THIS was an appeal from the sentence of the Circuit Court for
the district of Columbia, affirming that of the Orphan's Court for the county of Washington.
On the 13th of February, 1813, the Appellee, Jane Burch, filed in the Orphan's Court a petition or libel setting forth that by an order of that Court on the 11th of June, 1805, the property of the deceased in her hands was delivered to the Appellant who had become one of her sureties in the administration bond in the year 1803, and who obtained an order of that Court to sell the same. That he had made no return of sales, nor rendered any account of his proceedings, but still has the property in his possession, consisting of a negro woman and her four children; and praying that the property may be re-delivered to her, she having been appointed guardian of the infant children of the deceased, and being ready to give good security to indemnity the Appellant against his responsibility on her administration bond, and to pay him any monies he may have paid on her account as administratix.
A citation having been issued, the Appellant appeared and filed his answer, in which he says that in pursuance of the order of the Court he duly sold the property, and is ready to account for the proceeds.
It does not appear by the record that any formal replication in writing was filed to this answer; and that circumstance seems to have passed unnoticed in the Courts below, and the cause was tried without any objection having been made on that ground.
Upon the trial of the cause in the Orphan's Court the judge ordered and decreed that the Appellant should deliver up the property to the Appellee, upon her paying him certain sums of money which he had paid for her as administratrix. The record does not show what evidence was before the Orphan's Court respecting the sale of the property by Gettings.
Upon the appeal to the Circuit Court, the sentence of the Orphan's Court was affirmed.
The case was argued by JONES, for the Appellant, and by F. S. KEY, for the Appellee, in the absence of the reporter.
February 23d. Absent. TODD, J.
MARSHALL, Ch. J. ordered the following decree to be enrolled:
This cause came on to be heard on the transcript of the record of the proceedings of the Orphan's Court for the county of Washington, and of the Circuit Court for the said county, and was argued by counsel. On consideration whereof, it is the opinion of this Court that the decree of the Orphan's Court for the county of Washington, ordering the said Kenzy Gettings to deliver to the said Jane Burch, as administratrix of Jesse Burch, deceased, the slaves in the said decree mentioned, when the petitioner had not by replication denied the answer of the Defendant, in which he states a sale of the said slaves in pursuance of an order of the said Orphan's Court, and without receiving any evidence that the said slaves were not sold, or that they remain still in possession of the said Defendant, is erroneous, and that the decree of the Circuit Court, affirming the same, is also erroneous; and that the said decree of affirmance ought to be reversed and annalled, and the cause remanded to the said Circuit Court with directions to reverse the said decree of the said Orphan's Court, and to remand the cause to the said Court that further proceedings may be had therein according to law. All which is ordered and decreed accordingly.
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