
    Day, Executor of Yates, Who Was Executor of Payne, v. Murdoch, Surviving Partner of Cuningham & Co.
    Monday, November 18, 1810.
    i. British Debtor — Payment in Paper" Money — Discharge. — A payment in paper money, by a British debtor to an American creditor, operated a full discharge to its nominal amount, of a current money debt, contracted in specie; notwithstanding the creditor made objections to receiving the paper money, and observed, at the time, that he would keep it safe for the debtor, but did not consider it as a payment, though intended as such by the debtor; and notwithstanding the receipt contained a reservation that, since the creditor had demanded the debt when the rate of exchange was at 15 per cent, he therefore claimed so much as might be allowed him on that account by arbitrators afterwards to have been (but who never were) appointed.
    3. Escheat- — Trust Estate — Case at Bar. — A factor and agent for a company of British merchants having, in the year 1771, purchased, on their behalf, a tract of land in Virginia, for a sum of money payable on demand, and then received possession thereof for their use; and a credit for the money having been entered in their books; the equitable title to, and possession of, such land was thereby completely vested in the company; and, under the act of May session, 1779, “concerning escheats and forfeitures from British subjects,” the same escheated to the Commonwealth, which, on inquest found, became entitled, in the same manner the company were entitled; but subject to the payment of so much only of the purchase money, remaining due, as did not exceed the net amount for which the land was sold by the escheator, reduced to present current money, according to the 2d section of that act; the said . British company being still liable for the residue of the said purchase-money.
    ■3, Appellate Practice — Error Prejudicial to Appellee. —TJpon an appeal from a decree in Chancery, an error to the injury of the appellee ought to be corrected, although he did not appeal.
    
