
    Kinsey Burden, Executor of Thomas Burden, v. William M’Elmoyle.
    Permitting an answer to be amended is not a very regular proceeding, and it is a practice which ought not to be too liberally indulged; but the pleadings are so much under the discretion of the Chancellor, that the Court of Appeals will not set aside an order granting leave to amend an answer, unless in a case of very palpable error.
    A rough statement m writing, exhibiting an estimate of the condition of a copartnership, and the situation of the copartners in relation to the co-partnership, and to each other, will not support the plea of a stated account by one of the copartners, in bar of a bill for an account filed by the executor of the copartner, by whom the statement was prepared : but the deceased copartner having acquiesced in the statement for ten years, and set up no claim against his copartner for an account of the copartnership, but on the contrary, at various times, acknowledged himself indebted to his copartner, the Court refused to order an account. Nor is an offer by the surviving copartner to the executor of his deceased copartner, to refer the matter to arbitration, nor a declaration, that he was at all times ready to account, sufficient to deprive the former of the benefit of the statute of limitations, where there was no admission of indebtedness by him.
    Matters of account, depending upon evidence, must be left in a great measure to the discretion of the Chancellor, with the aid of the master. The Court of Appeals will not go into a detailed examination of accounts between parties.
    The defendant, having admitted by his answer, that he held the titles to two lots of land, to which the complainant was intitled, was ordered to execute good and sufficient titles therefor to the complainant.
    A party ordered to execute good and sufficient titles to land, is not bound . to procure a renunciation of dower by his wife. “ Good and sufficient tiles,” mean such as the party is competent to make.
    A conveyance executed under an order of Court takes effect from the delivery, and not from the date of the order. The grantee might, perhaps, be protected against an intermediate purchaser, on the principle of Us pendens, but such a question cannot be determined until the purchaser is before the Court.
    This was a bill by the executor of a deceased copartner against his surviving copartner, for an account of the copartnership property. After the cause was at issue, and docketed for hearing, the defendant moved, before De Saussure, Chancellor, at Charleston, in January, 1827, for leave to amend his answer, by setting forth a stated account, and praying the benefit thereof, and of the statute of limitations, in the same manner, as if the same had been spec*a^y pleaded. The cause having been previously continued, his Honor granted the motion, as the progress of the suit would not be delayed ; and the Court was always reluctant to shut out any light, 0r t0 deprive a Party of any just or legal defence.
    The answer having been amended, the cause came on for hearing, in April, 1827, before Thompson, Chancellor, from whose decree the case will be sufficiently understood.
    Thompson, Ch. The bill states, that Thomas Burden, the complainant’s testator, and William M’Elmoyle, the defendant, entered into copartnership in the trade, or business, of grocers and shopkeepers, for the term of four years, from the 31st March, 1804 : that by the terms of the agreement, the profits were to be equally divided between the copartners ; but that the defendant was to be allowed $200, per annum, for his services, which allowance was afterwards increased to $400, per annum : and that it was fur-ther agreed, that if any variance, or contention, should happen between the parties, or their executors, or administrators, by reason of the said joint business, before any suit, or trouble shall be attempted, or begun, by any of them, against the other, all such differences, and contentions, should be referred to the determination of two qualified persons, to be chosen by the parties, as arbitrators, to adjust the same within one month after such submission ; and that if they could not agree, they should then choose a third person, to be approved of, whose umpirage, within one month afterwards, should be final and conclusive. The bill charges, that large profits were made by the concern, the principal part of which has been applied to the sole use of the defendant; and prays an account.
    The answer of the defendant admits the existence of the co-partnership, and that it expired by its own limitation in the year 1808 ; and states, that in 1809 the stock was sold off, and the con. cern closed. That about the time of closing the copartnership, the complainant’s testator drew out a rough statement, exhibiting an estimate of the condition of the concern, and the relative situation of the parties, in regard to the copartnership, and to each other. That by this statement, the said testator made himself a debtor to the concern, to the amount of $696 ; and that this statement was regarded by both parties as a final settlement. The answer further states, that the parties bad previously divided the debts, and whatever else remained, generally ; and that all that remained to close the concern was to pass receipts, which was contemplated, but was omitted, in consequence of the complainant’s testator removing to the country, and being always afterwards regarded as insolvent until his death, which happened in the year 1819. The defendant pleads the said settlement in bar, and also the statute of limitations. The defendant relies on the fact, that for ten years after the dissolution aforesaid, the complainant’s testator never set up any demand against the defendant; but on the contrary, repeatedly acknowledged himself to be the debtor of the defendant. That no demand was made on him until the year 1821, nearly twelve years after the dissolution of the copartnership, when defendant consented to refer the case to arbitration, as he was at all times ready to account; but that his offer was not acceded to by the complainant.
    
