
    Ebenezer Towle, Orator, vs. James Mack and Charles Phelps, Respondents.
    Windham,
    
      February, 1829.
    That A, receiving trust-property, knowing it to be such, in payment of his own debts, is liable to accountfor the same, with the cestuique trust.
    
    That the defendant, in rendering his account of trust-property, ifhe tvould avail him self of a pledge of personal property to secure to him a sum of money, must not answer by merely describing the written pledge : but must aver what sum was due to which the pledge might attach.
    That, though the defendant deny the trust set up in the bill, yet ifhe acknowledge» those facts which show the trust, the Orator will be entitled to his account.
    That the Trustee is entitled to have the costs and expenses allowed him of suits and on arbitration, expended in good faith in the concern of the trust.
    But not the 'costs suffered after he has been called upon and refused to surrender tits trust
    
      The Orator complained that Mack was bail for him in a certairi ease on the twenty fourth day of March 1819, and that the Ora-tor< for his security, conveyed to him his farm, containing seventy' a6res of land, and delivered him certain stock- and farming tools, all in trust to pay the demands of the Orator, for which said Mack had become bail,and to account with the orator for the bal-' anee.- Also, that before the seventh of May in said year, Mack had been sued as trustee of said Orator, and, to secure him in this and the other matters, the Orator conveyed him two other pieces of land,-in trust, to sell and account for, after this trustee-action should be settled — That said Mack gave back a writing showing said trust in the first instance, but not in the last — That said Mack', sold said lands to one Josiah WiTbep for a large sum, received a part of the pay, and took his notes for the remainder. Also, that he had sold the stock and farming tools, &c. and received large sums of money therefor — That Mack refused to account for this prop erty, but had confederated with the other defendant, Phelps, and conveyed to him the notes given by Wilber for the land, &e.— That both had been applied to, but refused to render any account of the property, or to pay the balance to the orator ; and prayed that they might be compelled to render an account, and pay hitó-whatever should appear to be due to him.
    The respondents severally answered to this bill of complaint. — 1 Mack acknowledged the receiving the property, but denied all thó trust, except what is described in the writing he gave to the orator when he received his first deed. He also answered, that the stock he received was of less value than $150, and when he received if, the orator executed to him a writing which he attached,-as part of his answer, which appeared to be a Conveyance of the stock for the security of ‡ 150 received by the orator oí Mack. He also attached to his answer a schedule of the monies received and paid out by him. The defendant, Phelps, answered that he purchased of Mack certain notes against Wilber, and took an assignment of a mortgage given to secure the payment of these notes, and that he paid Mack for the same ; and denied any knowledge of any trust or confidence between 'Mack and the orator. These answers were traversed, and the testimony taken and published. At the February term of this Court, in 1828, Mack, considering himself liable to account, so far as required by the writing he gave the orator when he received the first deed, submitted to a decree, that the account be taken without prejudice; that he might be at liberty to contest hisliability to account with regard to some of the matters charged. Phelps resisted the account altogether. Theré was, then, á hearing as between hitó and the orator, upon the question óf bis accounting-
    
      Upon the hearing with regard to b oth defendants, the testimony was referred to by the solicitors, and by the Court in their opinion, with such correctness, it needs no recital here.
    
      Argument for the Orator against Mr. Phelps. This defendant admits, in his answer, his commencing a trustee-action against Mach, as trustee of.the Orator, for his own debt against the orator, and the settlement of the same. He admits his receiving the Wilber notes, &c. to the amount claimed by the orator. His receipts show he collected the same. He denies in his answer,that he ever received any other property of said Towle. He denies also, that he had notice,or knew that said farm was conveyed to Said Mach intrust, to sell the same, &tc. or that the said notes and mortgage were the property of said complainant.
    Had this defendant such notice, or ¡information, as would put him upon enquiry ? It is not necessary that he should have had direct and formal notice; still less, knowledge. Dexter vs. Harris, 2 Mason, 536.
    1. He had constructive notice from the record of the declaration of the trust, like a separate defeasance of a mortgage. This was recorded the day of its date. He does not deny knowledge of the record.
    
    2. He brought a trustee-suit against Mach as trustee of Towle, soon after Towle went away; which was settled with Mach the 16th of Dec. 1819, before the assignment of any of the notes.
    3. Mach settled the suit with Phelps himself; he told Phelps how it was. Phelps told him he could not defend, and he settled.
    But how is the proof on this point ? — Mbenezer Huntington testifies, that he was informed by Charles Phelps and James Mach that he had brought his action against said Mach to recover of him a sum of money which Phelps pretended was due to him from Towle, and thinks, during the pendency of said suit, Phelps informed the deponent that he was acquainted with the way and manner in which Mach received Towle’s property — That Phelps said the notes were given for the farm, &c.
    
