
    Cock vs. Evans Heirs, Admrs. and others.
    
    A. O. and C. covenanted and agreed with each other, that they would, at their joint and mutual expense, erect a good bridge &c. over the River Clinch, atC’s. Ferry, and 0. agreed to convey to A and B as tenants in common with himself, so much of the bed of the stream as might be necessary to build the bridge, also so much of the bank on each side of the river, as was necessary for good abutments, and also one acre óf ground on the north bank of the river for the purpose of erecting a house and necessary buildings for a keeper of said bridge, for which they were to pay him a reasonable price therefor. 0. also covenanted to furnish necessary materials, for building, repairing and rebuilding the bridge, from time to time, so far as they could be found on his land, and that he would justly and truly account (from the date of the agreement) for all ferri-ages received by him at the ferry, until the bridge was completed, and pay each partner his portion, deducting expensess &c. and if the bridge was swept away, or got out of repair, he would also account for the ferriages received by him duiing the time the bridge wasimpassable, &g. And he also covenanted he would not keep a ferry on the upper road at Bristow’s bend, or below on Jennings Road, and he covenanted to make a deed in fee, making them equally interested with himself in the ferry and banks at each of these places. During the year 1823 (up to which time the parties had settled) the bridge was repaired by O., at an expense of $700, and he received the toll thereon until March 1826, when the bridge was swept away. After the bridge was" Swept away, the partners agreed not to rebuild, until it was ascerteined whether the road would he changed, and in the mean time to keep up the ferry. The ferry was kept up by C, until his death in 1828, he also kept up the ferry at Bristows bend until his death, at which timethe road was changed, in consequence of which the bridge was not rebuil't, and all idea of rebuilding it was then abandoned.
    Held; 1. That fcthis bill in Equity, by A against the personal representatives of O. for an account oftoll received by him in his lifetime, and also for a specific execution of the contract against his heirs was not demurrable, all proper persons being made parties thereto.
    ¾. That 0⅞, executors were accountable to A and B for their portion of the toils received by C from 1823, the time the bridge was repaired by C. until March 1826, the time it was swept away, deducting expenses for repairing &c., and also for their portion of the ferriages received by Cfrom the destruction of the bridge in 1826, until his death, in 1828 deducting necessary expenses &c.
    3.• That the ordinary act of limitation of three years did not bar the recovery Of the tolls and ferriages, because the payment thereof was secured by an express covenant, against which ^the statute does not run, and because 0 was a partner, and held it as such, until he claimed adversely to their right, of whieh there was no proof in the record.
    4. That the executors were not accountable in chancery for the profits of the ferry at Bristow’s bend, received by C after the destruction of the bridge.
    5. That the court would not specifically execute the contract for the conveyance of the bed and banks of the river, the circumstances having changed, and the object and consideration of the contract having failed.
    An answer will not be allowed tobe amended sons to rely on the act ofl789r limiting suits against executors, after an interlocutory decree in the cause, is made.
    After the examination of witnesses vand publication passed, no part of the pleadings can be altered or added to, but under very special circumstances, in consequence' of some subsequent event.
    Amendments of chancery pleadings are always allowed with great liberality until publication is passed, except in answers put in on oath, which for obvious reasons will not be easly changed.
    After an interlocutory decree is made, the court will not grant a rehearing to enable a defendant to rely on a defence which existed, and was known to him when he' filedhis answer, but was not then relied on, because lie believed that under the circumstances ofthecase,the defence could not be effectual, in which he afterwards found oui he was mistaken.
    This was an original bill, filed by the complainant Cocke, against the heirs and representatives of George Evans and John Jack, deed. The facts proved, and on which the opinion of the court is founded, are as follows; On the 26th day of February 1812, George Evans, Martin Beatty, John Cocke and John F. Jack, covenanted and agreed with each other, that they would, so soon as convenient, at their joint and equal expense, proceed to erect a good and sufficient bridge across the river Clynch, at a place known by the name of Evans’ ferry, and the said George Evans (the owner of the ferry) agreed that he would at any time when called upon, make and execute to the said Martin Beatty, John Cocke and JohnF. Jack, as tenants in common with himself, a deed of conveyance, for so much of the bed of the river as might be necessary to build said bridge on, and also so much of the bank, on each side of said river, as might be necessary for the foundation of good and sufficient abutments for said bridge, and also one acre of land on the north bank of the river for the purpose of erecting a house and necessary buildings for a keeper of said bridge; they, the said Beatty, Cocke and Jack, paying him each the one fourth part of the reasonable price thereof: and the said George, further covenanted that, he would furnish all necessary timbers and rocks for building, repairing and rebuilding said bridge, from time to time, so far as they could be found on his land, and that he would from the date of said agreement justly and truly account with, and pay to the said Beatty, Cocke and Jack, one fourth part, each, of all the ferriages that should be collected at his said ferry, until said bridge should be completed, they paying to him, each, the one fourth part of the cost of his ferry boat, and the hire üi a ferryman; and that if said bridge should he swept away, or in any manner impaired so that it could not be crossed, - that he would well and truly account, and pay to them the one fourth part, each, of all the ferriages that should be collected during the time said bridge might continue impassable, they paying to him, each, the one fourth part of the expense of building a boat and hiring a ferryman. And the said George,’ further covenanted and agreed that he would not keep a ferry on the upper road in Bristow’s bend, or below on Jennings’ road, but that he would at any time execute to said Beatty, Jack and Cocke, a deed of conveyance in fee simple, making them equally interested with him in the ferry and banks in Bristow’s bend, and on Jennings’ road. And they further mutually covenanted with each other, that the expenses attending, the erecting, repairing and rebuilding said bridge, and of receiving the tolls thereon, should be equally borne by them, and that the profits thereof, should be equally divided among them, and thata division thereof should be made every month.
    In pursuance of said covenant and agreement, the parties proceeded to build the bridge, and, in the latter part of the year 1812, or early in the year 1813, the same was completed, and the reception of toll commenced. For sometime after the bridge was finished, a gate keeper was employed by the owners, who received the toll and paid it over to them in equal parts; but it was afterwards thought expedient to appoint Evans himself the keeper, who from that time forward received toll for himself and copartners, Jack and Cocke, he having previously purchased Beatty’s interest therein.
    The last settlement proven to have been made between Evans as keeper, and his co-partners, Cocke and Jack, was on the 9th of January, 1823, at which time Cocke and Jack executed to him their receipts for their dividends then due. After that period of time, and during the same year, the bridge, which had become much dilapidated, was repaired by Evans at an expense of about seven hundred dollars, of which amount Cocke and Jack paid no part, but from that day up to the 3rd March, 1826, when the bridge was swept away by a flood, no dividends of tolls were made by Evans, he retaining in his own hands, the whole amount received.
    
