42 WELCH v. STEWART.

he must put in the plea, or rely upon the statute of limitations in
due season; for, if he suffers the proper stage of the case to pass
by, or if he himself does, or stands by and suffers an act to be
done, which necessarily implies a waiver of that defence on his
part, he cannot afterwards have recourse to it. This, however, is
to be understood of the proceedings of the parties to the case, and
not of the acts of any of the officers of the court. The auditor has
always been considered as the mere ministerial officer of the court,
whose powers and duties extend no farther than to prepare and put
in order the materials upon which the Chancellor is to adjudicate.
Hence, no statement, report, or act of the auditor affect the
rights or interests of a party, plaintiff, or defendant, claimant, or
opponent, (f)

Upon this ground it has always been held, that the statute of
limitations may be presented as a defence, at any time after the
claim has been filed or brought before the court, either before the
case has gone to the auditor, or after he has made a report on it. (g)

(/) Dorsey v, Hammond, 1 Bland, 469; Fenwick v. Gibbes, 2 Desau, 635.

(g) THE STATE v. BROOKES.—This bill, filed on the 24th of April, 1793, by
Luther Martin, the attorney-general on behalf of the state, sets forth, that John
Beall was appointed collector of the taxes for Prince George's county, and as such,
gave bond with Humphrey Belt and Benjamin Brookes, as his sureties; that Beall
having failed to pay over the money he had collected, suits were brought on his
bond, and judgment obtained against Benjamin Brookes for a considerable amount,
which was then due. That afterwards, Brookes died, having previously, by his will,
devised his real estate to his son Robert in tail, remainder to his son Benjamin in
tail, subject to a right given to his wife and daughter, as described in the will, of
using it and taking a certain portion of the rents and profits thereof; by which will,
he appointed his wife Sarah and his brother Henry his executors. The bill further
states, that the testator's personal estate was insufficient to pay his debts. Prayer,
that the executors might account for the personalty; and that, if it should be insuf-
ficient, the real estate might be sold to pay this debt due by the deceased to the state.

The executors and the devisee Robert Brookes, were the only persons made
defendants.

9th March, 1796.—HANSON, Chancellor.—The claim of the state aforesaid against
the deceased, and the insufficiency of the personal estate to discharge it being estab-
lished to the Chancellor's satisfaction, and it appearing reasonable under all circum-
stances, that the land in the bill and answers mentioned, which hath been devised by
the deceased to the defendant Robert Brookes, be sold for the payment of the just
debts of the deceased. Decreed, that they be sold, &c. &c. and that the trustee give
notice to the creditors of the deceased to bring in their claims, &c.

A sale was accordingly made, and before it was reported, the defendant Sarah
petitioned that it might not be ratified; because of the objections therein stated.
On the 2d of May, 1796, an order was passed appointing a day for hearing, and
allowing the parties to take testimony in the usual manner.