
    COURT OF APPEALS, JUNE TERM, 1-822;
    Jones vs. Slubey.
    A conveyance •without any valuable considera«en.','“and purely voluntary» m se «ret trust for^the tm-’s w.ft amid.ii dren,is fraudulent to'cr«iitoraVÜ\viio andattie tí™.wyanLfld c™*
    cessaryS'i.at toedet°asuíe^..cii shou'd°show'thj SenqnsoiyeiJfat ciuiun, it is sup cmsideraiiiy indebted to the creditor, ami that no other properly appears sufficient to satisfy such debt, o\Jjer than that contained in the conveyance.
    • An answer responsive to a bíU¿ is evidence, but only emith d to the same weight that parol evidence is entitled to. : . • • . .
    Parol evidence of declarations and intentions, is inadmissible to raise a trust inconsistent or at variance with the expressed intuition of a deed, where ih< fact** and circumstances would not of themselves, by implication or constniet'on of Jaw, be sufficient to do so—Nor can such a trust be crean d for the benefit of a third person, and to defeat a complainant’s equity*'-by an answer alleging declarations} on intentions at variance with-ho expressed intuition of a deed i .
    Lands being vested in the wife of N 3 in lee tail, and she and her husband making an absolute conveyance of the same m IV.e to D J. and hUreconveyhig to N. ^l>e husband, in fee", also by ah absolute deed, and the husband more than twelve months afterwards, conveying the,same property to M. H. by an absolute deed in fee, art 1.0». df ih>‘msehts, tacts suffieien to raise a trust by implication of law lor the benefit of said wife and her children; lior are (he answers to a bill in equity, filed to set aside the last eonvejance, and to muw r thfe-property subject to the d< bts due by N J the husband, prior to such eonvejance, slating such conveyance to have been made in trust ior'ijie ben< fit of said wile and childrui» sufficient to sustain the saim , and to' defeat the object of the bifl. Nor is it necessary in such a bill, tlie vife being dead, 1 ml leaving ciñieren, tomake the children parties.
    If a defi ndant iniquity, in an»u r r 10 a hill for the specific performance of a parol agreement, admits the agreement, and dors not rely on the statute of irauds, the agieement will be tnfoiced against 5um; otherwise, if l^e relies on the sta-tutc . -
    ’ When a judgment creditor fi ts a bill for the sale of properly to satisfy his debt, a decree that the property', besold, and the proceeds brought into court, to be applied by the court to the payment; 0? such part ot the debt as may appear to be due, is correct, provided any part of such debt be du$*
    Appeal from chancery. The facts stated in the bill which was filed, by the appellee against Nicholas S. Jones, -• J 11 0 , (the appellant)) Mary Brown, the Trustees of James Jtlston and the President and Directors of the Mechanics 7 . • . t - , ®an^c °f Baltimore, were, that the appellant^ and David J°nesi being merchants, and in copartnership, became in-' debted to the appellee in the sum of glO, 896 73, for which %eJ Say9 dieir bond, Suit was instituted on'the bond, and in 1812 judgment was obtained against, the appellant for the said sum, with interest from the 12th of May 1809, and costs. The judgment was kept alive by the proper process, from term to term, until March 1814, when a fieri facias was issued and returned Nulla Bona. The ap- / . . A. rjeliant was m 1807, under a deed to him from David ^ . i ? . r ... . , i. 
      Jones, seized and possessed of several houses and lots in the city of Baltimore, all of which, on the 14th of May 1808, he voluntarily conveyed to Mary-Brown, his mother-in-law, for the nominal consideration of five dollars, and she holding said property In secret trust for the appellant, conveyed, at his desire, a portion of the same to Charles fy James Alston, to secure them for paper loaned to the appellant for discount in the Mechanics Bank of Baltimore. Charles Alston died about two years before the filing of the bill, and James Alston, who survived him, was also dead, but before his death became an insolvent debtor, availed himself of the benefit of the insolvent laws, and conveyed all his estate, &c. to James Sterett, &c. who now hold the legal title in said property in trust for the appellant, after payment of the debt due, (if any,) to the Mechanics Bank. The bill further stated, that the appellee believed the conveyance from the appellant to Mary Brown, was made to evade the payment of the appellee’s debt, which was due.at the date of said conveyance, though the bond was after-wards executed, or, that if that was not the object, that the same wias originally made in secret trust, and will, after the debt due to the bank shall be paid, be held by Mary Brown, for the use and benefit of the appellant, who had enjoyed the use and benefit of the property from the time of the conveyance, and was still enjoying it. That, po fieri facias could be laid on the same, or if it could, that the appellee’s remedy would not be complete at law. Prayer, that the president and directors of the MechanicSi Bank of Baltimore, and the trustees of J. Alston, mighty discover whether any and what sum of money was due to them from the appellant, &c. That Mary Brown might be compelled to disclose the nature of the trust reposed in her by the appellant, by bis said conveyance to her; and for a decree to set aside and vacate said conveyance to Mary-Brown, as voluntary and fraudulent, and for the sale of ail of said property, and that the- proceeds of the same might be applied to satisfy the appellee’s judgment. There was also a prayer for general relief, &c." The answer of N. 8. Jones, (the appellant,) stated, that he and his brother B. Jones, were nephews of the appellee, and about the year 1806 formed a copartnership as merchants in the city of' Baltimore, under his patronage, and at his express desire^ and with a promise from him of aid and assistance. The copartnership existed until the year 1810. In September 18C6, he the appellant intermarried with Frances, the daughter of John Broun, and at that time, and until 1811, was in good credit, and