40 WELCH v. STEWART.

Whereupon, it is Ordered, that the exceptions to the claims Nos.
1, 2 and 5, are hereby overruled; but, that in so far as the said
exceptions are directed against claim No. 3, exclusively, they are
sustained, and that claim is hereby rejected; but without prejudice.
And the auditor, in making a distribution of the trust fund, and of
the surplus of that fund, together with the proceeds of the de-
ceased's estate, will be governed by the principles herein before
laid down and explained.

After which, some other claims were brought in, among which
was one filed on the 11th of June, 1829, by Joseph N. Stockett,
administrator de bonis non, with the will annexed of John Stockett,
deceased, for the sum of $300, admitted to be due by the deed of
trust, with interest from the 12th of June, 1812. To the allow-
ance of which, the plaintiff Welch objected, that it was not proved
in the manner required by law, and the practice of the court; and
he also plead the act of limitations as a bar; and relied on the
lapse of time as evidence of payment.

10th August, 1829.—BLAND, Chancellor.—This case having
been again brought before the court to obtain an order for a final
audit; and the solicitors of the parties having submitted the
matter, so far as they were concerned, on notes, the proceedings
were read and considered.

The order of the 16th of March last, having made only a partial
adjustment of this case preparatory to a final audit, it remains,
in connection with that order, to dispose of the residue of the now
controverted or neglected claims which have been heretofore intro-
duced into the case.

The claim of Joseph N. Stockett, as administrator de bonis non
of John Stockett deceased, stated in the auditor's report filed on
the 4th of February last, as claim No. 7, has been admitted, pro-
vided for, and secured by the deed of trust mentioned in the bill;
and therefore, must now be permitted to take the grade and stand
of preference, allowed to all the other claims coming in under
that deed; unless it can be pushed from its position by one or
other of the points pressed against it. It is alleged to have been
is, however, no proof of any payment, and there-
fore, must be thrown aside, as having entirely failed for
the direct purpose for which it was introduced. But it is said to
afford a safe and just means of urging on another point; and that
is, the lapse of time as evidence of payment.