
    COURT OF APPEALS,
    JUNE TERM, 1798.
    C. Dorsey’s Ex’rs. vs. E. Dorsey’s Admr. d. b. n. &c.
    Appear from the Court of Chancery. It appears that Edward and Caleb Dorsey wera joint tenants in canying •on a plantation called Chew’s Resolution Manor, which they stocked at ilieir joint expense, and the profits of which they equally divided; they were also concerned in iron works, in company with Alexander Lawson, as tenants in common, each partner one third. Edward Dorsey died in 1760, having first made Ms will, wherein lie devised las estate, both real and personal, to his two daughters, and in the event of their death, without issue, and before their arrival at age, he limited over the lands held in company with C, Dorsey and A. Lawson, together with Ms share of the personal stock held in iron works, to C. Dorsey and his heirs, forever. As to the persona! estate, he bequeathed as follows-. That in case of his children’s death as aforesaid, “that then all the personal estate, that shall by this my will belong to the surviving child, shall be equally divided among” sundry of his relations, excluding C. Dorsey. The testator also, by his will, put Us estate Minder the care of his executor and trustee, to be managed for the use and benefit of Ms children, till they should arrive at age; and if the trustee should have at any time more money by Mm than was sufficient for their support, and for the disbursements directed, he was to lend it out on good security for the benefit of Ills children. On the, death of E. Dorsey one moiety of the personal property on the farm was appraised as E. Dorsey’s estate, with the approbation and consent of C Dorseys and the administratrix with the will annexed of E. Dorsey, drew the profits of it for six years, till the death of the surviving child in 1766, when C. Dorsey claimed the same as survivor of Iris brother E. Dorsey, on an event which happened six years before.
    From the year 1760 to 1766, large quantities of pig" i^on aiM* castings were made, as annual prof is, at the Elk-Ridge Furnace, which were divided yearly in thirds; one third of which belonged to the daughter of E. Dorsey, and had been in great part delivered.
    On the death of the surviving child, which happened in 1766, there was the quantity of 297 tons of pig iron remaining of her one third part of profits, unaccounted for, and which C. Dorsey converted to his own use, and for which he refused even to render any account.
    
    In January 1767, a bill was filed in the court of chancery by the administrators de bonis non of E. Dorsey, and administrators ot his daughter Henrietta Maria Dorsey, for an account of the moiety of the stock on the farm, and for one third of the pig iron and castings made after E. Dorsey*s death. To this bill the defendant C. Dorsey, refused to make any discovery, or even answer, alleging in his plea, that the farm, which was carried on at Elk-Ridge jointly by him and E, Dorsey, was limited and settled on him in virtue of a deed front his father, on the event of his brother E. Dorsey dying without issue. This deed was dated the 25th of March 1732, between C. Dorsey the elder, of the one part, and John Beale, (deceased,) trustee for the several sons of the. said C. Dorsey, whereby the said land was conveyed to the said Beale in trust, “to, and for the use and behoof of, Samuel Dorsey, son of the said C. Dorsey, for and during the term of his natural life, and from and after his death then to the use and be-hoof of the heirs of the body of the said S. Dorseys lawfully to be begotten; and for want of such issue, then, to the use and behoof of Joshua Dorsey, another son of the said C. Dorsey, and to his.heirs lawfully to be begotten; and for want of such issue, then to the use and behoof of Caleb Dorsey, junior, and Edward Dorsey, two other sons of the said 5. Dorsey, and their heirs lawfully to bo begotten, to be equally divided between them, and their heirs lawfully to be begotten; and for want of such issue then to the use and behoof of the right heirs of the said C Dorsey forever.” It is stated, that S. and J. Dorsey both dead without issue, and that the said lands became the right and estate of the said C. Dorsey and E. Dorsey» as joint tenants in tail in remainder. That the said E, Dorsey being since dead without issue, on that event taking place, “the plantation aforesaid became the sole pro-* perty of the said C. Dorsey by survivorship, together with all the white servants, negroes, and other personal property therein being;” and also contending as to the pig iron and castings, (ithal the same became the sole pro
      
      perty of the said C. Borsey under the",will of the said E. Borsey.”
    
    In October 1773, the surviving administrator de bonis ■ non of E. Borsey, and surviving administrator of his daughter H. M. Borsey, suggested the.death of C. Borsey, and tiled a bill of revivor against his executors; and in May 1790, they put in their answer. In this answer, and the exhibits referred to, it appears that the moiety of the stock on the farm amounted to 3771. 18s. 0d, and the balance of pig iron to 2481Í. 7s. lOci, which was charged at 51. sterling per ton.
    In May 1794, the death of the surviving administrator, &c. was suggested, and a bill of revivor filed by Deborah Dorsey, as administratrix de bonis non of E. Borsey and H. M. Borsey, against the executors of G. Borsey, who put in their answer at December term 1794.
    Hanson, Chancellor, at May term 1795, viz. on the 15th June 1"95, by agreement of the parties decreed— “that the defendants account with the complainant for one moiety of the personal stock which was at Patuxent Quarter on the 15th of October 1766, and also for ©ate third part of the annual profits arising from the Elk Ridge Furnace from the death of E. Borsey in the year 1760, to the death of II. M. Borsey in 1766; also for one moiety of all profits arising from Patuxent Quarter, from the death of E. Borsey to the death of H. M. Borsey, so far as the same came to the possession of the said (1. Dorsey, and were not accounted for by him as guardian of the said II. M. Dorsey,” &c. “provided nevertheless, conformably to the said agreement, that this decree shall not be considered as an admission of the defendants, or an adjudication of the court, that the complainant is entitled to the said moieties and third part during the intervals of time aforesaid, or for any intervals of time aforesaid, or for any other interval of time, but that the decision respecting her right, and all equity, be reserved to final hearing.”
    At October term, 1795, the auditor mads bis report, stating the sum of 57841. 5s. 1 d, including interest to the 1st of September 1795, to be due from the defendants to the complainant.
    IIanson, Chancellor, at February term, 1796, stated —“that the equity reserved in this cause by the decree passed at May term (on the 15th of June) last, being submitted to him, he has considered the same, and is of opinion that the complainant is entitled to an account as by that decree directed to be stated.”
    
