
    Gover, et al. vs. Hall, Ex'r. of Garrett, &c.
    Appeal from a decree of the Court of Chancery. By the record it appears, that a bill was filed on the loth of June 1772, by Amps Garrett, in his own right, and as admimsiraior, with the will annexed, of Peter Dicks, against Jacob Giles. The objects of the bill bchjg stated in the decrees of the chancellor, and in the opinion delivered by this court, they are here omitted. A subpena and injunction issued, as prayed for by the bill. At May term 1774, the defendant put in his answer, to whifb at May term 1782, the complainant excepted, and in 1784 the chancel-lo!- ruled the exceptions good, and ordered the defendant to make a more full and perfect answer. The death of Giles was afterwards suggested, and a bill of reyivor filed against his executors, devisees and representatives. The executors answered, and in 1785 a coimnissiqn issued by consent to certain persons to audit the accounts between the parlies. In 1789 the death of Garrett was suggested, and a bill of revivor filed by Penedict Edward Hall, as executor of Garrett, and ns administrator de bonis non of Dicks, against the execuiors, devisees and representatives, of Giles. Tn 1790 the auditors made their report. Coin-missions issued, and testimony was taken and returned. In February 1796 an amended bill of revivor was filed by the complainant, stating that the original bill was filed on the 2d of December 1771, against Jacob Giles, and against Nathaniel Giles, in his own right and as administrator of John Giles, which, on the death of Jacob, was revived against his executors, &e. who have become parties. That Nathaniel never answered, and is now dead, and his executors are also dead, and no administration on his estate, but that he left four daughters bis representatives, Thai L t 2 / . ’ . * ’ t i ' l i 1 i . • • 
      John Giles was son of Jacob Giles, and died in the lifetime of his father, intestate, and without issue, and since the death of Nathaniel there has been no administration on his estate. That certain of the devisees and representatives of Jacob are since dead, none of them having ever answered the bill of revivor against them, although commissions had issued by consent, and testimony had been taken. He prayed that the suit might stand and be revived against the executors, devisees and representatives, of Jacob, the representatives of Nathaniel, and the' representatives ot the deceased representatives, &c. On the Coming inr of the answers of all the devisees and representatives, it was agreed that all the testimony which had been taken, should be read in evidence in the same manner as if all the parties had regularly appeared and answered before it had been taken. The’defendants agreed to release to the complainant all claim on the bond from Garrett to Giles, stated'in the bill of complaint. The case was argued by counsel, and submitted.
    