    This was a suit originally brought in the late High Court of Chancery, by Charles. Yates, executor of Daniel Payne, 461 against '*William Cuningham & Co. British merchants, and Walter Colquhoun, their agent in this county', to attach, in his hands so much of the effects of the said company, (the partners being residents in Great Britain,) as would be sufficient to satisfy two claims for debts due from them to the said Daniel Payne in his. life-time; the first being a balance of account, on the 1st of September, 1774, of 3731. 11s. 7d. current money, and the other 4911. 19s. lOd. sterling; of which last-mentioned sum, 401. was the price of certain houses and lots in the town of Dumfries, sold by the said Payne to John Neilson, an agent of the said company, for their use, some time in the year 1771, and the residue was a balance of account.
    The material circumstances relative to each claim (as collected from the bill, answer, depositions and exhibits) were the following.
    The currency debt was admitted to have been originally due as stated; but the point in dispute related to a subsequent payment of 4231, 19s. in paper money, by a certáin James Robinson, (a factor and partner of the company,) to the said Daniel Payne, on the 4th of April, 1777. The question was whether this payment, which, at its nominal amount was equal to the principal and interest of the currency debt, was to be considered as a full satisfaction thereof, or to be credited at its value, according to the scale of depreciation. It appeared that Payne was very unwilling to receive the paper money, but was induced to do so by Robinson’s threatening to lodge an information against him with the committee of safety; that, when he received it, he put it in his desk, observing that he would keep it safe for the company, but did not consider it as a payment. He gave a receipt in the following words; “Received, April 4th, 1777, of Mr. James Robinson, 4231. 19s. current money of Virginia, being the amount of the principal and interest due to 462 me in currency by Messrs. *William Cuningham & Co. of Glasgow, at their Dumfries store, and exclusive of the sterling sum owing for the lots that I sold them; nevertheless, I demanded the currency debt when the rate of exchange was at IS per cent. ; if, on arbitration hereafter to be had, it should be determined that I am entitled to an allowance on that account, the said company are hereby subjected to. such allowance. Dan. Payne.”
    It was contended by him that, in consequence of the demand mentioned in that receipt, the debt in question should be considered as turned into sterling at the rate of IS per cent, difference of exchange; and he alleged that this had been consented to, on the part of William Cuningham & Co. as a consideration for further forbearance of the debt; but of this there was no proof. It was stated in the deposition of Walter Colquhoun, (who, it seems, did not answer the bill as a defendant, but was examined as a witness,) that Payne never made him any oiler of leaving the conditional clause in the receipt to the •decision of arbitrators; that, subsequent to his death, his executor Yates wrote a letter to the deponent as agent-for the company, touching an arbitration; to which he answered that, if it was meant to open the whole transaction, he did not feel himself at liberty to consent; but, if the matter in controversy be considered as restricted to the claim, in Mr. Payne’s receipt, respecting the exchange, he might, unless counselled to the contrary, consent to the leaving of that point, as the only disputable one, to the decision of arbitrators; that no written reply was given, but the deponent understood the limitation proposed would not be agreed to.
    As to the debt in sterling money; it appeared that a verbal contract was made by John Neilson, factor for the company, in the year 1771, for the purchase of the houses and lots aforesaid of Daniel Payne, at the price of 4001. sterling, payable on demand; that possession was then given to the said factor for the use of the Company, and a credit for the money entered in their books; that no deeds were executed; Payne having •refused to make any, since the money was not paid, and choosing to retain the legal title in himself as security for such payment ; that the said lots and houses were afterwards confiscated as the property of British subjects, and that he (although requested by Adam Newall, an agent of the Company) did not interfere to prevent it, by setting up his legal title against the 463 claim of the ^Commonwealth. The Company therefore contended, that they ought not to be compelled to pay the said purchase-money. It appeared, moreover, that four bonds belonging to the said Company, and amounting to 19711. 4s. 6d. 1-2 were put into the said Payne’s hands on the 4th day of February, 1786, as security for his claims; of which bonds one for 2331. 10s. lOd. was returned to Waiter Colquhoun, (heir agent, on the 31st of July, 1789, but the ■other three (with two bills of sale as additional security to two of them) were said to have been retained by the said Payne and his executor.
    The Chancellor made a general order of account, March IS, 1800; and, afterwards, on the 18th of May, 1801, “having considered allegations of parties, their proofs, and the arguments of counsel, directed the Commissioner, in stating the accounts between the parties, to debit the plaintiff’s testator with the value of the money (which he acknowledged himself to have received) according to the statutory scale of depreciation, and not to debit the defendants with the consideration money which they had agreed to pay for the houses and land in Dumfries.” The Commissioner made a report accordingly, finding a balance against the defendants (after charging them with rent for the said houses and lots during the time they were occupied by their agents) to the amount of 4651. 11s. 2d. to bear interest from the 4th of April, 1777; (the date of the receipt for the money paid as aforesaid on account of the currency debt;) about which time James Robinson, the factor and partner of the Company, with all their clerks, storekeepers and assistant storekeepers were obliged to leave the State under the resolution of the Assembly, dated the 18th day of December, 1776, for enforcing the statute staple of the 27th Edw. Ill, c. 17.
    This report was confirmed by the Chancellor, and (omitting eight years’ interest for the time of the war) he decreed to the plaintiff the balance reported, with inteiest from the 4th of April, 1785: from which decree the plaintiff appealed.
    Warden and Botts, for the appellant.
    Williams and Wickham, for the appellee.
    On the part of the appellant, it was contended that the decree *was erroneous in not allowing the purchase-money for the lots and houses in Dumfries. This bargain was made before the statute of frauds was adopted in this country. A parol agreement, at that time, would have been enforced in equity, even without part performance. But here there was part performance, Cuningham & Co. were put into actual possession, and made considerable improvements. The land was their property, and the money the property of Payne. He had a right to go against them personally as debtors, though, it is true, he retained a lien on the land. He might waive his lien if he chose, out this could not deprive him of his personal remedy.
    The bargain being obligatory on him, he could not have prevented the sale by the escheator: for, if he had filed a monstrans de droit, the previous sale to Cuningham & Co. would have barred his right; and he was not bound to have committed a fraud on the government by representing the land as his own. If, then, he has done no wrong, how has he forfeited his right?
    According to the contract, Cuningham & Co. ought to have paid the money immediately ; whereupon, a deed would have been made, conveying to them the legal title.; if which had been done, it is admitted on all hands, nothing could have saved the land from the claim of the Commonwealth. Shall they be benefited by their own wrong, and put in a better situation than if they had paid the money. The doctrine laid down in 3 Dali. 225, shews that, as British subjects, they were personally liable for the acts of their government.
    On the other side, it was said that the jurisdiction of the Court of Equity in this case could be supported only by taking this as a bill for specific performance. Considering it as such, the Court has a discretionary power to grant or withhold relief. No man shall demand equity without doing equity; so, also, without having done equity. It was Payne’s duty to protect our rights, and, not having done it, he is not entitled to a decree. lie must be presumed to have had it in his power to assert all his legal rights, the act of Assembly  having provided for the protection of such rights. The Commonwealth could only take, subject to the rights of Payne; nothing but the rights of Cuningham & Co. being confiscated.
    As a creditor, also, Payne was protected. There can be *no doubt that he might have secured himself in the mode pointed out by one or other of the laws on this subject. An ample fund, therefore, existing, in the lots and houses themselves, out of which he might have been paid, it was his duty to resort to that fund, and not to Cuningham & Co.; according to the maxim that “no right ought to be exercised in a manner prejudicial to the rights of others.”
    
