
    John Pratt and Charles Edmondston, Sureties of Daniel Botifeur v. Catharine Weyman and Joseph T. Weyman, Executors of S. Gale.
    1825.
    
      Charleston.
    
    When settled be opened and errors correct-
    This was a bill filed for the purpose of correcting several mistakes alleged to have been made in an adjustment of accounts which had taken place in February 1818, between the defendants, as the executors of Samuel Gale, and Daniel Botifeur the original debtor, of whom the present complainants were the sureties. The following case was stated by the appellants’ brief.
    
      Gale, in his life time, had several commercial transactions with Botifeur; and among others, had acted as supercargo from Havanna to the coast of Africa and back to Havanna in the summer of 1817. In the autumn of that year Gale returned to Charleston, and died about the 20th of January 1818. The JYeuva Maria, a brig belonging to Botifeur, was then in Charleston, and on the 27th of January the defendants, as executors of Gale, filed their bill in equity against Botifeur for an account, and obtained an injunction to prevent the sailing of the vessel. Soon after this bill was filed, Botifeur arrived in Charleston, and propositions were made for an adjustment'of the accounts between him and the estate. The books and papers were in Havanna. His vessel under arrest in Charleston. Under the pressure of these circumstances, he exhibited the account of which a copy was filed with the present bill. He gave his bond, with the complainants as his sureties, for $11,600; the whole cash balance due by him according to the account so exhibited being $12,734, from which was deducted $759 which had been charged against him as commissions, and also the sum of $375.
    Several items charged against Gale in that account were disputed by his executors, and among others, a charge made of $2,640 for eight slaves said to have been taken by Gale from the cargo, for his own use, on the coast of Africa. The disbursements for the schooner May Flower, fees paid to lawyers in Havanna by Botifeur for Gale, and sundry other items on the credit side of Boti-feur’s account with Gale, it was agreed between the parties to refer to Benjamin Booth, of Havanna, to ascertain, and give his certificate of their correctness; and, until this was done, Botifeur was required to give his bonds in double the sum credited to him, that he would procure such certificate. On the debit side of the account, he was compelled to admit the item of $759, for commissions on certain slaves, which belonged to one Ormond and to Mr S. E. Lightbourn, claimed by Gale’s executors, and which he, Botifeur, denied. And for this also he gave his bond to be paid, if allowed to Gale by the said persons, Ormond and Lightbourn, from whom he was said to be entitled. On the same side of the account also was the sum $9,057, the interest of Gale in the sales of a certain voyage, and which formed a large item in augmenting the balance then stated as due. Botifeur’s cash bonds, to the amount of $2,000, were paid, by the complainants. The bonds respecting the eight slaves and the commissions, and a money bond for $2,500, only remained uncancelled. Botifeur produced the full-. est certificate that the commissions were not allowed ; and he also produced certificates that the disbursements of the May Flower, instead of $700 as allowed him in the account, were, in fact, $982, 4§ cents; and the fees paid by him to lawyers $408, instead of $304. On examining'his papers in Havanna, the documents in Gale’s own hand writing, which he had thought were in his possession, could not be found; but he produced the certificate of Mr Booth, the agent of defendant, that instead of the charge of $2,640 for the eight slaves, the charge 0Ught t0 have been only $2,080, so that he claimed the cancellation of his bond for them on paying the difference between these two sums which was $560, and that he should have credit for the difference between $700 and $982 4i cents which was $282 4h. cents, and also for $104 the difference between $304 and $408. At the time of the statement of the account Botifeur believed that he had in his possession in Havanna a certificate or document in Gale’s own hand writing, that would shew that he had the eight slaves, or their value estimated at $2640, from the cargo of the JVeuva Maria. His bond given on this item was conditional to produce such a document. It was further alleged by Botifeur that many of the outstanding debts of the adventure, for which, as if all had been perfectly good, Gale’s estate had been, as stated, credited with $9,057, had turned out bad, and he thought himself equitably and justly entitled to a discount from his cash bond for Gale’s proportion of these debts. He produced also a certificate, that the commissions charged for Gale had not been allowed, and therefore claimed to have his bond given on that account cancelled. The defendants refused to comply with these requisitions, and commenced actions at law, both on the cash bond and that respecting the eight slav.es. The cash bond could not be opened in a Court of Law. On the negro bond the defendants at law, now complainants, insisted that the certificate of Booth was equivalent to the document which Botifeur had undertaken to produce, and that therefore the plaintiffs were entitled to recover' only the difference between $2,640 and $2,080 namely $560. The presiding Judge charged, that as the document produced was not that required by the condition of the bond, the plaintiffs were entitled to the whole amount. The jury found, however, only for $2,080, whereas, defendants believed they really intended to allow that the certificate of Booth was equivalent to the document mentioned in the condition of the bond. The defendants at law, from the charge of His Honour, the presiding Judge (James), and from the nature of their case, believed that the only proper relief was obtainable in a Court of Equity, and gave notice of a motion for a new trial that they might have time to prepare their bill in equity. The bill was filed stating in substance the facts here detailed, and praying relief from the negro bond; that the cash bond should be opened, and the complainants in equity allowed a deduction to the amount of Gale’s proportion of the bad debts, and that the bond for the commissions should be delivered up and cancelled. The Chancellor granted an injunction restraining the defendants in equity, the plaintiffs at law, from further proceedings at law. The defendants, in their answer, insisted that the statement of the accounts, in February 1818, was a final settlement ; and in consideration of their giving up as they alleged to Botifeur the sum of $1,134, he agreed to incur the responsibility of collecting the debts in Havanna, and therefore that the cash bond should not be opened. And they further insisted that as the certificate produced did not agree with the one required by the negro bond, that they were in fact entitled to the whole $2,640, while the jury had only given them $2,080, 37 cents.
    The case came on for trial before the late Chancellor James in November 1824.
    The Chancellor decreed for the defendants, and dismissed the bill. The reporter has not been able to procure a copy of his decree.
    The complainants appealed, and made the following points.
    
