
    *Caruthers’s Adm’rs v. The Trustees of Lexington.
    August, 1841,
    Lewisburg.
    (Absent Tucker, P., and Cabell, ,T.)
    Equity Jurisdiction — Bill for Account— Laches — Case at Bar. — A lottery is authorized in 1802, for relief of sufferers by fire in Lexington, but commissioners, with consent of greater part of the sufferers, determine to apply the proceeds of the lottery to the construction of roads through the town; about 2000 dollars are obtained by the lottery, which is drawn in 1805; by application of funds derived from lottery and of private subscriptions and of a donation from the legislature, the roads-are completed in 1808-9; J. C. was the treasurer, and W. C. secretary, of the lottery, but W. C. was the-chief manager, and actually received and disbursed the greater part of the funds; W. C. died in 1817; in 1827, by act of assembly, the balance in hands of the treasurer of the lottery, is vested in the trustees of Lexington, the treasurer or his representative is required to settle with them, and to pay them the balance, and in case of failure, they are authorized to recover it by action of debt; and in 1830, trustees bring bill in chancery against the adm’rs of W. C. for an account of the lottery fund: Hell, equity will not entertain a bill for an account of such stale transactions, when all parties to the transactions, who could explain them, are dead; and bill dismissed.
    The general assembly passed an act in 1796, authorizing certain commissioners therein named to raise by lottery, 25000 dollars, to be applied towards the expense of rebuilding houses consumed by fire, shortly before the passing of the act, in the town of Lexington. The commissioners took no steps to carry the act into execution, and the sufferers by the fire rebuilt their houses with their own means.
    Some four years afterwards, it occurred to some of the citizens of the town, that the benefits intended for individuals by the act, might be in part realized to them, and to the community at large, by íjppropriatin g the money to be raised by the íóttery, to the construction of a road aéross the north and south mountains, passing ^through Lexington, and that a lottery for such a purpose would be more popular, and therefore more likely to succeed, ’ than if the proceeds were to be applied to the indemnification of individuals for private losses ‘ and the sufferers by the fire, or the greater part of them, assented to such an application of the money to be raised by the lottery. • in 1802, the general assembly passed another act, reciting, that by reason of the failure of the commissioners to proceed under the act of 1796, that act had not beer, carried into execution, and therefore appointing other commissioners ; but without saying any thing as to the new application Intended to be made of the money to be ' raised by the lottery. The commissioners named in this last act, met in 1803, and took measures for carrying the act of 1796 into execution. A committee of three managers was named, John Caruthers was appointed ' .the treasurer, and William Caruthers the secretary ; and it was made the duty of the sec-rotary' to distribute tickets for sale, to ’.contract for printing, and to communicate .With persons at a distance respecting the sale , of tickets.
    ,. '.The managers determined to „make an experiment with one class of the lottery, by , which they hoped to raise SOOO dollars. Tickets were accordingly distributed by the secretary, but the whole of them could not be sold. The lottery was drawn in August 180S.
    The managers proceeded to make contracts for opening the roads, and applied the money raised by the lottery to defray the expense • thereof. The community, interested in the improvements, aided it by private subscriptions. And in 1808, the general assembly likewise gave its aid to the work : by an act passed in that year, reciting that the sufferers by the fire had transferred their rights to the money raised by the lottery, to the managers thereof, for the purpose, of opening the roads before mentioned, and that the managers had opened a road over the south mountain, but had not sufficient funds to complete the *road over the north mountain, 1000 dollars was appropriated, to be expended by commissioners named for the purpose.
    1 The roads were completed in 1808 or 1809.
    The last meeting of the managers of the lottery was held in November 1808 ; at which k committee was appointed to settle the accounts of William Caruthers ; but whether any settlement was made, or attempted, nowise appeared.
    In 3810 or 1811, Abraham Smith and Juliet his wife, and Margaret Lyle, sufferers bj the fire, brought a suit, in the superior court of chancery of Staunton, against the commissioners for drawing the lottery named in the act of 1802, insisting that the money raised by the lottery should be applied to their relief, according to the the intent of the acts by which the lottery was authorized, and praying an account of the funds which had been thereby raised. But neither the bill, nor any other part of the record in that suit, was exhibited in this suit, except only the answer of the commissioner ; wherein they insisted the claim of the plaintiffs to fix a personal liability on them for the misapplication of the money raised by the lottery, and stated, that not quite half the tickets of the first class of the lottery were sold, that the actual proceeds of it were only 2000 dollars, that this sum'had been appropriated to the opening of the roads, and that the outstanding claims against the agents for selling the tickets had 'not then been fully settled up. This case of Smith and Lyle against the commissioners, was finally de cided in favour of the commissioners, but not till after the death of William Caruthers, which occurred in 1817.
    Ten years after, namely, in 1827, an act of assembly was passed for extending the limits of the town of Lexington ; whereby, among other things, the surplus money raised by lottery under the former acts, and then *remaining in the hands of the treasurer of the lottery, or of his representatives, was* vested in the trustees of the town, and the treasurer or his representatives were required to settle the accounts with the trustees, and to pay over to them the balance in hand, deducting legal charges; and in case of their failure to do so, the trustees were authorized to sue for the sum due by action of debt.
    In 1830, the trustees of Lexington exhibited their bill, in the superior court of chancery of Staunton, against the administrators of William Caruthers, alleging that he was the treasurer of the lottery, that large funds came into his hands, and that he died in 1817, without having settled his accounts ; that it appeared by the accounts and books of Caruthers and by a memorandum in his own Handwriting, that he was a debtor to the lottery in a large balance ; and that the reason why the accounts were not settled during his life, was, that Smith and Lyle had brought a suit in chancery to have the funds raised by the lottery applied to indemnify them against losses sustained by the fire. Therefore, the bill prayed; that the administrators of Ca-ruthers should render an account of his transactions as treasurer of the lottery, and a decree for the balance which should be found due thereon.