      Nathan Wyman testifies, that, soon after the commencement of the suit, Charles Phelps vs. Mach, to recover a debt said by Phelps to be due to him from Towle, Phelps enquired of deponent respecting Mach’s having Towle's properly in his hands, and this deponent informed Phelps that Mach had the property of Towle in his hands, and was agent; for Mack had,informed this deponent that there would remain in his hands, of Towle’s property, more than ‡500, after paying ail his debts, &c.
    
      Samuel Kinsley testifies, that in December, 182Ó, or in June, ^^1, the deponent enquired of Phelps why it was that some peo* pie in Windham were unfriendly to Mach in the Wilber case, and interfered to prevent a settlement between them ? Phelps said was because Mack had taken Towle’s property into his hands and helped Towle to run away.
    
      Samuel Arnold, Esq. says, that in August or September, 1821, he called on Mack for a settlement, which he then refused ; but said he had the three last of these notes — but would take advice. The deponent called on him again in September or October, of the same year, at which time he had taken advice of Charles Phelps, Esq. and refused to account or settle.
    
      Phelps’ account, not made out at the time of the dates of the several transactions, purports to have been entered on or about the 1st ofMay, .1822. It must have been made out to answer some purpose. When was it actually entered on book ? and for what purpose ? It is entitled to no credit.
    The question returns, had Phelps such information upon the subject as will charge him with the consequences of notice S If Phelps had notice that the property which he was purchasing was trust property, he must be accountable to the cestui que trust.— All persons coming into possession of property, bound by a trust, with notice of the trust, shall be considered as trustees. 2 Mad. 103. — Ham. Dig. 638. — 1 Scho. & Lef. 262. — 16 Vesey, Jr, 249, 253, Daniel vs. Damson. Though a purchaser did not know of any incumbrance before he paid his money, inasmuch as he knew it before the deed was executed, it affects him with notice. 1 Atk. 384.
    One, taking from a trustee with notice, levies a fine: this shall not bar the cestui que trust. 2 Mad. 103. — Ham. Dig. 647.— 1 Scho. & Lef. 379. — 4 John. Ch. Rep. 138. — 1 Scho. & Lef. 355, 379. — Ham. Dig. 627.
    If a purchaser have notice of a trust atthe timeof the purchase, he becomes the trustee, notwithstanding the consideration paid. —1 John. Ch. Rep. 566.
    No act of the trustee can vary the rights of the cestui que trust. ’ — Ham. Dig. 641. — 8 Ves. 341.
    Property held in trust does not pass to the representatives of the trustee; but as long as it can be traced and distinguished, it goes to the benefit of the cestui que. trust. 1 John. Ch. Rep. 119.
    A person, claiming as a bona fide purchaser for a valuable consideration, must deny the fact of notice of the trust, and of every circumstance from which such notice mightbe inferred. 1 John. Ch. Rep, 566;
    
      
      Argument for Phelps. The defendant, Phelps, contends,— 1. That, as to purchasing the notes, if with notice of the general trusts, he cannot be called on to account. Even a purchaser of a trust estate, from a trustee with a general power to sell to pay-debts, cannot be holden to account, or see to the application of? the purchase-money. Sugden on Vendors, 368,-noteg. Certainly, then, the purchaser of a negotiable security, given for such estate, cannot be liable. Even a purchaser of stock is never called to account, but the trustee only, and his representatives, have to replace it. 4 Ves. Jr. 497. — 5 id. 799, 800. — 1 id. 297.
    2. That, as to any improvident law-suits, the defendant is not implicated in any improvident management of the same. But, it is pretended that defendant knew the property (the attachment of which gave rise to the suits) to be of doubtful ownership, and this rests solely on the testimony of S. Kingsbury, Esq. who says, ‘‘That in 1820, he was called onto sign the writ Mack vs. Wilber, ' — that he advised Mack, under existing circumstances, not to have the writ served, as he then understood Leonidas Wilber claimed the property Mack was about to attach, and that they (Mack and Phelps) seemed to think the holding it doubtful.” Now, Esq. Kingsbury did not sign the writ Mack vs. Wilber, which was signed by E. H. ilanney, Esq. and served 14-thAugust, 1820, but signed the writ Theos. Crawford vs. L. Wilber, which was dated 17th November, 1820, and after the controversy had commenced ; from which it is most evident that the witness is mistaken, probably from confounding, through defect of memory, the one writ with the other, Besides, the suits ended in a recovery, indicative of Mack’s right to take the property. So, too, the testimony of Arnold would seem to indicate that Phelps bought the notes of Mack after Arnold had applied, with his power, for settlement, and with knowledge of such application. But it ought not to affect Phelps, being the statement of Mack alone. Besides, it is not true. The sale to Phelps was made two months before the execution of the power to Arnold.
    