      On n bilí in chancery filed in 3772 by one partih-v, in 1m own right, awl as ad« ministra (or of a-s n»>ther partner, ft* gainst a third pare rter, to be i (sieved on the ground oC fraud and nnpnsition against a bond parsed by the com* plainant, on a set* tlement of the partner,hii> ac« counts, to (he de* dim t, iu 3756; to have an account the profits of certain works ear* vied on in part’ nership from 1751 to 1765; and, as re* pvesentative of tii other partner* to have an ae« coma of the share of profits, from which that narh* nev was arbitrarily excluded, durthe same perm o<l Held, that fyorn the facts in the case the sew tlement in 175(5 mu«t be taken to be fair, and if lia* ble to any except turns, it can Only-be on the ground of evroV or mistake; and the com plaunmt can n- vr only be permitted surcharge ami falsify, and that no farther than the specifications in his bill. The onus prebandi. i; on him, and after a voluntary settlement by the par» ties themselves oft long1 and, intricate transactions, which cannot now f.Jiy known or unravelled; the lapse of r.earlv 16 years from the time of the settlement, to the filing of the bill; the fVeq jent payment of money upon (ho bond passed on the settlement, end the death of the oidy material wilnc-'S — the Mtrcha,i?e or falsification must be clearly demonstrated and proved before it can be allowed — and irons a strict examination ofaii the proofs, it does not appear that there were any errors or mistake* sn the seitU-nvuG, m* thy the comjdaimu t was in any manner injured. That with respect to the oilier partner,(for whom profits are claim» d ny the complainant as bis adminisua'or.j it appears that he vaf h ft out of tf»o new partner-hip of >753, when an account was opened against him, in which he was charged with hi« proportion of the money’'advanced by7 the other partners in the former partner* ahij>; that be made eon-'iderable piyrtients in money on that account, and in 1754 gave his note for the bAHttee, which was paid to the order of the com*p'nii)an<, and bis account cloved, fíe died in 1760$ and nen r cJanwrt any interest in the partnership after 7755. and there i« no evidence that he consi'd«red húnseif, or was considered by others a's a partner.1 Alter which acquiescence and lapse oftime9 a court oí equity will presume that Ins inteiest was ic'mquished.
    Where th*- court ofapoeals reverted a decree pf the coul t oí\haneery, and directed that the defend» salts account with the eorwp’amam. and that th'* chancePor have the account slated by the auditor K*ca which having: been done, and a decree passed’f.sr pajmeotof the mud stated to qe due from the de« fondants tr the coniplainan;— an appeal lies Lorn such decree to the court of appears,
    on actofassm.biy dnecting- the court ofappeals to hear and determineahe niQti«r cfa former d«v> SYts> of that court J ' ' '
    ' > An appeal ncs fvcm.an interlocutory decree of the court of chancery*
    
