
    Elnathan Haskell, Charges B. Cochran, Bourdieu, Chollet & Bourdieu, vs. Jean Louis Raoul and Caroline his Wife, Executrix of John Paul Thompson, who was Executor of William Thompson.
    
    Petti g rue , for Complainants.
    
    Gregg & Harper, for Defendants.
    
    Tried before Judge Gaillard,
    June, 1822.
    william scm'b'eing' debted on ments bonds and simple contract, by deed dated 2d December, 1791, conveyed lands, negroes, &c. to John Paul Thompson, E. Haskell and C. E. ( ochran, in trust to sell, and pay his debts, according to a schedule.
    In Oct. 1796,William Thompson died, and J.P. Thompson, one of the trustees, entered as executor and proved his will. After testator’s death, J. P. Thompson, and the two other trustees hada settlement, and a considerable sum being charged by them against the trust fund, as commissions, each of them gave a receipt for so much receiv ed on account of commissions; but the sums were not equal, and the largest part was received by J. P. Thompson. J.P. Thompson received other funds, not taken into account at this settlement, sufficient to pay off the schedule debts, and to satisfy the trustees for the full amount of the commissions charged. J. P.Thompson afterwards became the purchaser of the testator’s residuary estate from the legatees,’ paying them a sum in gross for the value of their respective interests, and agreeing that a certain tract of land should be divided between them, over and above the payment in money, as the price of their interests. This was land of the testator, which had not been conveyed to the use of his creditors, "y this purchase J. P. Thompson became the owner of the entire estate of the testator subject to hiadebts, with the exception of the tract of land reserved by the legatees. He died in 1812, and by his will gave his estate to his widow, one of the defendants, whom he made executrix, and who married with the other defendant. Dr. Raoul.
    On a bill filed by the surviving’ trustees and by creditors of William Thompson, claiming to be paid out of the assets of J. P. Thompson, in respect to the funds received by him as trustee,, or in case he was not accountable for those funds, teen that the creditors might be paid out of the assets of William Thompson. No-cross bill was filed to make Haskell and Cochran account for their acting as trus.-tees, nor was an account against them prayed by the defendants. No supplemental bill was filed to put any thing in issue between the co-plaintiffs.
    
      The bill was died by the complainants to obtain payment of their several demands, out of the assets of William Thompson and John Paul Thompson, complainants, joined in the same suit, because their de-to be paid out of assets in the hands of 1 mauds ,wer'e defendant.
    Against the claim of the trustees, defendants insisted on a final settlement, of which evidencé was given; and denied the right to commissions, as no provision of that sort was made in the deed of trust.
    At the hearing the claim of the trastees was rejected, in evidence of a final settlement made in the year 1802. But the trustees appealing oh the ground of evidence, the Court of Appeals confirmed the decree, and also ordered the trustees to refund the moneys which had been allowed by them by J. P. Thompson, as commissions, with 26 years’ interest.
    Bourdieu & Co. were creditors of W. Thompson, by bond included in his schedule debts, dated 19th March, 1791. John P. Thompson had acknowledged in 1811 that he was to pay tins bond, and pronr-sed payment. On the hearing at the circuit, the Court ordered payment of Bourdieu out of the funds of the legatees. But Bourdieu appealing on the ground of the inadequacy of the fund, the Court of Appeals ordered that he should be paid by his two co-plaintiffs and the defendant.
    E. Haskell purchased from William Thompson, in 1794, a tract of land; which W.Thompson conveyed to him with covenants for quiet enjoyment, warranty, &c. In 1814 the land was sold under a mortgage to the paper medium loan office, executed in 1786. Plaintiff was compelled to pay off the mortgage, and claimed to be reimbursed. ■
    On the hearing at the circuit, it appeared that the land was mortg’a-ged byW.Thompson, for a joint debt of himself and two others. That in the schedule of his debts he had admitted one third of this bond, as
    a debt to be paid byhis trustees. But that after his death J. P.Thompson contracted with one of the - obligors, to pay off the part of that obligor. It appeared also that J. P. Thompson had paid part of the principal, and all the interest to the loan office during his life.
    On the hearing at the circuit it was ordered, that the plaintiff should amend the bill, and make the representatives of the Other obligors parties. But the plaintiff appealing, it was ordered by the Court of Appeals, that the plaintiff, Haskell, his co-plaintiff Cochran and the defendants, should contribute to pay this debt between them.
    Equity will make a decree between co-plaintiffs. Semble.
    
    
      , In Equity, if the parties are before the Court, not necessary that the facts should be putin issue. Semble. Sed quere.
    
    Length of time, acquiescence, and confirmation by a final settlement, although a barto prevent the plaintiffs from recovering the balance óf a statement, consideradas an account stated, is no bar against defendants, to have a specific sum of money allowed to the plaintiffs in those settlements, refunded ; and it is not necessary that they Should ask for this relief. Semble.
    
    
      C. B. Cochran claimed on the following grounds: The bill alleged that Col. Thompson being indebted as we^ oa own account)as by suretyship on account of others, in ¿£11,000 sterling,and possessed of a large estate on the 2d December, 1791, conveyed his estate to three trustees, viz. John P. Thompson, Charles B. Cochran and Elnathan Haskell, in trust to pay certain scheduled debts: That the trustees accepted the trust, upon an agreement, that for their care and trouble, they should receive five percent, on all debts settled or adjusted by them : That a great part of his negroes and lands were sold by the sheriff under executions that were prior to the assignment: That all the negroes sold by the sheriff were bought in by E. Haskell, for Col. Thompson; that E. Haskell paid the judgments for Col. Thompson, and took an assignment of them ; and Col. Thompson held the negroes afterwards, subject only to the lien of E. Haskell’s demand. The sheriff’s titles, being held by the latter, as a mortgage only : That J. P. Thompson purchased the land that was sold at sheriff’s sale ; but it was in fact bought for Col. Thompson, and although J. P. Thompson held the titles, heacknowr edged that the land which he bought at sheriff’s sale, was subject to the same lien as the negroes. That Col. Thompson, having time allowed him by Major Haskell, was enabled to pay off the judgments without any sacrifice of property. But as some debts, not secured by prior judgment, were still to be satisfied, the trustees, on 13th May, 1794, sold ten negroes, and three thousand seven hundred and sixty-nine acres of land, part of the property in the trustees’ hands, to one Peter Keene, for £720, and took his bond, with Benjamin Hart as surety: That John Paul Thompson afterwards, for full consideration received by him, released the bond, and thereby became liable to account to the other trustees for the amount: That Col. Thompson by his last will bearing date 20th October, 1796, gave and bequeathed to John P. Thompson, fifty negroes and valuable lands; and the residue of his estate to his widow, children and grand-children; of which will he made J. P. Thompson an executor, and soon after died, possessed of a very large estate : That J. P. Thomson took on himself the execution of the will, and afterwards, being executor as aforesaid, stated with the other trustees an account of the commissions due them, at <^743 6s. Id. and allowed and admitted the right of the trustees to an equal part of that sum, one with another; that he received the amount of Keene’s bond, which was sufficient to satisfy the trustees their commissions, after paying off all the scheduled debts then unsatisfied ; that he had never accounted to the other trustees for this fund ; that by his last will he gave his estate to the defendant, who married with Dr. Raoul, and made her executrix.
    Bourdieu, Chollet and Bourdieu claimed as creditors of Col. Thompson. By bopd, dated 1st June, 1788, Col. Thompson was bound to Fisher and Edwards, in the principal sum of ^434 2s. Id. sterling, who assigned the bond to complainants. This bond was among the scheduled debts of Col. Thompson, which John Paul Thompson ought, to have paid, with the proceeds of the property sold to Keene 
      jje had acknowledged himself liable, and promised to pay, a short time before his death.
    . E. Haskell, who was one of the trustees claimed oil the same grounds with Charles B. Cophran, an equal part of the commissions. He claimed also as a creditor of Col. Thompson on the following grounds: After the date of the conveyance in trust, Col. Thompson sold him an estate, since called Mount Thompson. The sale was brought about by Col. Thompson in this way: the plantation was valued at • ,¿04,400; complainant paid £2,200 sterling, and the sum of ¿02,200 was considered the portion of Mrs. Haskell, one of the daughters of Col. Thompson ; and by deed, dated 13th May, J793, in consideration of ^2,200 paid, he conveyed the premises, with general covenants of warranty, title, &c. But Col. Thompson had long before mortgaged the same lands to the paper medium loan-office. Part of the debt, for which the lands were mortgaged, was among the schedule debts, which John P. Thompson ought to have paid with the proceeds of the property sold to Keene: that as the plantation had been conveyed to the trustees, for the benefit of creditors before the sale to complainant, he took a sheriff’s deed of conveyance, in addition to Col. Thompson’s, for the security of his title. That he paid the sum of á02,2QO in money, and had quiet possession from the time of his purchase : that Col. Thompson paid the interest of the loan-office debt as long as he lived: that after his death John Paul Thompson paid the interest as executor: that in the ■year 1 SOI, John P. Thompson being in possession of all Col. Thompson’s estate, and the only person that interfered as executor, entered into a treaty with the residu- ■ ary legatees, and bought out their interests for a sum in gross, viz: the surrf of ¿£600 to each of them, and thereby became possessed in his own right Of all testator’s estate, subject to the debts and claims of creditors. That he continued to pay the interest on the loan-office debt until the time of his death, and made divers payments on account of the principal: That he died in 1812, possessed of a large estate, and his widow and executrix paid the interest for one year afterwards, and married with Dr. Raoul; that when the interest fell due on the 1st March, 1814, Dr. Ramil refused tó pay, and the land was sold under the mortgage, and bought by complainant, who paid off the principal and interest in arrear, being ¿£563,-12, which sum complainant seeks as damages sustained by breach of the covenants in Col. Thomp-on’s deed.
    Prayer of the bill for account and payment out of the assets of William Thompson or John P. Thompson.
    