    Lastly, it is not charged, or proved, that Mack is insolvent, or unable to make the plaintiff good for any trusts he may have entered into.
    During the same term, in 1828, Hutchinson, Chancellor, delivered the opinion of the Court, on the question of compelling Phelps to account:
    The principal question is, whether Phelps knew, when he purchased of Mack, that the latter held this property in trust. He, in Ids answer,denies such knowledge. For the purpose of deciding tills question, we are to consider it settled, that Mack was trustee of the orator. And no decree will finally be made, against ' Phelps, for any thing beyond what is also charged upon Mack.
    
    As evidence tending to show his knowledge, the first deed from the orator to Mach, and the writing given to the orator by Mach, of the same date, were upon record in the town clerk’s office. That writing showed the trust so far. Mach became trustee, as appears by that record, March 24th, 1819. Within a few days afterwards, Phelps learned so much about the trade that he ventured to sue out a trustee-process against Mack to secure his own debt against the orator. Wyman testifies, that, soon after this suit was brought, and while Phelps was making further en-quiry about the trade of ’'Mach and the orator, he, witness, told Phelps that Mack was agent of the orator, and had the property of the orator in his hands; that Mach had told him that he had more than $500 more than would pay all the orator’s debts. In August, 1820, Phelps made writs for Mach, on some of the notes against Wilber.
    
    While the trustee-suit was pending, Phelps told Huntington he knew the way and manner in which Mach received Taide's property; that the notes were given'for the farm. These things put together are very convincing that Phelps knew enough to remove from his mind all doubts of Mach's being the trustee of the orator to some amount. It seems further that Mach made no secrecy of it, so far as relates to the first conveyance. It became pretty much a matter of public notoriety. And, while Phelps was commencing and prosecuting his trustee-action, he had a direct interest to learn the facts, and, when he received his debt, secured by that suit, he must have been fully confirmed in his belief that Mach was trustee of the orator.
    But it is said this does not make Phelps chargeable as trustee. There is no doubt but Mach, by the nature of his trust, had a right to sell the property with which he was intrusted, and turn it into money to pay the debts of the orator; and the man purchasing of Mach, and paying his money, would be safe in so doing. This was the situation of Wilber, so far as he made payment. But this is not the case with Phelps. It appears, by his answer, and the schedule therein referred to, that he paid Mach for the notes against Wilber and the assignment of the mortgage, by discharging his own account and notes against Mach, and giving him a writing to pay the balance of about seventy-six dollars, when the money should be collected. This was receiving of Mach, in satisfaction of his own debt, and converting to his own use, the money which he must have known belonged to the ora-'íór, and which Mach had no right thus to pay away in discharge bf his own debts'.
    Let the "deci-éé be éntered, that the ‘defendant, Phelps, also account before the Commissioner.
    