      There being no exceptions filed to the auditor’s report, although motion and order, &c. the chancellor decreed that , £¡ie said report, and the account stated by the auditor, be absolutely ratified and confirmed, and that the defendants bring in or pay to the cohiplainant the said sum of 57841. 5s. Id, with interest from the 1st cif September 1795 until paid. -
    From this decree the defendants appéaled to the Court of Appeals.
    
      S. Johnston and Key, for the appellants,
    relied upon the . deed from C. Dorsey to J.'Beale in 1732, and that the land survived to C. Dorsey under that deed; alsb upon the will of E. Dorsey, as bequeathing to 0. Dorsey, in the event of the death of his children, thé iron works, stock, &c. They also contended, that although no exceptions had been taken to the" auditor’s report, and the decree was made thereon, if it manifestly appeared to the court of appeals that the charges were unjust — that the proper credits had not been given, or that for any other reasons-the decree ought to be rectified in part, or wholly set aside, it was the usual practice for the court of appeals so to do — and cited 1 Brown’s Pari. Ca. 202 to 209. 2 Bro¿ Pari. Ca. 59. 3 Bro. Pari. Ca. 87, 194, 513.
    They stated sundry supposed errors in the auditor’s report, and contended that the decree of the chancellor 'ought to be reversed.
    
      Bidgeiy, for the appellce
    Two questions arise on the-bill and answer, which the appellants rely on, and if .either of them he determined in favour of the appellee,, there must be a decree to account in this case.
    
      First question — Whether, in virtue of the deed from Caleb Dorsey to John Beale in 1732, which limits CheW's Resolution Manor to C. Dorsey his son, on the contingent cies therein happening, the negroes, stocky &c. on the said plantation, which was held as joint property, and was furnished by E. Dorsey and C. Dorsey many years after the deed, survived also with the land to the appellants’ testator C. Dorsey, under the said deed?
    
    The appellants rely on the rule of survivorship among joint tenants to justify their testator in converting the whole personal property on the plantation to his own use-
    
    
      It is admitted by both parties that this plantation was joint property; that it was" stocked at joint expense;" earned on for joint profit; and that C. Dorsey survived Ms brother É.. Dorsey.
    
    To make the personal property on the farm survive in favour of the appellants’ testator, one' of two things must be established to the satisfaction of the court — -either that the personal property was annexed to and vested with the freehold under the limitations in the deed of 1732, or that stock on a farm, or stock used in other joint undertakings, by way of partnership for mutual profit, is subject to the rules of survivorship, as other joint tenancies.
    
    I cannot persuade myself that it will be contended seriously, that the stock on this farm was subject to the same limitations as the farm itself, by the deed of 1732.
    First, because the deed of 1732 says not a word of personal property; yet the appellants in their answer, say that 0. Dorsey is entitled to the whole stock and profits by survivorship, by virtue of the said deed.
    
    Secondly, because by the rules of law, too well established to admit a contradiction, real property descends to heirs, and personal property vests in executors.
    
    Authorities surely need not be produced to establish this doctrine — it is too obvious to be denied.
    Let us then see whether the appellants can support the position, that stock on a farm held by two persons jointly for mutual advantage will wholly belong to the survivor in exclusion of the representatives of the deceased. This, doctrine is so unjust in its operation, would prove so injurious to creditors and others, and is so prejudicial to industry and commerce, that the contrary has been universally admitted. — For this, see 1 Vern. 217. 1 Eq, M. 370. 3 Bac. M. 192. Co. Litt, 182. 2 Blk. Com. 399. 2-. Vern. 430. 1 F. Wins. 34.3 P. Wms. 158,159.2 Ves. 258j
    The plea of survivorship was overruled by the chancellor under the proprietary government, on solemn argument, which will appear by the records in this cause 
      ; and the then defendant C, Dorsey was. ruled to answer the allegations in the bill. • That this was the opinion of the appellants’ testator himself, after the death of JS. Dorsey his partner, appears by his allowing- the- administratrix and guardian of his brother’s daughter- to take and receive half the profits till her death for the term of sixyears„.
    This personal property on the farm not vesting■ in C. Dorsey, deceased, as the land did, and being- appraised in E, Dorsey’s estate, and delivered to the guardian of E, Dorsey’s child, on hex* death became subject to the dispositions thereof made by the will of E. Dorsey; and the appellee, as administratrix of E. Dorsey and his daughter,. is entitled to an account of the sarnie with interest.
    
    The second point relied on by the appellants is, that by the will of E. Dorsey, the lands held in common with C. Dorsey and ft. Lawson, if his children should die, should go to C. Dorsey and his heirs, together with all his share qf personal stock in iron works.
    
      | admit, that under the will of JS. Dorsey, his brother Dorsey became entitled, to the personal stock belonging |f) Dorsey, but not to the annual profits of the same from the time of E. Dorsey’s death to that of Ms daughter, nor to the increase thereof.
    
      By the will of E Dorsey we find that the profits of his daughters was to be carried to the credit of bis children, and applied for their maintenance by his executors.
    
    The profits therefore became the estate of the child, and were not disposed of by E. Dorsey’s will. 2 P. Wms. 419. 1 Bro. Cases in Cha. 82.
    If E. Dorsey bad intended the profits of the iron works for C. Dorsey, in case of his daughter’s death, he would have só directed in his will.
    Bat, say the appellants, pig iron and castings, at the end of the year'when a settlement took place, was enter., ed into a hook of account of stock. 1 answer, it was not ««personal stock,” such as E. Dorsey’s will contemplated. But suppose this to be the case, yet the annual profits made were never intended by the testator, E. Dorsey, to pass by the devise to G. Dorsey, they were disposed of in another manner. Wliat are the words of the will? “Jill his share of personal slock,” which obviously mean the negroes, teams, &c. necessary and used for carrying on iron works: not the increase or profits acquired after the testator’s death. Besides, G. Dorsey in this case was manager, and trustee or bailiff for the child of E, Dorsey, and his possession of the pig iron and castings must in equity he considered as the possession of the child.
    