      Hanson, Chancellor, ^22(3 December 1797.) The original bill had three objects, viz. For the complainant to be relieved on the ground of fraud and imposition against a bond by him passed, on a settlement of accounts, to the defendant; to have an account of the profits of certain works carried on in partnership, the complainant’s shave whereof was by him released in consequence of the same fraud and imposition; and lastly, as representative of another partner to have an account of the share of profits from which the said partner was arbitrarily excluded. The chancellor cannot omit to remark on the long continuance of this cause. For many years the want of progression appears to have been owing to the neglect of one or both of the parties. 'Abatement by death, then took place, in the ordinary course of human events. After a revival of the suit, a want of attention or negligence permitted another suspension of proceedings,’ and at length other deaths, with the operation of the descent law, rendered it extremely ^'difficult, even with proper attention and exertions in those concerned, to have all proper parties before the court. This is not perhaps the worst consequence of delay. After such a lapse it was not to be expected that those facts which, in the beginning, living witnesses might be produced to prove, can now possibly be established, when those facts are supposed to have taken place, at least fourteen years before the filing of the original bill. The truth is, that the complainant has produced nothing.to be called proof, to establish the material allegations of the bill; although there are certainly circumstances to induce a suspicion of their truth. Rut however positive tiiese allegations may be, those circumstance's cannot be considered sufficient to set aside a bond passed in the year 1756, fourteen years before the date of the cause, on a settlement of accounts, after an investigation of several davs between two men versed in business, neither of whom at the time, appear to have reposed any real confidence in the other. The chancellor then is cleaily of opinion, that the complainant has shown no title to relief, as the executor of Garrett, on the ground of fraud and imposition, and if the complainant might still be permitted to surcharge and falsify the account on which it is supposed the bond vas given, this could not be done without amending the bill, and pointing out the particulars; but to do this lie has hot thought proper to ask leave. -With respect to the third object of the bill, the chancellor cannot think that the complainant, as administrator de, bonis non of Paler Dicks, has established facts to entitle him to relief; although it’ is not improbable, that had Dicks, or his representative, brought suit ' sometime during the 16 or 17 years, which elapsed between the time when it is supposed he was injured by the arbitrary conduct of Garrett himself and Giles, and the date of Garrett's suit, lie might have recovered something, either at law or in equity. On a most laborious and anxious investigation of this cause, the chancellor could not otherwise than fee! a degree of distress and embarrassment. By the last act of the defendants’, solicitor, lie is enabled to do that, which probably arbitrators would have done thirty years ago, or at least do as much in the complainant’s favour, as such arbitrators would have done. “It is agreed, that to facilitate the settlement of the cause, the defend • ants will release all benefit of the bond passed by Garrett to Giles?' and it is impossible, the chancellor conceives, that, at this time, on the proceedings in this cause, any tribunal whatever would decree more in the complainant’s favour than by relieving him against that bond. "Let the report of the respectable auditors in this cause, appointed by the agreement of the parties, be attended to. Decreed, that' the injunction, heretofore issued in this cause, be revived, and that the defendants,, and each of them, be and they are hereby perpetually enjoined not to proceed ¿fife law on the bond passed by ¿¡'<no.s Garrett in the year 1756, against which the said ./fyno?, by the original bill in this cause, prayed relief. Also that each party bear his own costs, &c.
    From this decree the complainant appealed to the court of appeals.'
    The Court os Appeals, {Jhtmsey, Ch. .T. Maclcall and Jones, 0.at June term 1800, after hearing counsel upon the appeal — “Decreed, that fhe decree of the chancellor be reversed, and that the complainant be allowed the costs of his appeal. That the defendants account with the complainant, as executor of Garrett, for five twelfth parts, and with the complainant, as administrator de bonis non with the will annexed of Dicks, for two twelfth parts of the stock and profits of Cornwall furnace and Ilopewell forge in Pennsylvania, from the Slst of December 1753, to the expiration of the lease on the 18fh of June 1765, if stock shall have been taken at that time, if not, at such time thereafter as stock shall appear to have been first taken; and that the account of said stock and profits be stated by the auditor of fhe court of chancery. That the chancellor pass such decree and order as shall be necessary to have the account stated in manner aforesaid, and on return thereof to take such order, and pass such decree, as may be necessary to compel the defendants to pay to the complainant the amount of stock and profits found due to him in each of his capacities as aforesaid, with interest thereon from the ISth of June 1765, if stock shall have been taken at that time; if not, at such time thereafter as stock.shall appear to have been first taken, till paid, and . costs.” In consequence of tins decree the chancellor did, on the 23d of October 1800, by his order direct, that fhe defendant account with the complainant as by the decree of reversal is directed, and that the auditor state an account or accounts between the parties accordingly. The auditor.made his report and statement of accounts to October term 1801. The defendant excepted to the auditor’s report upon various grounds. Some of the exceptions were ruled good by the chancellor, and the auditor was directed to correct his report. The auditor having corrected his report, the same was ratified by the chancellor, stating that there was due to the complainant from the defendants, on the 1st of August 1801, provided they have assets, &c. the sum of JMLSIS 116, in which sum interest is included to that day, and of which sum fire parts of seven are due to the complainant as executor of Garrett, and the other two parts as administrator ds bonis non of Dicks. The chancellor afterwards by his decree directed that each of the defendants account with the complainant for the amount or value of the property which is or hath been in his or tier hands, and which hath come to him or her, claiming mediately or immediately under Jacob Giles, deceased, &c. Reports were accordingly made by the auditor. To which there were various exceptions. Some of which were allowed, &c. and the chancellor, on the 28th of November 1803, decreed, that Jl. Giles, one of the defendants, pay to the complainant the sum of ¿63,293 2 6, with interest from the 23d of October 1800; that IV. Smith, one other of the defendants, pay to the complainant ¿62,500, with interest, &c. That E. Giles, one other of the defendants, pay to the complainant £750, with interest, ,&c. That S. Gover and wife, others of the defendants, pay to the complainant £717 3 9, with interest, &c.and that Sarah Gover, one other of the defendants, pay to the complainant ¿CG84 7 6, with interest, &s.
    
