
    Wright v. Hencock & Company, and Others.
    Argued Dec. 3d, 1812.
    I. Fraud — When Sufficient to Avoid Deed of Trust.— What circumstances of collusion and combination, between a debtor and one of his creditors, to injure and defraud the rest, are sufficient to prevent such creditor from being entitled to any prior lien by virtue of a deed of trust executed for his benefit by the debtor.
    3. Same — Badges of Fraud — Case at Bar. — The badges of fraud, in this case, were, that the deed was executed on the eve of the debtor’s departure from the state, and shortly after the receipt of intelligence materially affecting his credit; that the value of the property conveyed by it, was more than double the amount of the debt intended to be secured; that a bill of lading, for part of the property, was antedated by the grantee, for the purpose of overreaching another creditor, who had previously obtained a bill of lading for the same; that the grantee, on applying for an injunction, to prevent a sale at the instance of a third creditor, refused to accede to just and reasonable terms offered him by the Court; and, finally, that he permitted the grantor to take, use, and sell the property, contrary to the tenor of the deed, or connived at his doing so.
    
      3. Evidence — Copy of Bill of Exchanged — A copy of a ■bill of exchange and notarial protest, with an affidavit of the payee that the original is lost or mislaid, is not legal evidence to charge the drawer.
    Upon a petition of appeal, and writs of supersedeas issued thereupon, to stay proceedings, in part, on a decree of the superior Court of chancery for the Richmond district, pronounced in six suits, which were all heard together.
    The first was an attachment in chan-eery, in the Hustings *Court of Petersburg, in behali of John Wright, against Joseph H. Pope, an absent debtor, and Andrew Benard, Michael W. Hen-cock, and Robert Stewart, charged with having effects in their hands belonging to the said Pope. The second was an attachment in chancery, in the county Court of Dinwiddie, in behalf of William Fenwick, against the same Joseph H. Pope, Michael W. Hencock & Company, and Andrew Benard. The third was a bill of injunction, exhibited by Michael W. Hencock & Company, in the superior Court of chancery, to stay proceedings on certain orders which had been entered by the respective Courts in the two suits aforesaid; both of which were afterwards removed into the same superior Court, by a certiorari, at the instance of William Fenwick. The fourth was a cross bill, filed in the superior Court of chancery, by John Wright against William Fenwick, Michael W. Hen-cock, and Joseph H. Pope, for the purpose (inter alia) of restraining the said Pope (who had returned to the commonwealth) from continuing to collect his debts on his books, and that he might be decreed to deliver them up. The sixth and seventh were bills of injunction, filed in the superior Court of chancery, by Michael W. Hencock against John Deslíe, and by John Deslie against Michael W. Hencock & Company, for the purpose of enjoining judgments, at law, obtained by each against the other.
    The material circumstances, disclosed by the records of the proceedings in these six suits, may briefly be stated as follows:
    On the 2d day of August, 1804, a deed of trust was executed by Joseph H. Pope, a merchant of the town of Petersburg, (who had recently heard of the failure of Demuel Pope, his partner in Boston, and was about to depart for that place,) conveying to John Page “his books and papers appertaining and relating to his store in Petersburg, with all the debts due thereon, also the stock of goods on hand, with every species of property’, or debts due to him, in the state of Virginia,” in trust: *that the said goods should, until the 1st of October ensuing, be sold at retail under the direction of the said John Page, and such goods as were then unsold, should be exposed to public sale, and the proceeds of the intermediate, as well as public sales, should then be applied by the said Page to the discharge of several bills of exchange (amount not mentioned) which had been drawn on Demuel Pope, in favour of Michael W. Hencock & Company, and had been, and would be, returned protested; empowering the said trustee to collect all the moneys and debts due to the said Joseph H. Pope, on his books, or otherwise, and to apply the proceeds, also, towards the discharge of the said protested bills of exchange.