    What do the articles of copartnership say? «‘That all pig iron to be annually carried to Elk Ridge Landing and there divided,”
    Is the appellants’ testator, G. Dorsey, to take advantage of his own wrong by not delivering and dividing the pig iron pursuant to agreement, and then convert the same to his own usé under this clause of the will, on the eyent of E. Dorsey’s child dying? Suppose G. Dorsey, who was manager, had never delivered a single ton of iron after ‘E. Dorsey’s death, would he be permitted to take advantage of the violation of the articles of agreement and sweep away all, ihe profits under the name of stock?
    
    * What do the articles of copartnership stipulate? That annual accounts and annual divisions of pig iron should be made.
    Do the articles give any power to the partners to divide the personal stock? No — -Yet if the appellants’ doctrine was to prevail, the stock might be divided every year. What is the true construction of the copartnership agreement, and what is the true intent of the devise of E, Dorsey’s will?
    
      That every kind of personalproperty necessary to carry on iron works should be deemed personal stock, and as such was annexed to the works, and intended to pass by the will of E. Dorsey. He could not suppose that the pig Iron would not he divided according to articles, and he could not have had it in contemplation in his will. If ha had, he would have mentionedjhg iron, outstanding debts> ffc.
    
    Upon the whole, nothing appears better ascertained by the rules of law, tiran that no survivorship takes place of the stock on a farm. That the deed of 1732, which contained only a 'disposition of leal property, could not affect personal property, which was put on the real property upwards of 20 years after its date. That under the will of E. Dorsey, the pig iron, &c„ made alter Ids death, did, not ■pas:;, but must be considered as part of the daughter’s personal estate, and to be accounted for to the appellee as .administratrix.
    Winchester, in reply.
    The decree appealed from in this cause was grounded on an account stated fey the auditor of the court of chancery, in pursuance of an interlocutory decree of the 15th of June 1795.
    The interlocutory decree, passed by consent, under an express denial of any right in the complainant, and an unqualified reservation of all equity, until the final hearing on the part of the defendants.
    The account stated by the auditor, in pursuance of the decree by consent, embraced three subjects:
    1st. One, moiety of the personal stock which was at Pa- ' tuxent Quarter on the 15th of October 1766.
    2d. One third of the annua! profits arising from the Elk-Ridge Furnace, from E. Dorsey's death in 1760, to if. M. Dorsey's death in 1766.
    3d. One moiety of all profits arising from Patuxent Quarter from E. Dorsey's death, (1760,) to If. Dorsey's death, (1766,) so far as they came to G. Dorsey's possession, and were by him unaccounted for to E. Jtl. Dorsey’s guardian.
    The appellants controvert the right of Edward Dorset/s executor to an account either of the personal stock, or the profits of the Furnace or Patuxent Quarter. The decree of the chancellor passed without argument, and was a confirmation of the auditor’s report as a matter of course, the appellants’ counsel having omitted to* take exceptions to the report, and also to have a hearing on the equity reserved.
    They do not therefore consider that there is the weight of the- chancellor’s opinion against them, which they admit ought to be highly appreciated where given on deliberation and after argument; but the decree having pass* ed agreeably to the practice of the court, without argu, all the questions in the cause may be considered as how first presented for investigation.
    If the appellants had even acknowledged the right of the appellee to an account of the stock and the profits, &c. the report of the auditor, charging them with interest, is so manifestly repugnant to the rules of law, and the decisions of courts of equity, that the counsel of the appellee has not offered one single reason to justify it, or referred to a single decision or dictum for its support, This part of the case is without any difficulty. But that my ideas may be more clearly understood, I will consider the questions in the order in which they arise on the in* terlocutory decree.
    1st. The stock at Patuxent Quarter. This question is (very incorrectly,) stated by the appellee’s counsel as depending on the limitations in the deed of 1732 from Dorsey to Beale. The appellants do rely on the rule of survivorship among joint tenants, to support their right to this property, not on the ground that it is a right incidental to, or flowing from the deed of 1732, or its provisions, but as depending on a general rule of law, applicable to the facts in the case, which are only necessary to be examined to free the question from any complexity which will arise from connecting it with irrelevant matter. Edward and Caleb Dorsey were joint owners of the land called Chew’s Resolution Manor, on which some personal estate was kept and employed for their joint benefit as joint owners, (unconnected with any trade,) and which had been purchased at their joint expense, and that by survivorship Caleb claimed the whole. On the fact, the question as to the legality of that claim arises,
    The general rule of law, that survivorship holds among joint tenants of chattel interest, as well as of real estate, is incontestible. On the part of the appellee it will be. necessary to shew that she is within the provision of exception limiting’ the operation of this general rule, The counsel for the appellee has not shewn any exception embracing her case, but has hastily adopted the authorities which destroy survivorship among merchants, without shewing, (indeed it is impossible to shew,) any analogy between such a case and the present. The reasons assigned for applying the maxim “jus accrescendi inter mercan tores locum nor habet,” to the case before the court, go with equal propriety to the destruction of all joint tenancies; for in all cases where the rule is admitted, the injustice of its operation is the same; the injury to creditors is the same; the prejudice to industry the same. These are reasons of policy which might have influence with the 
      imakers of laws, but can have none in a court of justice, who only expound the law as they jfoid, not make or alter it.
    That survivorship takes place in every kind of chattel interest, except in case of merchants, see Litt. sec. 281, 282. Co. Litt. 181. b. 2 Roll. Jib. 87.
    The exception in favour of merchants is not by the ge~ neral common lav/, but per legem mercatoriam, for the advancement of trade and commerce — -Co. Litt. 182. 6. The pursuits of trade and commerce are notoriously as different from those of agriculture and husbandry as any subjects in nature. That an exception introduced in favour of trade and commerce cannot extend to farming in principle, terms or reason, it appears to be only necessary to resort to any dictionary of the English language, where the opposite nature of the cases will be fully illustrated by the very definition of the terms.
    The case, 1 Vern. 117, which is relied onby the appellee’s counsel, is very obscurely and imperfectly reported. So far as the question before the court can he collected from the case, it appears to have been one which related only “'to slock employed in the way of trade,” and depending on the custom of merchants, for the distinction is expressly taken between joint tenants in trade, and the other modes of acquisition and holding, such as the present case. It must be so explained, if the authority of the case is admitted; for, independent of this explanation, it is directly opposed to the principle of the decision in the same hook, (page S3,) only two years before; and with it, it is reconcileable to the authority of Littleton, Coke and Rolles and Blackstone, in adopting the case, and referring to it, only intends to apply the principle to stock in that kind of husbandry which depends on bargaining and selling; for instance, such as graziers, colliers, &c. and not in the ordinary cases of husbandry.
    The appellants’ testator always acted under this impression from the time he discovered Ms right to the property, and as appears by the answer and proofs, refused to sign an inventory or appraisement of it as part of his brother’s estate; but even if he had, any such act being under ignorance, it could not affect his right; the law being clear, that a right to personal property can only be transferred by a formal donation or written grant.
    
