
    Executors of Hunter and Executors of Herndon, v. Spotswood.
    October Term, 1792.
    Jurisdiction of Equity. — As to the jurisdiction of a Court of Equity.
    Officers of Court — When Liable for interest on Money in Hands. — Under what circumstances an officer of a Court, having in his possession money raised by the sale of attached effects, which the Court had forbid him to pay over, shall be decreed to pay interest.
    Statute of Limitations — When Not Applicable in Equity.— In what cases the act of limitations will not bar a right in Equity.
    
      This was a suit brought by the appellee in the High Court of Chancery, against the appellants. The case, as extracted from the bill, answer, depositions, and exhibits, was shortly as follows, viz: John Spots-wood the father, died sometime in the year 17S8, seized of a considerable entailed estate, part of which, consisted of very valuable iron works, and leaving a widow, (who afterwards intermarried with John Campbell,) as also the appellee his eldest son and heir at law, and one other son. Campbell, after his intermarriage, agreed with the said Hunter, to sell him the proportion of the iron made at the works, to which he would be entitled, in right of his wife’s dower in the same; and Bernard Moor, the guardian of the appellee, and executor of John Spotswood, agreed to deliver the same to Hunter, upon his undertaking to pay for Campbell, a debt due from his wife to the executor, for property belonging to the estate; and sold to her before her intermarriage ; and also one third of the expenses, which might be incurred in carrying on the iron works. In consequence of this agreement, the iron was delivered to Hunter, who paid to the executor, the debt due from Campbell on account of his wife, and part of the expences. Campbell having left this country, attachments *were sued out against his effects bj' Hunter, who had a considerable claim against him; as also as by Bernard Moor, to recover the amount of the expenses due from him on account of the iron works, which then remained unpaid. B. Moor obtained a judgment in the County Court, which was reversed in the General Court, and the attachment quashed, “it appearing to that court, that Campbell had given public notice of his intention to leave the country, which was known to his creditors.” But Herndon (the sheriff,) having levied the attachment upon property belonging to Campbell, the court directed, that he should sell the same, and pay the money to Hunter, he giving security, to be accountable for •it, in such manner as the court should •thereafter direct.
    At the sale of the attached effects, Hunter purchased to the amount of ,£650, but failed to give security, according to the direction of the court. He declined receiving the balance of the money, amounting to about £750, which with interest, is now claimed from Herndon’s executors.
    The appellee also claims from Hunter’s executors, the £650 with interest, and also about £300, the balance of Campbell’s debt, due for the expences of the iron works.
    Hunter’s executors answered, and also put in three pleas ; to wit: 1st, to the jurisdiction--2d, the act of limitations; and 3d, want of right in the plaintiff to sue.
    Herndon’s executors in their answer say, that the money died in the hands of their testator, and therefore it ought not now to be paid in specie.
    The bill being taken for confessed, as to Campbell, for £1717: 0: 10%, the court decreed the same to be paid by that defendant. That £697 : 3: 11K part thereof, in the hands of James Hunter, should be paid by his executors, and £722: 13: 7j£ other part thereof, remaining in the hands of Herndon (both sums bearing interest from the 3d of May 1770,) should be paid by his executors to' the plaintiff, after deducting the costs of those defendants; the plaintiff to give such bond and security as the law requires.
    Washington, for the appellee began.
    The plea to the jurisdiction cannot be sustained. — This suit is brought for the purpose of enforcing a settlement, of a long and complicated account, subsisting between different persons, but the whole so interwoven, that compleat justice could not be done, unless all those persons were before the court. In cases where an action of account may be brought, a suit in equity may properly be sustained. 1 Eq. ' Ca. ab. 5.
    *Much stronger is this case, when, by resorting to this tribunal, multiplicity of suits are prevented. Thus, if Spotswood had sued B. Moor and recovered, Moor would recover against Hunter. So, if he recover against Herndon’s executors, they must recover against Hunter’s executors. All the parties being before the court, a decree is made against Herndon’s executors, for the money retained by the testator, and against Hunter’s executors, for the money received by theirs.
    The next objection to a recovery, is the act of limitations — as to the £650 received by Hunter, from Herndon, there can exist no doubt. Hunter was not only a trustee for that money, in the same manner as Herndon would have been, had he retained it, but he is guilty of a fraud, in obtaining the possession of Campbell’s property, from an officer of the court, against the order of that court; and that too, under a promise to give bond and security, as the order required, which he afterwards refused to do. Cases of trust, or fraud, are without the operation of the act of limitations.
    As to the remaining sum of £300, respecting which an account is directed, there is more difficulty; but I am inclined to think, that there are sufficient circumstances in the case, to take it out of the operation of the act.