    The administrators of Caruthers answered, that they had no knowledge whatever of the lottery transactions, but they exhibited all the documents' relating to them they could find. They said, that their intestate was not the treasurer of the lottery, but the secretary ; that John Caruthers was the treasurer ; that their intestate could not be held liable for any balance in the treasury, if there was any balance ; and that from all the information they could procure, they believed that nothing was due to the lottery from their intestate, or from any body else. They exhibited the answer of the commissioners *of the lottery to the bill of Smith and Lyle, to shew that only 2000 dollars was raised by the lottery, and shewed many receipts for moneys expended on the roads. They suggested, that the impression that a balance was due from their intestate, had grown out of an account on the books of Isaac Caruthers & Co. of which their intestate William was a partner; which account they exhibited, and denied that it afforded any evidence of the indebtedness of their intestate to the lottery. And they objected, that they could not justly, and ought .not to be called to sRcount at this late day, when all the persons a€t|uainted with the transactions were dead, and it was therefore impossible to render a just account.
    The account exhibited with the answer, between The Lottery and Isaac Caruthers & Co. shewed a balance due the lottery, in October 1813, of ,£411. IS. 2. and it was stated, in the handwriting of William Caruthers, that this was “a balance due the lottery to be paid by William Caruthers on a settlement with him:” but it was manifest, that there was an individual account between William Caruthers and The Tottery, which was to be settled, and by which the true balance was to be ascertained.
    The cause having been transferred to the circuit superior court of Rockbridge, that court referred the accounts to a commissioner.
    The commissioner reported, that the want of a general account, which William Caruthers ought to have kept with the lottery, and which without doubt he must have kept, but which his administrators could not produce, left the subject in much darkness, upon which that account alone could throw light: that he had, with great labour, examined the books of Isaac Caruthers & Co. and the books kept by William Caruthers, and all the other documents laid down before him. And he reported a balance due from William Caruthers, of 1128 dollars.
    *The defendants filed eighteen exceptions to the details of the account reported by the commissioner.
    The court overruled the exceptions; and holding that, under all the circumstances, the lapse of time was not an obstacle to the relief; that though William Caruthers was not the treasurer of the lottery, he acted as such, and received and disbursed all the moneys raised from the lottery; and that, acting as treasurer, it was his duty to have kept regular accounts shewing the true state of the lottery fund, which he had failed to do, and if there was any difficulty in ascertaining the just balance due from him, it was owing to his own fault; therefore, the court decreed, that the administrators of William Caruthers should pay the trustees of Lexington, out of the estate of their intestate, the sum of 1128 dollars, with interest from the 27th February 1827, the date of the act of assembly vesting the balance of the lottery fund in the trustees.
    From this decree, the administrators of Caruthers, by petition to this court, prayed an appeal; which was allowed.
    The cause was argued here, by G. N. Johnson and the attorney general for the appellants, and by Cooke for the appellees.
    I.The counsel for the appellants insisted, that the act of assembly of 1827, was founded upon the supposition, that the accounts of the treasurer of the lottery had been settled, and that the balance due upon them had been ascertained and was acknowledged ; therefore, the act vested the property in that balance in the trustees of Lexington, and gave them an action of debt to recover it: but it gave them no right to a bill in chancery to bring about a settlement of these old accounts after all the persons, who had any knowledge of the transactions, and who were able to explain them, were dead. The act too gavé the action of debt against the *treasurer of the lottery, or his representatives ; but John Caruthers was the treasurer, and William only the secretary: the suit therefore should have been brought against John; or if William acted as treasurer, John or his representatives should at least have been made a party.
    The counsel for the appellees answered, that it appeared, clearly, that William acted as the treasurer, nor was there any reason to believe that John ever interfered at all. The statute vested the whole balance due, in the trustees' of Lexington, and required that the treasurer should settle his accounts with them, and then gave them an action of debt for the balance: but it was necessar3r. to settle the account before the action of debt could be brought. The title to the balance was vested in the trustees; and the court of chancery was the proper tribunal to settle the accounts, and ascertain the balance. The form of the remedy was immaterial: the right was given to the truste««, and they resorted to the most convenient and proper remedy, a bill in chancery, to have the accounts adjusted.
    II. The counsel for the appellants maintained, that this was a stale transaction and equity ought not to entertain the bill. If the statute intended, that the trustees might resort to equity to have an account settled, it surely never intended to authorize a bill for the settlement of such an account; a bill, which, on its general principles, equity could not entertain. The lottery was drawn in 1805; the money actually received from it, must have been disbursed as early as 1808 or 1809, when the roads across the south and the north mountains were completed ; something, it seemed, remained due, not from the treasurer, but from agents for selling the lottery tickets; William Ca-ruthers died in 1817, and this bill was filed thirteen years afterwards, when no person was living who had any part in the transactions, or could give any explanation of them. To authorize such an account were to authorize a palpable injustice.
    *The counsel for the appellees answered, that it was plain the account had never been settled; and the reason was, that Smith and Lyle set up a claim to the money raised by the lottery. The commissioners, in their answer to that bill, said, that the accounts remained to be adjusted; that was in 1811. The suit of Smith and Lyle was not decided until after the death of Caruthers in 1817. Caruthers then died without settling the accounts. The question is, whether, at the time the act of assembly vesting the balance in the trustees was passed, namely, in February 1827, these accounts were so stale, that a court of equity ought not to pntertain a bill for the settlement of them? The legislature did not think so; for it required the debtor to settle the accounts. Nor is a lapse of ten or thirteen years enough to bar the settlement asked by the trustees.
    III. The remaining questions discussed at the bar, arose upon the exceptions to the commissioner's report; but these turned upon matters of fact.
    