    2d Question. The appellants insist that the profii.5 of Elk-Ridge Furnace, and the Patuxent Quarter, passed under the will of Edward Dorsey to Caleb Dorsey, and that therefore the appellee has no right to an account of such profits.
    The authorities referred to by the appellee’s counsel, 2 P. Wms. 419.1 Bro. C. C. 82 — establish the general position, that on a devise of personal estate to as infant, payable at 21, and a limitation over for default of issue, or a dying before that period, that the. interest or profits of the intermediate time shall go to the infant. I admit the law to be dearly according to these two decisions; hut I insist that they apply only to the case where the testator has been silent as to the intermediate interest or profits; and that they are authorities pointedly supporting the case of the appellants, if Edward Dorsey’s will did operate on the profits.
    The intention of the testator, collected from the whole will, is to contend and govern its exposition. The intention is not to be collected from extraneous matter, or the view of particular devises. The object of tbc testator being ascertained, the intention must be applied to give the object full effect, if consistent with the rules of law.
    
      Edward Dorset], by Ms will, intended to dispose of all his estate. He considered that all his property was specifically devised, and there was no undisposed residuum, of existing stock, or interest or projits, from Ms real or personal estate.
    
    The first object of his bounty were his children; he evidently intended all his estate, and all the profits of it, to go to them, if they should attain the age of 21. He considered the estate, and the increase and profits of it, as disposed of together; he intended that the real and personal estate at the Furnace and the Patuxent Quarter should pass together to the testator of the appellants. In this disposition there is nothing opposed to the rules of law. There is not one, among the most inflexible legal rules, which requires that that intention sould be frustrated.
    What are. the testator’s words? for they are not candidly quoted, or fairly applied, by the appellee’s counsel.
    After devising that portion of his estate to his daughters, which he intended for them, and providing for the event of the birth of a son, and settling the limitations which he designed to give effect to in case of a death, he provides, i6if either of my children should die before she " or he arrives at the age of 21 years, or is married, “ then my will and desire is, that such part of my per- « sonal estate as' is by this my will given to such child, « shall, together with the projits thereof, if any made, &c. “go to the survivor.” The same real and personal estate in Anne-Arundel county, thus given to his children, is limited over to Ms brother Caleb in case of their deaths under age and without issue. It is given by the words all my share of the personal slock that 1 have in iron works, &c.
    Can there be a rational doubt, that by the words share of personal stock, he meant that his brother Caleb should have the same interest as Ms children, if they had lived, Would have had, when we consider the other devises in the will?
    The whole property was placed under the care of his executor, whom he constituted the guardian and trustee of his children.
    That he contemplated an increase of Ms personal stock by profits, is apparent, because he devised it over on certain events to his children, &c. That he contemplated the increase of Ms personal stock at the Furnace, and that the words personal stock in the devise over to his brother Caleb, were meant to comprehend not only all the stock which he should die possessed of, hut also additions which should he made by increase or profits, is perfectly clear, if the testator’s own exposition of the words of his will are to be regarded; for, he directs his executor ««to advance and pay as much money as shall be <e necessary for carrying on, and. completing or enlarging «« his share of iron works, he if for buying lands, ne- «« groes, white servants, or any other enlargement of the «« said stock .” It is therefore incontesfcible, that in one devise, embracing the property in question, he used the term stock as sufficiently comprehensive to include the original as well as additional personal estate. He limits and specially, 1st. directs an application of the profits, to support Ms children — 2dly to Increase his share of iron works « — and 3dly if there should be a surplus he directs it to be put out at interest. He has therefore disposed cf all profits. If the profits had hern invested, as directed in the enlargement of Ms «« stock” in iron works, it would have gone to Caleb Dorsey, because he has expressly devised all his personal stock in iron works to him. If it was not laid out as directed, there is no principie of law or equity clearer, than that he who is entitled to the stock in which money is directed to be invested, and which is not invested, shall have the money itself; this will not be contested! so that, in either case, Caleb Dorsey was entitled to these profits under his brother’s will.
    That it was Edward Dorsey’s intention that Caleb should be so entitled, I have proved by his own exposition of the extent of the words ««personal stock” used by him.
    It will not be denied by the appellee’s counsel that the intermediate profits might lawfully be devised by Edward Dorsey — nor can he pretend the general rule of law stated by him to be applicable hers, if Edward Dorsey’s will embraced them.
    That liis will does embrace them appears to me beyond all doubt: For
    1st. All his personal as well as real estate, during the minority of his children, was placed under the direction cf his executor as guardian and trustee„
    
      2dly. The children were to be educated and supported by him out of the profits.
    