      1. That the decree of the Chancellor was erroneous in considering the account between Gale and Botifeur finally closed, when the parties themselves mutually stipulated for a further examination and adjustment of the items of that account.
    2. That if any of the items of that account were open to examination at all, complainants were entitled to a reference for a full examination.
    3. That if the account was ever closed, complainants were entitled to have it opened for the correction of the mistakes proved to have been committed in it originally.
    4. That in any event, the complainants proved a substantial performance of the condition of their special bond for $2,600, for the goods converted by Gale to his own use on the coast of Africa.
    5. That the complainants were entitled to the interference of this Court for the delivery and cancelling of the special bond given for Gale’s commissions and Ormond’s slaves, and therefore he should have costs.
    
      King, for motion.
    When it is doubtful whether a defence will be let in at law, and for that reason it is not offered, equity will retain the case if it has jurisdiction over the matter. 17 Johns. Rep. 384. 389.
    Covenants must be strictly performed at law. But in equity it is enough if they are substantially performed. 1 Madd. Cha. 33, 34. Butcher v. Butcher, 9 Ves. 393.
    An account settled by arbitrators is not conclusive if an error can be shewn. 1 Madd. Cha. 102. 1 Scho. &. Lefr. 192. 1 Bridg. Dig. p. 16, placita, 114. 116, 117. 119. 125.
    
      Gilchrist, contra.
    Equity will not open an old settled account; and where there have been releases given the Court will not open it without the clearest proof of error. 3 Ves. 103. 5 Ves. 837. 1 Scho. & Lefr. 192.
    
      Where there has been fraud the Court of Equity will open and examine accounts after any length of time, even though the person committing the fraud be dead.
    The Court is not disposed to unravel old accounts, though settled on erroneous principles, but never hesitate to do so if the error is apparent.
    The Court will not open a settled account where it has been signed, ora security taken on the footing of it, unless for fraud or errors distinctly specified and proved.
    
      Peligra, in reply,
    cited Bearaes’ Pleas in Equity, 226. Where a settlement has been made by mutual concessions on both sides, the Court never interferes to open it. 1 Yes. Sen. 296. Equity will not interfere with settlements of family disputes, although founded on mistake. 1 Fonbl. 117. In an application to open an account, with leave to surcharge and falsify, the complainant must point out and prove specific errors. In relation to the bad debts there is no specification of error, only the general allegation that debts were lost, and Gale was partly interested.
   CuRia, per

Colcock, J.