    Hunter, having received the profits of an infant’s estate, he is a trustee for those profits, and therefore cannot protect himself by length of time. Again — the iron in the hands of Hunter, was a deposit, placed there by Campbell, chargeable with the payment of a certain debt to Spotswood, which places him in the situation of a trustee, bound to execute the trust for which the pledge was placed in his hands. But I principally rely, upon the particular circumstances of this case. The appellee after his arrival at age, appears to have been totally in the dark as to his affairs, which had been conducted by his guardian, until a few years before the late war commenced; and this suit was brought shortly after its conclusion. There are many cases, which do not come within any of the exceptions from the act of limitations, and yet are construed to come within the equity of them, as if the time has elapsed during a period when no executor has qualified, or where there is a contest respecting the right of administration.
    As to the right of the appellee to sue, it is clear that if he cannot, no other person can. He is entitled to the subject of recovery, namely, the profits of the land, and whatever objection might have been made to him at law, in this court none can exist.
    ^Objections are made to the depositions of two of the witnesses, on the ground of interest. To one of them, because he is the executor of one of the securities of B. Moor, in his capacity of guardian; to the other, because he was security for B. Moor, on his suing out the attachment against Campbell. As to the first, the record does not shew that he is executor. But if it did, the interest is too remote topreclude him from giving testimony — 4 Burr. 22S5 — 1 Str. 575 are stronger than the present. Again — both witnesses were cross examined by the objecting party, which estops him now, to impeach them on the ground of incompetency — -Vern. 254 — 2 Bac. Ab. 289 — 4 Burr. 2252 — 1 Ed. Ray 730.
    As to the objection to the other witness, there is no colour for it, because, whether Spotswood succeeds, or fails in this cause, it will not bar Campbell of his action, on the attachment bond, if the attachment issued illegally.
    As to Herndon’s executors, the principal objection is, to the claim for interest on the money retained by him. I admit, that if he actually kept the money by him during the whole time, he ought not to pay interest. But the answer admits, that this was not the case; for if it were, the money could not die in his hands, but would at this day, be specifically the same, that it wat when received. A tender will not even in equity prevent interest from running, unless the money were kept, and no profit made of it; and this should be sworn to by the party. 2 Ch. Cas. 206 — 2 P. Wms. 378 —2 Vern. 192.
    Por the appellants, it- was argued by Marshall, Warden, and Stark.
    They contended that this was a stale demand, putting the act of limitations out of the question, and ought not to be countenanced in a Court of Equity. The plaintiff came of age in 1768, and this suit was not commenced until 1784. It appears, that within a short period after his taking possession of his estate, he had a schedule of it delivered to him. Even if Hunter, is to be considered as a trustee of the profits, received during the infancy of the plaintiff, still, the act of limitations will run, against a suit to recover those profits. Í Eq. Ca. Ab. 304 — if the iron is to be considered as a deposit in the hands of Hunter, and so like to goods pledged, there cannot exist a case of a sale, where the same argument may not be urged. The truth is, that the iron was sold by Campbell, to Hunter, and he, assumed to pay so much tq B. Moor for it. As to the fraud charged upon Hunter, there is not more, than exists in every *cáse of a breach of promise to pay money, or to perform any act. But if it were a fraud, still the act of limitations will begin to run, from the time it is discovered.
    The objection to the jurisdiction was not relied upon.
    They observed that the order of the General Court, directing Herndon, to pay the proceeds of the attached property to Hunter, was very unusual and improper, upon attachments of this sort, and could be accounted for in no other way, than by supposing, that the money was intended to be paid to him as a creditor of Campbell: the General Court at that time, having an equitable jurisdiction in cases of attachments against absentees.
    The cases cited to prove, that the cross examination of a witness, amounts to a waiver of ¿11 exceptions to his competency, must have been decided upon the principle, that the party knew of the objection at the time of the examination, otherwise the-doctrine would be unreasonable and absurdl
    As to Herndon’s executors, it was contended to be a settled rule, that a sheriff, or a stake holder, pays no interest. Interest is a retribution for the use of money, and therefore, if the person having the principal money in possession, is not permitted to use it, (being liable at any moment to be called upon for it,) he ought not to pay interest.
    The answer (it is said,) does not state that the money was unemployed by Hern-don : if it had, it would not have been evidence, since the contrary not being charged in the bill, such an allegation would not have been responsive to it. Herndon was not bound to keep the identical money by him. He might have deposited it with a friend for safe-keeping, by which means it might have been lost. The money might well have died in his hands, as the answer states, without his having parted with it, when it is recollected, that this country, was at that time full of James river bank notes, which were totally lost to the holders, by the war.
    