    A short time before the execution of this deed, Joseph H. Pope had bought of John Deslie 83 kegs of manufactured tobacco, and of William Fenwick 325 barrels of flour, on credit, and shipped those acticles on board the schooner Evelina, for Boston. On the morning of the 30th of July, the tobacco having then been shipped, Deslie •was informed that Pope was in very doubtful circumstances; that his brother, at Boston, had failed; that Michael W. Hen-cock held protested bills of his to a considerable amount; and that, if he had not then stopped payment, it was highly probable he would stop in a few days. On receiving this intelligence, Deslie determined to save himself from losing the price of the tobacco, (for which no payrment had been made, or note given,) by taking the bill of lading for it in his own name. Accordingly, he obtained a bill of lading from the captain of the vessel, (which then had the tobacco on board,) bearing date the 30th of July, 1804. Having no correspondent at Boston, and being in .habits of intimacy with Michael W. Hencock, who had dealings at that place, be applied to him on the next day to recommend him to some person there to whom he could safely consign the said 83 kegs of tobacco, and, at the same time, related to him all the circumstances of the case. Hencock (as Deslie swore, in answer to his bill of injunction)
    ^recommended to him Messrs. Davidson & Tucker, merchants at Boston, as fit persons, to whom he might safely consign the tobacco, which he accordingly did. Nevertheless, afterwards, Hencock obtained of the captain of the vessel, with the assent of Pope, bills of lading for the tobacco as well as the flour, and procured that for the tobacco to be ante dated, as of July 28th, 1804. The cargo was, therefore, delivered at Boston to Davidson & Tucker consignees of Michael W. Hencock & Company; and Deslie’s bill of lading being presented, no tobacco could be had. He afterwards brought an action of trover, in the Hustings Court of Richmond, against Michael W. Hencock, for the value of the tobacco, and obtained a verdict and judgment fer 1,510 dollars 64 cents damages, besides his costs; and Deslie being indebted to Hencock & Co. in the sum of 1,033 dollars 19 cents, for a quantity of rum purchased at auction, they sued him in the same Court, and obtained judgment against him at the same term in which the judgment in his favour, against Hencock, was rendered.
    About the 4th or 5th of August, Pope set out for Boston, publicly, having previously informed his acquaintances generally, and particularly John Wright, one of his creditors, of his intention to go to that place on important business. Before his departure, Wright, being his creditor for the sum of 5571. 17s. 3d., by bond, payable the 19th of September, was very urgent to get payment, or security for the debt, and did obtain an assignment of a note for 250 dollars, in part payment. 'The 6th of August, Wright’s subpoena of attachment, in chancery, was issued, and, on the same day, he presented his bill to the Hustings Court of Petersburg, then sitting, in which he charged Hencock with being a debtor to Pope for flour sold, not appearing to be apprized of the existence of the deed of trust. The Court, on motion, made an order that the sergeant of the town, with three merchants, who were named, do inventory and appraise so many of the goods of the defendant, Pope, as would ^satisfy the plaintiff’s claim and costs, and deliver the same to the plaintiff for safe custody, on his executing bond and approved security to the said defendant, in the penalty of 1,1151. 14s. 6d., with condition to return the same, to such persons, and in such manner, as the Court should direct, at a future day.