    In reply it was observed that this was not abill for specific performance. The plaintiff came into equity on the ground that the defendants were out of the Commonwealth, and he could not sue them at law. This was the only circumstance which ousted the Court of Eaw of its jurisdiction. Cuningham & Co. were not entitled to a deed, but upon payment of the money; and, now, upon payment of the money, a deed may be made them, conveying all the right remaining in Payne’s representatives.
    On the part of the appellees, also, the decree was said to be erroneous, in directing the paper money paj-ment to be scaled. The scale applies only to subsisting debts unpaid, but not to payments; for the law is positive that all actual payments in paper money shall be good at their nominal amount. This, being an error to the injury of the appellee, ought to be corrected, though he has not appealed. If there be one error 'in favour of the appellant, and another in favour of the appellee, the Court will direct both to be corrected. Where a balance of account is to be struck, and the sum of errors on both sides to be calculated, the Court must look into the whole business, and correct all the errois. For this reason, after a decree for an account, the plaintiff cannot dismiss his bill; but a balance of account may be decreed to the defendant; as was done the other day in Todd v. Bowyer. 
    
    - To this it was objected, that Payne was not obliged to take paper money between 1770 and 1774; when he demanded payment, and Cuningham & Co. failed to pay. The particular wording of the receipt of the 4th April, 1777, proves this, and shews that, in equity, the payment should be scaled.
    The counsel for the appellee contended, contra,
    that the wording *of the receipt proved nothing, but that Payne wished to get over giving a receipt. It was, nevertheless, a plain receipt in full.
    Friday, November 30.
    The following was entered as the opinion of the Court, consisting of JUDGES ROANE and TUCKER.
    
      
      Escheat. — See monographic note on “Escheat” appended to Sands v. Lynham, 27 Gratt. 291.
    
    
      
      Appellate Practice — Error Prejudicial to Appellee.— To the point that upon an appeal from a decree in chancery an error to the injury of the appellee ought to be corrected, although he did not appeal, the principal case is cited in Burton v. Brown, 22 Gratt. 16; Morgan v. Ohio R. R. Co., 39 W. Va. 25, 19 S. E. Rep. 591; foot-note to Boulware v. Newton, 18 Gratt. 708, quoting from Morgan v. Ohio R. R. Co., 39 W. Va. 25, 19 S. E. Rep. 591.
      The general rule laid down by the court in the principal case is referred to with approval in Grantland v. Wight, 2 Munf. 186; Quarles v. Quarles, 2 Munf. 325; Hopkirk v. Dennis, 2 Munf. 328; Wilson v. Burfoot, 2 Gratt. 134.
      See generally, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 263; monographic note on “Decrees" appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
      Note. The Court have since, to wit, on the 2d of October. 1811, established the following general rule. “It is the opinion of this Court, founded as well on a full consideration of the law, as on various decisions which have heretofore been had, that, in .future, where a judgment or decree is reversed neither in the whole, nor in part, on the ground of error against the appellant, or plaintifE, in any appeal, writ of error, or supersedeas; yet, if error is perceived against the appellee, or defendant, the Court will consider the whole record as before them, and will reverse the proceedings, either in whole, or in part, in the same manner as they would do, were the appellee or defendant also to bring the same before them, either by appeal, writ of error, or supersedeas; unless such error be-waived by the appellee, or defendant; which waiver shall be considered a release of all errors as to-him.” — Note in Original Edition.
    
    
      
       Ch. Rev. 65.
    
    
      
       Ch. Rev. 99, 106, 118.
    
    
      
       2 Fonb, p. 297, b. 3, c. 2, s. 6, note (i); 1 H. Bl. 136, Wright v. Nutt; 3 Bro. Ch. 326, S. C.; 3 Bro. Ch. 54, Peters v. Irvine.
    
    
      
       Ante, p. 447.
    