      
      Equity Jurisdiction — Laches.—Nothing can call forth a court of equity into activity, but conscience, good faith, and reasonable diligencié Where these are wanting the court is passive ami does nothing. Laches and neglect are always discountenanced. See the principal case cited in Doggett v. Helm, 17 Gratt. 97; Tebbs v. Duval, 17 Gratt. 349; Green v. Thompson, 84 Va. 396, 5 S. E. Rep. 507; Perkins v. Lane, 82 Va. 62.
      Same — Same—Death of Parties — Loss of Papers.— For the proposition that equity does not lend its aid to enforce stale demands, when, by reason of the death of parties or witnesses, the loss of papers, or other circumstances, there is danger of doing Iniustice, and there can no longer be a safe determination of the controversy, see the principal case cited with approval in Bargamin v. Clarke, 20 Gratt. 553; Morrison v. Householder, 79 Va. 631.
      Same — Same — Same — Same. — If, from delay to demand settlement, no correct account of administration can be rendered, and any conclusion arrived at. must at-best be conjectural, and the transactions are so obscured by time, loss of evidence, and death of parties, as to make justice difficult, the courts will not relieve the plaintiff. As authority, for this proposition, the principal case is cited and expressly approved in Turner v. Dillard, 82 Va. 540; Stamper v. Garnett, 31 Gratt. 564. The principal case is cited with approval in Foster v. Rison, 17 Gratt. 341. See Carr v. Chapman. 5 Leigh 164; Nelson v. Kownslar, 79 Va. 468; Perkins v. Lane, 82 Va. 59. See foot-notes to Doggett v. Helm, 17 Gratt. 96; Atkinson v. Robinson, 9 Leigh 398; Bargamin v. Clarke, 20 Gratt. 544; Carter v. McArtor* 28 Gratt. 356, and monographic note on “Laches” appended to Peers v. Barnett, 12 Gratt. 410.
    