      Mijo M. Bennett, Esq. was then ‘appointed a special Conimis-sioner, to 'take thé accounts of both déféndants, and report at the next term of this Court; arid the cause was continued.
    At the present term,said Commissioner madé his special report riccompáfflfed. ,with all the items of the accounts rendered and demands claimed. The items of the accounts reported as allow» fed', both ways, iriclude interest tó the present timé.
    After the introduction arid reference t'ó the accompanying schedules, the report proceeds as follows:
    “ And I do further . report, that I finch the real estate, described in the orator’s bill of compláirit; was conveyed by the said Ebenezer Toivle to the said James Mach, at, or about tb * time therein specified, and that the value of the same in 18? P was six hundred and fifty dollars, arid the value of each resper • tve lot I report to have been as follows, viz : The serenty-ác. lot of the valué of 350 dollars, the twenty-five^acre lot of foe v - he of 175 dollars; and thé fifty-acre lot of the y.alue of 125 cl ’lai And I do further report that the said Jemes 'Mach soldi! . •■liri lands; including a heifer and two swine, upon a joint cónfr ..... iii the 30th day of July, A. D. 1819, for the sum of seve- d dollars, to one josiah Wilber ; and that the said Jr : ., i ,'knclc. has received personally, from the avails of said sale; iir sum of 242 dollars 25 cents, including the interest on the’ • -me np to the 17th, day of February, A. D. 1829, and that ti c -yaie <Jh, tries Phelps has received, on the said notes given by said Jo;. 'W Wil-ber to James Mack, in part payment of said land by him negotiated to said Phelps, the sum of eight hundí i r ad sixty-eight dollars and one cent, including interest on the ss;-r a to the 17th day Of February; A. D. 1829. And I do forth, e, ,¡t thé surri óf two dollars fifteen cents due from said Mack to said iowle; for the rent of real estate including interest to the san;- s 7'h day of February; A. D. 1829. And Ido further report, t-a. 1 find personal property belonging to the said Towle, has gone ir,,; the hands of said Mach, and by him either disposed of, retailed, or converted to hi§ own use, to the amount of 336 dollars and four cents, including a computation of interest; up to the 17th day of February, 1829, for which the said .is justly chargeable*, I further report, that I find the sum of 695 dollars 43 cents, including interest on the same to the 17th day of February, Á., D.. Í829, due from the said Towle to said Mach, for monies paid’to» the use of Said Towle, for property delivered him, and personal services rendered in the performance of said trust, for which the gaid Tovile is, and ought to be, justly accountable to the said 
      James Mack. I further report, that, provided the Supremo Court, as a court of chancery, shall be of opinion, that the said Mack \s justly entitled to an allowance and compensation, from said Towle, for his personal services and money paid out in the lawsuits and arbitration, referred to in the said Mack's answer, then, in that case, l report the following sums to be a reasonable Compensation for the same, to wit t for personal services and money paid out in the suit of Leonidas Wilber vs. Timothy Burton, commenced at the December term of the county court, 1820, the sum of fifty-eight dollars forty-six cents, including a computation of interest to the 17th day of February, 1829; and for the costs of the arbitration therein referred to, ;jthe sum of fifty-five dollars ninety seven cents i for the personal services and money paid out in the suit of Leonidas Wilber vs. Mack and Burton, commenced at the December term of the county court, 1821, the sum of two hundred twelve dollars eighty-three cents, including interest to the same 17th day of February, 1829, deducting therefrom forty-two dollars seventy-two cents, it being for the sum of forty dollars and interest on the same, paid James Mack by said Wilber on settlement of the above cause. I further report, that the said James Mack claims an allowance against the said Towle of one hundred and fifty dollars, and interest on the same from the first day of March, 1820, it being the sum specified in the condition of the bill of sale of certain personal property from said Towle to said Made, bearing date the 24th day of March, A. D. 1819 ; and whether the said James is entitled to an allowance of the same, is referred to the Court for their decision ; the amount being, on the 17th day of February, 1829, including interest, two hundred thirty-seven dollars sixty-seven cents. I further report, that the testimony of Daniel Cobb,jun., Levi Kimball and Timothy Sherwin, was offered to show the value of the several pieces of land described in the orator’s said bill, which was objected to by the orator’s counsel, but the objection overruled by me, and the testimony admitted. I further report, that Timothy Burton was offered by the orator as a witness, and it was objected by the defendant that he ought not to be examined, he having been once examined in chief; but the objection was overruled, and the witness again examined before the master. I further report, that the testimony of the witnesses examined before me, in taking the accounts, was taken down in writing, and is herewith transmitted to this Hon. Court. All which is respectfully submitted. Given under my hand at Londonder-'ry, in the County of Windham, this 22d day of November A. D„ 1828.
    "Milo L. Bennet, Mas. in Chancery
    
    
      recapitulation.
    Whole amount of the real estate, Including interest, #1112 41 w
    
    Whole amount of personal estate charged against Mack, - 336 04
    #1448 45
    Amount allowed Mack, - 695 48
    'Balance, - - - * 752 97
    Amount of the expenditures on the first suit as liquidated by me, - - - #58 46 do. do. at arbitration, 55 97
    Balance liquidated on second suit, - - 170 11 Amount claimed by Mack from Towle by virtue of . the condition in the bill of sale, - - 230 67
    #515 21
    Balance over and above all claims adjusted by me, is #237 76.
    M. L. Bennet.'”
    After the foregoing report was filed, Mr. Phelps, filed his exceptions to the allowance of the amount in his hands; also to the disallowance of his payments to Mack. The cause was set down for a hearing upon these exceptions, also upon the whole merits of the account against Mack, it being decreed to be taken, as to him, without prejudice.
    
      Argument jor the orator in reference to Mack, and the exceptions of Phelps.
    
    The answer of Mack admits, that he received the deed first mentioned, upon the trust, mentioned in an instrument in writing, executed by him to the orator of the date of the deed.— This trust is declared by deed under seal of the same date as the conveyance, witnessed by two witnesses, acknowledged, and recorded, in which the trust is declared in these words, to wit:— “I hereby promise, that, after the settlement of certain debts and “ demands against said Towle, which I have agreed to settle, I “ will either re-deed said land to said Towle, or pay him or his “ heirs or assigns whatever may remain of the avails of the sale “ of said land.”
    The defendant also admits that the personal property enumerated, was received upon the condition of a certain writing marked A. This on the face of it seems to be a mortgage or pledge to secure to said Mack the payment of one hundred and fifty dollar*.
    