    An entry was made on the record, that the defendant, Hencock, by his counsel, opposed the motion, “because the subpoena, in the cause, was returnable to September Court, and the defendant had not the legal term to appear and answer,” which objection was overruled, “because the goods of the defendant, Pope, were in his store, liable to be removed by him, or his agents, out of the jurisdiction of the Court, and of the commonwealth, before September Court.” The next day, Hencock, through his attorney, offered a bill of injunction to stay, or reverse, the order; alleging, in that bill, “that the goods in question were not the property of Joseph H. Pope, but regularly and legally conveyed to himself, for certain valuable considerations, among which were sundry bills of exchange, drawn on Lemuel Pope, of Boston, which he had just grounds to believe would be returned to him protested, having been well informed that the said Lemuel Pope had failed, or stopped payment.” The Court agreed that his bill of injunction should be filed, and that they would direct the attached effects to be deposited in his hands, upon his entering into bond to account for the nett proceeds, after paying himself all debts and damages, to which he might ultimately appear to_ be entitled against the said Joseph H. Pope, and render an account thereof to the said Court. To this proposal he refused to accede, and withdrew his bill of injunction. After this, the bill of injunction above mentioned, in behalf of Michael W. Hencock & Co. and John Page, was exhibited to the superior Court of chancery; in which bill (among other allegations) it was said, that two of the bills of exchange were already protested, and the remaining two would unquestionably be returned protested; that they amounted *to more than three thousand dollars, exclusive of interest, damages, and charges of protest; that ‘ ‘immediately on the delivery of the deed of trust to the plaintiff, John Page, all the goods, books, &c. thereby transferred and assigned to him, were delivered to him, and put into his possession, together with the house which contained them, being the store occupied by the said Joseph H. Pope.” In Wright’s answer to this bill, it was stated, and confirmed by testimony, that Pope himself, and his store-keeper, remained in the said store until his departure above stated, and continued to sell the goods, and otherwise to act, as if no such deed had been executed. The injunction prayed for was awarded by the chancellor, upon the plaintiffs giving security in the penalty of two hundred dollars. To this bill, answers were filed by Joseph H. Pope (who returned from Boston early in September) and John Wright. The 4th of October following, on the motion of William Fenwick, who claimed the money due him for the flour, which never had been paid, and presented a bill for the purpose,- the chancellor awarded writs of certiorari, to remove into the superior Court of chancery Fenwick’s own attachment, pending in the county Court of Dinwiddie, and that in behalf of Wright, in the Hustings Court of Peters-burg, and ordered that the sergeant of the town do make sale of the goods mentioned in the order of the last-mentioned Court, and, after deducting the expenses attending such sale, pay one moiety of the purchase money to the defendant, John Wright, and the other moiety to the defendant, William Fenwick, upon their severally giving bond, with sufficient security, to be approved by the said Hustings Court, conditioned to have the money, which they might receive in virtue of this order, forthcoming, and subject to the future decree of the said superior Court of chancery.
    On the 8th of November, 1804,- the cross bill above mentioned was filed by John Wright, in which he declared himself satisfied with the principle of the order *made by the chancellor. It was equality among equally meritorious creditors. But of the application of that principle, in the present instance, he thought he had just cause to complain; because, in Hencock’s bill of injunction, it was explicitly stated to have been agreed between Pope and himself, that the proceeds of the flour and tobacco, after satisfying Hencock, should be applied to the discharge of Fenwick’s debt. Both those articles, it was almost absolutely certain, must have been sold before this time, and their prices known. If the sale of the flour exceeded Hencock’s demand, he either had applied, or would apply, the surplus of that sale to the satisfaction of Fenwick’s debt. The above observation applied to the tobacco, if Hencock received an honest assignment of it; Leslie’s claim thereto notwithstanding. Ought, then, Fenwick to stand upon equal grounds with Wright, as to the goods delivered to the latter by order of Petersburg Court, until he should, together with Hencock and Pope, show whether he had received, or was about to receive, any thing, and how much, on account of the flour and tobacco? In the second place, a great many other goods, remaining after those allotted to Wright had been laid oft to him, were subject to Hencock’s deed of trust and Fenwick’s attachment. Was it just that Wright should give up half of what had been appropriated for his indemnification, unless Fenwick should be ordered to give up half of what might come to him? The object of this cross bill, however, was not to stop the sale of the goods, but that the sergeant should be enjoined from paying any part of the money arising therefrom, either to the complainant, or Fenwick, until a full account be rendered of the debt due to Hen-cock; — how it had been discharged, if not still due; what were the prices of the flour and tobacco; how they had been, or would be, applied; what was the surplus of goods remaining, after those ordered for Wright’s indemnification were delivered to him; how many of Pope’s goods Hencock had sold before such ■ delivery; how many after; *and what was, and is, the amount of debts due to Pope; and what part or proportion of them Hencock had received.
    It was further stated in the cross bill, that since Pope’s return from Boston, Hen-cock, to whom his debts were assigned, as well as his goods, had delivered him up his books, and that Pope had already collected large sums, and was now collecting more, the several orders of Court to the contrary notwithstanding.