   1 ‘The Court, having maturely considered, &c. is of opinion that the said decree is erroneous: therefore, it is decreed and ordered that the same be reversed and annulled, and that the appellees pay to the appellant the costs as well by him as by his testator expended in prosecuting his appeal aforesaid here. And this Court, proceeding to make such decree as the said Superior Court pf Chancery ought to have pronounced, is of opinion, that the payment of 4231. 19s., current money by James Robinson, for and on account of the appellees, to Daniel Payne, on the 4th day of April, 1777, which is acknowledged by said Payne to have been the full amount of the principal and interest then due to him, in current money, was a full payment and extinguishment of that debt, notwithstanding the demand made by the said Payne, that the same should be turned into sterling at the rate of 15 per cent, difference of exchange, and the reservation by him, of a right to claim: the same in future; the commutation aforesaid of that debt, being neither agreed to by the debtors, or their agent, (and, if consented to as a consideration for further forbearance of the debt, as alleged by the said Payne, was probably a device to elude the provision of the statute of usury, and therefore void,) nor being established by the award of arbitrators, according to the tenor of the receipt granted by the said Payne at the time of the payment aforesaid; nor, if this bill was intended to procure the decision of the Court of Equity in lieu of that of the arbitrators upon that question, does it appear that the appellant has any just right to claim the addition or commutation aforesaid ; and that therefore the bill should, as to the appellant, be dismissed, so far as it relates to that article, with costs; but that, on the other hand, the appellees, although they have not appealed from the decree in question, ought to be allowed the benefit of the nominal amount of the payment aforesaid, which ought not to be subjected to the operation of the scale of depreciation-established by law; that sum forming only one item of the account between the 467 ^parties, and its allowance in full to the appellees not changing the result of the decree, which will, under the opinion of this Court, as now declared, be still rendered more favourable to the appellant.

‘ ‘And this Court is further of opinion that, by the contract and agreement between John Neilson, factor and agent for the said William Cuningham & Co., and made in their behalf with Daniel Payne in the year 1771, and not disapproved of, but acquiesced in by them, for the purchase of the said Payne’s lots and houses in the - town of Dumfries, for the sum of 4001. sterling, payable on demand, possession whereof was then given, and a credit for the money entered in the books of the Company, as appears by their answer, the equitable title and possession was thereby completely vested in the said William Cuningham & Co., who might at any time have coerced a legal title from the said Daniel Payne, by paying or tendering to him the purchase-money, until the said Daniel Payne was absolved from that obligation by the Acts of the Eegislature of the Commonwealth of Virginia, and the proceedings had under the same, confiscating the rights of said William Cuningham and Company in and to the same.

“And this Court is further of opinion,, that the retention by the said Daniel Payne of the said legal title as a security for the payment of the purchase-money for the said lots and houses did not impose it upon him as a dutj% by any sinister act or device, to endeavour to protect the property therein of the said William Cuningham & Co. from confiscation ; more especially, as it appears, from their own shewing, that they had one or more agents or factors in this country during the whole period of the revolutionary war, who were equally competent to have defended the same; and that the said Daniel Payne is not responsible for the confiscation and sale thereof, which he could not probably have prevented, as the Commonwealth, by the act “concerning escheats and forfeitures,” became entitled in the same manner as the said William Cuningham & Co. were entitled, subject, nevertheless, to the payment of the consideration agreed to be paid by the said William Cuningham & Co. for the same.

And this Court is further of opinion, that the appellees are still liable to the representatives of the said Daniel Payne, for any part of the said consideration money 468 which may remain due *be3rond the net amount of the consideration for which the lots and houses aforesaid were sold by the escheator of the Commonwealth, after deducting all just and reasonable expenses of the sales of the same, reduced to current money of this present period, according to the directions of the act of the May, 1779, c. 4, s. 2, “concerning escheats and forfeitures from British subjects,” according to the rate of exchange between current and sterling money at the time when the final decree shall be made in this cause, with interest thereupon from the time of the institution of this suit; and if the bonds, mentioned in the exhibit No. 6, have been retained by the said Daniel Payne, or his representatives, as is suggested in the answer, that the same, upon the performance of this decree on the part of the appellees, shall be delivered up to them, the appellant accounting with them for any moneys, which may have been received thereupon by himself, or his testator Charles Yates, or the said Daniel, Payne, or any other person to his or their use.

“And the cause was remanded to the said Superior Court of Chancery, with liberty to the appellant to make the Commonwealth, or those claiming under it, parties thereto, if he shall be so advised.”  