      As to the plea, of a stated account, in bar, it is contended by the counsel for the complainant, that the paper produced could, in no point of view, be considered as such; and that the offer to arbitrate, which is admitted by the answer of the defendant, and the declaration, that he was at all times ready to account, which is also derived from the same source, took the case out of the statute of limitations.
    As to the written statement relied on, in support of the plea in bar, it cannot, it is true, be considered as a stated account, but it has all the essential requisites, except the formality. It is in the handwriting of complainant’s testator, and every item in it is supported by the books of the concern ; and as this Court is governed more by substance than form, it will consider it as such.
    With regard to the offers to arbitrate, or to account, taking the case out of the statute of limitations, the Court is of opinion that such offer does not extend to the length contended for ; inasmuch as such mode of settlement was expressly stipulated by the articles of copartnership: and by such offer, the defendant did not intend to compromit any right of which he was legally intitled to avail himself.
    From the whole of the circumstances of this case, I am of opinion, that the plea in bar must be sustained. The complainant’s testator lived ten years after the dissolution of the copartnership, and never once suggested the idea that the defendant was his debtor; but on the contrary, was frequently applying to him for small favors, and actually gave him his note for nearly four hundred dollars, two years after the dissolution of the copartnership. Besides the Court will not order an account to be taken when it is palpably evident, that no good can result from it, as in the present case. The bill is therefore ordered to be dismissed with costs.
    
      From this decree the complainant appealed, and the appeal was argued at Charleston, in February, 1828.
    Nott, J. I do not think that allowing the answer to be amended *n case was a very reSu^ar proceeding ; and I can readily conceive, that such a practice, if too liberally indulged, might open the door to great fraud and perjury. But the regulating of the pleadings is so much a matter of discretion with the Chancellor, that this Court will not readily interfere, unless in some case of very palpable error.
    With regard to the principal question, although what is relied on, as an account stated between the parties, cannot be considered as such, so as to operate as a bar to the complainant’s demand, yet it furnishes some evidence, and that, perhaps, not slight, of the view of complainant’s testator, with regard to the state of the accounts between them. And even though it might appear on the books, that a balance unaccounted for was still due to him ; yet when we see, that he had acquiesced for ten, or twelve years, indeed during his whole life, without setting up any such demand ; that the account produced was in his own hand writing ; and that he had, in various indirect ways, acknowledged himself indebted to the defendant ; I cannot say, that the Chancellor did wrong in considering this evidence as conclusive, that nothing was due to the complainant, and that the door of litigation ought to be closed. Matters of this sort, depending altogether upon evidence, must be left, in a great measure, to the discretion of the Chancellor, with the aid of the master. It cannot be expected that this Court should be required in every case, or indeed in any case, to go into a detailed examination of a merchant’s or grocer’s accounts. It would not only be a perpetual clog to our progress in the business of the country, but it would be better calculated to lead'to error, than to the promo- ’ tion of justice. The decree of the Chancellor with' regard to the accounts must therefore be supported.
    ’ But the defendant admits in his answer, that he holds the titles to two lots of land, which belonged to the complainant’s testator, and to which the complainant is intitled as his devisee ; and he must execute titles to the complainant for those lots. It is therefore ordered, and adjudged, that, so far as regards the accounts, the Chancellor’s decree be affirmed : but that so much of the decree, as dismisses the bill, be reversed ; and that the defendant do execute good and sufficient titles to the two lots in question to the complainant. Each party to pay his own costs.
    CoiiCOCK, J., and Johnson, J., concurred.
    
      After this decree the defendant tendered to the complainant a conveyance, of the two lots referred to, framed according to the form prescribed by the act of 1795, 2 Faust, 5, but without a renunciation of dower by his wife. It was on that account objected to by the complainant; and subsequently the lots were sold by the sheriff under execution against the defendant, and titles were executed to the purchaser. The defendant was afterwards attached for contempt for not performing the decree ; and at January term, 1830, moved, before De Saussuke, Chancellor, to set aside the at. tachment, on the ground, that the titles tendered was a sufficient compliance with the decree, and that it was impossible for him to give a better title. His Honor ordered, that the attachment should be set aside, and that the defendant should execute a conveyance similar to that tendered, but dated as of the day on which the decree of the Court of Appeals was filed ; and that on such conveyance being duly executed, and tendered, the complainant should enter satisfaction on the decree.
    From this order the complainant appealed on the ground, that it amounted to a modification of the decree of the Court of Appeals, by requiring the complainant to take a title subject to a judgment against the defendant, and an actual sale under it, and without a renunciation of dower, unless the defendant’s wife chose to give one : whereas, the defendant must either perform the decree, by giving “ good and sufficient titles,” or be imprisoned until he does ; the Court having no discretion, except in a case of contempt in the proper sense of the word.
    Grimke, for the motion.
    Dunkin, contra.
    
   Johnson, J.,

delivered the opinion of the Court.

We are all of opinion, that there is no foundation for this appeal. The defendant has offered to perform the decree of the Court of Appeals, by tendering a deed, prepared in the form prescribed by the act of 1795, as “valid and effectual, to convey from one person to another, the fee simple of any land, or real estate.” The terms of the order did not require that the wife’s dower should be renounced ; and the right of dower would be worth but little, if the Court could leave the wife no alternative, but to renounce it, or submit to the perpetual imprisonment of the husband. “ Good and sufficient titles,” mean such as the husband was competent to make, and not such as by force, or persuasion, he could extort from his wife.

The deed, whenever it is executed, can, as a deed, take effect on^ ^rom delivery. I cannot, therefore, perceive any ad vantage, which will arise from antedating it, as of the decree. The effect, which the sale of the land by the sheriff may have on the rights of the complainant, can only be determined, when the pur- , , . . , „ , . _ chaser under ¡t is before the Court; and any expression of opinion on the questions, that might arise out of it, would be extra-judicial. I incline to think, however, that the complainant would be protected on the principle of lis pendens. The appeal is dismissed.

O’Neall, J., and Harree, J., concurred.

Appeal dismissed.  