. filed his demurrer to part, and his answer to other parts of the said bill. This defendant R. B. H., by protestation as to so much of the said bill as seeks to set aside or impeach, or have any relief against the judgments rendered at Charles county court, at August term 1835, in favor of this defendant, for the use of Edward Simms■ the other defendant, against the said William F. Bowling, for the sum of, &c., &c., and against the judgment rendered by said court at the August term of the year 1836, in favor of this defendant for the use, &c., against the said Clarissa Gar-diner, of a like sum of, &c.; or that prays an injunction against this defendant to stop his proceedings at law against the said Clarissa Gardiner and William F. Bowling, this defendant doth demur thereunto, and for cause of demurrer sheweth, that it appears by the said complainant’s own shewing, that the defendant, for the use of the said Edward Simms, the other defendant, hath obtained the said judgments complained against on the law side of your honors’ court, in due course of law, and this defendant is advised that said judgments cannot and aught not to be called in question in this honorable court; and for further cause of demurrer this defendant sheweth, that there is not, as he is advised, any matter or thing set forth in and by the said bill, as a foundation of equity for this court to interpose in relation to the said two judgments at law, but that all matter and things relative thereto were properly cognizable at law, and that the said complainants cannot now avail themselves in your honors court, the defence as set up by them here, and which was above cognizable upon the said trials at law, when above they could have availed themselves of the benefit of the same, if the same be true, for which reasons, and for divers other causes, this defendant doth demur to so much of the said bill as aforesaid, and humbly prays the judgment of this honorable court, whether he shall make any further or other answer thereto.
    And as to so much of said bill as this defendant hath not before demurred to, this defendant in no sort waiving, &c. This defendant, for answer to the residue of the complainant’s. said bill, this defendant, speaking for himself, and not for the other defendant, he this defendant doth answer and says as follows : that it is true that letters of administration upon the estate of the deceased R. B. G. were granted as stated in said bill to the complainants, and that the suits as stated in said bill were instituted to March term 1835, of Charles county court, on the law side, and for the amounts and upon the cause of actions therein stated ; and it is also true, that judgments were confessed in said causes at the several terms of said court, as stated in said bill of complaint, and for the amounts as stated and shewn by exhibits B and C, accompanying said bill, and that final judgments were rendered in said cases at the times stated in said bill. This defendant says, he knows nothing of what conversations were had between said complainants and their attorney, Peter W. Crain, esquire, and cannot admit that the conversations stated in said bill did take place; that it is also true, that Edward Simms the other defendant, did write the letters named in said bill, and marked as exhibit D; it is also true, that this defendant did give the receipt marked E, as an exhibit accompanying the complainant’s bill, to his late guardian R. B. G., but under circumstances this defendant will hereafter in this answer disclose and state to your honors. This defendant further states, in answer to tíre interrogatories put to him in the bill of the complainant’s, that the consideration for which the note of $1815 was given, was the balance due for the real estate of this defendant, the amount of which the deceased R, B. G. had received as this defendant’s guardian when a minor.
    This defendant states that he did sign and execute the receipt exhibited with the said bill, and purporting to be in full satisfaction ; and that it did include the said balance appearing to be due of four hundred and nineteen dollars and — cents, and for which one of sard judgments was obtained; but positively denies that said sum of four hundred and nineteen dollars and ■— cents were paid at that time, before or since, by R. B. G., or any other person, and was never received; that the time said receipt was given, the said deceased, R. B. G.t promised to meet this defendant at Upper Marlboro’, in Prince George’s county, Maryland, some days thereafter, and to pay to him said sum, which was a balance due him on the personal estate, and that he disappointed him, and did not meet him as promised, ñor did he ever pay the same, nor any person for him, or any part of the same; that said receipt was made at request of said R. B. G., deceased, in whose promise this defendant had a confidence that induced him to give it under the circumstances he did, and that upon said R. B. G’s. not complying with his promise, this defendant wrote him, in his life time, one or more letters, stating the fact to him, and complaining of his not doing so, and asking payment, some of which letters are now in the possession of said Clarissa, one of the complainants, who found said letters among said R. B. G’s. papers, after his death; and this defendant is informed by Edward Simms, the other defendant, and he believes it to be true, that the said -Clarissa sawand read saidletters among said deceased’s papers, in the presence of her said agent Thomas B. Gardiner, and Edward Simms, one -of said defendants, before she