in the constant habit of discharging'all his just engagements. Frances, at the time of said marriage, was possessed of the property mentioned in the, deed of conveyance from herself and the appellant, to D. Jones, and held the same in fee tail under a devise to her by her deceased father. Frances being desirous to bar the entail, and to settle said property upon herself, and such children as she might thereafter have by the appellant, executed said conveyance, jointly with the appellant, to I). Jones, on the 30th of April 1807, and I). Jones by his, deed dated the same day, reconveyed said property to thes, appellant, to enable him to create the said trust. The answer further stated, that the appellant afterwards by deed, dated the 14th of May 1808, conveyed said property tq his mother-in-law, Mary Brown, in lee simple; and although said deed appears on the face of it to be absolute, yet it was intended for the use of the said Frances, and her children, agreeably to the original intention of the said Frances and the appellant, as before mentioned; and the appellant positively declared, that said entail was barred for the purpose of creating the aforesaid trust, and that he, believed the said Frances never would have joined with, him in the deed to B. Jones, but upon the express condition that the property was to be conveyed by the appellant in trust for the sole benefit of herself and her children. At the time the appellant executed the deed to Mary Brown, he was in good credit. In 1809, the appellee presented to the appellant, and B. Jones, the bond mentioned in the bill, and requested them to sign it, alleging it to be the amount due by them to him for goods sold, and money lent them, and observed that the bond was to be taken, only for form sake, and to prevent the interference of one, R. S. Thomas, in the concerns of the appellant and D. Jones, the latter being about to marry the daughter of the said Thomas. The appellant refused to sign the bond, alleging that it was for á sum much larger than he admitted be due, and which he offered to show by reference to the accounts between them. B. Jones signed the bond, because his ur.cle, the appellee, threatened to prevent his^ marriage with Thomas’s daughter if he did not sign it. After some weeks, and for the reasons urged by the appellee as before mentioned, arid believing that the bond was to be merely nominal, and only intended to cover whatsoever sum might, upon a Fair investigation; be found to be justly due to thé appellee, and being assured by him that the claim would never be enforced, inasmuch as the áppéllant and B. Jones were his nearest relations, the appellant signed the same. The answer further alleged, that the amount due by the appellant and B. Jones, to the appellee; At the execution of said bond, was only §4821 39. The Appellant admitted that suit was instituted on the bond; and judgment obtained against him, he being informed he could make no defence at law; but averred that he ought to have been credited with §2298 76, and that judgment should only have been entered for the balance, &c. He denied that Mary Brown held said property in secret trust for his use; but that the same was conveyed tó and was held in trust by her, for the benefit of bis five children by his wife Frances, she being dead. He also denied that he xnade the deed to Mary Brown for the purpose of evading the appellee’s claim, because he did not know, at the execution of said deed, what amount he owed the appellee, there being at that time a running account between the copartnership and the appellee, and that he paid the appellee several sums after the execution of the deed. The answer further states, that Charles and James Alston became the appellant’s endorsers at the Mechanics Bank, and that Mary Brown, without the interference of the appellant, executed the deed to the Alston’s for their security, and that the property mentioned in that deed was not the same property conveyed by the appellant to Mary Brown, in trust as aforesaid, but was held by her in her own right. The answer of Mary Brown stated, that her deceased husband devised to bis daughter Frances, in fee tail, all the property mentioned in the deed from Frunces and her husband, (the appellant,) to B. Jones. That Frances intermarried with the appellantin September 1806, and after her marriage, being desirous to settle said property upon herself and the children she might have by her said husband, joined with him in the deed to B. Jones, dated the 30th of April 1807, for the purpose of barring the entail, and creating said trust; and B. Jones on the same day conveyed said property back to the appellant. That the appellant, in order tó carry into effect the intention of his wife, did by his deed of the 14th of May 1808, convey to this defendant all said property, in fee simple, but in, trust for the use and sole benefit of said Frances, and of such child or children as she then had or might have by the appellant. That this defendant paid no money consideration to the appellant for said conveyance to her. She admitted that she conveyed to V. and J, Alston the property mentioned in her deed tó them, to indemnify them as endorsers for lier son-in-law, the appellant, but averred that the said last property was her own individual estate, and that she executed said deed Of her own accord. This answer also stated the death of Frances, and her leaving five minor children.'
    The ansiver of the president and directors of the Mechanics Bank of Baltimore stated, that there was due to them from the appellant the sum of §991 51, being the balance due of a loan made by them to him on notes drawn by C, and J. 'Alston, in favour of and endorsed by the appellant, and that they had no Other security for the same except the mortgage from Mary Brovin to C. and J. Alston, &c.
    The answer of the trustees of Janies Alston admitted that they were appointed his trustees, he being an insolvent debtor, &c. and that he executed to them, as trustees, a conveyance of all his property on the 27th of March 1818.
    