    All the suits being set for hearing, an order of account was made by the superior Court of chancery, September 30th, 1806. The commissioner made a report, February 27th, 1807, from which it appeared, that the bills drawn by Joseph H. Pope on Lemuel Pope, of Boston, in favour of Michael W. Hencock & Co., and returned protested for nonpayment, “were stated to be,” one bill, due July 24th, 1804, for 849 dollars and 11 cents; another for 674 dollars and 52 cents; a third, due the 9th of August, 1804, for 849 dollars and 11 cents; and a fourth, due the 4th of October, 1804, for 650 dollars; amounting in all, including charges of protest, to 3,032 dollars and 6 cents. The documents, from which this statement was made, were the protest for the first bill of 849 dollars and 11 cents, “but not accompanied by the original bill,” letters from Davidson & Tucker, of Boston, stating the amount and time of payment for the second and third bills, and that they were protested, and the original bill for the last 650 dollars, which appeared, from endorsations to have been' in the hands of a notary; but the protest was not exhibited. “These documents were not satisfactory to the commissioner. In claims of this nature, it is generally considered necessary that the protests, accompanied by the original bills, should be produced, or satisfactory evidence to show why they are not. Such evidence (the Commissioner said) it will be incumbent on Michael W. Hencock to-produce, before he is entitled to the credit.”' The proceeds of the flour and tobacco were stated as follows:
    Nett proceeds of 300 barrels and 50 half barrels of flour, in Boston, 1st September, 1804, $2,315 41
    83 kegs manufactured tobacco, do. 12th September, 1,250 92
    3,566 33
    Deduct for insurance, paid in Norfolk, 104 00
    $3,462 33
    It was stated by the said Hencock, that the proceeds of the flour only had been applied in discharge of the protested bills of exchange; that, in consequence of the suit brought against him by John Leslie for the tobacco, the proceeds thereof were not passed to his credit in Boston until some time in the summer of 1806; and that the amount was now held by him, as a separate fund, to be applied to the judgment obtained by Leslie, or to the credit of Joseph H. Pope, with Hencock & Co., as the Court might direct.
    The commissioner farther stated, (from sundry depositions annexed to his report,) that there were goods left in the store of Joseph H. Pope, and debts due to him, which had not been accounted for; and although Michael W. Hencock held a deed of trust for every description of property the said Pope was possessed of, and made use of that deed as an instrument to prevent other creditors from recovering their claim, yet no measures were adopted by himself, or the trustee, to get possession of, or secure, any of the property remaining, or the debts due to the said Pope, who was left at liberty to dispose of the property and debts without control; except that Hencock received, through Donald M’Ken-zie & Co., of which house he was a partner, the sum of 612 dollars and 26 *cents, on the 8th of August, 1804, by virtue of an order on John and Theodore Hart; out of which a debt of 340 dollars and 29 cents, from Joseph H. Pope to D. M’Kenzie & Co., had been paid, of which debt (as Hencock alleged) he assumed the payment before the deed of trust was taken. Hencock also alleged, before the commissioner, that the books of Joseph H. Pope were never in his possession; that he once demanded them, when Pope refused to give them up; and, therefore, he knew not what other debts were due to the said Pope; and whether any had been collected; or by whom.
    According to the commissioner’s report, (if Hencock should produce proper evidence in support of his statement of the protested bills,) the balance due from Joseph H. Pope to M. W. Hencock & Co., (throwing the tobacco out of the account,) appeared to be 559 dollars 73 cents, with interest from the 8th of October, 1804; the balance due to John Wright was 5421. 17s. 3d. with interest from the 19th of March, 1084, the bond having been conditioned to bear interest from the date in the event of the principal not being punctually paid; and that to William Fenwick was 6121. lCs., payable October 31st, 1804. 'The goods taken under John Wright’s attachment were sold for 4421. 3s. 9d., which sum remained in the hands of Robert Lanier, sergeant of the town of Petersburg.