    The answer of Defendants, alleges that they have little knowledge of the transactions mentioned in the bill: they admit the mortgage of Mount Thompson, and the conveyance to E. Haskell, but insist that the same was void, being made from a trustee to Cestui que trust: for the same reasons they contend that the .sheriff’s conveyance to him was void : They admit they have heard of the bond of Fisher and Ed-' 
      
      wards, but- contend that the same is paid, and, rely on the presumption arising from length of time. Ybey admit that Col. Thompson conveyed his estate to trustees as mentioned in the bill, and suppose they accepted the trust, but know nothing of their agreement as to commissions. They admit that John P. Thompson released the bond of Peter Keene; but contend that, he applied the proceeds of the bond in paying Col. Thompson’s debts and legacies: They admit that Col. Thompson paid the interest'of the loan-office debt in his life time, but are advised that he was not bound so to do. • They admit that John P. Thompson, was executor of William Thompson, and insist that he settled with the legatees for the whole estate, except some land at the Eutaws: They admit that Madam Raoul paid the interest on the loan-office debt for one year after the death of John P. Thompson, but aver that this was done in ignorance of her rights, and deny that she acknowledged herself liable : They admit the sale of the plantation and the payment of the money by E. Haskell; but deny all liability to pay, and pray that what has been erroneously paid on account of this debt, may be re. funded.
    The cause was heard by Judge Oaillard, at Or-angeburg, on the 10th and 11th of June, 1822, and the complainants, Bourdieu, Chollet and Bourdieu, produced the bond of Col. Thompson, to Fisher & Edwards, dated the 1st of January, 1788 ; which bond, was regularly proved : as also the assignment to Bourdieu, Chollet & Bourdieu, by James Fisher, survivor of Fisher & Edwards, dated the 19th of March, 1791. The testimony of Mr. Keating Si-mons, taken by commission, was read, and he states that he' had the said bond in his possession a considerable time, and that in the winter of 1810 or 1811, the late John Puul Thompson asked him, if he held a bond of his father’s, that had once been in Mr. Laurens’ hands; witness told him he did, and Mr. Thompson said, “ I am to pay it, but request that ee you will give me some indulgence to pay it out of ({ my crops.5’ Witness then showed him the bond, and gave him a statement of the sum due: witness further states, that at the time of this conversation, he was ignorant of the fact, that Col. Thompson had conveyed his estate to trustees, for the benefit of his creditors. On his cross-examination being questioned as to interest, he stated that he was to receive 5 per cent, for collecting this and other debts of the house of Bourdieu, and this interest, to remove objection, he had released before his examination : he further declared, Bourdieu, Chollet & Bourdieu, were the real owners of the bond.
    To establish the claim of commissions, the complainants produced the original book of the trustees of Col. Thompson, which being duly proved, the following entries were read.
    
      “ Commissions on receipts and~) payments, at 5 per cent, being \ q ^ amount debts returned, due by Col. j Thhmpson, on his private account, __
    
      Commissions of 5 per cent, on' debts returned, for which Colonel Thompson was security, paid by 294 sheriff's sales, and liquidated by | the trustees, J ' - 0 0 <¿0 743 6 7
    Errors excepted.
    Signed E. Haskell,
    
    
      C. B. Cochran,
    
    
      J. P. ThompsonP
    
    Then the following three Receipts:
    Received 19th April, 1797, <¿0195, in part of my commissions, as one of the trustees in the foregoing transactions.
    
      E. Haskell.
    
    Received 19th April, 1797 on account of my part pf commissions, as one of the trustees in the foregoing transactions <¿0100. ».
    
      C. B. Cochran.
    
    Received 19th April, 1797, on account of part commissions, as one of the trustees, <¿0236.
    
      J. P. Thompson..
    
    To support the claim of E. Haskell, to recover from the estate of John P. Thompson, and of William Thompson the amount paid to the loan office j the following documentary evidence was allowed to he put in.
    
      1. William Thompson, William R. Thompson, and Derril 'Hart to the commissioners of the loan office. Bond conditioned for. Z/75Q.
    2. Mortgage from W. Thompson, to the commissioners of the loan-office, of 802 acres on High-hill creek, to secure the payment of the above bond. 7 r J
    
    3. W. Thompson to E. Haske.ll, C. B. Cochran, & J. P. Thompson, lease and release of certain lands, negro slaves, &c. to pay creditors, according to a schedule to be made out and delivered in one year.
    4. & 5. Schedule of William Thompson’s debts, both as principal and surety.
    6. W. Thompson to E. Haskell, lease and release 1240 acres, being 5 tracts, of which 1st, 2d, and 3d are the same mortgaged to the loan-.office, [consideration 2.2,200] covenants - for quiet enjoyment, warranty, &c.
    7. Comptroller’s certificate of the sale of the above land, to satisfy the incumbrance of the loan-office, amounting to 2.528 2, and payment received from Major Haskell.
    8. The acts of Assembly for the year 1814, page 9, and Col. Johnson’s certificate of, being allowed in settling with Major Haskell, for the payment pf Mr. Thompson, the amount secured to the loan-office, say £492 19, also ¿034 10. Interest due 1st March, 1815, and a receipt to John Johnson, for this sum of L34 10, from J. Walton, treasurer.
    
      9.William Clement’s receipt to E. Haskell for Thompson’s bond 1st interest due on Col March, 1814.
    10. Treasurer’s certificate that John Johnson has given his bond to the loan-office, agreeably to account, for A492 17, bearing interest from 1st March, 1815.
    11. An extract from the treasury books, showing the payments that have been made on this bond from time to time, and by whom, from 1800 to 1814.
    12. The book of the'trustees, showing a sale on the 3rd of May, 1794, of lands and negroes to Peter Keene, amounting to L720,
    
    33. Peter Keene and Benjamin Hart, to E. Haskell, C. B. Cochran and J. P. Thompson. Bond, condition ^720.
    14, I. P. Thompson to Peter Keene, release of the above bond.
    15. J. P. Thompson’s letter to ¡E. Haskell, acknowledging that Belleville was subject to the payment of Col. Thompson’s debts, notwithstanding a conveyance to him {J. P. T.) by the sheriff.
    
      16. J. P. Thompson’s memorandum, acknowledging the right of Major Haskell to one sixth of the Eutaw land, notwithstanding his receipt.
    The Complainants then offered the following, which was rejected by the Court.
    1.An extract from the books of Langstaff and Frink, showing that the payments made at the treasury by Langstaff and Frink, were made on account of J. P. Thompson, verified by an affidavit, by proof of the death of Langstaff and Frink, and that they were factors of John. P. Thompson.
    