      After &e bridge was destroyed, on the 3rd of March, 1826, aPPears by the examination of Cocke, on interrogatories, he, Evans and Jack, consulted as to the propriety of rebuild- . . , i,-, . r 1 J mg it, and concluded, as great exertions were making to change the road and take it from the bridge, it would be prudent not to do so, until the result of these exertions was ascertained, and in the meantime, that it would he more to their interest to keep a ferry at the place where the bridge had been erected.
    The determination being thus made not to rebuild the bridge for the present, Evans, at his own expense, procured a boat and necessary materials for navigating the same, made roads on the banks of the river, and commenced keeping a ferry, all at his own expense, at his old ferry stand, and also in Bristow’s bend. At both these ferries, Evans during his life time received the tolls, of which there was no’ division with Cocke and Jack. In the year 1828, Evans died, and about that period of time, what had been expected, actually took place, the road which had formerly passed the bridge, was changed and made to cross the Clinch river considerably higher up, in Bristow’s bend, by whichEvans’ crossing ceased to be desirable either for a bridge or ferry; and from that time all idea of rebuilding the bridge, if it ever existed, entirely ceased.
    Some time in the year 1828, Jack also died. The ferry at the bridge was kept up by Evan,s, administrator for some time after his death, and the ferry at Bristow’s bend was also kept up by one of Evans’ sons, until it was taken out of his possession by order of the chancellor, and placed in the hands of a receiver.
    On the 6th of September 1830, more than two years after letters of administration were granted on the estate of George Evans, John Cocke, the surviving partner, filed this bill against his personal representatives and heirs at law, and against the personal representatives and heirs at law of John F. Jack, dec’d., praying for an account of all moneys received by George Evans during his life time as toll collector for the bridge, and for the ferry at the place where the bridge had been, and for the ferry in Bristow’s bend, and for all moneys received therefrom by his heirs or representatives, after his death, and for general relief.
    The bill was taken for confessed, as against the heirs and representatives of John F. Jack, dec’d. The heirs and representatives of George Evans demurred to the bill for want of equity, and a misjoinder of parties: this demurrer was overruled, and they filed their answers, controverting the complainants right to recover, and relied as a defence upon the act of limitation of three years. The act of 1789 limiting suits against executors and administrators, was not pleaded or relied on in these answers. The chancellor decreed an account to be taken between the parties, which was accordingly taken by the clerk and master in the chancery court, which was corrected upon exception thereto. Before, however, a final decree was made, the defendants asked leave to amend their answers, so as to plead the act of 1789, c. 23, limiting suits against executors and udministrators, to two years after their qualification. The chancellor refused this application, and did not permit this amendment, but rendered a final decree against them in favor of John Cocke and the heirs and representatives of John F. Jack, dec’d., for one half of all the moneys received for toll at the bridge, from the 9th of Janua . ry, 1823, to the third of March 1826, after deducting therefrom the amount expended by Evans for repairing and keeping the same in repair. He also decreed payment of one half of all moneys received for ferriage, (after the bridge was destroyed) at Evan’s ferry, and at the ferry in Bristow’s bend, by Evans, during his lifetime, and by his heirs and representatives after his death. He also decreed a specific execution of the contract for the conveyance of the banks of the two ferries, thereby making Cocke, and the heirs of Jack, and the heirs of Evans, tenants in common.
    After the decree was rendered, a petition for a rehearing was filed, asking for a rehearing in order that the defendants might be enabled to plead the act of limitation of 1789, c. 23; annexed to which was an affidavit, alleging as a reason for not having done so before the interlocutory decree, that they were ignorant that this could be done, without having within two months after taking out letters of administration on ^ estate of Evans, advertised for creditors to bring forward claims, as is directed by the 5th section of the act£ and which had not been done. The chancellor refused a rehearing, and from his decree the defendants prayed and obtained an appeal to this court.
    