      Gover, and wife, petitioned the chancellor for leave to appeal from the decree to the court of appeals; and filed a bond with sureties, to prosecute the appeal, &c.
    IIansox, Chancellor, (December 23, 1803.) The chancellor has considered the petition of Gover and wife, and is clearly of opinion, after hearing the argument of the complainant’s counsel, that an appeal properly lies in this-case; and therefore that the defendants aro entitled to have the prayer of their petition granted.
    Nothing is better established in chancery than that an appeal lies from an interlocutory decree. It is true, that in this cause the chancellor formerly passed a final decree. But the judges of dernier resort, on an appeal, reversed ills decree, and directed an account to be taken between the parties. They were of opinion then, that the chancellor ought to have decreed an account as they have directed. Suppose the chancellor, instead of decreeing it, had not so decreed, would not the defendants have been entitled to appeal? But suppose the defendants not to appeal from that interlocutory decree, and to have suffered an account to be taken, on which the chancellor decreed, can there be any doubt that the defendants would have been entitled to appeal; or in other words, that an appeal would properly lie in that case, and execution'be stayed on filing their bond?
    What then, in point of principle, is the difference between that case and the present? Why does an appeal lie in any case, unless it be, that the opinion of the chancellor, it he does wrong, maybe corrected. Is it impossible that the chancellor has erred in the present instance, notwithstanding he has pursued, as nearly as he could, all the directions of the court of appeals? Most assuredly if is not. The court of appeals has only diiected a general account of profits from one period to another, and to allow the complainant a certain proportion. It did not say the chancellor shall direct certain sums to be charged to the complainant, other certain sums to the defendants, and the balance to be struck and paid to the complainant. Had it so done, it might well be said, that the chancellor might be certain he had pursued its directions, and therefore ought not to stay execution on a frivolous appeal.
    It surely cannot be forgotten that the auditor bath made two statements, differing in their amounts many thousand pounds, and that the defendants”' counsel excepted to both accounts. Is it possible to conceive, that when the court of appeals did not direct either sura to be decreed, and did not — could not prescribe certain things to be done, from which either of the amounts, or any other certain amount should arise, and when of course the court of appeals hath not given its direction; is it possible to conceive that the defendant is not entitled, on the usual terms, to have the opinion of that tribunal, before he is compelled to pay the money decreed against him? Is it to be supposed the intent of that court, to inform the chancellor there should be no appeal from his decision, merely because they directed him to have an account stated, and to decree the sum appearing due to be paid to the complainant, and to take proper measures for carrying his de^ cree into effect? Let it be supposed that tbs court had plainly expressed that meaning, and the chancellor to act in obedience to its mandate — what disinterested, impartial, intelligent person is there, that would not declare the common right of a citizen to be violated? It would, in such a case, be fruitless to allege that, as in contemplation of law, the decisions of the court of appeals must be right, it ought not to be supposed to have done wrong ire any case whatever.
    In a word, the chancellor is most decidedly of opinion, that although in no case will he disobey the plain directions of that tribunal, given on appeal from his decision, he cannot with propriety permit an execution to be taken out against the defendants, until its decree is obtained or» the appeal, or unless the defendant shall fail to prosecute it agreeably to the condition of his bond, which the chancellor hath approved.
    Most true it is, and much is it to be lamented on various accounts, that this cause hath continued a length of time equal to one half of a long life.. For many years no steps was taken by either party; and it was even supposed to be abandoned on one side, and almost forgotten on the other. The chancellor wishes most earnestly an end of it. But had it continued thrice as long, he could not, for that reason, deprive the defendant of what he believes to be every defendant’s right; notwithstanding that he is perfectly convinced of the rectitude of his last decree on the auditor’s Statement, which he considers as conformable to the principies contained in the decree of the court of appeals.
    The appeal being granted, the record was transmitted to this court; and during the pendency of the appeal, the act of November 1809, eft. 87", passed, reciting that Samuel Qover, and others, had represented to the general assembly, that the above cause came bn for trial in the late court of appeals at June term 1800; that Benjamin Rumsey, Benjamin Mackall and Thomas Jones, were the judges who signed the decree given in the cause, and that Benjamin Rumsey, at that time, was the presiding judge of the court, and that he declared, that being nearly related to one of the parties, he could not act in the usual manner, but that if he concurred in opinion with the other judges, he would sign the decree, so as to make up the legal number of judges required for constituting the court, and which he did accordingly; and that the present court of appeals had ordered an argument how far the said decree was conclusive, and the petitioners had prayed that an act might pass authorising the court of appeals to hear and determine the ■ matter of the decree of June term 1800, in the case, in the same manner as if that decree had never been made; and it appearing to the general assembly that-the manner in which Benjamin Rumsey acted in signing the decree, without sitting in judgment in the case, was not in conformity to the spirit of the constitution; it was enacted, “that the court of appeals for the western shore be and they are hereby authorised, empowered and directed, to hear and determine the matter of the decree of the court of appeals of June term 1800, in the said' cause, in, the áame manner as if that decree had never been made.” By a supplement to the above act; passed at the same session, ch. 118, it was enacted, “that in the event of the court of appeals determining in the same manner as the former court of appeals, or determining that there should be an account, that then, -or in either case, all the statements and proceedings that have taken place under the decree of June term 1800, shall be and they are hereby declared to stand before the court of appeals authorised to determine the case, in the same manner, and with the same effect, as if the act, to which' this is a supplement, had not passed; provided nevertheless, that if the court of appeals should be of opinion that justice cannot be done between the parties by reason of the provisions of this supplement, that then and in,that case they shall proceed in the same manner as' they could or would have been authorised to have done if this supplement had not passed.”
    The appeal having been granted to this court, the cause was argued before Buchanan, Nicholson, Gantt, and Earle, J. by
    
