
    *M’Candlish, Adm’r &c. v. Edloe & als.
    October Term, 1846,
    Richmond.
    (Absent Brooke, J.)
    i. Slaves — -Suit for Freedom — Parties,—A slave claiming a right to freedom, is not a necessary or proper party in a controversy between third persons involving the question of his right to freedom.
    3. Commissioners — Proceedings before - Notice. — Where a commissioner to whom accounts have ■been referred by an interlocutory decree, for settlement, gives notice to the parties by publication in a newspaper, of the time and place of his acting upon the subject, an exception by a party for want of personal notice,. where that was practicable, ought not to be entertained, unless he shows by his own affidavit or otherwise, that he had no such information of the contemplated proceedings of the commissioner as would have enabled him to attend.
    3. Same — Taking Account — Depositions—General Notice. — In taking an account, the commissioner may take the depositions of witnesses to enable him to act upon the subject, under his general notice ; and a special notice is not necessary.
    4. Decrees — Interlocutory,—Where an interlocutory decree merely confirms generally, a report containing alternate and conflicting statements, it must be understood that the Court has reserved to itself the power of selecting by its future decree between such statements, and decreeing accordingly.
    5. Commissioner’s Report — Claim Unreported. — A claim of a creditor not reported upon by the commissioner, may be directed to be considered as a claim stated in the report. And it will be open to all just exceptions.
    
      6. Depositions — Leading Questions — Exception to — When Taken. — The evidence of a witness given in answer to leading questions ought not on that ground to be suppressed, .otherwise than by an order of the-Court made before the hearing of the cause, on motion or petition for that purpose, and founded on an exception endorsed upon the deposition within a reasonable time from the return thereof; and founded moreover upon an objection taken at the time of the examination of the witness, if the party seeking to exclude the evidence, his agent or attorney was then present.
    7. Debts of Decedent — Sale of Real Estate to Pay — Rents and Profits.§ — When the real estate of a testator is necessary for the payment of his debts, it is not improper to direct an account of the rents and profits from his death, for the purpose of ascertaining what rents and profits had accrued from that period, and by whom they had been received; in order to enable the Court to decide by its future decree, what persons, if any, were accountable therefor.
    . ^William Yates, a free man of col-our, died in 1829, having first made his will, by which he gave his whole estate real and personal, after the payment of his debts, to Henry Édloe and Robert M’Cand-lish, in trust for his wife Maria, who was his slave, to be paid over to her as soon as she could obtain her freedom, and get permission to remain in the State. This will was admitted to probat in the Hustings Court of Williamsburg, and Henry Hd'loe qualified thereon as the administrator with the will annexed. The administrator of Yates exhausted all the personal assets in the payment of debts; and after selling the woman Maria he was still in advance to the estate, whilst a number of the creditors remained unsatisfied.
    In the year 1836, William EJdloe and Robert Richardson filed their bill against the administrator with the will annexed, and the trustees and others, seeking to have a settlement of the administration account, and asking that the creditors might be called in, and the whole estate real and personal, subjected to the payment of the debts. The bill was taken for confessed as to all the parties; and when the cause came on to be heard, the Couft directed á commissioner to settle the accounts of the administrator, and to take an account of the real estate, and of its fee simple and annual value, and also of the debts due by the estate of Yates: and he was directed to proceed, after giving due notice by advertisement in some public newspaper.
    The commissioner after giving notice by advertisement in a public newspaper, proceeded to take the accounts. In stating the debts due from the estate he made alternate statements; and he made an additional statement at the instance of the counsel for A. D. Galt, one of the creditors. Whilst taking the accounts, the depositions of witnesses were taken before him by creditors, without any special notice, for the purpose of proving their claims. And these depositions were excepted *to, and the exceptions endorsed thereon by the counsel of the administrator and trustees, for want of notice, and because the witness was examined by leading questions. The administrator and trustees, by their counsel also excepted to the whole report, because the commissioner had not given then notice; and they excepted to some of the claims reported for want of proof; among these was Galt’s claim.
    When the cause came on to be heard, the Court overruled all the exceptions to the report and depositions, and confirming the report, decreed that a house and lot in the City of Williamsburg, belonging to Yates’ estate, should be sold by a commissioner appointed for that purpose, who was directed to report his proceedings to the Court in order to a final decree. And it appearing that Lemuel J. Bowden held a claim against Yates’ estate, which had not been acted on by the commissioner, it was ordered that the same should be considered as a claim stated in the commissioner’s report. And the commissioner was directed to take an account of the rents and profits of the house and lot since the death of Yates. Prom this decree, M’Candlish the trustee applied to this Court for an appeal, which was allowed.
    Harrison, for the appellant.
    Taylor, for the appellees.
    
      
      Slaves — Suit for Freedom — Parties.—The principal case is cited in Osborne v. Taylor, 12 Gratt. 125.
    
    
      
      Commissioners— Proceedings before — Notice.- Th e principal case is cited in Taylor v. Dorr, 43 W. Va. 355, 27 S. E. Rep. 318, to the point that where notice is published by a commissioner, and one makes complaint that he had no personal notice, he must show by his own affidavit or otherwise that he had no such information of the proceedings of the commissioner as would have enabled him to attend.
      