      John Williams, for complainants.
    
      John JL. McKinney, for defendant, said,
    The demurrer ought to have been sustained, on the following grounds: 1st, That complainant had an adequate remedy at law, if entitled to any. 2d. That the complainants claim, by their own showing, is barred by length of time. 3rd, On the ground of misjoinder of parties. 4 Yerger, 98, 94, 107, 84, 193.
    The second point in the case is: Are the complainants from their own showing, and the proof in the case, entitled to a specific performance or execution of the contract to convey, as against the heirs of Evans ?
    In the case of Walpole vs. Orford, 3 Vesey 419, the Lord Chancellor says, £iI lay it down as a general proposition, to which I know of no exception or limitation, that all agreements in order to be executed by this court, must be certain and defined. Secondly; They must be equal and fair, for the court, unless they are fair, will not execute them; and thirdly, they must be proved in such a manner as the law requires.
    On the part of the defendants in this case, it ⅛ contended that the agreement of which a specific execution is sought, if it will bear the construction contended for on the part of the complainants, is not equal and fair, neither is it certain and dev fined. See 3 Vesey, 184.
    It is discretionary with the court of Chancery to decree a specific execution of a contract, or leave the party to his remedy at law. 3 Haywood’s Rep. 200: 2 Tenn. Rep. 393, 430: 8 Vesey 159: 8 Cranch, 471: 1 Vesey and Beam. 527: 9 Cranch, 456: 1 John. Digest, 169, 66, 75, 76, 77, 81, 82, 83, 84, 88.
    It is a universal rule in equity, that he who asks for a spe ■ cific execution, must be in a condition to perform himself. 2 Wheaton, 290, Morgan vs. Morgan.
    