   ALLEN, J.

It was objected, in the first place, that the act of assembly of 1827 did not authorize a proceeding in chancery; and that if, under a liberal construction of the act, such a proceeding could have been maintained, the act authorized a proceeding against the treasurer or his representatives, and as it appears, that John and not Wil-Ham Caruthers was the treasurer, the plaintiffs had no authority to proceed against the representatives of William. In the view this court takes of the case, it is unnecessary to decide these questions. Grant that the trustees of .Lexington had a right to proceed by bill in equity, and that William Caruthers, though not regularly appointed treasurer of the lottery, acted as treasurer, have the trustees made out such a case as entitles them to relief in equity?

It seems to me, that, after the great lapse of time which has occurred,' the death of all the parties who *could throw light on the transactions, and the impossibility, with the scanty materials before us, to settle the account correctly, the court below, upon the coming in of the commissioner’s report, ought to have dismissed the bill. The lottery was drawn in 180S. The roads, to the construction of which the money was applied, appear to have been completed in 1808 or 1809. From t.hat period till 1817, when Caruthers died, the commissioners of the lottery seem to have concerned 'themselves no further with the matter, except to file an answer in 1811 to a' bill of Smith and Lyle. In 1808, the last meeting of the commissioners of which we'have any evidence, took place; and then a committee' was appointed to settle Ca-ruthers’s accounts with the lottery. And twenty-two years afterwards, and thirteen years after the death of Caruthers, this suit is brought.

In Pickering v. Ld. Stamford, 2 Ves. Jr. 583, the master of the rolls said, “that parties shall not, by'neglecting to bring forward their demands, put others to a state of inconvenience subjecting them to insuperable difficulties. Against such a bill undoubtedly the court ought to set its face.”- — -“If, from the plaintiffs lying by, it is impossible for the defendants to render thé ’accounts he calls for, or it will subject them -to great inconvenience, the plaintiff must suffer, or the court will oppose, what I think the best ground, public convenience.” The English cases . refusing relief1 after a great lapse of time, were reviewed and approved by this court in the case of Carr’s adm’r v. Chapman’s legatees, 5 Leigh 164, 178, where it is said, that “the principles deduced from the English cases are fully supported, if not advanced a step, by the spirit of our own decisions and of our legislation also. ” The same ' principles are affirmed in Hayes v. Goode, 7 Leigh 452. And in Atkinson v. Robinson, 9 Leigh 393, 396, the court held, “that even if it were clearly proved, that the decedent Beverley Robinson had, in the last hours of his life, acknowledged that the *debt to ■ Smart, which the complainant claimed, had not been fully discharged, yet the amount remaining due was uncertain, and could only be ascertained by a settlement of accounts in reference to transactions moré tlian twenty-seven years old at the commencement of this suit, and now of .more than thirty-seven years standing. Such' an 'account' ought not to be decreed ; for every ■ claimant who -asks relief of a court of equity ought to exhibit his claim within a reasonable time, so that, in giving him a decree, the court may not do injustice to the defendant.” No particular period is fixed by the cases as limiting the demand for an account. If, from the delay which has taken place, it is manifest that no correct account can be rendered, that any conclusion to which the court can arrive must be, at best, but conjectural, and that the original transactions have become so obscured by time and the loss of evidence and the death of -parties, as to render it difficult to do justice, the court will not relieve. It is the duty of the plaintiff in equity, as well as at law, to establish his title to the relief sought for, by satisfactory proof; it will not answer to shew a probable title to something. He must satisfy the court, that it can extend relief without the hazard of doing injustice to the defendant.