      It is not pretended by the answer, that this was to secure s previous debt; but as, by the other trust, Mack was to account for the whole valué of the estate conveyed. It might have been that Mack was to have this personál property, or $150, for his trouble. But it is contended by the orator that he was to have a reasonable compensation for his trouble, and account for this prop-* erty also.
    With respect to the deeds of the seventh of May, 1819, the defendant in his answer says, that “after the 24th day of March, “ 1819, and before the 7th day of May, 1819, the defendant was “ summoned to answer in Court as trustee of said orator, accord- “ ing to the statute relating to absconding or concealed debtors; “ the service of which process was made known to the orator; and “ the defendant informed said orator, he had fears he should b© “ injuréd by reason of his, the defendant’s undertaking to assist “ said orator: and thereupon the orator ori the 7th day of May, “ 1819, at said Windham, did make, execute and deliver to the “ defendant, two several deeds of the 2d an'd 3d pieces of land, “mentioned in the complainant’s said bill’of complaint.” And the defendant denies thatthe two last deeds were executed upon any trust or confidence, or upon any condition whatever.
    These two deeds were executed, because he feared he might, be injured in consequence of accepting the trust, or, in other words, to indemnify the said Mack in executing the trust'. This places it on the same trust as the first deed. Yet, he denies that he received them upon any trust, or confidence, or condition. H© must mean expressed in writing.
    
    But, let us see how he treated these conveyances himself, la a letter of Mack to Towle, dated September the 24th, 1820, he says : “ You wrote that you intended making a journey to “ Windham in a short time. I would inform you, if you come at “ present, that It is not in my power to assist you in any part of “ what is your due, for I cannot get the payment that was due last “ December, for $200 dollars; nor the one that was due'in June,’’ “ which was $100. “Ihave only received $150 towardsthe farm yet, “ Money is not to be had here at present, for there is nothing that “ will sell at any price,which makes it bad for me. Some part of “ what furniture that you left here, I sold with the farm. I sold “the whole at $700. The last payment is due December, “ 1821. There is no prospect of assisting you at present. I will “ write you as soon as I can procure the. payment.”
    The whole of the land conveyed to Mack by the three deeds, 'was conveyed by Mack to Wilber. The consideration, $700, By the schedule annexed, Mack refers to this whole fund, and attempts to account for it. He no where claims any part of this a&¡ his own. How can he deny, therefore, that all the property" ^ left in his hands, is left under the same trust ? He acknowledges in the letter, the receipt of furniture not contained in any of the writings ; and he attempts to account for a part, which he says was sold With the farm. That appears not true. (See schedule.)
    
    “ One yearling heifer and two swine were sold with the farm.”
    The defendant says in his answer, that he hath, in his schedule annexed, “ set forth a full, true, perfect, and particular account “ of the rents and profits of said premises, received by him or by “ any person by his order, .or for his use, or for or on account of “ the sale of the said premises, &c.” And the defendant further says, that “ he hath,, in the said schedule, “ set forth a “ full, true, and particular inventory of all and singular “ the goods, chattels, personal estate, and effects, including farm- “ ing tools and utensils, household furniture, stock on the farm a- “ foresaid, promisory notes, bills, bonds, book accounts, and' “ choses in action, whatever, which hath at any time come to the “ hands of the defendant from the orator, or of any other person “ or persons, by his order, or for his use, and which the defend- “ ant admits he received of the orator, and which he expected to . ‘‘ apply for services done and money paid out for the orator ; but “ the defendant denies they were received on any trust or confi- “ dence, as set forth in the orator’s said bill of complaint.” “And “ all the particulars whereof the same consisted, and the natures,, “ kinds, quantities, full, true and real value thereof, and of every #i part thereof, together with such particulars as have been pos-. “ sessed or-received by, or come to the hands of, the defendant, “or of any other person or persons by his order or for his use ; ■“ and how, in what manner, and when, and where, and by whom “ and to whom, and for how much, the same and every part there- “ of, hath been sold or disposed of, .are set forth in said annexed “ schedule.”
    1. It appears from this part-of the answer, that he has set forth in the schedule a cértain quantity of property belonging to the orator, which he admits he received from the orator, and which he expected to apply for services done, and money paid, &tc. and yet denies any trust or confidence.
    ,2. This constitutes, in so manywprds, a trust. What is he to do -with what remains in his hands ? Is he not to account ? If not, he should have taken the property and agreed to pay his debts.
    3. The proof is that it was a trust. Ebenezer Huntington says, ■that soon after the'conveyance of Towle, of his property in Wind~ ham, to Mack, he informed th‘e deponent that he was to pay Towie’s debts, and the balance of the property he was to pay over to Towle, after retaining sufficient to himself to pay for his-trouble in doing the business — That he received from Towle personal property upon the same conditions he had received the real estate.
    