    ádiy. The profits after support, &c. of the children, hrere applied to the enlargement of his stock.
    
    4thly. That stock so raised, or directed to be raised, from the profits, is devised over, on an event, which has happened, to Caleb Dorsey.
    
    If the law is correctly stated, the appellants must succeed in a total reversal of the decree; but even admitting, that the appellee has a right to an account, (which we strongly deny,) we humbly insist that she is not entitled to any interest, but if to any, at moBt only from the time of the account reported and confirmed. Any examination of this part of the decree, it is alleged by the appellees counsel, cannot now be made, as no exceptions Were taken in the court below to the auditor’s report.
    Strong indeed must be the authorities and the reasoning to induce a court to listen to an objection which stops at the very threshold of the court the inquiries of justice! Dreadful indeed must be the situation of suitors, miserable the situation of judges, if the law which erects tribunals of revision, shall tie up their hands, and exhibit them only as a mockery of justice. I can scarcely stop to answer such an objection.
    This court, in its appellate jurisdiction, has, and must always necessarily possess, all the powers of decreeing on every matter contained in the record before them — of de~ creeing on the broad principles of equity, governed by the rules of justice in their application to the case- — without restriction to forms incompatible with honesty.
    If authorities are wanting, see the case Brown’s F. C. S9, 202; and the decree in Pennington ‡ Griffith.
    
    It is admitted by the appellee’s‘Counsel, that(t Caleb “ Dorsey, in this case, was manager and trustee, or bai— <e tiff, for E. Dorsey’s child,” in his argument to esta* blish the right; and, if he was a trustee of the property for one purpose, he must be to every purpose relative to the same property. It is certainly true that if the appellee has a right at all it is against Caleb Dorsey as trustee.
    I shall endeavour to satisfy the court, 1st. That there had been no default in Caleb Dorsey, or his executors, and that without default trustees are not chargeable with interest; and, 2d. That by the rules of law and equity no interest is chargeable in this case-,- before the time of the auditor’s report confirmed.
    1 st. Caleb Dorsey, in his life-time, was only responsible, if responsible at all, as a trustee, as is admitted by the appellee’s counsel. In his life-time the contest, which is yet depending, had arisen. The representatives of Edward Dorsey claimed an account of stock and profits from him as a trastee. He denied their right to such account, alleging that the property belonged to him under his brotheFs will. It wras therefore impossible that the case could be settled in any other mode than by a judicial decision. The opinions of the most eminent counsel of that day sup - ported the claim of Caleb. If it was proper or justifiable in his life, it wras still more so in his executors, the appel - lants j who could with no kind of propriety have recognized a claim which their testator controverted. It was the duty of their office to pursue the course they have taken. — » Whether Caleb Dorsey, in his life-time, shall be considered a trustee for Edward Dorsey’s children, and Ms executors as standing in his shoes, or whether those executors are Considered as the trustees of Caleb Dorsey’s children, it was alike proper that the case should be brought before the court of chancery. They had no power to compromises they had no right to abandon the pretensions of their cestui que trusts; the court of chancery has the exclusive jurisdiction over trustees. By the very foi’m of its constitution and practice, much delay must arise in bringing any case, and more especially cases where parties are numerous, and the sum important, if deaths intervene, to decision. Such was the present case; and in addition to the prolongation of time from various deaths, and bills of revivor, &c„ the war which suspended the functions of the judicial power created great additional delay. In the de - fendants in chancery, (the appellants,) there has therefore been no delay, but such as resulted from the act of Providence, and unavoidable national conflicts. Shall these events, neither in their power to eontroul or avert, be attributed to them as defaulting acts, subjecting them to punishment by inflicting the payment of interest? Surely not. It is only such acts as are designed for delay, or contuma - ciously resist the decrees of justice, as can be considered defaults subjecting to interest. “Who shall decide, when doctor’s disagree?” If sc much contrariety of opinion has existed in this case from the year 1/6/ to this period, yet unreconcil.d, among counsel of the first eminence,, and which interposed obstacles that could only be removed by a legal decision, shall the defendants he charged with, interest for placing the contest in the only proper way to, determination?
    That such a course was their duty cannot be well' deni-. ed; it is the course directed by chancery to its immediate agents.
    If a sale be made under the direction of the court, and opinions of counsel are given that the title is doubtful, it will not compel the purchaser to complete his purchase — » 2 P. Wms. 199. How much stronger is the case before the court than that! There the parties are all before the courts the doubt may be removed, and the title placed on as stahie a foundation as judicial decision could fix it. Here, an endless train of relations, &c. all interested in the distribution of Caleb Dorsey’s estate, ami none of them before the court; and where endless litigation would in all probability have been the consequence of an acquiescence in the appellee’s claim. And shall such a case be selected as one to be punished by interest!
    Those delays which are the consequence of jurisdiction, are not the grounds for charging interest — 2 Vesey, junior, 169, (decided in 1795.) Nor, unless there be gross and 'wilful misconduct subsequent to a decree, or order for payment. shall interest be charged — i'om. But,it is chargeable only for such misconduct. As in the case put by Lord Hardwicke, 2 Vesey, 589, of writs of error brought to delay execution; and also as in the case 2 Vesey, junior, 36, where a trustee disobeyed an order to pay money into court.
    2dly. By the rules of law and equity no interest is chargeable in this case before the auditor’s repoi’t confirmed.
    
      Interest is generally due on liquidated debts from the time payment is delayed; but it is within the discretion of the court, who on circumstances may abate, or discharge' interest due — Da. Ch. 106. And interest is only given by way of damages rations detentionis debiti; but not where damages only are recovered, for interest is not recovered occasions damnornm — 2 Salk. 623. 14 Vin. Jib. 457, tit. Interest, fCJ pi, 3,
    
    The claim of tlie appellee is not for a debt, but is grounded on a breach of trust.
    