filed said bill of complaint, or made affidavit to the same, and that said bill was made by her after she knew that said sum of four hundred and nineteen dollars and — cents had never been paid, and that said receipt was given under the circumstances before stated. And further this defendant says and states, that at the time he gave his said receipt for the amount ■of his real estate to his said guardian, his said guardian in payment gave him his note of hand for a large amount, and that upon the day of the date of the said note of eighteen hundred ■and fifteen dollars, his said guardian settled the first note in part with this defendant, and gave him his said note for the eighteen hundred and fifteen dollars, payable in two years from its date, which was the time asked by said guardian, it being ■the balance due at said settlement for the real estate, and he then then took up the first note; and that said note of eighteen hundred and fifteen dollars was given, a sum for the balance due and unpaid to this defendant on the note first given at dale of the aforesaid receipt, and was for the balance due upon the real estate, and did not embrace the amount due for the personal estate, as before stated. And this defendant denies all and all manner of, &c.
    The demurrer of Edward Simms, one of the defendants, to part and his answer to other parts of the bill.
    The demurrer was the same as that of the other defendant.
    This defendant for answer to the residue of the complainant’s bill doth say as follows; that he did write the letter D. It is also true, that the other defendant did give the receipt marked E; but that the same were given as this defendant understood and believed, under circumstances he will hereafter name. This defendant further states, in answer to the interrogatories put to him, that he always understood from the different parties connected with the note of eighteen hundred and fifteen dollars; that it was given for a balance due to the other defendants by his late guardian Richard B. Gardiner, for the real estate of the said other defendant, being a balance due upon a note for a larger amount, given by said guardian at a prior time for said real estate alone, a part of which prior note was paid at the time said note of eighteen hundred and fifteen dollars was given — and said note of eighteen hundred and fifteen dollars was given for said balance, and the first note taken up. This defendant also stales, that he also understood and believes, that the aforesaid receipt did include the said sum of four hundred and nineteen dollars and — cents, but that the same was not paid at the time; but to save multiplying receipts, the said Richard B. Gardiner promised the other defendant that if he would include the said sum in said receipt, that he the said Richard B. Gardiner would meet him in a short time thereafter, at Upper Marlboro’, Prince George’s county, Maryland, and would then pay him the said sum of money, which this defendant says he never did. This defendant, since the death of the said R. B. G., and subsequent to the date of said receipt and note, has seen and read letters from the other defendant to the said R. B. G., shewn to him by the said Clarissa Gardiner, and in her possession, and which letters were after the said receipt, and to the best of his recollection, after said notes were given, and. in the life time of said R. B. G., in which the other defendant complained to said deceased, that he had not met him at Upper Marlboro’ aforesaid, to pay the said sum of money as aforesaid, and which was included in said receipt, after the promise of said deceased to pay the same subsequent thereto, and as aforesaid, and that the said letters were in the proper hand writing of the other defendant. This defendant being well acquainted with the same, having often seen said other defendant write, and that said letters were received by said deceased, in his life time; and your honors are prayed to order the complainants to produce the same. This defendant further states, that the said letters were read in presence of said Clarissa Gardiner, who gave them to this defendant to read after said judgments were rendered, and before she made her affidavit to the said bill of complaint, and that the agent of said Clarissa Gardiner, Thomas I. Gardiner, was present when the same was shewn, and saw and heard them read at said Clarissa’s own house. This defendant further states, that his recollection is, that when the agent of said Clarissa Gardiner made the payments alluded to in the bill, he did request this defendant to credit them upon the note judgment, and that he stated the sum to be; that said Clarissa wished the note judgment to be paid first, but denies positively that said agent or said Clarissa. or any one, ever stated that it was because the other judgment was not justly due. This defendant also positively denies, that he did give the credits on the judgments for the reasons, or with the views stated in the said bill of complaint, or that he ever thought, or had reason to think, that the judgment complained against was not just; but on the contrary, he knew that the said sum of money for which said judgment was obtained, had never been paid. This defendant also positively denies that said Clarissa was ignorant of said receipt at the time said judgments were given, for it was in her possession, as administratrix upon said deceased’s estate. And this defendant further denies that said note is evidence, conclusive and final, of all demands between the parties; and this defendant denies all and all manner of, &c.
    