      Testimony was taken and returned under commissions issued for that purpose. The judgment, deeds, &c. referred to in the bill and answers, were exhibited, but the only exhibits which it seems material to set out aré—1. Exhibit A. An account current of the complainant against N. S. and D. Jones, commencing on the 19"th of February 1806, and stating a balance due from the latter to the former on the 13th of May 1809, of §10,896 73, with the following acknowledgment, vi¿. ‘‘Baltimore, Ma/ 12th, 1809. We hereby acknowledge the above balance of ten thousand eight hundred and ninety-six dollar's and seventy-three cents, to be justly due to Nicholas Slubey, exclusive of interest on each advance of cash, and such cash as was received by us from the time of such advance to and receipt by us, which, with interest to be calculated on the above balance until paid, we promise to pay said Nicholas Slubey, his heirs, executors or administrators. Witness our hands and seals the year and day first above written, • David Jones, (L S)
    
      Nicholas S. Jones.” (L S)
    
      2. Exhibits C and B J, are accounts current of N. S. 'ánd D. Jones against tiie complainant, one of them commencing oh the 10th of. April 1806; and ending on the 26th of December 1806, leaving abalancé due to thé complainant of §4380 57, áñd thé other commencing on the 26th of January 1807, and ending on the 27th of January 1808, leaving a balance, including the above balance; due to the complainant, of §4919 89.
    Kilty', Chancellor; (July térm 1819.) The object of the bill is to set aside á deed therein referred to from N. S„ 'Jones, one of the defendants, to Mary Brown, another defendant, as voluntary and fraudulent, and for the sale óf the propérty mentioned therein; to satisfy a judgment Obtained against him by thé complainant. The defence set up By IV. S. Jones is, that the land so conveyed to Mary Brown had been thé property of Frances Brown, the wife of the said 2VL S. Jones, devised to hér in fee tail. That she being desirous to bar thé éntail; and settle the property on herself and such children as she might have, executed a deed, jointly with N. S. Jones-, to B. Jones, who on the Same day conveyed it tó IV. S. Jones¡ ánd that N. S. Jóñes cóiivéyéd the same; about thirteen months after, to Mary Brown, in fee; but intended for the úse of thé said Frances and her children, agreeably to the original intention of the said Frances and the said IV. S. Jones. These intentions of the parties are relied on in the argument, as forming a contract, or rather contracts, both before and after the marriage, so as to justify the conveyance to Mary Brown; But such contracts would have required a course different from the one pursued, which was an absolute conveyance to N. S. Jones. The interest abiding in him for nearly thirteen months, and a conveyance in fee to Mary Brown, without any declaration of the trust now set up, and from all the circumstances disclosed in the evidence, I am clearly of opinion that the defence is not sustained, and that the complainant is entitled to relief, inasmuch as the conveyance by IV. S. Jones debarred him of his remedy at law on the judgment. The counsel may therefore prepare a decree to set aside the deed from N. S. Jones to Mary Brown, and for a sale of the property conveyed thereby. Whether the property conveyed by Mary Brown for the indemnity of the Ms-
      tons; is to be referred to in the decree, will depend on its being the same, or different. And the question as to the application of the proceeds to that object; will depend on the same question. The amount due to the complainant may also be a subject for the report of the auditor, concerning which it was contended, that the bond wás given for more than was due, and that the money advanced was intended as a present.
    The chancellor afterwards decreed—“that the deed exébuted by the defendant, N. S. Jones, on the 3 4th of May 1808, for conveying certain real estate therein mentioned to the defendant, Mary Brown, be and the same is hereby annulled, vacated, and Set aside as fraudulent.” “That the real estate in the said deed and proceedings mentioned, or such part as may be necessary, shall be sold,” &c. From which decree the defendant, N. S. Jones, appealed to this court.
    The cause was argiiecl befóte Buchanan, Earlé, Martin, aüd Stephen Jr
    