    2.Mr. Dawson’s affidavit that the payment made at the treasury in 1813, was made by him, at the request of Mrs. Caroline, Thompson.
    
    3.Mr. Cochran’s certificate, that the payment by him was on account of Major Tfmnpson.
    
    The Complainant then called his witnesses.
    
      Benjamin Hart, Esq. sworn — He was one of the persons called on to appraise Mount Thompson, previous to the purchase by Major Haskell ,* Major Haskell was to pay one half the appraised value to Col. Thompson; the other half was a gift to Mrs. Haskell. It was appraised at about Lb,000. In January, 1803, a settlement of Col. Thompson’s estate took place ; and' £800 came to the family of witness, who had married Rebecca Hart, widow of Derril Hart, one of Col. Thompson’s daughters $ she was then dead, and £150 was the part of Mary Hart, her daughter. Afterwards J. P. Thompson offered to him to pay to the loan-office, Derril Hart’s páit of the loan-office bond, if witness would become paymaster to Mary Hart, of the Ll50 which he (J. P. T.) was to pay her. He told.witness, that as he had the rest of the loan-office debt to pay, and there was of Derril Hart’s part about £150 still unpaid, he would rather assume the whole of the loan-office debt, and transfer to witness, the obligation of paying Mary Hart. This proposal was agreed to: witness settled with Miss Hart, and never afterwards paid’ any thing as administrator of Derril Hart, on the loan-office bond. By the will of Ceil. Thompson, Rebecca Hart’s family were entitled to a sixth or a seventh of the estate. It was supposed a share would be worth, after paying debts, about £600; and John P. Thompson bought out their interest at that price; no division of the estate was ever made; John P. Thompson kept all the property; witness does not know of his selling any. Some lands were reserved, for which he was to settle with the minors, when they came of age. Witness was very intimate with Major Thompson, and always considered him the paymaster oí the loan-office debt.
    
      Cross-examined by Mr. Or egg.
    
    Witness thinks J. P. Thompson told him he had the rest of the loan-office debt to pay. The trustees did not act after 1797. Major Haskell was the leading trustee, and bought in the greater part óf the property, which was afterwards in Major Thompson’s possession. Major T. and Major H. had many transactions together. The last time Major T. ever spoke with witness, he mentioned that he owed money to Major Haskéll. He had' been embarrassed, but does not know that he was at his death. At the settlement, there -Was ho mention that the legatees should contribute, in cáse of debts being af-terwards brought forward : does not know that the Eutaw lands were reserved, to provide a fund for future debts.
    
      In reply. — Witness does not know that the loan-office debt was reserved out of the money paid'for Mount Thompson, but thinks it was; this impression is derived merely from Major Thompson’s telling him, he was to pay Haskell’s part. He did not tell Witness in what way he became liable to pay it.
    
      William S. Thompson, Esq. was examined as to interest, and admitted to be sworn in chief. — Mrs. Raoul once spoke to witness, and asked him to join her, in securing Major Haskell against the loah-office debt. This was one or two years after Major' Thompson’s death : she did not speak of it, as of a transaction about which she was ignorant. .Thinks he has heard his uncle, Major Thompson, mention this debt; and his understanding from all he knows is, he was to pay it. Langsiaff and Frink were his uncle’s factors.-; witness was one of his uncle’s executors, and had so little doubt, he would not have hesitated, if this demand had been presented to him ? 1 as executor to allow it: never heard that any one e]ge vvas {¡able. He was an executor of his father, and was never called on to pay any part of it.
    
      Cross-examined by Mr. Gregg.
    
    In the conversation which Mrs. Raoul had with him, she told him that Major Haskell had applied to her to pa this debt: it was not long after her husband’s death.
    The defendants then read the examination of Mr. Domó, Deas. — He. states that he drew a deed in April or May, ’93 or ’94, explanatory of the transactions of Major Haskell, Major Thompson, and Col. Cochran, as trustees of Col. Thompson: that he kept this deed in his possession till 1801, or since, and then gave it up to the trustees. He says, this deed contained a statement of the property purchased by each of the trustees; what had been paid by each ; and what remained to be settled, so as to make a final settlement. He was to keep the deed till every thing was settled, and he delivered it to Haskell and ■Thompson, who called on nim for it, and does not recollect whether Col. Cochran came with tlmm; but thinks he would not have delivered it, unless authorised by. him, Cochran. He understood from the trustees, that all matters between them had been settled. Thinks the deed did not relate, generally, to file affairs of Col. Thompson, but only to the transactions of the trustees, one with another; that it was drawn at Belleville. He also drew several conveyances, bonds of indemnity, &c.; and he was at Belleville several days on the business: Col. Thump-son and the trustees were all present: he never * . conversed with the parties afterwards on the subject, Major II. once asked him, if he did not recollect at the settlement, there was one demand against Thompson unsettled, and witness told him he did not: thinks all was settled before the deed was delivered up. On his cross-examination, he stated that the deed of assignment from Col. Thompson to the trustees, was drawn by Judge Trezevant / that by it all the Colonel’s property was conveyed to the trustees, to sell at public auction ; and they sold it at Belleville. The deed he drew was left with him to keep, till certain things were done, and was after-wards delivered to them : that he kept no other papers but the deed. Each of the trustees had a book containing their transactions, or there was a book in which their transactions were entered. By a question in chief, the defendant’s surmise that the deed was burnt by the trustees, on witness’ recommendation: no notice was taken of this in his answer in chief; but being asked in the cross interrogatory why he recommended it to be burnt, he says it was never burnt to his knowledge, and he never recommended 'the burning of it.
    The defendants then called for the conveyance of Mr. Thompson to Major Haskell by the sheriff of Orangeburg; which agreeably to notice, plaintiffs produced : The defendants produced a number of receipts from Major Haskell to J. P. Thompson for sums Paid at various times, but none having the slightest relation to the matters in the bill. They were also allowed to show that Major Haskell had brought a scire facias to revive a judgment standing in the name of one Cohent against defendants as executors of Col. Thompson, in which the jury had given a verdict for defendants.
    The complainant in reply, produced regular assignments of this and divers other judgments, to a very large amount against Col. Thompson, which are in the schedule of his debts, No. 5.
    His honour after hearing the parties, delivered the following Decree, 24th September, 1822:—
    The effect of Mr. Teas’ evidence is to render unnecessary the consideration of much of the argument used in this case : Col. Thompson’s deed of trust to Maj. Haskell, Col. Cochran, and John Paul Thompson,was executed in May, 1791; and Mr. Deas says, - that in April or May, 1793 or 1794, he drew a deed explanatory of the transactions of the trustees, under Col. Thompsons deed : that it was drawn at Belle-ville in their presence, and at their request, he believes was given up to them ; that he had it in his possession until 1801 or since; that to the best of his recollection, it stated among other things the property purchased by each of the trustees at the sale under the deed of assignment; what had been paid by each on account of his purchases ; and what remained to be settled, so as to make a final settlement hetween themselves; and .that the paper was left with him f Deas) until all their transactions between each other were settled.
    111 An attempt to unravel matters settled so long since, would be attended with no satisfactory result, and this being a case between the trustees themselves, and not between them and creditors of Col. Thompson, all whose debts, except one to Fisher and, Edwards being stated to be paid, and there being assets sufficient to pay this, thereds no occasion to say anything of the conveyance by Col. Thompson to Major Haskell in 1793, of Mount Thompson 5 the purchase of Belleville by J. P. Thompson, for *thirty dollars, in 1794, and the commissioners charged against the trust-estate by the trustee's, and divided among them in 1797. These are subjects, that may be fairly considered as comprehended in the settlement of 1800. The debt to Fisher & Edwards, is on a bond given to them by Col. Thompson on the 1st January, 1788. It is refused to be paid, and the presumption of satisfaction from length of time relied on: But there is nothing in this objection, for receipts are endorsed on the bond down to 5th January 1795, and Mr Keating Simons swears, that in the winter of 1810 or 1811, Paul Thompson enqui-red of him if he held a bond of his lather’s, which was once in the hands of Henry Laurens, and that upon being answered in the affirmative, he said., ii I am to pay the same, but request you will give (( me some indulgence to pay it out of the proceeds Ci- of my crops.” Dr. Keene’s bond,with Major Hart a,s surety) is dated 13th May, 1794, conditioned to. pay ¿g750* with interest, on or before the 1st January, 1796. Some time in 1794, but what time does not appear, John P. Thompson, reciting the purchase made by Dr. Keene,, and that Keene had conveyed the property to him, gave his bond indemnifying him against his bond to the trustees. Keene since the death of John P. Thompson being sued on his bond, produced the bond of indemnity, and it has been decided, that he is exonerated from the debt. I view Dr. Keene, as a nominal purchaser at the sale ; the bond of indemnity bears date the same year as the bond for his purchase. It is witnessed by Mr.Peas, and it probably was executed at the time of the sale or soon afterwards : for why should Keene sudor his bond to be outstanding against him without taking an indemnity for property which remain'ed in Thompson’s possession. The price at which the property was knocked off was entirely inadequate to its value. The names of some of the ne-gritos purchased are mentioned in Col. Thompson’s will, and the negroes disposed of by him; and Mr. .Peas in his evidence, speaking in October,1821, says he recollects, that Major Haskell, about three or . four years ago, asked him in Charleston, if be did not recollect, that at the time of the settlement there was one demand against Major Thompson, which had been excepted: That he told him, he had no such recollection, and that he believed all the transactions between the trustees were settled previous to the time when the deed was delivered up. Tills purchase I also Consider as included in the settle-merit between the trustees. — -In a list of his debts signed by Col. Thompson, to be paid out of his estate conveyed to his trustees, the debt to the loan-office, is noticed thus: Debt to the loan office <^250, Col. Thompson, William R. Thompson and Derril Hart, in i786, gave their joint and several bond to the commissioners of the loan-office for £750, and Colonel Thompson mortgaged part of the Mount Thompson tract, which he subsequently conveyed to Major Haskell to secure it. The mortgage being resorted to, Major Haskell paid this debt, amounting in 1814 to ¿£492 17s.* and has since paid ^34 10s. on account of interest, as appears by a receipt, dated 10th March, 1815, and claims to be reimbursed these sums out of the estate of /. P. Thompson.
    
