
    Robert Heriot, Commissioner in Equity, ads. Sarah D. McCauley, and others.
    Heard before Chancellor J. Johnston, Georgetown, January Term, 1835.
    Whether Mr. Heriot did actually take bond with good personal security, and a mortgage of the slaves, which he sold on 4th January, 1819, or not, he expressly states in his report of the sale, after reciting the terms of sale, that he had sold on “ the terms aforesaid.” — He states the name of the purchaser, the amounts of the purchases respectively, and charges the gross sum raised by the sales, with recording six bonds and six mortgages; exactly corresponding with the number of the purchasers. Unless the most explicit acknowledgment of a party in writing, is not evidence against him, there is evidence most conclusive to charge Mr. Heriot with the possession of bonds and mortgages from ail the purchasers; to be held by him to the use of the person whose properly he sold, and subject to the .order of the court. He has accounted, satisfactorily, for S.cott’s and Huggins’ bonds.
    A decree has been given in another suit, (Assignees of Maryjn vs. McCauley et. al.) affecting to some extent, Wiggins’, which has passed into a judgment. It is also conceded, that Mr. Heriot 'ms collected this demand, and has only been prevented from paying it .over by the suit I have mentioned. So that subject to the decree in that suit, there is no objection to his being required to pay that fund to the plaintiffs. The contest is about the purchase made by Mitchell, Carr, and Patterson. On the trial he has produced Mitchell’s bond and mortgage. There is no doubt he was authorized to consider the security he took, good. The faults charged against him, are — 1st. Not recording the mortgage. — 2d. Not using due diligence in cob lecting the money. By producing the securities he has rebutted the inference, which, in case of their non-production, might have been drawn, that he had received the money, and given them up. With regard to his not recording the mortgage, and not collecting the money, it is not necessary to decide, whether he was bound to do either — very embarrassing questions — especially p.s no order directing him to do so, had ever been applied for or granted. It is not necessary to decide this, because, conceding that it was his duty to record and collect, his failure to do so, only sounds in damages, which this court has no power to award. He has accounted for Carr’s bond, by producing the receipt given for it, by the plaintiff’s attorneys. This is equal to its production. This bond, when taken, was, according to the proof, quite good. Although he has not produced the mortgage given by Carr, yet accepting the bond, was a waiver on that point. All the remarks relating to his non-collection of the debt of Mitchell, apply to this also. The default is punishable by rule, or damages may be recovered for it at law. Then as to Patterson’s purchase — Mr. Heriot, in addition to his report, has, in his letter to B. D. Heriot, stated explicitly, that he took bond and mortgage for them. These securities he has not produced. Now, although 1 do not believe he ever took them, or received any money on them, yet as be has admitted, he did take them, his non-production of them infers that he has collected the money, and given them up, so that he stands charged with the possession of the money. His defence of the act of limitation cannot avail. According to Vaughan vs. Evans, that could only run from demand ; and if we regard the plaintiff as .demanding through Mr. North, Mr. Heriot got him to waive the demand, until an attempt should be made to collect out of B. D. Heriot, Which was not brought to a close till 1834.
    
      It is decreed, that as to Scott’s and Huggins’ purchases, the bill be dismissed.
    
      That as to Mitchell’s and Carr’s,'the plaintiffs be left to their remedy ,at law.
    
      
      That the defendant do account for the amount of Patterson’s par-chases ; and that subject to the account ordered m the case, As. sigtiees of Marvin vs. McCauley, et. al., he do account for Wiggins’ purchases. That the account be taken by Thomas L. Shaw, Esq, ,as referee.
    J. JOHNSTON.
    
      Statement of the Case,
    
    Bill by complainant against defendant as commissioner in equity for (Georgetown District, (filed 6th March, 1834,) claims an account of the sales of certain slaves, made by defendant, under an order of the Court of Chancery, — complainant produced in evidence the petition of Sarah D. McCauley, filed 2d June, 1818, which states that her husband had bequeathed to her all bis estate during widowhood, with remainder to her children, and prayed the sale of certain negroes, part of testator’s personal estate. The report of defendant thereon, (confirmed the 3d June, 1818,) recommending the sale in January following, for so much cash as would defray the expenses of suit and sale, and for the balance, a credit of seven years for four ninths (4-9ths,) and ten years for the remaining five ninths (5-9ths,) of the purchase money ; good personal security and a mortgage of the ne-groes to be taken for the payment of the interest annually, and the debt ultimately — and the report of the defendant of the sales made by him on the 4th January, 1819, viz : — Five ot said negroes sold to Thomas R. Mitchell, (at $690 each,) for $3,450, — four to Thomas G. Scott, (at $710 each,) for $2,840, — one to Raker Wiggins, for .$880 — one to Charles Huggins, for $590, — three to Thomas Carr, .(at $820 each,) for $2.460, — and two to John Patterson, (at $670 each,) for $1,340.
    Complainant contended that defendant should be charged with the amount of the sales as reported, on the ground of negligence, in not having taken the securities directed to be taken by the decre-tal order; in having taken securities not responsible ; and in not .collecting the amount of the purchase money from the several purchasers.
    By the decree of the Circuit Court, the defendant was held to haye accounted, satisfactorily, for the purchases by Scott and Wiggins, and relief was refused in respect of the purchases, by Carr and Mitchell. It is admitted, that defendant has received the amount of the purchase, by Baker Wiggins. The decree charges the defendant with the amount of the sale to John Patterson, and this constitutes ,the only subject of appeal.
    The defendant alleges, that Patterson ran off with the negroes, after the sale to him, and that he used all possible diligence to recover them, though unsuccessfully.
    Defendant appeals from the decree of the Chancellor, on the following grounds :
    First. — That the commissioner was not responsible for the running off of the negroes, by John Patterson — and
    Secondly. — That if he were responsible for Patterson’s conduct, he used all practical diligence to recover the negroes, and should not, therefore, be charged with the purchase money.
    Egleston & Frost, for motion.
    Dunkin, contra.
    Filed 20th May, 1836.
    EGLESTON & FROST, For the Appellant.
    
   In this case, we are satisfied with the decree of the Chancellor, which is therefore affirmed.

JOHN B. O’NEALL,

HENRY W. DESAUSSURE,

DAVID JOHNSON,

J. S. RICHARDSON,

B. J. EARLE,

WM. HARPER,

A. V. BUTLER,

JOSIAH J. EVANS.  