      Wirt, (Attorney General Of U. S.) and Moale, for the appellants, contended,
    1. That the complainant was not a creditor of Jones when the deed from him to Brown was executed, and that therefore said deed* although voluntary, if bona fide, could not be impeached by the complainant, though he might be a subsequent creditor.
    2. That the execution of the acknowledgment of the claim* exhibit A, (called in the bill a bond,) was obtained under false pretences, and could only cover whatever sum of money should be found due upon a fair investigation and settlement of accounts between the complainant and Jones: That the account itself was incorrect, and contained charges for money not Owing, from the latter to' the former.
    3. That the deed of May 1808, was not made by the appellant to Brown, for the purpose of evading the payment of the complainant’s judgment, or the' obligation upon which it was rendered. That the appellant Was solvent at the time that deed was executed, and continued solvent for three years afterwards,• and that there was no proof that he ever was in insolvent circumstances.
    
      '4. That the deed of 1808 was the completion of a marriage settlement of the property of Mrs. Jones, the wife of the appellant, upon herself and children, executed after marriage, in pursuance of an ante-nuptial parol contract; and if bona fide was valid against general creditors.
    5. That the property mentioned in the deed of 1808 was conveyed in trust for the use of Mrs. Jones for life, remainder in special tail to the children of the appellant and wife—That this deed was made for a valuable consideration, and bona fide, and was therefore valid against creditors, although executed after marriage.
    They contended, that the marriage settlement consisted of the deeds of 1807 and 1808—the first was the consideration, an.d the latter [he completion of the settlement. That the bill was, in the nature of a bill of dispovery, and the answers, being responsive to it, declared the whole truth, and were, eviden.ee of the entire extent and nature of the tyust. That the credit due to, th,e answers was conclusive, and they would avail against one witness,, unless there were corroborating circumstances of the truth of his testimony, The, defendants were cal.led on to disclose, and there was, no witness produced to, refute the declaration of the trust get out in the answers. That it was immaterial, whether the parol, contract was made before or after marriage,, as it, 'vya.s, prior, to, any right or claim which the appellant had to the property.
    They also urged, that a parol agreement before marriage furnished a consideration sufficient to support a. settlement after marriage. That courts of' equity had always shown great alacrity in admitting circumstances to bring those settlements, after marriage, within tlye support of a valuable consideration. They cited 1 Fq^Ca.Ab.35¿\ White vs. Drake, 1 Keb. 6. 1 Vern. 440.. Rfflph' Bovey’scase, 1 Vent. 193. Rob. on Fraud. Convey. 218. Lloyd vs. Fox, 2 Keb. 700. Griffin vs. Stanhope, Cro. Jac. 454. Rob. on Fraud. Convey. 220. Lavender vs. Blackstone, 2 Lev. 146. Dundas vs. Dutens, 1 Fes. jr. 196. In the case at bar they contended, that the consideration for the post-nuptial settlement was valuable and bona fide, an valid against purchasers, and a fortiori valid agalnst/j creditors. They referred to Pre. in Chan. 101; Ca. Ab. 715. A settlement after marriage maderiipon the payment of money as a portion, or of an additioiM ^ or even on an agreement to pay, if such payment Is, wards made, is good against subsequent creditors. they referred to Brown vs. Jones, 1 fith. 190. WheeR 
      