    The pleading and evidence before me do not enable me to decide on this claim. Col Thompson owed but £250 to the loan-office; and the property conveyed in trust, was only liable to this amount. The representatives of Derril Hart and William R. Thompson, are not parties in this suit: the bill does not allege that Paul Thompson undertook to pay Hart and Thompon’s proportions of the debt to the loan-office ; and if he did so, the fact ought to have been charged, that the defendants might have had an opportunity of answering it; and the evidence of Major Hart and Col. Thompson, although admissible to prove that J. P. Thompson assumed to pay Col. Thompson's pro portion of the bond, is not so to exonerate the estates they respectively represent. The obligors were severally liable to the commissioners, to pay the whole of the loan-office debt; but if either of them paid more than his portion, he is entitled to come upon the others for contribution. Payments of the interest more than equal to twice the amount of the principal of the bond have been made, but we do not know on whose account: if on account of Col. Thompson, or with the funds of his estate, the balance as between the obligors was due by Hart and Thompson, and ought to have been paid by them, or out of their estates; some, and I believe most of the payments of interest to the loan-office, were made by factors in Charleston, to whose books reference may be made, and they no doubt will show on whose account they were made. But if Paul Thompson did assume to pay the whole of the debt to the loan-office, on this fact appearing to the Court under pleadings embracing it, the raising of an account between the obli-gors might be dispensed with, and the land of the complainant having been sold for a debt, which P. Thompson ought to have paid, his remedy would be against Thompson’s estate, and under the suit to obtain it, the defendants would have it in their power to bring forward the evidence they possess, and on which they rely to prove that all matters between Thompson and Haskell are embraced in the receipts set up. In my view of the case, all I can do is to allow the complainant to amend his bill, I would refer him to a court of law to establish the assumption by P ml Thompson, but for the difficulties that would still exist, that the pleadings as they stand do not authorise the recovery of more than Col. Thompson’s proportion of the loan-office debt,' a sum far short of that claimed.
    Col. Thompson by his will directed all the rest and residue of his estate to be sold by his executors, to discharge his debts; and there is said to be a tract of several thousand acres at or near the Eutaws, part of this residue, which has been pointed out as proper to be resorted to for this purpose.
    It is ordered and decreed, that the commissioner do sell at public sale for cash, the said tract of land, and that, he do pay to the complainant the holder of the bond the sum due thereon. It is further ordered and decreed, that complainant be at liberty to amend his bill.
    From this Decree all parties appealed : The reasons submitted by the plaintiffs for reversing the Decree, were as follows:
    1. That parol evidence of the contents of a deed was allowed to be given without any notice to the opposite parties to produce the original, or attempting to account for its loss, by any other evidence than Mr. Deas, who proved merely the delivery of it to Major Thompson and Major Haskell.
    
    
      2. Because the evidence on which the right tó commissions is rejected, even if satisfactory as to Major Haskell, is, as tu Col. Cochran, insufficient.
    
      That the debt of Bourdieu, Chollet fy Bourdieu, is fixed on an inadequate and an improper fund. The value of the pine barren, to which they are sent for payment being inconsiderable, and the title in dispute: Whereas, it is submitted, that as their debt is established, there should be either an account of assets, or an order on defendants to pay what is due on the foot of the bond.
    4. That after a full hearing, and going through all the evidence, which it is pretended the parties are able to adduce, without any exception to the frame of the bill by the defendants, the complainant is ordered to amend his bill: Whereas it is respectfully submitted,
    1. That even if the bill had been defective, the objection was waived, by the defendants going to trial.
    2. That the bill is perfect and complete, and covers the whole evidence.
    3. That the evidence offered by the complainants, and rejected by the Court, ought to have been received.
    4. That upon the evidence, the complainant, JE. Haskell, is entitled to satisfaction, for the breach of covenants in Col. Thompson’s conveyance of Mount Thompson ; and that the Court should either direct an account of assets, or order the defendants to satisfy and pay to the complainant what may be due for principal and interest, on account of his payment to the loan-office ; the full amount paid by him and interest thereon from the time of payment, being the correct measure of damages.
    The defendants assigned the following reasons for setting aside the Decree, and dismissing the bill.
    1. Because it was in evidence that upon a final settlement of the trust-estate made between the trustees, Major Haskell was to pay this debt to the loan-office; and there was no evidence of Paul Thompson’s promise to pay the same, except the testimony of Major Hart and William S. Thompson, which ought to have been rejected, as they were both interested.
    2. The bill ought to be dismissed, because complainants having failed to establish a trust fund for the payment of said debts, there remains no equity in the caseto give the Court jurisdiction.
    Columbia, December, 1822.
    
      Mr. Petti grue for Complainants.
    
    The parties before the Court, are : (1.) The surviving trustees of Col. Thompsoú; (2.) The creditorsof Col. Thompson. Their claims will be considered in .their order. 3 st, As to the claims of the surviving trustees- D is t0 be remembered, that the question is not between the trustee, and the cestuy que ^rus^ 5 whether a trustee can recover any compen-sation for his care and trouble, but between the trustees themselves, whether one of them can appropriate to himself the commissions received for the benefit of all. The defence of the party, who has received more than his part, is, that it is against law for trustees to take any compensation not expressly provided for, in the deed creating the trust. If the party creating the trust, agrees to allow a compensation, and that agreement forms part of the instrument, it is admitted the trustees will be entitled : But the same reason ’jyhich admits such a stipulation to be good, if inserted in the ddéd, is equally strong to show that the agreement to satisfy the trustees for their care and trouble, is not of itself illegal or void. Then it is clear, that the grantor may, if he chooses, enter in-to such an agreement afterwards ; and although such, a subsequent agreement could not alter the rights of creditors in the fund, it would be binding between the parties. If the grantor should, not only agree to allow such compensation, but should actually pay the sum agreed on into the hands of a third person, for the use of the trustees ; the person to whom it is paid, can have no right to refuse to pay it over nor will it make any difference that the payment is made to one pf the trustees, for the benefit of all 5 for after receiving the money, he stands towards the Others in the place of a depository, and is liable for ippney had and received their use. This view brings the principle precisely within the present case. In 1797, John Paul Thompson, being executor of William Thompson, by an account stated and signed, expressly and positively rc cognized and allowed this demand to the trustees, j- ow can the defendants dispute his act? They are his representatives as well as Col. Thompson’s. But John P. Thompson, by his contract with the residuary legatees, acquired all their rights, and united in himself the character of heir, executor, and next of kin. His act is as binding on the defendants, as the act of the testator would have been ; and if they have assets, it is as binding as their own act would be.
    The agreement then, of John P. Thompson, is made out to be equal to the agreement of the grant- or. The other part of the rule is also made out; for the bond of Keme was disposed of by John Paul Thompson, and the case is the same as if he had received the money. The proceeds of this bond were sufficient to satisfy all the scheduled debts, and to pay the commissions of the trustees ; which makes the case of the complainants as s’rong as if the money had been actually paid to John P. Thompson for this purpose. The evidence of Mr. Deas does not take off the force of this argument. 1. The evidence related to the.contents of a deed, which was in the possession of John P. Thompson, or of E. Haskell. If the deed was in the possession of John P. Thompson, the defendants ought to produce it; if in the possession of E. Haskell, he should have had notice to produce it. 1 Phil. Ev. 338. 346. 2 
      