    
      Caleb Dorsey, as manager, was only to superintend the making of pig iron, &c. He was not authorised or bound to sell it. What are the words of the articles of copartnership — “all pig iron to be annually carried to Elk-Ridge Landing and there divided.” If Caleb Dorsey, in violation of the articles sold pig iron, or sold it under a mistaken opinion that it was his own, the right of the appellee was not against him as for a debt, but for damages equivalent to the value of the property improperly disposed of; for a debt, technically speaking, can only spring from contract; and although there may ekist a well founded claim against a trustee quasi ex contractu, yet it sounds in damages, and no interest, according to the cases above cited from Salkeld and Viner, is demand-able for detention of damages.
    
    But even admitting that Caleb Dorsey was to be considered a debtor to his brother’s representatives, it was for an unliquidated sum; a simple contract debt; and which hears no interest till ascertained, and the auditor’s report confirmed; for this see 1 F, Wms. 376, 367. 1 Chy» 
      Pep. 27. 1 P. Wms. 480. Forrest 2, 3. 2 P. Wins. 163. 2 Vesey, junior 163.
    And further, considering Caleb Dorsey as a debtor, it could only be from the time he actually received the amount of sales of the pig iron. The appellee has neither established the time nor the amount; hut the auditor has charged interest on the whole, as if actually received in 1766, and upon an estimated value, without allowing any expenses for haling, &c. which are legally and justly due and chargeable.
    There is no proof of the time or amount of actual sales, or the receipt of the amount by Caleb Dorsey, which is a strong additional reason in support of the applicability of the authorities against the allowance of interest till the auditor’s report, to wit, from 1795. In addition also to the well founded reasons for contesting the appellee’s claim, and the other authorities quoted, it is to fee remarked that the appellants are even charged with interest during the war. During so great and national a calamity interest is always suspended even in favour of a debtor against a creditor. — Vin. tit. Interest, (C.J
    
    Upon the whole, it appears, that even supposing the appellee’s right to an account, interest is not chargeable.
    1st. Because the delay was without fault in the appellants, and the consequence of jurisdiction.
    2dly. Because it was the duty of the appellants to bring the case to a judicial end, and therefore as trustees no interest runs against them.
    Sdly. Because interest is not due for an unliquidated sum before ascertained, nor demandable for detention of damages.
    
    4thly. Because Caleb Dorsey was not liable as a debtor, but as a trustee, and that only for what was actually re~ eeived, and without interest.
    We therefore, humbly expect a reversal of the decree, and at all events that a new account, in which proper credits may he had, may be directed to be stated, or all interest stnick off.
    Eidgely, for the appellee,
    [with leave of the court.] The appellants’ counsel pretend they are aggrieved by the decree of the chancellor, and that it is erroneous in sundry particulars.
    But as the appellants’ counsel themselves differed widely in that respect, the one contending that the decree is erroneous in toto, the other admitting that the decree hath passed upon proper grounds, but that the same is erroneous as to interest, for a small portion of time, and is incorrect with regard to one or two other trifling items.
    
    I will therefore confine my remarks in the first place, jn answer to the counsel who spoke last, who has hazarded assertions and positions which have long since been overruled and determined in this cause.
    But I must first correct his statement as to the manner in which this cause was conducted in the court of chancery. He has observed, that the decree of the chancellor passed without argument, as a matter of course, although all the questions of equity were expressly reserved, and therefore that all the questions in this case are to be considered as if never having been decided by the chancellor, whose opinion, he admits, ought to have deserved weight and credit
    The real truth is, that the questions of survivorship, and whether the profits of the furnace passed, under E. Dorsey’s will, to C. Dorsey, wer&fidly investigated, and argued, when the plea of C. Dorsey was overruled, and he was ordered to answer the bill. The same questions were ..agitated when the chancellor passed his decree in this case, but they were then considered by the defendants’ counsel, as having been previously decided, on the plea being overruled, and as not being suppoi’table upon any principle of equity; and the defence on these grounds, was then totally abandoned.
    But new counsel often discover new points, which have escaped the penetration of their predecessors. On this ground, I account for the observations of the counsel who spoke last.
    The appellants’ counsel contends, that survivorship takes place, in every kind of chattel-interest, except in the case of merchants, thereby confining the exception to merchants alone; but if we advert to the most celebrated decisions in Great Britain, we shall find it a rule, never deviated from in a court of equity, that when two persons engage in a joint undertaking for profit or loss, whether for selling merchandize, or for any other business, there shall be no survivorship. — 1 Eq. Jib. 370. 3 Bac. M. 192-3.
    In 3 P. Wms. 159, it is laid down by the chancellor, as a position not to be controverted in equity, that any undertaking upon the hazard of profit or loss, was in the nature of merchandizing, where the Jus accrescendiis never allowed.
    
    ’Will the counsel for the appellants undertake to say, that afarm stocked jointly, carried on at joint expense, and the profits equally divided, is not an undertaking upon hazard of either losing or gaining.
    
    Great fault is found with the law in 1 Vern. 217, for its obscurity; but on an attentive perusal it appears to be as accurately reported, as any case in the books, and we find it corroborated and referred to, in 3 Bac. Jib. 192-3, where if two take a lease of a farm, the lease shall survive; but the stock on the farm, though occupied jointly, shall not survive.
    