To apply these principles to the present case: William Caruthers was the secretary, not the treasurer, of the lottery. As secretary, it was his duty to keep the accounts with the agents to whom tickets were entrusted for sale. That account seems to have been kept by him, and furnishes the basis of the account reported by the commissioner. But this account does not prove, that he acted as treasurer in.fact: i-t was kept by him as secretary, in discharge of his duties as secretary. The evidence shews that he -was the active and efficient manager of the business, and, taken altogether, raises a strong presumption, that most of the receipts and disbursements passed through his 'hands. Still, no account *kept by him as treasurer, or by any other person*, is produced, though in all probability such an' account was kept, by some person, somewhere. The evidence1 does not shew, that -he received all the 'proceeds arising from the sale of the-tickets, or made all the disbursements.- There was a treasurer, who- may have transacted part of the business. Yet the first step in the account, is to -charge him, as'treasurer in fact, with the price of all the tickets disposed of. The evidence shews a great anxiety, on the part of the managers, and of -the community, for the completion of the roads. A private subscription was raised in aid of the lottery fund : can we suppose, that this would have been done, if a large fund remained in the hands of Caruthers? In 1808, the legislature contributed ■ 1000 dollars, reciting in the act, that the funds raised bj' the lottery were insufficient. • These circumstances, taken in connexion with the silence of all parties afterwards, render it extremely improbable, that such a fund could have been lying in thé hands of -the secretary unappropriated.

It was contended, that the lottery fund was arrested in the hands of Caruthers, by the suit of Smith and Lyle, and that this explains whj' the accounts were not settled, and the balance' was not exacted. The record of that suit is not exhibited in this. To sustain their proposition, the plaintiffs are themselves obliged to rely on the answer of the commissioners in that suit; and that answer, when looked to, repels the idea that there could have been any balance. The commissioners set out the difficulties they had to encounter, and their inability to dispose of half of the lottery tickets: they aver, that they realized not more than 2000 dollars, and that the money (together with the private subscriptions and the donation of 1000 dollars from the legislature) was appropriated to the road. And they, throughout, resist the claim of those plaintiffs, as an attempt to fix a personal liability on them for a misapplication of the fund, *that is, of the whole fund. They say, indeed, that the outstanding claims on agents had not then been fully settled up: were they ever fully settled up, and by whom? by the secretary, or by the treasurer? All this is left, by the evidence in this cause, 1 absolutely uncertain.

The principal ground on which the plaintiffs rely, is the account between The Lottery and Isaac Caruthers & Co. exhibited with the defendants’ answer. [Here, the judge entered into an examination of that document, and shewed that it furnished no evidence of' William Caruthers’s indebtedness to the lottery; and then into an examination of the exceptions to the commissioner’s report, and detected many errors in it.]

These considerations shew the great injustice likely to be inflicted, by an attempt to go into an account of such stale transactions, after the death of all the parties who could give satisfactory explanations. The act of 1827, authorizing the suit, does not obviate the objections to an account of such transactions. That act was passed under an impression, that an ascertained balance remained in the hands of the treasurer, because there was no person authorized to demand it. The balance was vested in the trustees of Lexington, and they were authorized to bring an action of debt for it; which plainly shews, that the legislature, if it intended a proceeding'by bill in chancery at all, did not mean to sanction a bill for the settlement of stale accounts. Whatever may have been the motives of the legislature, there is nothing in its act to impair the rights of the parties. There is nothing in the actual case, to relieve the plaintiffs from the necessity of establishing their claim by satisfactory1 evidence. This they have failed to do: on the contrary, the case, as it now stands, leaves the impression, that the proceeds of the lottery have long since been appropriated; and it is evident, that, at this period, with the materials that have been collected, no ^account likely to do justice between the parties can be taken.

I am of opinion, that the decree should be reversed, and the bill dismissed.

' The other judges concurred. Decree reversed, and bill dismissed.  