      Con. Cas. 83. 225. Parol evidence of the contents of this deed was therefore inadmissible; and the ob-iection may be made now as well as at the trial. White vs. Damon, 7 Ves. 29. As to the surmise that John Paul Thompson purchased at the sale for his father, and was never liable for the proceeds of the bond, it is perfectly gratuitous. There is no such evidence in the case. The defendants in their answer do not say so : they say he was liable, and that be satisfied his liability by applying the money in payment of debts and legacies. But they must shew that he applied it according to the trust. Their surmise is just as gratuitous as the other. It seems that at the time of the sale there were no scheduled debts remaining, but the loan-office, and Fisher and Edwards’. But admitting the evidence of Mr. Deas, it might, well weigh against Haskell, but could not affect Mr. Cochran.
    
    The next subject of consideration is the case of the creditors of William Thompson, who claim an account of his estate, and payment of their debts. As to the bond of Fisher and Edwards, it is one of the scheduled debts, and the proof is too plain to admit of doubt; the decree does not deny this, but fhe objection is, that the decree confines their relief to an inadequate and improper fund : they are referred ior payment to pine-barren lands of no value: But the pine-barren and insolvent laws, are no longer in force, and ought not to be revived for the special benefit of the defendants.
    
      The fund is improper as well as inadequate. By John Paul Thompson’s contract with the residuary legatees as proved at the trial, this land was assign- . .... ° ed to them for their shares in addition to the ¿£;600 paid in money ; and the parties claiming under this agreement, are not before the Court. In Morse vs. Sadler,
      
       it is laid down, “ that there is that disic tinction between land and money; before a decree “ ordering the sale of land, all the parties interested (( must he before the Court.” This very land is the subject of another suit in this Court between other parties: The descendants of Col. Thompson claim it under the agreement by which Paul Thompson became the purchaser of their interests in the estate of the testator. See evidence, No. 16. Thompson’s letter 11th Jan. 1803, and Major Hart’s testimony. .
    The claim of Haskell,• although most important, depends on the same principle with Bowdieu’s, and is supported by evidence equally clear. It is simply a demand founded on the breach of a covenant, of warranty : It is necessary only to prove the covenant and the breach. The covenant is proved by the deed of 11th May, 1.793, and the breach is proved by the mortgage pf 16th May, 1786, and by evidence of the sale on 30th March, 1814. The damages sustained by the plaintiff are also proved by the written evidence, to be ^562 12s. sterling.
    
      It is a mistake to suppose that this claim is dependent on the deed of trust, or has any necessary connexion with the detail of the trustees’ management. It is a legal demand, and the plaintiff could sue at law: but.as the debt is to be paid out of the assets, he may also sue here. This is plain from Thompson vs. Brown,
      
       where all the precedents are cited. After an elaborate review of the cases, the learned Chancellor, whose opinions are respected in every part of the Union, lays down the doctrine very clearly: “ A creditor has a right to come here i( for a discovery of assets : this is a settled and nee< cessary right. When here, he shall be decreed “ satisfaction for his debts ; and this on the ground {< of preventing multiplicity of suits.” The. right, therefore, being clear, and the jurisdiction undoubted, the plaintiff is entitled to a decree, unless the grounds taken in the decree can be sustained, viz : that the proper parties are not before the Court; this objection, however, is founded on the supposition that the plaintiff derives his right from the loan-office bond, or from an undertaking by John Paul Thompson, to pay off that bond. If he derives his right from the bond as an assignee, and brings his bill in this Court to compel payment, it is said he must make all the obligors parties. But, although the rule is admitted, it has no application $ for Haskell never was the owner of the loan-office debt, and does not sue upon any claim derived from the loan-office. He stands simply on his covenant ot warranty.
    Another objection in support of the decree, is, that all parties interested ought to be before the Court; and that the other obligors are interested in this suit, because, if a decree is had against John P. Thompson’s representatives, they would have á right to recover over against the other parties to the bond. To this objection we have three answers.— 1. That there is no privity of contract between us and the other obligors, and we seek no relief against them. Suppose that the mortgage by which we were evicted, had been executed, not by Cob Thompson, but by some former proprietor of the same land, before it Was conveyed to him: upon eviction, we would have been entitled to redress on the covenant of warranty ; which shows that the circumstance of Col Thompson’s being a surety in the loan-office debt, is perfectly immaterial. In fact, our title to recover from his executors cannot be strengthened by any consideration that he was a principal in the transaction with the loan-officej nor weakened by his being a surety; and the objection rests entirely in a misconception of our true ground of action. The opinion of Lord Eldon, in Cochburn vs. Thompson,
      
       shows that the rule is one of convenience only, and may be dispensed with in some cases, even between parties ; as where the other parties are insolvent, or it appears that the defendant has no thine to demand over: the rulé it- ° ' self was denied in Collins vs. Griffiths,
      
       and the remarks of the Chancellor, that the very intent of # J taking the bond joint and several, is to have leave to sue them severally, appears to be sensible and just. But to permit the plaintiff to sue those, and those only, whom he contracted with, is perfectly agreeable to' authority as well as to reason ; and this leads us naturally to consider the other part of our answer to this objection, viz : that we seek no decree against the other parties. In Paulet vs. Bishop of London, 
      
       Lord Hardwicke says, “ that if the plain-6i tiff waives the relief against a person, there is no c< need to make him a party.” And where we add to the terms of this proposition the want of all privity of contract between the plaintiffs and such persons, there is surely no objection, in reason or authority, to his Lordship’s doctrine. To what purpose sue the other obligors? What case could we make against them ? the utmost would be to say, that we were entitled to stand in Col. Thompson's shoes; and to recover what he might have recovered from them, if he had satisfied us. May we not waive this subtle equity, the existence of which is not in our knowledge, nor the application of it, needed to stand on our undeniable rights? The rule that the plaintiff must make all proper parties, has never been held to extend so far as to oblige him to sue all, against whom he might possibly maintain a suit: A creditor may sue the heir and the executor, but he is not compelled to sue both. In a bill to foreclose, the plaintiff may, or may not make the executor a party. The creditor may follow assets into the hands of a debtor, or representative;
      
       but this is a privilege which he may waive. It was never contended that he is obliged to do so.
    2. Another answer to the objection of the want of parties is, that no person flight to be a party against whom you can have no decree. It is for the same reason that to a bill for discovery, the objection of the Want of parties does not lie.
    
    3. But even if the objection of want of parties were tenable, it comes too late after the hearing: The objection must be made by demurrer, by plea, or at least at the hearing, 
       “ An exception for “ want of parties is like a plea in abatement at law: (i if you go upon the merits, you can never take it “ up again : in equity you may take the exception t( at the hearing or demur.”
    