The authority of a Court of Equity to re-examine acts which have been settled by the parties interested in them is well established. When there has been fraud committed by either party, the Court will do so after any length of time, and even when the person committing the fraud is dead. Madd. Cha. 102. Beames’ Pleas in Equity, 232. Where there is an error apparent on the face of the account, the Court will not hesitate to relieve. The Court, however, is not generally speaking inclined to unravel an old account, notwithstanding it may have been settled upon an erroneous principle. Nor will the Court open a settled account, where it has been signed, or a security taken on the footing of it, unless for fraud or errors distinctly specified in the bill and proved as specified. We collect, indeed, as sanctioned by the highest authority, that no settled account ought to be opened upon the mere suggestion of a bill in equity, especially where the truth of such suggestions is fully and substantially denied by the answer. In a case before Lord HaRdwicke it was stated, that pending the suit the parties came to a composition. To this it was objected that, as there was no particular account by items, it ought not to stand. But he considered the objection as unavailable, observing, that if that prevailed, no stale and various transaction could be pUt an encj to without a minute account, which would create endless suits: so that in a case of composition, even without an account, where no fraud was charged, he would not sustain the bill. Beames’ Plea's in Equity, The Court also invariably looks to the character 0y t|le perS0n who states an account, and if he be in r all respects fully competent to a full ^discharge of the duty, the more reliance is placed in the account. And jn some cases where an account is sent by one merchant to another, with a balance stated against him, and he keeps it by him for two or three years, it is considered as a settled account between them. Having thus shewn , _ . , the general powers of the Court of Equity m the revi-gjQn accountS) j now proceed to shew that in this case there is no ground for the exercise of this power. In the first place it is to be recollected, that this settlement took place in consequence of a bill filed in Equity against defendants, claiming from Botifeur a large sum of money as due by him to Gale. That Botifeur, instead of contesting the claim in the Court, agreed for reasons, not at all affecting the defendants, to enter into this settlement, and that the defendants were entirely ignorant of the transactions of. Gale, except so far as appeared from his books, and were wholly at his mercy. In this state of things it was agreed that Botifeur himself should make out the account, which he did; and struck a balance against himself of $12,734. But as some of the items of this account rested entirely on Bo-tifeur1 s own statement, it was agreed that Botifeur should be bound to produce proof of them at a future period, or pay the sum fixed on in the said bond — thus manifesting a decided determination to close the account for ever, leaving open the particulars to be settled on the terms stated in those bonds. By this mode of proceeding, an easy remedy was afforded,to either of the parties, if any injustice was done in the settlement of the accounts. In addition to these facts it is proved that a sum of $-was given up on the item now disputed of $9,057, on account of bad debts supposed to have been made on that adventure. It is then clear, beyond a doubt, that the parties themselves did not intend any further or future investigation, and to evidence this still further, Botifeur, at the foot of the account, gave a receipt in full. Botifeur failing to produce the proof to substantiate the charge of $2,640, for eight negroes said to have been appropriated by Gale to his own use, wms sued in a Court of Common Law on the bond given. As to that bond in which he obliges himself to produce an acknowledgment, under the hand of Samuel Gale, that he had appropriated to his own use eight slaves on the coast of Africa belonging to a cargo of the said Daniel Botifeur, and also a certificate under the hand of Benjamin Booth of what was the proper amount, at. which the said eight slaves ought to be charged, the complainants, on the trial at law, produced no evidence but the certificate of Booth as to the price of the ne-groes, and expressing an opinion that Gale had appropriated the said eight negroes, which not being á. compliance with the condition of the bond, a verdict was given against them for $2,080. No appeal was made, but the plaintiffs filed this bill. As to this item in the account, then, there is an insuperable bar to any further investigation. It has been submitted to a tribunal of competent jurisdiction, which has pronounced upon it. It has been said, that that Court could not have afforded the relief to which the parties were entitled. But they were- clothed with all the power necessary to relieve, had the parties shewn that they were entitled to it. And if, as it was intimated, the presiding Judge did charge the jury incorrectly as to the law, the party had a means of redress by appeal. From the view which has been given to us of this case, no other decision could have been made in the Court below; nor coujj t[le plaintiff have succeeded had he carried an appeal to the Constitutional Court. To suffer him to institute an investigation of the matter in a Court of Equity would be to give to that Court appellate jurisdiction in matters of law. In the case of Starke v. Woodward, 1 Nott & M’Cord’s Rep. 329, it was determined that the decision of a Court of competent authority is bind- . „ _ , v J , , . mg upon all Courts having concurrent powers, and this now a ru^e of universal law pervading every regular system of jurisprudence. It is founded in the wis- .. , i . • . .... T„ est policy — that oi putting an end to litigation. II a man, during the whole course of his life, and his representatives after his death, were liable to be dragged from Court to Court upon every item of an account which he had taken the utmost pains to settle, it would introduce a more intolerable state of things than exists in the most arbitrary governments, and would be subversive of every thing like the administration of justice.