      Caryl, Ambl. 121. Jewsonvs. Moulson, 8 Alie. 417. Mid* dlecomb vs. Marlow, Ibid 580. Jones vs. Marsh, Ca. Temp. Talb. 64. Ramsden vs. Hilton, 8 fas. 804. fy ardvs. Shal~ lett, 2 Ves. 18. Russell ys. Hammond, l Aik. 13. They further contended, that either of the following considerations, moving from a wife, would support a settlement after marriage—1st. Relinquishment of the wife’s interestunder a former settlement. 1 Eq. Ca. Ab. 49, 23. 2d. Relinquishing an interest under a bond, even although such interest be contingent. Ward vs-.- Shallett, 2 Ves. 16. 3d. Relinquishment of a jointure. Ballvs. Burnford, Pre.in Chan. 113. Scott vs. Bell, 8 Lev. 70« ' Cottle vs. Frippe, 2 Vern. 220. 1 Bro.P. C. 444. 4th. Parting with a right of dower. Lavender vs, Blade stone, 8 Lev. 147. 5th.' The wife’s' concurring with her husband in destroying a settlement upon her children—as joining in levying a fine to destroy contingent remainders. 'Scott vs. Bell, 8Lev. 70. And 6th. Parting with her own estate, or making a charge' upon it In favour of her husband. Clark vs Nettleshut, 8 Lev. 148. Chapman vs. Emory, Cowp. 278.
    They also contended that the children of Mrs. Jones ought to have been made parties.
    
      Winder and Magruder, for the appellee,
    relied upon Randall vs. Morgan, 12 Ves. 74. Lloyd <§- Molte vs. Inglis‘s 1 Desaus. Cha. Rep. 333. Stoddert vs. Hoye, and Farrow' vs. Teackle, in this courts and Atherley, 212, '216.
   Buchanan, J.

delivered the opinion of the court. We can perceive nothing amiss in the chancellor’s decree.

The exhibit A, the instrument of writing upon which the suit at law was instituted, is an acknowledgment on the 12th of May 1809, under the hands and seals of the defendant Nicholas S. Jones, andDavid Jones, (who were partners in trade,) at the foot of an account current between them and the complainant, from the 19th of February 1806, of abalance due' on that account to the complainant'of 810,896 73, with a premise to pay the amount; and according to the account ifsdf it appears, that' on the 25th of April 1808, they were indebted to him upwards of 88,000. ' By the exhibits Cand B J,"which áre accounts rendered by Nicholas S. Jones and Bavid Jones themselves, purporting to be accounts current between them and the c omplainant for the years 1806 and 1807, there’appears to nave been a balance due to the complainant, on the 27th of January 1808, of nearly 85,000; and Nicholas S. Jones, in his answer, admits, thiat at the time of executing the acknowledgment at the foot of the complainant’s account, there was a balance due to him, of 84821 39. So that, whether the amount actually due was equal to the sum claimed by the complainant, and acknowledged by the defendant Nicholas S. Jones, and David Jones, or not, it is manifest that a hirge amount was due. The bill alleges', that the deed to Mary Drown of the 14th of May 1808, was made to evade the payment of the complainant’s cj^bt, or in secret trust for the' use of Nicholas S. Jones; and seeks a disclosure in relation to that deed only, for the purpose of setting it aside, and subjecting the real estate therein mentioned, to be sold to satisfy the judgment obtained by the complainant against Nicholas S. Jone.s,. on the acknowledgment by him and. JÚayid Jones.

The answers, therefore, of Nicholas S. Jones and Mary, Drown, are responsive to the bill-, only so far as they relate to that deed, and so far only can they be received as evidence in the cause, and not as they respect the alleged object of the deed of the 302/i of Jlyril 1807) from Nicholas 'S. Jones, and wife, to 'David Jones, and from David Jones back to Nicholas S. Jones. With that [restriction, grant to them all th.e effect and operation of an uncontradicted answsr, and also, that the matter disclosed is properly the subject of parol evidence, and they only prove, that the deed to Mary Brown was without any valuable consideration, and purely voluntary, in secret trust for the use of the wife of Nicholas S. Jones, and the children of that marriage, which Is clearly fraudulent in law, and void'as to the complainant, who was a creditor to a large amount before and at the time the deed was executed, and has done every thing at law necessary to eiititle him to the aid of a court of equity.