    But the very principle of the rule is convenience, and here the principle does not apply. To shew that it is a rule of convenience merely, to the cases already cited, may be added the authority of chancellor Kent,
      
       the authority of this Court,
      
       
      an^ ^ie Supreme Court of the United States. But how does the principle apply here ? If the bill is ^nien(led, the plaintiff must allege, in order to charge the other obligors, that they are liable to pay the loan-office debt, and have not paid. If they deny these allegations expressly and precisely, the Court, iu the absence of other testimony, cannot make a decree against them. But these parties are the very same who have given evidence in the cause, and they directly contradict, by their testimony, every possible charge on which a decree could be; made against them.
    There is another objection taken to the form of the bill, viz: that we have not alleged the undertaking of John P. Thompson, to satisfy the loan-office debt. This objection depends on the same misconception of the plaintiff’s case, who stands simply on his covenant of warranty. With the arrangements made between John P. Thompson, and the other parties to the bond, we have nothing to do $ and the mistake arises, from supposing that the evidence was introduced to raise an equity $ but in fact, all the evidence besides the proof of the covenant in the deed, and breach of warranty is produced and relied on, not to establish our debt, but tq remove the allegations on the other side: to show that the legal effect of these instruments has not been invalidated by any transactions between the parties; to prove that Major Haskell did not buy Mount Thompson, under an agreement to satisfy the loan-office debt; to show that the presumption arising from length of time is done away, not only by the fact that the breach of warranty did not take place v * until 1814, bat by the acknowledgement oí Thompson himself; and finally, to show that the allegation jn the answer of this demand being settled in the transactions of the trustees, is unsupported by facts.
    The only remaining ground, on which it is likely the decree may be upheld is, that by the rules of this Court, no appeal lies from an order to amend. But if such a rule prevails in this Court, it surely cannot extend to orders, which affect the substance of the case, and decide on the character of the plaintiff’s right. The rule properly understood, is the same as laid down by Lord Thurlow. “ An order il for the Cause to stand over for want of parties, is (i always considered an order by consent. The (< want of parties is, in truth, a cause to dismiss the (i bill; and it is an indulgence to the plaintiff to let u it stand over. If the plaintiff is dissatisfied, he ie should let his bill be dismissed, and appeal.” This shows not only the impropriety of deciding on the want of parties, where the objection is not made at the hearing ; but proves, moreover, the right of the plaintiff to appeal. If the objection had been taken and sustained, we would have had a right to say, let our bill be dismissed. To deny this right, is to liarrass and oppress the plaintiff with a vexatious suit, not only against justice, but against his will. Hitherto, no Judge has ever assumed more than tbe right of making the plaintiff, in a ground-less suit, pay costs : here, because he has instituted one su^ W^JC^ ^le Judge thinks groundless, he is ordered to institute another, which we all know to be groundless. To fasten the order upon him, without his consent, and then justify it, as an order made by consent, would- justly alarm every suitor in this Court. This would not be a fiction of law in which equity consists; and I cannot suppose that the Court will support the order on the ground of consent, when the Court knows that consent was not asked, and would nor have been given if it had been asked. There can be no appeal from any decree made by consent. This is the general rule. Consent cures all errors. But if consent can be supplied by the Court, without the leave of the suitor, there is an -end of all security.
    
      Mr. Gregg and Mr. Harper for Defendants.
    
    The bill is multifarious and complicated by the admission of parties claiming in distinct and several rights. The difficulty of the defendants is increased by the obscurity of the transactions, their complexity and the length of time. It is not to be expected of them, to give a minute account of the transactions of the parties, which appear to have been carried on collusively, for the purpose of defrauding creditors. In these transactions the plaintiff II. appears to have had the direction, and the blame is imputable to him alone.
    
      The demand of Major Haskell cannot be sustained, because it arises from a breach of trust. The conveyance of Mount Thompson to him was fraudulent and void, being a purchase by a trustee from his cestuy que trust. If the deed is void, the covenant of warranty is not binding. See Devaux vs. Fan-nin, 2g JY. Y. Ch. 254. He cannot be permitted to maintain an action founded on a breach trust. The -only valid title which he acquired was under the sheriff’s conveyance, and he ought not to be permitted to set up any other.
    There is no ground to charge the defendants on account of John P. Thompson’s promises to pay the debt to the loan-office; because such promises were without consideration. But it is clear from the testimony of Major Hart, that Major Haskell was bound to pay off the loan-office debts.
    The land was valued at ^4400, and Major H. paid only ¿02200. He ought, therefore, to account for the sum of <^2200, which as a trustee he wrongfully tQok to his own use. There is also evidence of large sums paid to Major Haskell by John P. Thompson in his life time; and as the plaintiff has not shewn on what account they were paid, the presumption is they were paid in satisfaction of this debt. It is in evidence that he waited from 1793 to 1812, without calling on John Paul Thompson for the payment of this demand. But as soon as he was dead, the claim was made on his widow, which throws a suspicion on the whole case. He is barred by the statute of limitations. His action accrued in 1786, he might have sued Col. Thompson on his covenant of seisin.
      
       The evidence of Mr. Deas, . shows that Major Haskell ought to pay the loan-office debt.,
    With respect to the bond of Fisher and Edwards, there is no evidence of any obligation on the part of John Paul Thompson to pay it. When he promised to Mr. Simons, he promised as executor. It must be paid out of the residue of the estate, if paid at all, and there is no residue except the Eutaw lands. The objection that the title is in the descendants of Col. Thompson, is of no avail, because the will directs the residue to be sold. Land ordered to be sold is considered personal estate, 
    
    As to the claim of commissions it cannot be sustained ; because the deed does not allow them. If John Paul Thompson assented to the claim, his assent could not bind his father’s estate. It was a breach of trust. A bill will not lie for a claim which is illegal in its origin. It does not appear whether Haskell and Cochran rendered any service; and there is no rule by which the court can apportion the compensation of each. There is no evidence that the trustees should divide the compensation equally. There is no jurisdiction to sustain the suit, of Bourdieu, or of Haskell. The only ground for coming into equity is the discovery of assets; and there is no pretence that it was neeessary to come here for that purpose.
    
    
      
      
         *ST<; evidence on tints point.
    
    
      
       mere was no evidence on this point.
    
    
      
       1 Cox, 352.
    
    
      
      
         4 Johns. C. C. 619.
    
    
      
       4 Johns. C. C. 631.
    
    
      
       15 Ves. 321.
    
    
      
       2 P. W. 313.
    
    
      
       2 At. 296.
    
    
      
       Cooper Eq. P. 38. 13 Ves. 234.
    
    
      
       2 Mail. Oh. 192. 1 Ves. sen. 105. 4 Ves. 665.
    
    
      
       Degols v Ward, 3 P. Wins. 310.
    
    
      
      . Mit. 163.
    
    
      
      
         Mad. Ch. 142. 3 Ves. 234.
    
    
      
      
         Darwent v Walton, 2 At. 510.
    
    
      
       2 Johns. C. C. 247.
    
    
      
       Clifton v Haig, 4 Des. 343.; and 3 Des. 590.
    
    
      
       2 Wheat. 298,-,
    
    
      
       Beresford v Adair, 2 Cox, 156.
    
    
      
      
         2 Ves. sen. 488.
    
    
      
       Cell v Huggins, 1 Bay, 326.
    
    
      
      
         Craig v Leslie, 3 Wheat. 563.
    
   DECREE.

Judge Gaillakd.