The Court ai-ways looks to the character who statesTn account.

it, it is considered as an admission of its correctness. In some cases sonTeeps an account by him fora long time, without objectmg to

The decision ofa Court of competent binding'on Courts having concurrent powers.

The next item of the account, which the Court are required to open, is that which relates to Botifeur's interest in the sales of a cargo charged at $9,057, on which it is said an allowance ought to be made for certain bad debts. Two objections present themselves to the reexamination of this item; the first is, that a deduction was made on this item between the parties themselves of $1,134, as was proved by the testimony of Mr Cogdell; and, secondly, that it is not stated what the amount of bad debts is, and consequently that it could not be ascertained what the charge ought to be. Only $375 were deducted on this item, as contended by complainants, they alleging that the sum of $759 charged as half commissions constituted a part of the aforesaid $1,134. But although this does appear probable, it is by no means to be relied on as proof sufficiently strong to. overturn the testimony of an intelligent and respectable witness. It is clear at all events, that in the adjustment of the account a deduction was made in the very form now taken. But, another objection is, that admitting it to be a proper subject of • iU , - , ? .J :i J review, the complainants do not speedy the error committed, they do not pretend to be able to shew satisfactorily to this Court, even now, what is the amount of loss sustained on the adventure, but state that it is supposed by the agent of Botifeur to amount to ten thousand dollars, no stated account being made of the adventure shewing the profit and loss.

aCcounTmust specified,

The next item objected to is $304 for lawyers’ fees, which it is alleged should have been $408; and lastly, the item of $700, disbursements on the May Flower, which it is contended should have been $982, making a difference in favor of complainants of $386. Now admitting for a moment that these two sums could be substantiated, the result would be that the complainants claim $386; and admit that the defendants gave up in the settlement at least $37 5, which would leave a balance in their favour of $ 11. For such a sum it cannot be supposed the Court will be required to entertain the bill.

The point which has admitted of any doubt is, whether the bill should be dismissed with costs. On the part of the complainants it is contended, that they are entitled to costs, because it is admitted that the bond, conditioned for the repayment of commissions charged if not allowed by Ormond, and which, since the filing of the bill, has been given up to complainants, should have been given up before the bill was filed. But as we have no evidence that the bond was ever previously-demanded, andas it is. manifest it did not form any serious obstacle to a settle,ment, the Court cannot think that the, defendants should be compelled to pay the costs of this protracted litigation on so small a demand. Can it be supposed, if the defendants had been told that a bill would be filed for the purpose oniy 0f compelling a delivery of this bond, that they would have withheld it1? Or can it be supposed that the complain-antg wou]fi have filed the bill if this had been their only object. It has not escaped the observation of the Court ^at tbe bill is filed by the sureties of Botifeur and that Bo-tifeur lived several years after the settlement of the account. In this bill it is also stated (and the statement was much relied on in the argument) that it might have been inconvenient for Botifeur to find the security which the Court had required, when it is apparent that he found actual security for the payment of the balance stated by himself, and for the payment of the disputed items. Now what greater risk would the complainants have run had they been bound for the whole demand *? Botifeur is no more. He has escaped the ordeal of an oath, perhaps, under all circumstances, the defendants’ best security for a just settlement of their demands. Upon the whole the Court are satisfied that both on the law and the facts of the case the bill should be dismissed with costs. The decree of the Chancellor is therefore affirmed.

Decree affirmed.  