
    *Woodson v. Payne.
    [Tuesday, November 6, 1799.]
    Trustees — Application of Trust — Fund.—Trustee of a certificate for a particular purpose, cannot apply it in discharge of other demands due himself.
    This was an appeal from a decree of the High Court of Chancery. The bill states, that Thomas Payne, in November, 1784, requested the appellant to take charge of a final settlement or commutation certificate, amounting to 6281., and to keep the same for him, as a friend; and furnish him with certificates or money for his purposes. That such certificates were then of little value. That, in the same month and year, the appellant paid 2901. in certificates, of the like kind, for Payne; and, on the 19th of January, the further sum of 2241. in certificates ; leaving a balance of 1141. in certificates, in favor of Payne: On which the appellant drew indents. That, in March, May and Juty, 1786, the appellant paid for the appellee, at his request, 221. 3s. 9% specie, which was equal to 1391. 19s. in certificates ; leaving a balance of 291. 19s. certificates in favor of the appellant. That the appellee admitted these debits, but sued the appellant for a supposed balance; and the jury, through mistake, found a verdict for 2151. specie. That the mistake arose from the appellant being unable to prove upon the trial, that the 221. 3s. 9% specie was equal to 1391. 19s. certificates. That the appellant moved for a new trial; which the County Court refused, and gave judgment for the verdict. The bill, therefore, prayed an injunction, which was awarded.
    The answer admits the deposit for safekeeping of the certificate for 6281. ; having an interest due thereon, from the 22d of March, 1783. That it was delivered, in order to be appropriated as the appellee should direct. That the appellee afterwards appropriated 1501. for the purchase of a horse from the appellant, for one 571 Ifigon. That *he also drew for 501. in favor of Pollock, and 801. in favor of Duke; making in all 2801. That on the 19th of January, 1785, the appellant paid Wade Woodson 1701. ; and John Shelton 541.; all together making 5041. ; and leaving a balance in favor of the appellee of 1341., exclusive of interest. That the charges in the bill relative to the specie account, were chiefly for goods and merchandize; for which the appellant was to take pay, out of the interest of the certificate. That the appellee on the trial at law, admitted all the appellant’s offsets; but, contested their application; and the jury after a fair trial, found for the appellant; that the sum allowed by the jury, was not quite as much as the appellee was entitled to.
    
      Ligón proves the payment to himself. Jfickett proves that the price of final settlement certificates in 1784 and 1785, was 2s. 6d. and in 1786, from 2s. 9d. to 3s. 6d. ; with the interest due thereon given up. Crouch proves', that the appellant had credit with him in 1786, for. 101. or 12l. of indents at par.
    The High Court of Chancery dismissed the bill with costs; and Woodson appealed to this Court.
    Duval and Randolph, for the appellants.
    The intention was, that the ‘certificate should indemnify all advances and accruing claims against Payne; who ought not to be received to say, that the certificate was'to lie, ■ for the advantage of a '.rise in value, whilst his creditor was kept out of his money; and left to rely only, upon the general credit of the debtor. [Henriques v. Franchise,] 2 Eq. Ca. Abr. 740; [Prec. Ch. 205, S. C.] The long acquiescence of Payne, argues a consciousness upon his part, that he thought this the fund out of which the advances and claims were to be paid; and, that he has only come forward now, in consequence of the rise in value. The price at which they are credited • by Woodson, is just, and conformable to the opinion of the Court in the case of Groves v. Graves, 1 Wash. 1. At any rate, the Court will allow them to be restored in specie, or settled . at the true current price of the- time, according to that case.
    *M’Craw, for the appellee.
    The ' certificate was deposited for safe-keeping; and only the interest was to be applied by Woodson. Of course, he could not appropriate the' certificate itself, for advances or future claims. If the certificate had sunk in value, it would have been Payne’s, and ' not Woodson’s loss. It is fairly to be inferred, that Woodson now holds the certificate; and has never actually parted with it at any price. Of course, he was liable to restore it to us upon equitable terms. The case in 2 Eq. Ca. Abr. turned upon the imposition; but here was none, in Payne: Who, though ready to do justice, has been kept out of his property by Woodson; and, therefore, the latter is justly liable, for the rise in value.
   ROANE, Judge.