At the outset of this case it is proper to observe, that the liberty granted to amend the bill, is of the nature of an interlocutory order, and not the subject of an appeal; but the parties, both the complainants and defendants being desirous of bringing their controversy to an issue, We have considered the points decided by the circuit court, and believe, that under the grounds of’ appeal from these points, the justice of the case may be come at. The points decided relate to Keene & Hart’s bond, and the indemnity from John P. Thomspon to Keene and the debt to Fisher and Edwards, and the fund to be resorted to, to pay it. Keene & Hart’s bond was given for the property of Col. Thompson, sold by the trustees, and purchased by Kean. Keene was but a nominal purchaser, and the sale to him was made merely with a view to a change of the property, which continued in the possession of Col. Thompson, and was disposed of by him, by his will, to his family, who have had the benefit of it as devisees and legatees: This bond cannot, as was contended, constitute any part of the trust fund, liable to the debts to be paid out of the trust estate, and the indemnity to Keene was properly siven- The next point is the debt to Fisher and Edwards;; the circuit judge decreed it to be paid; and it is now admitted that it must be paid, but it is insisted, that it should not be referred for payment to the reesiduary estate of Col Thompon. It is not referred to this fund exclusively, and should it fail, on the report of the commissioner of that fact, payment would be directed out of the estate of Col. Thompson, by his executor or representatives. It appeared to the circuit court to be the wish of all the parties, that the residuary estate should first be applied in the manner directed, and it was on this account that it was ordered to be sold, it being immaterial to Fisher and Edwards, from what source the money to go to them, should come : but although the ground of appeal on this part of the case, is of no consequence- to Fisher and Edwards, it is so far important, as (without intermeddling with the interlocutory order) it lets us into the consideration of the question respecting the debt to the loan-office . taken up by Major Haskell; and the funds for paying as well it, as the debt of Fisher and Edwards. We do not think the evidence adduced by the defendants, sufficient to prove that Major Haskell undertook to pay Col: Thompson’s proportion of the bond to the loan-office, when he got the conveyance from him, for the Mount Thompson tract, or that this debt is embraced among the settlements made between Paul Thompson and Major Haskell, or the receipts given by the latter to the former: it follows that Major Haskell, is'entitled to reimbursement of the sum he paid to relieve his land from the mort-«•ao;e on it to'the loan-office, with interest thereon: This leads to another question; out of what fund is the reimbursement to be made ? the answer is, out of the fund assigned to Mr. Cochran, Major Has-hell, and John P. Thompson, to pay those debts to Fisher and Edwards, and to the loan-office, a m on others mentioned in the schedule annexed or referred to in the bond of assignment. The fund con-gits of the commissions charged against the trust es* tate, and retained in their hands. The deed is silent as to commissions, and as trustees, the complainants Cochran, and Haskell, and Paul Thompson, a* e not entitled to them. If the several sums retained by the trustees had been applied as they should have been to those debts, both would have, been extinguished, and the trustees cannot be al - lowed to derive a benefit to themselves, from diverting the fund they received from the object of the trust: they must refund those commissions with interest on the sums respectively retaine'd by them. If the amount to be refunded, be sufficient to pay the debt to Fisher and Edwards, and it be so applied as it must be, the aid of any other fund will he rendered unnecessary; if it be more than sufficient, the excess must be applied to the reimbursement of the debt paid by Major Haskell, to the loan-office: but if the fund arising from the commissions be . not sufficient, the deficiency must be made up, out of Col. Thompson’s estate, and be paid forthwith by the representatives of executor, Paul Thompson ; and on this event, representatives aforesaid must also pay to Maior Haskell whatever may be due to him, on account of the loan-office debt, (the consideration of the interlocutory order being reserved.) The representatives of Col. Thompson’s estate must satisfy, not only Col. Thompson's proportion of the bond to the loan-office, hut also the proportions which may he due by the estate of Hart and William R. Thompson, leaving to the representatives of Col. Thompson to call on the executors of Hart and William R. Thompson, if they think proper to call on them, for contribution, if they he liable to make it. The trustees, Cochran and Haskell, and P. Thompson, or his representatives, will be respectively entitled to credits against the commissions to he refunded, for all sums they may have paid on the debt to Fisher & Edwards, and to the loan-office; hut the payments made by.Col. Thompson in his life time, and by Paul Thompson as executor, from the time of his father’s death, to that of the compromise he made in January 7th, 1808,† with the residuary legatees enure to the benefit of Col. Thompson’s estate. It is only for payments made subsequent to the above period, that the executors of Col. Thompson are entitled to credit.

According to the foregoing view, the debt of Fisher & Edwards must be paid to the person authorized to receive it, on the confirmation of the report of the commissioner ascertaining the amount. It must be paid forthwith, out of the fund to be constituted from the commissions to be refunded $ and if that fail, or not, be forthcoming at the time of the report, out of Col. Thompson’s estate, by his representatives. Whatever may- be due to Major Has-hell, must be paid out of the trust-fund aforesaid ; and if the same be insufficient, out of the estate of Col. Thompson, in the hands of the representatives of John P. Thompson, so soon as the accounts between Major Haskell and the estate of J. P. Thompson, shall be adjusted by the commissioner, to whom a reference is ordered, the accounts to be confined to the payments respectively nsade by them as abovementioned, on the debt to Fisher & Edwards and the loan-office : the costs of suit to be paid in the following manner: the costs of Fisher & Edwards to be paid out of the trust fund, and of Major Haskell, by the representatives of Col. Thompson, out of his estate.

It is ordered and adjudged, that the decree of the circuit court be affirmed, enlarged, and modified, according to the foregoing view, and the principles herein before laid down.

We concur in the above.

H. W. Desaussuee,

T. Waties,

W. THOMPSON,

W. D. James.

Columbia, Dee. 17th, 1822.

At the next meeting of the Court of Appeals at Columbia, on 22nd day of April, 1823, the plaintiff petitioned the court for a rehearing; the petition after stating the facts, submitted the following reasons for a rehearing of the cause.

X. That the principal point in the decree is the order that Haskell and Cochran should pay back the sums retained by them in 1797 as commissions : But there is nothing in the pleadings on which this order can be grounded. So far from a case being made by the pleadings, to charge them on this head, no such demand was set up even by way of argument : The decree, therefore, is made on matters not in issue.

2. That Bourdieu, Chollet & Bourdieu, are only nominally relieved: they can have no execution for their debt, as there is no precedent of an execution by one plaintiff against his co-plaintiff; and a decree between co-plaintiffs is unprecedented and irregular.

3. If this order be considered an or'der in favour of Dr. Raoul it is equally irregular; because the Dr had not put this matter in issue. As it is not a matter submitted by the bill, it could only have been put in issue by a cross- bill. But so far from filing a cross-bill for that purpose, the defendants did not make any such claim in their answer: nor even bring it to the view of the Court in their argument.

4. That the decree is not only irregular hut in.consistent; for the decree made at the hearing in Orangeburg declares that the settlement between John P. Thompson and the other parties in 1803, Was finid. The Court of Appeals do not contradict, but confirm the decree on this point; yet the order opens an account, (though not the account in issue) included in that settlement; in direct contradiction to the declaration of the decree, and inconsistent with the reasons on which it is founded.

5. Lastly, the decree is not only irregular, and inconsistent, but contrary to principle. Because it is in effect a decree in favour either of Raoul, or of Bourdieu against Haskell and Cochran, for the opening of a stated account, and the execution of a trust, which is a matter purely equitable: But it is a fundamental principle of this court, that every one impleaded upon a demand resting in equity and conscience, has a right to the benefit of his answer upon oath: But by this decree Haskell and Cochran are deprived of the benefit of that rule.

Judge Gaillard.

You are not allowed to argue a petition for rehearing; the Court will correct a decree for a mistake apparent on the face of it, but will not go into the merits.

Mr. Pettigrue.

We do not ask to be allowed to go further than the face of the decree. All the objections are such as may be taken on a bill of review, and we are ready to show that we ought to be aiiowe(i to be heard on account of the extraordinary circumstances of this case.

By the Court.

In Burn vs. Poag, 3 Des. 596. the rule was laid down, that after a full and final decree, the Court is not at liberty to open cases for a rehearing; though it has in a few instances, corrected palpable errors arising from misstatements, oversight, or misapprehension, upon simple suggestions of such misapprehension. 3 Des. 616. We will hear you to-morrow on the question, whether you shall be allowed to argue the points made in your petition.

Mr. Pettigrue.

To show that the Court ought to grant a rehearing of this cause, I will confine myself to what appears on the decree itself, and the plead-, ings ; and hope to prove, that there are errors apparent on the face of the record, which the Court ought to correct. In the first place, it is apparent on the face of the record, that' the principal point in the decree, viz: the order that Haskell and Cochran pay back the sums received by them in 1797, has not been put in issue by the proceedings. To be sensible of this, consider what was put in issue by Haskell and Cochran, and what the.Court has decreed. They alleged an agreement between themselves and John Paul Thompson, to divide the sum of ¿743 6if. 7of. equally.between them, and a settlement in 1797, on which a balance is due. Whether there was such a settlement, and whether there be a balance due on it, which Haskell and Cochran can _ , _ # recover at this day, was the matter m issüe. In proof of the settlement, they read a memorandum in the hand-writing of Thompson. His Honour súppo-ses there was such a settlement j but rules that cannot compel J. P. Thompson’s representatives to pay the balance which they claim : this is regular ; and if the decree stopped here, there would be no eomplaint. But the decree proceeds to open that settlement; and also another settlement, noticed by the Court, made in 1803, and to compel Haskell and Cochran to pay b'áck what they had already received. Let the pleadings be examined. Whether the settlement shall be opened, is surely not an issue tendered by the plaintiffs. Have the defendants' attempted to put it in issue ? Examine their answers They say they do not. know that there was any settlement of commissions, or any balance due j but if there be a balance due on the face Of the settlements they rely on proof of payment, and the presumption arising from length of time. So far then, from putting in issue the question whether this settlement Should be opened, the answer of the defendants is directly contrary ; for they rely on payment, and the presumption from length of time. But if the presumption from length of time, could bar the plaintiffs from recovering the balance due on a Settlement, made in 1797, the same presumption will apply still more strongly, to prevent that settlement from being opened at this day. Did they, by their proofs, make a case to open the settlement? So far from it, the decree shows that they introduced what they contend to be evidence of a final settlement, # * between the same parties, made six years after-wards. On the face of the decree, then, it is appa- , 7 7 rt rent that the Court, by ordering Haskell and Cochran ttf pay back the sums retained by them, under the settlement of 1796, has decided on matters not in issue. It is scarcely necessary to cite authorities to show that this is improper. The rule laid down by Lord Redesdale in the Treatise on Pleading, 39. 44. cannot be disputed.