It is not necessary,- as has been supposed, to show that Nicholas S, Jones was in debt to the extent of insolvency, at the time of making the deed to Mary Brown, to enable the complainant to defeat that deed. But it is enough that he was largely indebted to the complainant; and it no where appears that he had at the time any other property than what is contained in that deed. I^it if it should be admitted, that the whole of the answers, as well in relation to'the alleged object oí the deed from Nicholas S. Jones and wife, to David Jones, and from David Jones back to, Nicholas S. Jones, as to the deed to Mary Brown, ought to be considered as responsive to the bill? yet, though uncontradicted, they could not be taken to establish any thing in bar of the relief prayed, which parol testimony would not be admitted to, prove; for it is as evidence only, that they could be received. And as„no parol evidence of declarations or intentions, could be admitted to raise a trust, in,consistent, or at variance with the expressed intention of a deed, where the facts and circumstances would not, of themselves, by implication or construction, of law, be sufficient, on the ground of its contradicting the instrument —so neither cap a trust be set up, for the use or benefit of $ third person, to defeat a complainant’s equity, by an an? $wer alleging declarations or intentions at variance with the expressed intention of a deed.

Therefore, as the facts and circumstances disclosed in this case; that is, that the estate was originally derived to the wife of Nicholas S. Jones, from her father, in fee tail, that she united with her husband in making an absolute deed in fee to David Jones,, that he reconveyed it, by an. absolute deed, in fee to Nicholas S. Jones, and that Nichodas S. Jones, more than twelve month? afterwards, conveyed it to Mary Brown by an absolute deed in fee, are not of thcmselve? sufficient, by implication of law, to raise a trust for the use of his, wife, and her children, by her marriage. with him, in the real estate so conveyed to Mary Brown; the answers alleging the several deeds to havq been made with that intention, cannot be taken to raise such a trust, against the expressed provisions and intentions of the deeds themselves, and in that way, to' sustain the deed to Mary Brown, (which otherwise the l.aw would deem fraudulent,) for the purpose of defeating the object of the 4KÚ11. It is not, as has been contended in argument, like the ^^ase of a post-nuptial settlement, by a husband on his wife or children, for a consideration moving from the. wife, where the use is expressed in the deed of settlement, and not left to be raised by parol evidence.

If the deed to Mary Mt-own had been executed on, the same day with that to David Jones, by Nicholas J. Jones and wife,' and was expressed to be in trust for the use of his wife, there might 1# a foundation for presuming, that the deed to David Jones, by which the estate tail in her Was destroyed, was the consideration for which it was'.tnade. But it is absolute to Mary Brown, and was executed more than a year after the date of the deed to David Jones-, and there is nothing to show that a settlement on the wife of children of Nicholas S. Jones, was contemplated by any of the parties, at the time of making either of the deeds, except the allegations in the answers, by which such an: intention is attempted to be set up.

Nor can it be assimilated, as has been attempted in argument, to the case of a bill for the specific performance of a parol agreement; where if the defendant admits the agreefiient, without insisting on the statute of frauds, performance will be decreed. There, there is no contradiction of -a deed, the admission is beneficial to the complainant, and against the interest of the defendant, who by not insisting bn the benefit of the statute, is taken to have renounced it. And it is on the ground of his having waived the benefit of the statute, (which is with himself,) that performance will be decreed; for if in that case the defendant admits the agreement, but insists upon the statute, there can be no decree. But in this case, the complainant has not waived the rule of evidence, that parol testimony cannot be received to contradict a deed. And no parol evidence of declarations or intentions could be admitted, to raise the trust attempted to be set up by the answers.

This also furnishes a sufficient answer to the suggestion, that the children of Mrs. Jones should have been made parties to the proceedings, as no interest is shown in them to be affected by any decree that can be given; and it cannot be permitted to a defendant to delay the bringing of a suit to issue, by merely alleging an interest in a third person.

As to the objection, that the judgment obtained at law by the complainant is for more than is actually due, and that the chancellor ought to have made the proper allowance, &c. it will be seen, on reference to the record, that by the decree, the proceeds of the sale of the property are directed to be brought into the court of chancery, to be applied under the directions of the chancellor; aiid the chancellor, in his opinion says, that the amount due will be a subject for the report of the auditor, when all credits to which the defendant, Nicholas S. Jones, may be entitled, will be allowed .him.

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