      JYathan Wyman says, that James Mach informed him that he sold the lands of Towle to Josiah Wilber, for $700, and that Towle delivered to him all his personal property, and that- he-was to pay Towle’s debts.
    
      Timothy Burton says, that James Mach informed him that Ebenezer Towle had given him a deed of his- lands in Windham,. and that be was to pay Towle’s debts, and return the balance-to said Towle, and that he had given Towle a writing. to that effect.
    4th. He himself has treated the whole as a trust, and now pretends to account for the whole as such, in his answer. The defendant further says, “that by reason of his taking upon himself the sale of the premises aforesaid, and enforcing the payment, &c. he has incurred sundry expensive law suits,” &cc. This is-a good reason for an account- The defendant further says, that he denies the applications and requests as in said bill is mentioned.” This would not affect the merits. If the defendant answered ingenuously, confessing the trust, and offering to account, &cc. it might relieve him from the payment of costs. But this is flatly-contradicted by the evidence. Samuel Arnold, Esq. says, “ Towle, in March, 1821, gave him a general power of attorney, and, in consequence, in August or September, 1821, he called on Mach, told him he had a power, &c., and requested' him to render an account and make a settlement of the business left in his hands by Towle, and requested him to deliver him the three last notes, for the sale to Wilber. Mach replied that he liad the notes in question, but chose not to do any thing about it, till he had taken advice — That the deponent in September or October again called on him for a settlement of the Towle business : at which time Mach had taken advice from Charles Phelps, and refused to make any accounting or settlement,” &c.
    
      Robert McCormick says, “ Mach informed him that Samuel Arnold attended the arbitration with Leonidas Wilber, and informed this deponent that soon after the arbitration, said Arnold called on him for a settlement of the concerns of Towle that were left with him. Also demanded certain obligations which belonged to Towle, executed by Wilber to Mach for the farm, &c. Mach said he should not give up any of the business to Arnold, Timothy Burton says, “Mach informed him that Arnold called on him as agent of Towle, and that he was agent of Totvle.
    
    
      Mr. Phelps has filed two exeptions to the Master’s report.— ¡first. That the Master charged him with money received on notes — $272 88 on 28th May, 1821 — $114,1st December, 1821 ' —$'233, 1st May, 1822 — $288 13 for interest.
    
      Ansioer. It is not stated that these notes were not the property of Towle,' within the allegation of the bill. It was the property of Towle, and so found by the Master. It was so found on a traverse of the answer; and is within the decree to account.
    
      Second. That the Master disallowed the account annexed to his answer of $868 01, and declared to be on testimony of payment.
    
      Answer, This was excluded by the decree to account to Towle for the property of Towle. The answer contended for the right to account with Mach.
    
    The orator insists that the defendant is not entitled to expenses for defending the suit Wilber vs. Mack, the costs of the arbitration, nor the costs of the last suit.
    