      Shaaff, Harper, T. Buchanan and Hinder, for the Appellants;
    and by
    
      Martin, Key, and Johnson (Attorney General,) for the Appellee.
   Buchanan, J.

delivered the opinion of the court. The case appears to be this — George Churchman, Peter Dicks and dlbraham Hare, having possessed themselves of a lease of certain iron works in the state of Pennsylvania, called Cornwall Furnace and Hopewell Forge, to continue until the year 1765, on the 13th of November 1750, took Jacob Giles, John Hall and Amos Garrett, into an equal partnership and interest with them in the works, in consideration of the sum of £1000 furnished by Giles, Hull and Garrett, to be repaid by Churchman, Hare and Dicks, with interest, at the end of five years, out of their proportions of the profits of the works, for which they passed their bonds.

In 1751 Giles and Garrett bought out Hare. In 1752 they purchased a moiety of another forge in Pennsylvania called 7’alphahaken Forge, and in the spring of 1753 they bought out Hall and Churchman, and thus became jointly possessed of one undivided moiety of Talphahaken Forge, and of five sixths of Cornwall Furnace, and Hope« well Forge.

On the 12th of Jane 1753, Giles and Garrett entered into new articles of copartnership tor carrying on the business at the furnace and two forges, leaving oat Dicks,

On the 13th of November 1753, another partnership was formed for carrying on the furnace and two forges, with several other branches of business, and John Giles and Nathaniel Giles, sons of Jacob, were taken into the concern on equal terms.

On the 12th of March 1756, the last partnership was dissolved, and a final settlement made between Jacob Giles and Garrett, in the presence and with the assistance of David Caldwell, when there appeared to be a balance against Garrett of £1106 14 1 current money, for which sum he passed his bond to Giles on the day of settlement, and also gave his bond to Giles, conditioned to quit claim to the iron works, and all stock and profits accrued or accruing therefrom; and Giles, mx the same day, passed his bond to Garrett, conditioned ta correct ail errors in the settlement, if any should be discovered, to indemnify him against all partnership demands, and to pay him one half of all the debts that might be collected, which in the settlement had been considered dubious or desperate. The three bonds are all in the handwriting of Garrett, and attested by David Caldwell and John Rigby. From which time, until a short period before the filing the bill by Garrett, in 1772, he continued to officiate as clerk and book-keeper to Giles i made at different tiroes considerable payments on his bond for £1106 14 l-¿; and in February 1763, acknowledged in writing the account and settlement of 1756, reserving only the right to correct errors, if any.