As to the second ground taken in the petition, viz: that this is a decree between co-plaintiffs, it is impossible to deny the fact. The decree most ex-pi s-'ssiy directs, that Haskell, Cochran, and Raoul shall contribute to pay oif Rourdieu, Chollet and Bourdieu: but Haskell and Cochran are co-plaintiffs with Rourdieu: it is therefore nothing more-nor less, than a decree in favor of Bourdieu against his two co-plaintiffs and the defendant. A decree, cannot be made even between co-defendants. Redes. 76, 77. 8 Ves. 123. There is one reason against a decree between co-plaintiffs that must strike every one as conclusive: there can be no issue between co-plaintiffs. If one of the plaintiffs were to assert, am. the other to deny any material fact, -it would make the bill insensible and repugnant. A decree, then, between co-plaintiffs, must necessarily be upon matters not in issue.

Whether we view the order, therefore, as an order in favor of Raoul, or in favor of Bourdieu, the decree stands equally exposed to the fundamental x J 1 ^ objection, that it decides on matters not put in issue. This is not merely a technical objection. The l’ules of pleading are adopted, because they are the most effectual means of promoting justice. Every departure from those rules must, therefore, be calculated to produce injustice — but the evil lies still deeper. A decree on matters not put in issue, deprives the party against whom it is made, of the benefit of answering the allegations of his adversary; and in this very case, it is apparent that Haskell and Cochran, have not had the benefit of answering. But the protection allowed to defendants, in this Court, by admitting their answer on oath, is a rule of property. It is emphatically so stated by Lord Eldon, in Evans vs. Bicknell, 6 Ves. 174. iC In this Court, a defendant, has the protection aris- ing from his own conscience, in a degree which (C the law does not give him protection. If he pos-tc itively, plainly, and precisely deny the assertions* tc in the bill, and one witness only, proves it, as (i positively, clearly, and precisely as it is denied, and there is no circumstance attaching credit to the assertion, overbalancing the credit due to the (i denial, a court of equity will not act on the tes-li timóny of that witness.” 6 Ves. 184. And his Lordship then proceeds to show that the rule of property in equity, cannot be adopted into the court of law, because this protection is an essential part of that rule; and this protection cannot he had at law. It is singular that the decree at the circuit, not only recognises this rule, hut even pushes it so far. in favor of the defendant^ as to refuse the plaintiff relief, merely because all the evidence of John P. Thompson’s liability to pay off the loan-office debt, was not introduced in the bill. The judge, on the hearing at the circuit,, ordered the plaintiff to amend his bill in order that the defendant might have an opportunity of denying or contradicting the evidence of Hart: although the evidence of Hart, was only to rebut the case made by defendants in their answer. R must have been by mistake, therefore, that the operation of this rule, was overlooked by the same judge in the Court of Appeals.

But it may be said, that the situation of Raoul is altogether defensive; and that his demand is allowed merely as an off-sett.

Consider the case in the most favourable light Suppose it merely an allowance to Raoul, in the account between him and Haskell. Let us waive the fact that there is no account between Cochran and Raoul; let us give up the consideration, that this order compels Haskell to contribute to pay off his co-plaintiff Bourdieu, and treat the order, merely as an allowance of so mueh to Raoul, in exoneration of Haskell’s demand. The case will then stand thus. Haskell claims a sum of money from the defendants as a creditor of William Thompson, and his debt is established. The decree admits that he has proved his debt, and that the defendant has not disproved it. Then the decree goes on to declare that the defendant has a right to demand a greater sum of money from the plaintiff on another ground. Now how can the Court determine that the plaintiff is a debtor to the defendant, unless this has been put in issue ? If defendant in a court of law have a discount or set-off of another debt against plaintiff, he must plead it, or give notice; and must prove it by the same proof which would be necessary if he were plaintiff. In this Court, the defendant setting up a separate and distinct claim against the plaintiff, not disproving his demand, but claiming the benefit of a new demand against him, must in like manner establish his demand, by the same proof which would be necessary to entitle him to a decree if he were complainant. But what is this, which is allowed to Dr. Raoul ? He is allowed to open a settled account, and to compel the execution of a trust against Haskell. Is not this a matter purely equitable? And can a mere equitable demand be established against any person, without allowing him to answer the case made by the plaintiff, on oath? He that claims property by equitable title, claims it subject to this defence. It is plain however that every decree between co-complainants, and every decree in favour of defendant on matters not in issue, must violate this rule of property; and this decree does violate it, whether we consider it as a decree in favour of Bourdieu, or of Raoul. The rule itself has its foundation in the first principles of the law. For the words of Magna Charta, Nu'lus liber homo, &c.” are interpreted by Lord Coke, the most able expositor of the statute, to mean that no one shall be condemned, either in civil, or criminal matter without hein$ reSularIy P<R on his defence, e< Nisi per legem terroe: without being brought in to answer by due process of the common law.” 2 List. 50. This due process, in this Court, is the subpoena to answer. In the court of law it would be either by an action, or a discount filed.

If these objections to the principle of the Decree have any weight, the extraordinary circumstances of the ease,will entitle to the plaintiffs to have the cause reheard, even under the strict rule which the' Court has laid down as to motions for a rehearing. For it is a fact, and I appeal to the Court, and to the candor of the counsel on the other side, for the truth of the assertion, that the liability of Haskell and Cochran, to pay back this money, was not even suggested by the defendant; no such right was claimed by defendant; and the point was never noticed during the argument either by the Court or the Bar.

The case of Burn vs. Poag, 3 Des. 596. docs not operate against the present motion : it cannot extend to deprive one of relief who has been surprised. It is the bounden duty of every Court, to prevent its suitors from any wrong on account of its own act. “ If there be a principle upon which courts of justice ought to act without scruple, it is this, to relieve parties against that injustice occasioned by its own acts or oversight, at the instance of the party against whom relief is sought. Pultney vs. Warren, 6 Ves. 92. The principle certainly extends to this case, where the court, without the least notice, have made a decree, on a matter not contained in the pleadings, not argued, not even thought of.

But if plain mistake^ is the only ground on which the Court will grant a rehearing, can there be a more evident mistake than to establish a settlement, and undo it, in the same decree? The decree declares that all dealings between the trustees, were finally ended and settled in 1803; the same decree orders Haskell and Cochran, to pay money for the benefit of John P. Thompson, in contradiction of that settlement.

So much upon the principle of the decree; and the peculiar circumstances of the case: and if I have made out these objections, to the satisfaction of the Court, I hope they will give the plaintiffs the benefit of them. It is no answer to say that in justice the plaintiffs ought to be charged with the sums they are ordered to pay : no demerit can deprive a man of the right of making his defence: but when we have leave to go into the merits we will show conclusively, not only that the rights of defendants have been committed by decreeing on a matter not in issue, and by charging t.hem, without allowing them the opportunity of a defence; but that in fact, there is no ground for charging them at all. That as against the plaintiffs, the decree is contrary to principle ; and as in favor of the defendants, it is contrary to evidence.

We submit, therefore, that we ought to be allowed to go into the argument. We will then show* most conclusively, not only that Dr. Raoul has not established anly demand against Haskell or Cochran, according to the rules of this Court, but that no such demand exists.

Motion refused. 
      
      £ra) Not in the evidence.
     