      The general replication was then filed, and a commission issued to take proof, but no witness was examined except the Rev. R. B. Hardey, one of the defendants, who was objected to as incompetent, for the reasons stated in the opinion of this court, and his evidence rejected.
    At August term 1841, the cause was set down by consent for final hearing upon the bill, answers, exhibits and proofs taken, the complainants still excepting to the competency of the defendant, R. B. H., as a witness for his co-defendant. The county court (C. Dorsey, A. J.,) dismissed the bill with costs, and the complainants appealed to this court.
    The cause was argued before Archer, Dorsey and Chambers, J.
    By J. Johnson for the appellants, and
    By R. J. Brent for the appellees.
   Dorsey, J.,

delivered the opinion of this court.

Against the making the injunction, perpetual, to the judgments against the appellants as administrators of Richard B. Gardiner, each to be released on the payment of $419.66, &c., or to the granting a new trial in the cases in which they were rendered, the testimony of Richard B. Hardey has been relied on by the appellee, Simms, who insists, that thereby the whole equity of the bill is disproved, and that substantial justice appearing to have been administered to the parties by the rendition of the judgments complained of, the complainants are entitled to relief, neither in the specific mode in which they have sought it by their bill, nor in that in which it has been claimed for them in the argument before this court. But to the admissibility of this testimony, exceptions have been taken, any one of which, if sustained, must exclude it from the consideration of this court. The exception mainly urged, was, that being a party to the suit, his testimony was taken before a commissioner without a previous order of the court for that purpose. In answer to which it has been insisted in behalf of the appellees, that the exceptions filed to the admissibility of Hartley's testimony do not present the point or ground of objection now asserted in this court, and that under the act of 1832, ch. 302, and the decisions of this court, it must affirmatively appear, that the point raised in the Court of Appeals was the point presented to the consideration of the court below, and by it decided. Conceding this doctrine to the fullest extent to which it can reasonably be carried, we think the exception-filed below does with sufficient precision present the very points now raised before us. The appellants excepted to the competency of Hardey as a witness, upon three several grounds — 1st, “because he is interested in the event of the suit. 2ndly, because he is one of the defendants in the suit. 3rdly, because he was the legal plaintiff in the cause.” Looking at the three exceptions in connection, what point can it rationally be conceived is raised by the second, unless it be that now urged before this court? But whether it be so or not is wholly immaterial, this court having, on more than one occasion, decided, that on an objection to testimony, the point decided by the court is its admissibility or inadmissibility, not the sufficiency or insufficiency of the reasons assigned for its rejection. The exception, therefore, we think sufficiently pointed, and that the testimony to which it is addressed is excluded by it. Seethe case of Jones vs. Hardesty and al, 10 G. & J. 414. On the part of the appellees it is insisted, that the rejection of the testimony taken under the commission issued for that purpose, cannot operate to their prejudice, or in the slightest degree influence the results to which the court must have arrived, had the testimony been rescued from the objections made to its-reception. That the same grounds against perpetuating the injunction or granting a new trial at law, are established by the answers of the appellees, as the entire record would have-presented, had no exceptions been taken to the testimony. Without stopping to moot the question, how far the answer of a co-defendant, the legal plaintiff in a cause, who has no interest in the subject matter in controversy, can be relied on as evidence for his co-defendant, the real party in interest in the cause, let us see whether the statements in the answers here pressed into that service, are admissible as evidence to rebut the complainant’s equity, as it appears upon the bill, exhibits, and admissions in the answers. The statements alluded to are those given in explanation and avoidance of the receipt of Hardey, exhibited with the bill. The question turns entirely upon the inquiry, whether they are responsive to the allegations or interrogatories contained in the bill of complaint. By its allegations, it has not been pretended that these disclosures were responsively drawn from the appellees. But it is alleged, that they were responsive to the interrogatories propounded to Richard B. Hardey alone. Upon a careful examination of those interrogatories, we are clearly of opinion, that the statements in the answers relied on as a bar to the complainant’s equity, are not responsive to the bill, but matters of defence, set up in avoidance of the receipt, the ground work of the complainant’s claim to relief. The bill asserts, that the receipt, as upon its face, it strongly purports, but does not conclusively shew, was given for the same cause of action on which the judgments were rendered. And the interrogatory inquires whether he executed the receipt? “and whether said receipt did not include the balance appearing due of four hundred and nineteen dollars and sixty-six cents, and for which he has obtained judgments” against the appellants? To both of which inquiries he answered distinctly and fully in the affirmative; and then, as matter in defence, and in avoidance of the receipt, proceeded to state a variety of facts, none of which were charged in the bill, and in relation whereto he had not been interrogated. Had the interrogatory called on him to state whether he had not been paid the $419.66, for which the receipt had been given, the door would have been opened to the disclosures he made, and they might well be regarded as impairing the weight attached to the receipt. But not being responsive to the bill, nor sustained by the proof, at the final hearing of the cause, they are entitled to no consideration.