By an act of the legislature this cause is placed in the same situation for decision in which it stood on the appeal from the decree of. the chancellor of the 22d of December 1797, and presents two questions for the consideration of the court.

First. Whether the settlement of the 12th of June 1756, and the bonds passed by Garrett to Giles, shall be opened and set aside, and Benedict Edward Ilall, as executor of Garrett, be entitled to an account of all the profits of ilia works from the year 1751 to 1705, and be let in for any and what proportion of the profits? And

Second. Whether as administrator de bonis non of Peter Dicks, he shall be let in for one sixth .of the profits of the works for the same period?

With respect to the claim in right of Garrett, it is contended that the settlement and bonds of the 12th of March 1756, ought to be set aside on two grounds:

First. That they were procured by fraud, artifice, misrepresentation and threats; and.

Second. That there' are errors and mistakes in the settlement.

On the first ground of relief, it is alleged in the bill that Giles, becoming impatient of the rising fortune of Garrett, formed the fraudulent design of working him out of the cop.cern, and of getting into his own hands the sole management and property of the works, and with that view artfully brought about the partnership of the 13th of November 1-753, into which his two sons are stated to have " been admitted as equal partners, without any considera-, tion; and that in furtherance of the same project, Garrett was turned out of the management of the works, on the 1st of January 1754, and sent to England on a frivolous pretext, and Havid Caldwell, who is represented as the tool of Giles, and wholly devoted to- his interest, appointed manager in his -place.

But the fraud inferred from these transactions does not appear, and the intent ascribed to Giles, to embarrass and injure Garrett, seems to be an unfounded conjecture. The articles of ilie 13th «if November 1753, afford no evidence of it, and it does not appear that Garrett was thereby injured. The allegation that. Nathaniel and John Giles were taken into the partnership without any consideration, and with a view to overbear Garrt.it, is not supported. On the contrary, the articles refer to an annexed list of stock stated to have been put in by each of the parties, and contain an express stipulation that Nathaniel Giles, who was an infant, should have no vote in the affairs of the com* panv until he arrived at age.

The clmige that David Caldwell was the tool of Giles* and that Giles, in the year 1754, fell upon the expedient; of appointing him manager at the works, for che purpose of ruining Garrett, is equally unsupported.

By the articles of the 12th of June 1753, it was stipulated that Giles should be at liberty to employ another book-; keeper at the end of the year, and by the articles of the 13th of November 1753, it was provided that a new clerk should be appointed on the 1st of January 1754.

These two agreements were entered into by Garrett with Ins eyes open, and the first of them at a time when ml fraud is pretended to have been practised upon him. The appointment, therefore, of Caldwell as manager, who, it is-in proof, was a man of unblemished character, will not bear the construction which is attempted to be given it. He was moreover, from the time of his appointment, on the most friendly and confidential terms with Garrett, as appears from their numerous letters of correspondence; and with respect to Garrett’s mission to England, it appears to have been connected with their general scheme- of trade; and the bill does not even state that there were any foul dealings in his absence.