      Argumentfor Defendants. 1. The proof, as to the first sale of land, consists in the deed from Towle tó Mach, and the contemporaneous writing given by Mach to Towle,which wasrecord-ed-in the Windham records 24th March, 1819; and which conforms to the defendants’ answer. This land is found by the Master to be of the value of 350 dollars. It is submitted to the Court how far this deed is more than a mere mortgage, while Mach held the land and a covenant at law after the sale thereof,and how far the plaintiff is at liberty to treat the same breach of covenant as a breach of trust.
    2. The hill charges that the assignment of personal property was made from Towle to Mach in trust for the same purposes.— The answer admits the transfer of certain personal property on 19th March, 1819, viz. 3 cows, 2 two-year-old steers, 1 yearling heifer, 1 calf and 11 sheep ; and that it was received for services done, and monies paid out; and denies that it was upon any trust, and sets forth the bill of sale. The proof as to this matter, consists in the bill of sale, sealed and acknowledged, conditioned that if Towle shall pay Mach 150 dollars on or before the first day of March, 1823, the sale to be void, otherwise not. This property is set down by the Master at 147 dollars ; and there is also found by the Master other chattels turned into a watch, 16 dollars ;part of a note against Charles W. Chandler, 30 dollars; furniture, 4 dollars 15 cents ; coat and cap, 5 dollars — 45 dollars 15 cents in the whole.
    But the plaintiff insists, that the whole personal property was delivered for the same purpose, and brings parol testimony of jÉJá»¿ Huntington-, who says MacJc told him the personal wáS received on the same terms as the real property; and of Nathan Wyman who says Mack said, Towle had delivered him all his Persona^ property, and he was to pay Towle's debts;
    On the part of Mack it is contended that to the amount of $150 he is to be allowed out of the property — there being, then* an acknowledged debt, to himself of that amount; that the testimony, if taken in its most obvious import, goes directly to contradict the bill of sale, which canndt be done in this Way by parol; but that, if taken in reference to the property not included in the bill of sale, it has been applied to Towle's debts,as appears by the Master’s report.
    3. The bill charges the conveyance of other lands on the sarnie day, on the same trust, viz. the 50 acre piece, and the Aiken, or 25 acre piece. The answer admits the conveyance on the 7th May, 1319, absolutely in fee, of the same pieces of land ;but denies that .it was made in' trust any way. The Master’s report finds the 50.acre piece worth $125, the Aiken piece $175.
    The proof, as to this matter, is the deed which' is set forth id the answer without condition of trust expressed. But the plaintiff endeavors to shew the trust by parol testimony of Ebenezer Huntington, who testifies that Mack said, soon after the conveyance,he was to pay Towle’s debts, and pay over balance due, deducting for his trouble — of Timothy Burton,- who, says Mack said Towle had given him a deed of land, and he was to pay Towle’s debts,and had given him a writing to that effect — -'also, that he had received Towle's property as agent to pay debts, and had given a wfiting — of Nathan Wyman, who .says Mack said he had sold the lands of Towle for $700and plaintiff endeavors to sustain himself by the fact, that the lands' were all conveyed by Mack to his vendee, by one and the same deed, and for the’ same consideration.-
    It is contended on the part of Mack, that the evidence does hot shew any trust as to these lands, because the conversation with Huntington being stated by him to have taken place soon after Towle conveyed his land in Windham, applies not to the last deed, but to the first, in connection with which it is perfectly natural. The conversation with Burton, in' connection with the expression, that “ Mack had at the same time given Tdwle back a; Writing, can refer to none but the first deed. The statement of Wyman is merely descriptive. “Lands of Towle" is synonymous with- the “ Towle landsfor they were also described as sold h e.- id Wilber. Nor is it known that there is any rule requiring even trustee with any power but such as obliges Isim to sign in a different capacity, to make a separate deed. The •effect of mingling the considerations only subjects him to gréatef hardship in shewing value and price. But if the evidence might :in some cases show a trust, it does not in this case-, being an attempt to contradict and create a condition to an absolute deed by parol. Nor 'can it he a resulting trust, since the same evidence used to establish the trust admits a writing which wholly excludes the idea of a resulting trust.
    4. the hill charges the wasting of the trustfund in improvident law süits. ’ Defendant contends that there have not been any within Ms knowledge ; thafthe sale appears to have even exceeded the value; that the attachments were to secure the payment of the money, rather than take back the land and risk a resale ; that the property attached was, under every presumption, proper to be attached 5 and that the decisions so proved it; and that the suits were conducted to the best of his ability». But the plaintiff endeavors to prove, by S-, Kingsbury, that defendant had notice of doubtful ownership before the attachments. This is shewn to be a mistake, as Kingsbury did not sign the writ before the attachment, bat did sign one afterwards. Besides, Towle recognized the suits, when he undertook to settle them with Wilber»
    
      5. the Mil charges refusal to settle and deliver tip property on demand. Defendant contends,that having become responsible for the event of the suits, he was not under any obligation to part with his security without indemnity,which was not offered.
   The opinion of the Court, upon the points argued, was pronounced by

Hutchinson, Ch.

Upon a full hearing of this cause at the last term, as it respected the defendant Phelps, it was decreed that he should account. The real amount of which was, that he had so associated himself with Mack, and had received from Mack the property of the orator, under such circumstances, that, iiMach was liable to the orator upon the charges in the bill, Phelps is also liable with him, to any extent not exceeding the amount of the property of the orator, received by Phelps of Mack. That amount, as reported by the master, is $868 01, including interest to this time. Mr. Phelps excepts to this report, both because the claim is allowed against Him', and because his payments to Mack were not allowed him as an offsett. Both these exceptions present but the same questions that were considered and decided, in their full extent, in the degree that he should account. Discovering no cause to be dissatisfied with that decision and decree, and, perceiving, that the sum in his hands exceeds the amount now claimed as against Mach, we proceed to dispose of the questions raised in the controversy with Mack.

There has been no attempt to excite a doubt of the liability of Mach to account with the orator for the avails of the land first deeded. The declaration of the trust, in the instrument recorded, has put that point at rest. Hence he submitted to a decree to account without prejudice, that is, saving his right to resist wholly other claims set up in the hill. So we treat the case; though there has been some misunderstanding or misrecollection upon the subject.