' If the agreement, stated in the answer of the appellee, was rightly interpreted by the jury, who found the verdict in question, and there was no fraud used, or any improper conduct in the jury, which is not pretended, their verdict and the judgment upon it ought not to be disturbed.

The substance of the agreement, as dis.closed in the answer of the appellee, and not disproved by any testimony, was “that the appellant should in November, 1784, take into his custody and safe-keeping a final settlement certificate for 6281. having interest due thereon from the 22d of. March, 1783, to be thereafter appropriated agree: able to the directions of the appellee.” Every appropriation, therefore, made by order of the appellee, (which includes all the advances in certificates stated by the appellant, and admitted in the report of the commissioner,) was in pursuance of the agreement; and made the appellant a proprietor of the like sum in the certificate then in custody. But, with respect to his ulterior account, stated in specie, he was not only not warranted by the agreement to set off the balance of the certificate at the then current price as payment thereof, but it is expressly stated in the answer, and not disproved, that the chief of the charges were for goods, wares, and merchandizes ; and, that before he took 573 one of thosé articles, the *appellant . gave him to understand, that he would receive payment therefor out of the interest on the certificate. The appropriation, then, of this balance of the appellee’s certificate, without his consent and in violation of the agreement thus stated, was rightly estimated by the jury; and the principles, upon which their 'verdict' was founded, are not improper.

With respect to' the 101. difference in the pricé of the horse, as resulting from the answer of the appellee in opposition to Ligon’s testimony, the answer in this respect ought not to avail him. For,'admitting that answer in 'this instance to be positive, the déposition of Ligón is equally so; and is supported by the following'circumstances : 1st. That this charge was not objected to before the commissioner; although the appellee was personally present. 2d. That he says in another part of his answer, “that he admitted at the trial at. law, all the offsets which the appellant contended for, ' and now contends for;” among which is comprehended the 101. now in question.

As then, it does not appear, from the present case, that the jury interpreted this agreement otherwise than is right; as it is not shewn that their calculations under this principle were erroneous, there is no ground to impeach the verdict. There is no ground to sa.y, from the case before us, that they did not take into consideration, in assessing the damages, the circumstances that a part of this certificate; if funded, would have constituted what is called deferred stock.

If, indeed, it now appeared to us, that this was not the case; if this could be deduced with any certainty, from any testimony in the record, going to the value of these certificates about the time of the demand, or from other circumstances, it might be material to give relief in this respect. So, if the appellant had shewn that' the price of certificates, by which the jury went, in assessing the damages, was not the price at the time of the demand, 574 (which for *want of other testimonj', we must fix to be that of bringing the suit, which time likewise is not mentioned in the proceedings,) but a higher price at some anterior period, this circumstance also might be a substantial ground of relief. But, we cannot make the appellant’s case better than he himself has made it; and, we must not upon surmise and conjecture, overturn the verdict of a jury.

Therefore, I think the decree must be affirmed.

CARRINGTON, Judge. The judgment at law was probably unjust; but I cannot interfere without testimony ; and the appellant has furnished none. I am, therefore, constrained to concur in affirming the decree, upon the principles mentioned by Judge Roane, although I fear injustice is done by it.

PENDEETON, President. The certificate for 6281. was delivered by Payne to Woodson, as bank stock, to be drawn for as Payne wanted it; and Woodson paid for Payne at different times 5141. In conse-quence of which, he became entitled to so much in the stock and interest; and Payne to the balance of 1141. Woodson drew 661. 12s. in specie, for the whole certificate; and was accountable to Payne, for his proportion as 5141. is to 1141. ; amounting to 121. Is. 9d. Woodson, before and soon after, paid for Payne, in specie 221. 3s. 9d. ; leaving a balance due to Woodson in specie, to be changed into certificates at 3s. 6d. of 101. 2s. equal to 571. 10s. Which left due to Payne, in certificates, the sum of 561. ‘9s. lid. ; worth then, something less than 101. And the verdict is for 2021. 16s. 7d. specie, on account of the aforesaid balance of 1141. certificates.

It is, therefore, very probable, that the verdict is unjust, but the appellant has not made out a case for the interference of a Court of Equity; and, therefore, the decree must be affirmed. The appellant ought to have shewn the period when the certificate ought to be turned into money, in consequence of the conversion.

The decree was affirmed without prejudice.  