    Suppose a company to agree to make a turnpike road or a rail road, and A, through whose land it was to pass, contracts to convey to the company, of which he is himself a member, the land on which the road is to be located, in consideration of the part of the toll he is to receive, and the advantage the road will be to him. And the road is accordingly made at the joint expense of the company, and used for several years, but at length it got out of repair, so that it is not fit for use, and no person travels upon it, and finally it is discontinued and abandoned. And although A requests the rest of the company to repair the road, which they absolutely refused to do, can they, notwithstanding, compel him to convey the land on which the road was formerly located, that they may hold and enjoy it to their own benefiit? Who will maintain such an absurd proposition? Yet where is the difference in principle between the case put and the one before the court. See 3 Airier. Dig, 96, 97: Perkins vs. Wright, 3 Har. and McHen. Rep. 324: Carbery vs. Tannehill, 1 Harr, and John. Rep. 224. Cletheral vs. Ogilvie, 1 Dess. Rep. 257, 260: Hall vs. Ross, 3 Hay. Rep. 202: 1 Clxitty’s General Practice 820, 822, 827, 828, 831, S38, 845, 353, 860, 862.
    Mr. McKinney, here, very fully commented on the testimony in the cause as connected with the agreement of the parties, insisting that Evans’ object in making the contract, had, in consequence of the change of the road, and not rebuilding the bridge, been entirely defeated. That the consideration upon whioh he agreed to convey had failed, and that if he had actually conveyed, a court of equity would under the circumstances direct a reconveyance.
    He also argued very fully, the liability of Evans for ferriages and tolls received by him during his life, contending, that according to the true construction of the contract, his estate was not liable.
    He insisted the Chancellor erred in refusing the rehearing, in order to let in the plea of the statute limiting suits against executors.
    He also contended that the ordinary act of limitations of three years, barred the whole claim, that the partnership was -dissolved upon the death of Evans, and from that, time the act commenced running. He cited on this point, I. John. Digest 501,218, 19, 23, 162: Chitty’s Gen. Prac. 738, 740, 759, 780, 781, 785,786.
    
      J. Peck, also argued on the same side.
   TuRLF.y J.

delivered die opinion of the court.

1. Did the court err in overruling the demurrer and compelling the defendants to answer? We think not. The bill is framed with a view to an account, and a specific execution of the contract, both legitimately within the jurisdiction of a court of Chancery; and’the necessary parties thereto, were the administrators of George Evans, the representatives of the personal estate, which was responsible upon the account for moneys received by him during his lifetime, and his heirs at law and widow, as tertenants, whose rights were to be affected in the real estate, by the decree for 'specific performance. And it is no objection to say, that upon the hearing, complainant may fail to make out a case for specific performance, and therefore the heirs and widow need not have been made parties, for parties are necessarily made according to the charges in the bill, and not the result of the decree; and moreover, supposing the bill to be only for an account, then there is no charge against the heirs at law and widow of the intestate Evans, and though they might have demurred, because they were made parties without being charged, yet the administrators could not, because they were charged and properly responsible for any decree which might be rendered against them as the representatives of Evans.

2. Did the court err in refusing to permit an amendment of the answers of the administrators after the interlocutory decree, so as to enable them to plead the statute of limitations of two years, or in refusing to grant a rehearing for the same purpose ? We think not. The amendment of Chancery pleadings is always allowed with great liberality until after the testimony is taken and publication passed, except in case of answers put in on oath, which for obvious reasons will not easily be changed. But after the examination of witnesses and publication passed, no part of the pleadings can be altered or added to, but under very special circumstances, or in consequence of some subsequent event; Mitford’s Plead; 259.

In this case, the testimony had not only been taken and publication passed, but an interlocutory decree had been made deciding upon the merits of the case, and an account ordered to enable the Chancellor to make a final settlement of the matters in dispute between the parties. In order to receive the plea, the interlocutory decree must have been set aside, and the case again opened for proof upon an entirely new and different issue from that first made up, and all that had been previously done set aside as useless; a practice, novel in itself, and unsupported as is believed by any well adjudicated precedent; and this is not asked in consequence of any subsequent event, nor under any very special circumstances as the cóürf believe, for the defence sought thus to be used, was purely of a legal nature, in existence at the time the pleadings were closed, within the knowledge of the defendants, and nbt resorted to, merely because it was believed that under the circumstances attending the case, it could not be effectually! used. To establish such a precedent would be to enable de-j fendants to practice upon the courts. The use of the plea of¡ the statute of limitations is in bad odour; no man would wil-’ lingly use it, if he could gain his case upon its merits; if after' having endeavored to do so, he may then ask and obtain leave to file it in almost every case where it constituted a defence, there would be two hearings, and two decrees, before there would be an end to the proceedings. If the court then did not err in refusing to set aside the interlocutory decree and receive the plea, afortiori, it did not err in refusing a rehearing.

3. Did the court err in decreeing that the administrators of George Evans should pay to complainant, Cocke, and the representatives of Jack, one half of the tolls received by Evans at the bridge, from the 9th day of January, 1823, up to the third day of March, 1826, after deducting therefrom the sum necessary to pay for repairs made by Evans in 1823, and one half the tolls received at the ferry established at the bridge after it was destroyed by the flood up to the time of the death of Evans in 1828, deducting therefrom a sum sufficient to pay one half the expenses of said ferry during that period of time? We think not..