    On the 26th of February, 1808, the present chancellor (Taylor) pronounced his opinion and decree as follows: 1 ‘ The Court is of opinion, that the said Michael W. Hencock having stated, on oath, that the original bills, as protested, are by him either lost or mislaid, or that they have been either lost or mislaid in the Court of chancery, where he thinks he filed them; and John Wright, by his answer, in one of the suits, having admitted that two of them were returned protested, and that the other two might be so returned, the said Michael W. Hencock & Co. should be entitled to a credit for the same with the said Joseph H. Pope; that the deed of trust, in the proceedings mentioned, bearing date the 2d day of August, *1804, and recorded within the time prescribed by law, gave to the said Michael W. Hencock & Co. a lien, in preference to the other creditors of the said Joseph H. Pope, upon the property thereby conveyed, which cannot be discharged but upon the payment of the bills, with interest and charges of protest; that it does not appear to this Court, that, at the time the other creditors sued forth their attachments, Michael W. Hencock & Co. were in possession of the books, goods, and effects conveyed to them by the deed aforesaid, or had been at any time previous thereto, or that Michael W. Hencock, at any time, unfairly aided the said Joseph H. Pope to go away with his books, and remaining property, to the prejudice of other creditors; and, therefore, Michael W. Hencock & Co. should not be made answerable for any injury the creditors may have sustained on that account; that John Leslie having recovered the value of 83 kegs of manufactured tobacco, in an action at law against the said Michael W. Hencock & Co., the same should stand opposed to their recovery against the said John Leslie, and be adjusted between them, and not allowed to the said Joseph H. Pope as a credit with the said Michael W. Hencock & Co., who will then be the creditors of the said Joseph H. Pope 559 dollars and 73 cents, on the 4th day of October, 1804, which John Wright must pay, with interest from that time, being part of the proceeds of sale of goods of the said Joseph H. Pops, under the order of this Court, made the 4th day-of October, 1804; and one moiety of the balance of the proceeds in his hands he must also pay, with interest from the time he enjoined William Fenwick, to him. The Court doth, therefore, adjudge, order, and decree, that the said Joseph H. Pope pay to the said John Wright 5421. 17s. 3d. with interest thereupon, at the rate of 6 per j centum per annum, from the 19th day of March, 1804, until payment, and the costs by him expended in prosecuting his suit against the said Joseph H. Pope, Andrew Benard, and others; that he pay to William Fen-wick 6121. 10s., with interest, to be computed *after the like rate, from the 31st day of October, in the same year, until payment, and the costs by him, the said Fenwick, expended in the prosecution of his suit; that the said John Wright pay to the said Michael W. Hencock & Co., the aforesaid 559 dollars and 73 cents, with interest thereupon, after the like rate, from the 4th day of October, in the same year, until payment, and the costs by them expended in prosecuting their suit against the said John Wright and others; that the bill of the said John Wright, against William Fenwick, Michael W. Hencock, and Joseph H. Pope, be dismissed, and that he pay to the said William Fenwick the costs, by him expended in defending that suit; that the said John Wright, towards satisfaction of the money hereby decreed to be paid by Joseph H. Pope to William Fen-wick, after satisfying Michael W. Hencock & Co.’s recovery aforesaid, pay the said William Fenwick one moiety of what: shall remain in his hands of the proceeds, of the said sale, with interest thereon from the 9th day of November, 1804, and the balance of the said moiety retain towards satisfaction of his recovery against the said Joseph H. Pope; that, the injunction awarded John Leslie, to stay execution of a judgment recovered against him by Michael W. Hencock & Co., and Thomas Taylor & Co., in the Hustings Court of the city of Richmond, be perpetual; that the injunction awarded the said Michael. W. Hencock to stay execution of a judgment recovered against him by the said John Leslie, in the same Court, be perpetual as to 1,292 dollars and 91 cents, part of the money recovered by the said judgment; that the bill in that suit, so far as it seeks farther relief against the said judgment, be dismissed, and that the said Michael W. Hencock & Co. pay to the said John Leslie the costs by him expended, both in prosecuting and in defending the said injunctions; and that the several bills, as to the defendants, not noticed by this decree, be dismissed, the plaintiffs not farther prosecuting. ”
    From this decree John Wright (who was not present *when it was pronounced) prayed an appeal, which was allowed by the Court of. appeals.