      
      Officers of Court — When Liable for Interest on Money in Hands. — On the question as to when officers of the court are liable for interest on money in their hands, the principal case is cited in Miller v. Bever-leys, 4 Hen. &M. 416; Tazewell v. Barrett, 4 Hen. & M. 262; Templeman v. Fauntleroy, 3 Rand. 447; Union Bank v. Smith, 24 Fed. Cas. 557; Darby v. Gilligan, 37 W. Va. 69,16 S. E. Rep. 511. See also, Ross v. Austin, 4 Hen. & M. 502; White v. Johnson, 2 Munf. 285; Lomax v. Pendleton, 3 Call 538; Bever-leys v. Miller, 6 Munf. 99; McCall v. Peachy, 3 Munf. 288.
    
    
      
       Statute of Limitations — To What Cases Not Applicable. — Cases of fraud, trust and mistake, are not within the statute of limitations. Massie v. Heis-kell, 80 Va. 804, citing Hunter ». Spotswood, 1 Wash. 145; Redwood v. Riddick, 4 Munf. 222. The principal case is also cited on this question in Lamar y. Hale, 79 Va. 164, which case cites in addition Rankin v. Bradford, 1 Leigh 171; Turner v. Campbell, 3 Gratt. 77; Rowe v. Bentley, 29 Gratt. 762. See monographic note on “Limitation of Actions” appended to Her-rington v. Harkins, 1 Rob. 591.
      Equity Practice — Order of Publication — Decree—Recitals. — See, citing the principal case, Moore v. Holt, 10 Gratt. 291, and note-, Craig v. Sebrell, 9 Gratt. 133; Hadfieldv. Jameson, 2 Munf. 58; McCoy v. McCoy, 9 w. Va. 445; Amiss v. McGinnis, 12 W. Va. 374; Scott v. [aldington, 14 W. Va. 891; Steenrod v. It. K. Co.. 87 W. Va. 12; Yates v. Stuart, 39 W. Va. 128, 19 S. E. Rep. 424.
    
   The Court, were just about to deliver an opinion, when it was observed by Mr. Marshall, that it did not appear in the record, or by the decree, that publication against Campbell, had been made in the Gazette, which ought to have been done, he being an absent debtor, and not served with the process — that without a publication, Campbell was no party to the suit: and therefore a decree, against persons called upon to pay his money, would be as improper, as if he had been personally decreed to pay it. And tho’ the Chancellor ordered, that publication should be *made, yet the execution of that order is not to be presumed, unless there be evidence of it in the record.

A certificate, was then produced from the clerk of the High Court of Chancery, stating, that due publication had been made; but this was not considered as sufficient, by ■a majority of the court.

In answer to the objection, it was argued, that no person could take advantage of this ■omission, but Campbell, who had not appealed.

But the court, for this reason only, reversed the decree, and sent back the cause to the High Court of Chancery. 
      
      Tile Chancellor having corrected the error, by stating in his decree, that evidence of publication was proved to him, the cause went back to the Special Court of Appeals, where the decree was affirmed in toto. — Note in Original Edition.
     