The bridge had been built at the joint expense of the company, and by the articles of agreement they had mutually covenanted with each other, that the nett proceeds should be divided amongst them once a month. From the 9th day of January, 1823, up to the 3rd day of March, 1826, Evans had kept the’bridge and received all the tolls, and had made no payment to his co-partners. Nothing can be plainer than that in equity and good conscience, he was bound to pay to them their share of the profits, after deducting therefrom a sum sufficient to pay their portion of the repairs.

By the articles of agreement, Evans covenanted with his co-partners, “that in case the bridge should at any time be swept away, or in any manner impaired so that it could not be crossed, that then he would well and truly account with, and pay to them one fourth part each, of all the ferriages that might be collected during the time said bridge should continue impassable, they paying each one-fourth part of the expense of keeping up the ferry. After the bridge was destroyed, the ferry was started by Evans and kept up by him till his death, he received the tolls and made no division with his co-partners. But it is said he was not bound to do so because,

1. The contract to-divide the profits of the ferry, was only intended to cover that period of time between the destruction of the bridge and its rebuilding; and that upon the destruction of the bridge the co-partners of Evans had determined never to rebuild, and therefore the contract ceased to be obligatory upon Evans. There is no evidence of such a determination. Cocke says in his examination upon interrogatories, that he, Evans, and Jack consulted together about the propriety of rebuilding the bridge, and that they mutually agreed, that it would be better not to do so until they knew whether the road would be changed, and that in the mean time it would be better to keep up the ferry, which was done by Evans till his death in 1828, about which period the road was changed, as had been feared, at which time, and not before, the court feels authorised in saying that all idea of rebuilding the bridge was totally abandoned.

2. Because Cocke and Jack had paid no portion of the expense of the ferry, and that it would, therefore, be iniquitous for them to claim a portion of the profits. It is a sufficient answer to this, to say, thát they were bound by their contract with Evans to do so upon his application at any time, tod that he could not. by his act in going to all the expense himself, without calling upon them for their contributive share¿ deprive them of the right to their division of the profits; all he could ask, being an indemnity for their share of the expenses, before he should be called upon to distribute the profits.

But it is said, thirdly, that the statute of limitations of threé years, which is relied upon in the answers of the administrators of Evans, operates as a bar to the recovery of the profits, arising either from the bridge or ferry. The payment thereof, is secured by express covenant under seal, against which the statute of limitations does not run, and moreover, Evans was the partner of Cocke and Jack, andhis possession of the money received was their possession, until he claimed to hold it adversely to their right, of which there is no proof.’ Then the Statute of limitations could not begin to run until his death, and three years did not elapse from that period of time till the bill was filed.

4. Did the court err in decreeing an account and distribution of the profits made at the ferry in Bristow’s bend, after the destruction of the bridge? We think it did.

By the articles of agreement, Evans covenanted with his co-partners, that he would not keep a ferry in Bristow’s bend, but would at any time, if called upon-, executé to them a deed of conveyance in fee simple, making them equally interested with hiim in the said ferry and banks. The intention of this covenant was that the bridge might not be injured by the ferry, and the design of the conveyance was not, that his co-partners might become joint owners of a ferry, but that they might have it in their power thereby to prevent his establishing the feny, contrary to his covenant, and driving them for redress into a court of Chancery, The conveyance was never made, and there being no covenant to account, but merely a covenant not to act, there is nothing upon which a court of Chancery can operate; the parties must he left to their remedy at law to recover damages-, if their covenant he broken*

5. Did the circuit court err in decreeing a specific execution of the contract for a conveyance of the ferries and banks of the river? We think it did.

The specific execution of contracts is decreed at the sound discretion of a court of Chancery, but it is a jurisdiction so important, and has been so long and so frequently exercised, that the principles by which it is governed, are nearly as well settled as, if it were regulated by positive enactment.

In order to entitle a party to a specific performance of a contract, it must be fair, certain, just, equal in all its parts, and forjan adequate consideration. Cutheral vs. Ogilvie, 1 Dess. 257. A specific performance of a contract will not be decreed, where it is hard or unreasonable in itself, or where-from material change of circumstances since the contract, the performance would be attended with any particular hardship. Perkins vs. Wright, 3 Har. and McHen. 324.

To entitle the complainant to the specific performance of a contract, it must appear not only that the contract was in all respects full, fair and honest in the beginning, but that the performance of it may be fairly and conscientiously required. Carbury vs. Tannehill, 1 Har. and J. 224.