The lands conveyed to the orator by Mach, by the two deeds of May 7th, 1819,have been sold by him; but he denies all liability to account for the same. The deeds are absolute,and no writing is shown, Creating any condition agreed to at the time. Mach also denies in his answer, that the said two deeds were executed upon any trust or confidence, or upon any condition whatever. He seems not well advised in this part of the answer ; for, he had just before related the circumstances under]' which they were executed. After receiving the first deed and some personal estate,and becoming bail for the orator, he was sued as his trustee. He told the orator of this, and also told Mm “ he feared he should be injured by reason of his, the defendant’s, undertaking to assist said orator ; and therefore, the orator did, on the said 7th day of May, execute and deliver to the defendant the said two deeds of said second and third pieces of land.” — - The very terms of this part of the answer disclose a trust. They disclose the reason of the giving of the deeds. It was to prevent Mach from being injured by his assisting the orator. These deeds authorised Mach to sell the lands; but he had no right to the avails beyond what would save him harmless. It is difficult to conceive what he could mean, by denying the trust in his answer, unless it be, that they made no particular contract defining and regulating any trust or condition. So far it may be true; but, the very receiving the deeds as security for his assisting the orator, created him trustee for the orator, and liable to account for the balance. Indeed, Mack seems, himself, to have entertained the same sense of his liability, while executing his trust,, till about the time he sold the notes^ and assigned the mortgage to Mr .Phelps. When he sold the three pieces of land, he conveyed all by one deed. The price of the whole was fixed in gross. The instalments seem to have an entire reference to the. convenience of payment, and not to the accounting with different persons. The payments were all secured by one mortgage deed-His letter to the orator, informing that no money was collected for him, speaks of all these notes, as sources of receiving money for the orator, and alludes to them by stating the times when they severally become payable. He told Wyman that over five hundred dollars would belong to the orator, after paying the debts which he, Mack, was to pay. - This could not be true, otherwise than by considering the whole of this property alike holden in trust for the orator.

The Commissioner has reported a claim of the defendant, Mack, setup in his answer, of ,f 150,for which the personal estate, stock, he. was pledged. Mack contends that, if he accounts for the stock pledged, this demand secured by the stock, as by the bill of sale, must be allowed to him. The Commissioner has ascertained the'sum, and referred this claim to the Court; and we discover no gróunds for allowing it. He presents none in his answer. He says in his answer, that he received such and such property, naming it, worth less than $150, “and, upon that occasion, the orator did then execute to the defendant a certain writing,” of which he annexes a copy. The terms of that are, that the orator may redeem the property by paying $150.

If the orator was about to convey this personal property to the defendant, and mingle it in the common trust, the writing, or bill of sale, should show some consideration, in order to be of binding force. Probably this writing was deemed by the parties a proper instrument to show the title of Mack in the property. But, if Mack will contend that the $150, named in that writing, is a debt due to him in equity, it was incumbent on him, when accounting under oath, to tell something more than that such a writing was executed. He ought to have also said, that the sum was due him, and told for what it became due. Without so much, when the defendant is witness to his own claim,no equity appears in his favor $ but that stock, he. mentioned in the bill of sale, must be considered subject to the same trust as the real estate.

With regard to the claims -of Mack for the costs of the first suit, and of the arbitration, nothing appears but that he acted in good faith in those expenditures. It is said there was no need of attaching the property, as the notes were secured by the mortgage. But a suit upon the mortgage would only bring the land back again, and that was not the object of the orator. It was proper to en-deavour to collect the notes in the usual way. And nothing appears of any imprudence in Mack’s making the first attachment. ]SJor j0 we think the arbitration so unauthorized', as to compeí Mack to lose the costs'. The business was done in his name.— He employed the officers and must defend them. And we musí aH°whim to manage the concern as he would his own, if done in good faith. The costs of the first suit and of the arbitration,as reported' by the Commissioner, are allowed the defendant. The cost of the last suit, reported at ,$170 11, stands upon a different ground. That wholly accrued after Esq. Arnold had received a power of attorney from the orator for the purpose, and had called upon Mack for a settlement, and requested him to deliver over the notes against Wilber, and Mack had refused. After that refusal, he acted upon his own responsibility. He ought, when thus called upon, to have made a settlement, and surrendered th© trust. This claim is disallowed.

Kellogg, solicitor for orator.

Bradley, solicitor for respondents.

Taking,then, the sum reported as due from Mack, $237 76

Add thereto the said cost disallowed, which the master provisionally allowed, - 170II

To this add said amount of personal property and interest, which he deducted, - 230 67

Makes due from said Mack - - $638 54

And the decree of the Courtis, that the defendants pay that sum to the Clerk of this Court, for the benefit of the orator, on or before the first Monday of August next, together with interest on said sum from this time till the time of payment, together, also, with the costs of this suit; and that, on failure, execution may then issue for the same against both defendants.  