    
      
      Fraudulent Conveyances — Conveyance from Debtor to Creditor. — If a creditor takes from his debtor a conveyance to secure a debt, and mix with this object that of delaying, hindering, or defrauding other creditors, the conveyance will be void. Goshorn v. Snodgrass, 17 W. Va. 717, citing the principal case. For although a deed may be made for a valuable and adequate consideration, yet, if the intent with which the grantor made it be fraudulent, the deed will be void, if the grantee had notice of such intent. Livesay v. Beard, 22 W. Va. 694, citing principal case; Bockhard v. Beckley, 10 W. Va. 87; Hunter v. Hunter, 10 W. Va. 321; Rose v. Brown, 11 W. Va 134; Martin v. Rexroad, 15 W. Va. 612; Goshorn v. Snodgrass, 17 W. Va. 717; Harden v. Wagner, 22 W. Va. 356; Olaflin v. Foley, 22 W. Va. 434; Hudgins v. Kemp,20 How. 45; Briscoe v. Clarke, 1 Rand. 213; Spence v. Bagwell, 6 Gratt. 444, See further, monographic note on “Fraudulent and Voluntary Conveyances” appended to Cochran v. Paris, 11 Gratt. 318.
      Sale of Personalty — Retention of Possession by Vendor —Fraud.—Where property conveyed by an absolute bill of sale is permitted to remain in the possession of the vendor, without any reason wh y it should have so remained, the statute of frauds and perjuries and the principles of the common law, of which the statute is declaratory, utterly condemn and avoid the conveyance as infected with fraud. Williamson v. Goodwyn, 9 Gratt. 506, citing the principal'case; Garland v. Rives, 1 Rand. 282; Lang v. Dee, 3 Rand. 410; Shields v. Anderson, 3 Leigh 729; Davis v. Turner, 4 Gratt. 422; Norknerv. Stuart, 6 Gratt. 197. See further, foot-note to Davis v. Turner, 4 Gratt. 422.
    
    
      
      Bill of Exchange, — See monographic note on ‘ ‘Bills, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
    
      
      Note. According to the copies of the bills of exchange and protests, appearing in the record, this bill, for 674 dollars and 68 cents, was not drawn by Joseph H. Pope, but by Michael W. Hencock & Company. — Note in Original Edition.
    
   Saturday, January 16th, 1813,

JUDGE) ROANE)

pronounced the following opinion of this Court:

“The Court is of opinion, that the deed of trust, in the proceedings mentioned, made by Joseph H. Pope to John Page, for the benefit of Michael W. Hencock & Co., having conveyed all the goods, property, and credits of the said Pope whatsoever, in Virginia, for the purpose, as is alleged, of securing to the said Michael W. Hencock & Co. the payment of certain bills of exchange, which were said to be protested, and expected to be protested, but which, for any thing certainly appearing to the Court, may have been paid, or otherwise secured to be paid, by the drawee or drawer thereof, having been entered into by the said Pope, on the eve of his departure from Virginia, and within two or three ■days after intelligence had been received ■of the supposed failure of Lemuel Pope, the mercantile correspondent of the said Joseph H. Pope, in Boston, which circumstance 'created a general belief that the credit of the said Joseph H. Pope would be materially affected thereby; and the probable value of the goods thereby conveyed, {exclusive of credits of the said Joseph H. Pope,) when added to that of a quantity of tobacco and flour, the bills of lading for which the said Michael W. Hencock procured to be made, or assigned to him, at or about the same time, (and which must therefore be considered as a part of the same transaction,) being more than double the amount which the said Jospeh H. Pope could, in any event, be indebted to the said Michael W. Hencock & Co., for and on account of the bills of exchange aforesaid; the said deed being also made in favour of a grantee who was so little scrupulous of the means by which he served the said Joseph H. Pope, or himself, to )the injury of the said Pope’s other creditors, that he procured the bills of lading, made to him for the ^tobacco before mentioned, to be antedated, thereby en-deavouring to overreach John Leslie, who had previously obtained bills of lading for the same tobacco, which had been sold by him to the said Joseph H. Pope, but not paid for; (all which was known to the said Michael W. Hencock at the time;) a grantee, too, Who by refusing to accede to the just and reasonable terms on which the Court of Hustings of Petersburg offered to allow his injunctions, (intended to stay the ■effect of an order made in favour of the appellant,) evinced that his object was not solely to procure a payment and indemnity for himself and company, in relation to his claims against the said Joseph H. Pope; and the said grantee having also permitted the said Joseph H. Pope to take, use, sell, and collect the debts and property by the said deed of trust conveyed, or connived at his so doing, the same ought to be taken, as to the appellant, and appellee, Fenwick, just and vigilant creditors of the said Joseph H. Pope, as a collusive combination to injure and defraud them, and as giving to the said Michael W. Hen-cock & Co. no prior lien upon the property aforesaid.”