The court will not interfere to decree a specific performance, if there be suspicion of unfairness, or if it would be a hardship on the defendant. Hall vs. Ross, 3 Hay. 262.

To apply these principles. In 1812, Evans kept a public house and ferry on the road leading through East Tennessee to Kentucky, at the point where it crossed Clinch river. This road being much travelled, it was an object of great importance to every person by whose house it passed, as it gave|an opportunity of selling all kinds of provisions and bread stuffs readily, and at the highest prices. The consequencej^was, phat every man who had any reasonable prospect of having its ocation changed, so as to bring it past his farm, was always active in endeavoring to do so. It is manifest that this whole section of country was in commotion upon this subject, and to such an extent had it operated on George Evans, that for the purpose of securing himself from loss by any anticipated change, he had purchased the ferry below him on Jenning’s road; and the one above him in Bristow’s bend.

Not content with the security which this might afford him, he sought to strengthen his interest by associating with him the complainant, John Cocke, Martin Beaty and John F. Jack, men of wealth and influence in the country; and believing that a bridge would better secure the permanency of the road than a ferry, he proposes to them to unite and build one in partnership, and as an inducement thereto, he promises to convey to them a joint interest in the banks of the river at his ferry, and to furnish all the. materials at all times for the building or repairing of the bridge, and until the bridge could be erected, that he would divide with them in equal proportions, all the profits made at his ferry, and that he would not keep a ferry on Jenning’s road, nor in Bristow’s bend, but would, on application, convey to them an equal interest in said ferries.

Who does not see that all the advantages of this ’contract are on the part of Cocke, Jack and Beaty, and that nothing but a desire to have a bridge erected, and to have the influence of their names in preventing a change of the road, could have induced Evans to have made such a contract. The erection and permanent continuance of the bridge, was the only consideration for this contract, and all its stipulations were for that purpose. The conveyance of the channel of the river and banks, at Evans’ ferry, was for a foundation for the pillars and abutments, and not to make Cocke, Jack and Beaty interested in the ferry; and the conveyance of an equal interest in the ferries on Jenning’s road and in Bristow’s bend, was not for the purpose of keeping up the ferries, but for putting them down, in order that they might not injure the bridge. The object of Evans was attained; the bridge was built, and the effect desired was produced. There was no change of the road till after 1826, when the bridge was destroyed by a flood, and perhaps, if it had been rebuilt according to the spirit of Evans’ contract, there might have been none yet. But this was neglected to bo done, and in 1828, the evil Which Evans had foreseen, and had so long been - guarding against, came upon him; the road was changed and the value of his property destroyed. The circumstances under which he made his contract were changed; the consideration upon which it was founded failed. All idea of rebuilding the bridge was abandoned, from 1828 the time the road was changed, and yet in 1830, Cocke, the complainant, comes forward and asks the court for a specific execution of the contract, to let him into the enjoyment of Evans’ two ferries as tenant in common. Such was never the design of the contract; all the conveyances were covenanted to be made upon the idea that the bridge was to be erected and continued, and were designed for its supports, and it never entered into the consideration of the parties, that the day was ever to arrive, when the bridge was to be converted into ferries for the use of the contracting parties. This would have been a gift by Evans of three fourths of the interest of his ferries to strangers, an unaccountable fatuity on his part. We therefore think that at the time the bill was filed, a material change in the nature of this contract had taken place,” and that it would be hard and unreasonable to decree specific execution.

From this view of the case, it will be seen that we reverse the decree of the Chancellor, dismiss the bill as to the heirs and widow of George Evans, and give a decree against his administrator, for the one half of the amount of money received by him as toll keeper of the bridge from the 9th day of January, 1823, up to the 3rd March, 1826, after deducting therefrom, a sum sufficient to pay for one half of all repairs and expenses of every kind and description during that period of time; and also for the one half of the amount of money received from the ferry after the bridge was destroyed, up to the time of his death, deducting therefrom one half of the necessary expenses of putting into operation and keeping up said ferry. For the purpose of ascertaining what the amount is, we take the report of the Clerk and Master of the Chancery court, which seems to have been examined with great care by the Chancellor, and direct that the amount there specified, viz: twelve hundred and forty six dollars seventy eight peats, with interest to this time, be the sum decreed by this court. We also decree that the costs in this cause he divided into four equal parts, one part of which shall be paid by complainant, Cocke, one by Jack’s heirs, one by Evans’. heirs, and one by Evans’ administrators.

Decree reversed.  