The obstacles alleged to be interposed by the proof and answers to the relief prayed, having been removed, let us examine the next defence which has been set up by the appellees, to wit, that the bill itself does not disclose a case in which it is competent for a court of equity to give any relief. We will first consider this proposition in reference to the judgment complained of, which has been obtained against Clarissa Gar-diner. The ground upon which her right to relief is denied, is, that she was guilty of such negligence, in not pleading in bar to the judgment recovered, the evidence she now relies on to show that it ought never to have been rendered against her; that a court of equity can give her no aid in avoiding its payment. It is apparent from the record, that at the time she states her discovery of the receipt to her intestate, it was too late, by a motion for a new trial or otherwise, to have made it available, at law, as a defence to the claim for which judgment had been rendered against her. It must also be conceded, that her denial on oath of all previous knowledge of the existence of the receipt, with her statement of the time and manner in which she discovered it, she being the custodiary of the papers of her deceased husband, must, in the absence of all proof impeaching their verity, be received by the court as evidence in the cause, and be weighed in connection with all the other facts established by the bill, answers and exhibits, in forming an opinion upon the appellant, Clarissa,s claim, to the relief she seeks. If she has not forfeited all claim to the favor of a court of equity, and the testimony of Hardey, and the portions of the answers deemed not responsive to the bill, be excluded, it appears to be conceded, that Mrs. Gardiner would be entitled to the interposition of a court of equity-in her behalf. But it is said, that her statement that her husband had informed her that he had settled the claim of Hardey, and her not looking amongst his papers for the receipt, as the evidence of such settlement, before the judgment was rendered, are such acts of negligence, as will deprive her of all favor in the eyes of the Court of Chancery. We do not regard her conduct, under the circumstances of this case, as forfeiting all claim to such favor. It must be remembered, that she was a woman not presumed to have much .acquaintance with the nature of the business in which she was engaged; that she was associated in the administration with a man in whom she had confidence, to whom she confided all the papers of the deceased, and in whose ability properly to administer the assets of the deceased, it is fair to presume, she reposed confidence. The existence of any receipt had never been communicated to her by her husband, or any one else. The claim had been sworn to by Mr. Hardey, a minister of the Gospel, and passed by the orphans court of her county, upon the records of which, in all probability, it appears from the guardian’s accounts, settled by Richard B. Gardiner himself, that the sum claimed was due by him, and that he had never there claimed or been allowed a credit for its payment. In addition to this, the co-administrator, mainly relied on by her in the settlement of the intestate’s estate, who was in possession of all his papers, and who the wddow had a right to presume had unsuccessfully searched for the evidence of the payment of this claim, had long before confessed judgment for its amount. Would not the instance be rare indeed, where a widow, administratrix, similarly situated, would have pursued a different course from that to which Mrs. Gardiner reluctantly yielded? Can we then, consistently with that liberality and justice which always control the decisions of a court of equity, say, that she has been guilty of such negligence, in not defeating at law the judgment which has been rendered; that the doors of a court of equity are forever closed against her, when apart from the imputation of neglect, as far as the proceedings before us permit us to look, she appeals to such a court to give her an opportunity of discharging herself, by a trial at law, from a claim which, as far as the proceedings before us will enable us to look, appears by an admitted receipt in full, to have been satisfied and paid nearly fifteen years ago. Thus, to place her beyond the pale of equitable relief in a case of such apparent injustice and hardship, would, we think, under the circumstances of this case, be inconsistent with the enlightened and liberal principles by which courts of equity are governed. So far from exhibiting that negligence and inattention to her duty as administratrix, which have been imputed to her, she appears to have yielded to the strong array of circumstances against her, and her utter ignorance of the existence of that receipt, by which only the claim could have been successfully resisted. Even after the judgment, her suspicions do not appear to have slept. She called on Simms to obtain all the information she could upon the subject; and when, subsequently, her suspicions of foul play were increased by Simms’ refusing to credit the payments she made to the judgment, to which she directed their application; as a last resource, a forlorn hope, she determined herself to search the papers in the hands of her co-administrator, and on that examination, the discovery of the receipt took place. One administrator, in no wise assenting thereto, is not liable for the consequences of the negligence or misconduct of a co-administrator. And it would, in this case, be rather a severe measure of justice to visit on Mrs. Gardiner the results which should attach to the delinquency of Bowling.

We are, therefore, of opinion, that Mrs. Gardiner is entitled to have the judgment of which she complains stricken out, and her case brought up by regular continuances to the ensuing term of Charles county court, where the case is to be tried as if no judgment therein hadever been rendered.

Having expressed this opinion as to the judgment rendered against Clarissa Gardiner., it follows as a necessary consequence, that the judgment against William F. Bowling must share the same fate; both judgments being rendered in a joint action against the two defendants, the same judgment must be rendered against both. The judgment against Bowling must, in like manner, be stricken out, and the case brought up by continuances, and both cases be consolidated and tried.

As respects the payments made to Edward Simms by Mrs. Gardiner, since the rendition of the judgments against her, this court will, of course, direct them to be altogether credited on the judgments rendered against the appellants on the note of the intestate for $1,815.

DECREE REVERSED WITHOUT COSTS.  