‘ ‘The Court is further of opinion, that the appellees, Michael W. Hencock & Co., have not legally entitled themselves as creditors to the amount claimed by them; both because the bills of exchange, in the said deed and proceedings mentioned, may have been paid, or may yet be paid as aforesaid, for any thing appearing to the contrary by proper and legal evidence; and because one of those bills, for six hundred ■and seventy-four dollars and fifty two cents, having been drawn 'by Michael W. Hencock ■&. Co, and not by Joseph H. Pope, is not a bill to which the terms of the deed of trust aforesaid, or the prayer of the said Michael 'W. Hencock & Co.’s bill of injunction, would properly apply.”
“On these grounds, the Court is of opinion, that not only so much of the decree as establishes a lien in favour of the appel-lees, Michael W. Hencock & Co., under the deed of trust aforesaid, but also so much thereof as has ^ascertained the amount of the debt due by Joseph H. Pope to them, on account of the bills of exchange, as also so much of the said decree as postpones the appellant and the appellee, William Fenwick, to the appel-lees. Michael W. Hencock & Co., in relation to the trust property, is erroneous ; therefore, it is decreed and ordered, that so much of the said decree as is before mentioned to be erroneous, be reversed and annulled; that the residue thereof be affirmed; and that the appellees, Michael W. Hencock & Co., pay to the appellant his costs, by him expended in the prosecution of his appeal aforesaid here; and it is further decreed and ordered, that the said Joseph H. Pope do pay to the appellant the sum of five hundred and forty-two pounds, seventeen shillings and three pence, with interest thereon from the 19th day of March, 1804; and to the appellee, William Fenwick, the sum of six hundred and twelve pounds, ten shillings, with interest thereon from the 31st day of October 1804, till paid; provided, that the sum of four hundred and forty-two pounds, three shillings and nine pence, now in the hands of the sergeant of the town of Petersburg, (as appears from the proceedings,) be immediately paid by him, and the sum of two thousand two hundred and eleven dollars and forty-one cents, now in the hands of the appellees, Michael W. Hencock & Co., (being the proceeds of the flour, in the proceedings also mentioned, after deducting the insurance thereon,) and six hundred and twelve dollars and twenty-six cents, collected from John & Theodore Hart, by virtue of an order from Joseph H. Pope, in favour of Michael W. Hencock & Co., under the deed of trust aforesaid, with interest on the former sum from the 1st day of September, 1804, and on the latter, from the 8th day of August, 1804, till paid, be also immediately paid by the said Michael W. Hencock & Co., to discharge the debts aforesaid, or, in case of their being insufficient to pay the whole, to pay the same in equal proportions. And it is ordered that the causes be remanded to the said Court of chancery, to be proceeded *in pursuant to the principles now declared; with liberty to the appellees, Michael W. Hencock & Co., to proceed, under the direction of the Court of chancery, to ascertain, by evidence, other than the oath of the appellee, Michael W. Hencock, the said amount, and to recover the same from the said Joseph H. Pope or his effects; subject nevertheless to the provisions of this decree in favour of the appellant, and the appellee, William Fenwick.”  