    Is not this case expressly in point; and I defy the gentlemen to produce a single authority to contra vert the doctrine, or to shew that this case hath ever been impeached.
    Nay, C. Dorsey himself, divided and appraised the stock on the farm on the death of E. Dorsey in 1760, and suffered his daughter to enjoy the profits till her death in 1766, without claiming any right thereto by survivorship: If he was entitled to the property as survivor, he ought to have asserted his claim in 1760, when the event happened.
    Let us now attend to the second point: Whether the profits of Elk-liidge Furnace, &c. passed under the will of E. Dorsey to his brother? The cases in 2 P. Wms. 419, and 1 Ero. Ca. Chy. 82, are admitted to be good law; but, it is contended, that they apply only to the case where the testator has been silent as to the profits; if profits can be considered, as stock, or interest as principal, then the objection may have the appearance of weight. Let us now advert to the will, and see, whether on taking a collective view of it, it could possibly have been the intention of the testator that all the profits of his one third of the Elk-Ridge Furnace should be converted into stock every year, for the joint benefit of the company, and that in case of his death, it should go over to C. Dorsey, underthe words, all my share of the personal stock, that I have iniron works.
    
    What were the articles of agreement as stated by the defendant’s answer? That all pig iron should be annually carried to a convenient landing, and then divided into three-parts.
    
    Who, by E. Dorsey’s will, was to take charge of his daughter’s one third? His executor and trustee. ‘What was the executor to do with it? To lend the proceeds out on interest, for the child’s benefit, if more than sufficient to maintain his children, and answer the other disbursements, directed by the will. What could possibly be meant by personal stock, but the negroes, teams, See. necessary and used for carrying on iron works? Not the profits. If the testator had intended the profits of the iron works to go over to his brother C. Dorsey, lie certainly would have said so, for we see that he has limited over’ the profits of his personal estate.
    If Caleb Dorsey was entitled to the profits of the furnace, as personal stock, how happened it that he delivered to the guardian of'ii. Dorsey’s child, from the year 1760 to 1766, the quantity of 694 tons of iron, as will appear by one of the exhibits? Or how happens it, that he hath never called on the. administratrix of the daughter to account for and repay this quantity of pig iron if he was entitled to it, as personal slo-kl For surely, if the balase 2 of profits, undelivered,, was his, andar the will, the pari 
      
      delivered must have passed also, under the same limita* tion over.
    But if we attend to E. Dorsey’s will we shall find, that in case of the ddath of his surviving child, he gives as follows: «That then all the personal estate, that shall by «this my will, belong to such surviving child, shall be «equally divided among” sundry of his relations, (not including Caleb.)
    
    And if we take a view of the account exhibited in the cause, furnished by the appellants, we shall find, that sums were annually paid, by the guardian of the child, for enlargement of stock, which C. Dorsey has pockettedj 101Z. 4s. 9<Z. sterling, and upward of 5O0Z. current money, in the year 1765 only.
    The appellee’s counsel is made to say, what they never thought of saying, that as no exceptions were filed to the auditor’s report, the justice or propriety of it cannot now be called in question by this court. I wish the whole case to come before the court, and we shall, on examination, find that the auditor has not allowed us as much interest as we are justly entitled to. But before I go into an investigation of particulars, let us examine the general principle which influences courts of equity in decreeing interest. That I have said nothing about the interest charged in this decree, in my former argument, is true, because I apprehended, that if the principal sum was decreed to be justly due, the allowance of interest was a matter of course, as a compensation for this long and unjust detention and delay.
    The appellants’ counsel styles C. Dorsey a trustee, and then he lays down two positions.
    1. That there has been no default in C. Dorsey, or his executors, and without default trustees are not chargeable with interest.
    
    Let us examine the facts — C. Dorsey got possession of his property, (the pig iron,) occasionally from 1760 to 1766, and converts it to his own use. When called upon in this court, in January 1767, he refuses to answer, but pleads in bar to a discovery. After this plea is decided against him, he still obstinately refuses to answer; stands out all process of contempt, and dies in 1772. A bill of provisor is filed in 1773, and the executors delay putting in an answer till 1790. And in this answer they do not even pretend to allege, that they have always kept money by them, lying dead and useless, to answer this demand, but on the contrary, they expressly admit, that they have deposited part of the testator’s assets, on interest, in the Loan Ofiice, which draws an interest of 6 per cent; and the residue they divided among ihe legatees of Caleb Dorsey» Yes, the appellants themselves, (being the legatees,) have divided the personal assets of O. Dorsey, being upwards of lO.OOOL and hare had the use and enjoyment of them ever since the year 1772, and now pretend that it is contrary to all rule of equity for this court to affirm a decree for them to pay interest»
    Let me ask the appellants whether this claim was kept dormant and concealed from them till they had paid away and distributed all the assets, or had they not fill! notice of it before they distributed and divided 0. Dorsey’s estate? Was not the present suit depending against them when they made a voluntary distribution, with full notice of our demand?
    Let us now attend to the decisions of the courts on this point. Finch 254. 1 Eq. Jib. 125, pi. 4, — On a"hill brought to call a trustee to account, it was held, that if he, by his answer, submits readily to it, he shall pay interest for the balance, from the time of the account liquidated, and no costs, if he has not misbehaved, himself, that is, if he has acted honestly said fairly; but if he delays the matter for 20 years, (as in this case,) he shall pay interest Jrmn, the time of the bill filed. 3 Fro. Ghy. 4C4 — Executor keeping money of the testator’s in his hands, liable to interest and costs.
    In this case, the counsel for the executor abandoned the question of interest, and contended only about the costs.
    