        In Miller v. Cox, 38 W. Va. 756, 18 S. E. Rep. 963, to the point that in taking an account a commissioner may take the deposition of witnesses to enable him to act upon the subject, under his general notice, special notice not being necessary.
    
    
      
      Depositions — Exception to — When Taken. — In Leonard v. Smith, 34 W. Va. 448, 12 S. E. Rep. 481, it is said: “The evidence of a witness, taken in answer to an (improper) leading question, ought not, on that ground, to be suppressed, otherwise than by an order of the court, made before the hearing of the cause on motion or petition for that purpose, and founded on an exception indorsed upon the deposition, within a reasonable time from the return thereof, and founded, moreover, on an objection taken at the time of the examination of the witness, if the party, his agent, or attorney, was present. McCandlish v. Edloe, 3 Gratt. 333.” See foot-note to Pant v. Miller, 17 Gratt. 187.
      §Debts of Decedent — Sale of Real Estate to Pay. — In Menefee v. Marge, 1 Va. Dec. 659, it is said; "They were none the less general liens on the realty because there was personalty enough to pay them; and the waste or dissipation of the personalty by mismanagement or devastavit by misfeasance or malfeasance of the administrator or distributees and heirs, or by the erroneous act of court, whereby the payment of these debts out of the personalty was prevented, cannot destroy or weaken that lien on the land descended to and in the hands of Voss’ heirs, or in the hands of a purchaser from them with knowledge or notice of debts constituting such general lien. See Code, 1860, §§ 3, 4, 5; McCandlish v. Edloe, 3 Gratt. 330; McCandlish v. Keen, 13 Gratt. 615; Harvey’s Adm’r v. Steptoe’s Adm’r, 17 Gratt. 289; Insurance Co. v. Maury, 75 Va. 512; Woodhouse v. Fillbates, 77 Va. 320.” See monographic note on “Debts of Decedent.”
    
   BALDWIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that where persons in the condition of slaves claim the right to freedom, they must assert such right in a suit to be brought by them for that purpose; and that they are not necessary or proper parties in controversies between third persons involving the question of such right to freedom ; and therefore that the said Circuit Court did not err in not requiring the woman Maria Yates, emancipated by the last *will and testament of William Yates deceased, to be made a defendant in this cause.

And the Court is further of opinion, that where a commissioner, to whom accounts have been referred by an interlocutory order or decree for adjustment and settlement, gives notice to the parties, bj publication in a newspaper, of the time and place of his acting upon the subject, an exception to his report by a party for want of personal notice, where that was practicable, ought not to be entertained, unless he shews, by his own affidavit or otherwise, that he had not such information of the contemplated proceedings of the commissioner as would have enabled him to attend: And therefore that the said Circuit Court did not err in overruling the appellant’s exception to the commissioner’s recommitted report for want of notice.

And the Court is further of opinion, that where such a commissioner, in his regular proceedings to adjust and settle such accounts, takes the depositions of witnesses to enable him to act upon the subject, his general notice of such proceedings is sufficient, without a special notice from him or the adverse party that such depositions will be taken : And therefore that the appellant’s exceptions, for want of notice, to depositions taken by the commissioner were properly overruled by the said Circuit Court.

And the Court is further of opinion, that where an interlocutory decree merely confirms generally a report containing alternative conflicting statements, it must be understood that the Court has reserved to itself the power of selecting, by its future decree, between such statements, and decreeing accordingly: And therefore that the said Circuit Court did not on that ground err, (nor did it on any other,) in confirming the commissioner’s recommitted report; nor intend by so doing, to approve the special statement of Dr. A. D. Galt’s account, made at the instance of his attorney.

*And the Court is further of opinion, that the said Circuit Court did not err in directing thg.t the claim of Bow-den, transferred to him byBingley’s adm’r, not reported upon by the commissioner, should be considered as a claim stated in the report; that direction being merely interlocutory, and the claim itself still open to all just exceptions.

And the Court is further of opinion, that the said Circuit Court did not err in directing an account of the rents and profits of the house and lot in the proceedings mentioned, from the death of the testator, William Yates; that direction being merely interlocutory, and proper for the purpose of ascertaining what rents and profits had accrued from that period, and by whom the same had been received, in order to enable the Court to decide by its future decree, what persons, if any, were accountable therefor.

And the Court is further of opinion, that the evidence of a witness given in answer to leading questions, ought not on that ground to be suppressed, otherwise than b3 an order of the Court made before the hearing of the cause, on motion or petition for that purpose, and founded on an exception endorsed upon the deposition within a reasonable time from the return thereof, and founded, moreover, upon an objection taken at the time of the examination of the witness, if the party seeking to exclude the evidence, his agent or attorney, was then present: And therefore that the appellant’s exceptions to certain depositions, because taken on leading interrogatories, were properly overruled at the hearing of the cause.

The Court is therefore of opinion, that there is no error in the said decree of the said Circuit Court.

Affirmed with costs, and cause remanded.  