    Eut if we examine the case in 6 Ero. P. Cases, 319, it is exactly in point to establish the propriety of the interest charged in the present suits for in tisis case, it was decreed, that an executor should be chargeable with interest for the annual balance in his hands, though retained during the pendency of contested suits. If we advert to the exhibits Sled in this cause, we find that C. Dorsey rendered an account of* the pig iron on the 15th October 1766, whereby it appears the balance was at that time in Ms hands, as stated by the auditor.
    Ini Verti. 197 — -It was held by the chancellor to he reasonable, that executors, in all cases, should answer interest, where they had used the money, or received any interest for it.- — 1 Eq. Jib. 238. pi. S3.
    In 2 Balk. 415. — Interest chargeable from the time of the demand.
    If the doctrine contended for by the appellants’ counsel, is admissible, what -would be the consequence? Many executors would postpone, paying creditors, by all the evasions and delays that ingenious counsel could invent; because, by so conducting themselves, they would reap all the benefit and profits arising from the use of the testator’s effects, to the injury of creditors.
    Such doctrine would he an encouragement to fraud. Nay, these very appellants, at the last October* general ~ 
      Court, recovered 26 years interest for bar and pig iron, shipped by C. Dorsey; to West Hobson, and which had not been accounted for.
    It is a golden rule to do imto others as you would they should do unto you.
    We only claim from the appellants what they have recovered, by judicial decision from others! that is, compensation for the detention and usé of property, which they have wrongfully withheld, and converted to their own benefit; and in eqiiity, as well as law, it is invariably established, as an unerring principle, that no man shall take advantage of his own wrong,
    The appellants’ counsel has asserted, that there has been no delay, or default, in the appellants, in bringing this claim to issue, but what resulted from Providence, or unavoidable national conflicts; and also that there was great variety of opinion, among counsel of the first eminence, on the questions arising in this suit.
    Let me ask, whether it was not in the power of C. Dorsey, in his Ii£e4ime, from 3 766 to 1772, to have brought this case to final issue, if he had been so disposed and wished an end to the suit? But instead of that, he evades even answering the hill for the space of six years, and dies leaving the suit no farther advanced than when first Commenced.- In 3 773 a hill of revivor is filed, which the executors, after repeated attachments of contempt, delayed answering till 1790, and have procrastinated a decision ever since.. If this is not neglect and defaulting,-words, and actions must lose their forcé and meaning.
    
      But it is said, that this is a very doubtful case, and á great variety of opinions have arisen among the most eminent counsel. Where this information was obtained I am ata loss to conjecture; hut if there had been, could not C. Dorsey, or his executors, after the points were decided in 1767, on the pica filed by CL Dorsey, have then acquiesced in the chancellor’s opinion and settled the debt?
    The appellants’ counsel contends that no interest is tie* mandahle but for a debt, and that, no claim is a debt unless by specialty; that this claim being grounded on a breach of trust, and sounding only in damages, no interest is de* mandahle on it. « Breadful,- indeed, must he the situation of suitors — miserable the tribunals of justice,”. to borrow the gentleman’s own expressions, if this doctrine is to prevail, and if a man can come into a court of conscience, and plead that he owes no debt that carries interest, because he has not signed and sealed a bond; but that he has committed a breach of trust, by Avhicis he has got thousands of his employers in his possession, who cotfided in him, therefore is not liable to interest, because he did not fix his hand and seal to the contract,
    
      Is no claim, or demand, to carry interest in a court of equity but debts or specialty? Does not equity put ail claims on an equal footing, and make no distinction between those, with or without seal, when there appears a conscientious obligation to discharge them?
    If the doctrine of the appellants’ counsel was to prevail, so far as to reverse this decree, on the ground of interest being charged, there would be a total stop put to the settlement of all deceased person’s estates; for whenever executors are informed, that this court will exonerate them from interest for just Maims due from their testators, as long as they can withhold and convert the assets to their own use, they will use all possible means to procrastinate payment. I say, when they are informed, by a solemn dc-. vision of this court, that executors may lawfully, under pretence of litigation, withhold assets from creditors and legatees as long as the tedious delays of the law will admit; and if the present decree is reversed, ouch would bet he result of the-decision. What would be tho consequence? nothing less than ruin to creditors of deceased persons.
    The appellants’ counsel contends, that interest should not be chargeable during the war. Has our legislature stopt its progress during that period? Do not decisions xake place daily in our courts of interest being recovered during the late war? And have not the appellants, themselves, furnished a striking example, during the last October general court, by recovering 26 years interest on an unliquidated claim for pig iron shipped prior to- the late revolutionary war?
    It is also contended by the appellants’ counsel that the decree is erroneous, because two or three years interest is charged on the pig iron before it could have been sold. If we advert to the exhibits, wc shall find that Edward Dorsey's one third of the pig iron made in 1766, amounted to 119 1-3 tons; so that 0. Dorsey must have had, in his hands and possession, of the preceding years, 178 tons, on which no interest is charged, till 15th October 1766; so chat instead of being over charged with interest, he ought to have paid much more than as stated by the auditor.
    The second objection made by the counsel to this decree is, that no allowance is made for the carriage of the pig iron to the landing; neither ought there to be, because the pig iron was carried to the landing by the company’s teams, before the death, of the child of E. Dorsey; 178 tons of it must have been carried to the landing place during the years 1760 to 1765, the remaining 119 tons between July 1766, when the last Mast was made, and 15th October, when the account was rendered; besides, we have no proof whatever that the hire of tlic carnage of pig iron was paid by C. Dorsey in Ms private capacity; ii' it was paid at all, it must have been charged to general expenses against the company.
    
    But iault is also found with the exchange being rated at 66 2-3 to reduce it into currency. To this objection 1 answer, that, it is the legal exchange, and this court knows no other; besides, have we any proof of the exchange being from 57 1-2 to 65? No. Upon the same principle we might find fault with the price affixed to pig iron, the current price being at this time 10?. sterling per ton, and we are only allowed at the rate of Si. sterling.
    Upon the whole, I think it must appear evident to the satisfaction of the court, titat this decree is equitable and just; that the appellee is only allowed the amount of her claim, according to the value of the property at the time it was converted by C. Dorsey, most wrongfully, to his own use; and compensation for the long detention — a detention evidently created by the appellants’ themselves, for the sole purpose of ming the property, and enjoying the profits, for so many years.
    
      8. Johnston. Key and Winchester, for appellants.
    
      Martin, (Attorney General,) Cooke and Ridgely, for appellee.
    
      
      
         It is not so stated in the transcript; ths omission was owing probably to an oversight in the register.
    
   The Court or Appears affirmed the decree of the Court of Chancery, with costs,  