The allegations in the bill that Garrett, on his return from England, wished to know the state of (he works, but was put off with some trifling excuse, and that every transaction during his absence was concealed — that when he proposed to go to the works to examine the books, Giles alarmed him with fears that he would be arrested and it»» prisoned — that Giles peremptorily insisted on taking hi* son Jacob Giles, and son-in-law Nathaniel Rigby, into the partnership, and on his refusal took possession of some of the books, and ordered Caldwell to lock up the rest — that when he inquired of Giles to know the profits of the works for the years 1754 and 1755, he was informed, they were sunk by the debts, and that the lands and works were in» volved beyond their value — that at the time of the settlement in 1756, Giles had in his possession a memorandum boot, showing the clear profits of the works for the years •1754 and 1755, to exceed ¿64000 — that on his objecting to 'enter into a settlement on an account produced by Giles for that purpose, Giles abused him, and threatened him with a gaol, and that he was obliged to throw himself upon bis mercy, and without examining the books or accounts, and ignorant of the state of .the concern, he entered into the settlement and bonds of 1756- — ar.e all positively de-, nied in the answer, and wholly unsupported by any proof exhibited in the cause. Nor is it probable that Garrelt% who was a sensible discerning man, would under such circumstances of suspicion have entered into, a settlement without an inspection of the books, which he was .entitled to, when he could not suffer by delay, and it was not in the power of Giles to coerce him. Moreover, the circumstances that Caldwell was present and assisted at the settlement; that Giles offered to refer the whole business, to arbitrators, who he knew would only act upon an inspection of the books; that after the settlement, he passed his bond to.rectify mistakes, "and continued Garrett in his employment as a clerk, until the year 1769, and thus put it in his power to discover the frauds and errors if any existed; that all the instruments of the 12th of March 1756, are in the handwriting of Garrett himself, and that he made frequent payments on his bond, irresistibly force the presumption that no fraud, violence or imposition, was practised.

. The .settlement then of the 12th of March 1756, must be taken to be fair, and if liable to any exceptions, it can only be on the ground of error or mistake; and the complainant can now only be permitted to surcharge and falsify, and that no further than the specifications in the bill. The onus probandi is on him- — and after a voluntary settlement by the parties themselves, of long and intricate transactions, which cannot now be fully known or unravelled, the lapse of nearly sixteen years from the time of the settlement tp the filing of the bill, the frequent payment of money upon the bond passed on the settlement, and the death of Caldwell, the only material witness, the surcharge or falsification must be clearly demonstrated and ¡proved before it can be allowed.

In this case there are but three specifications. The bill states that Garrett was charged in the settlement with. £313 11 1§, as his proportion of desperate debts, which Giles has since collected or. received satisfaction for; that he was charged with £19-9 10 3 J as his proportion of the Talphahaken balance — whereas there was no such balance —and with ¿’150 as his proportion of a debt on account of the Talphahaken works due Price & Brenner, which he had before settled and paid.

These items are contained in certain general charges in the account on which the settlement was made, but are not falsified by any evidence in the cause; besides, they are more than covered by the relief decreed by the chancellor against the bond on which an injunction has been granted by consent of counsel.

The bond to correct errors makes no difference — it ©rdy contains what the law provides without it — and unless errors are clearly designated and proven, the settlement must stand; and from a strict examination oí all the proofs ill the cause, it does not appear that there were any errot s or mistakes in the settlement, or that Garrett was in any manner injured.

With respect to Dicks, it appears that he was left out of the copartnership of the 12th of June 1753 — that on the same day an account was opened against him, in which be was charged with his proportion of the £1000, advanced by Giles, Hal'llk Garrett, with interest thereon.

On the 4th of August 1754, he made considerable payments in money on that account, and passed his note for the balance to Giles and Garrett, which ivas carried as a debit into his general account on their books. That on the 5th of November, 1754, he was credited by the amount of that note paid to the order of Garrett, and his account closed. From which time his name does not appear on the books. He died in the year 1780, and never claimed anv interest in the partnership after the 12th of June 3753, ana there is no evidence that he considered himself, or was considered by others, as a partner. After which acquiescence and lapse of time, connected with the circumstance ofhis paying offhis proportion of the £1000 advanced \v Gilesj Hall and Garrett? a year before it became due, and when, if he continued a partner, he would have been entitled, under the contract, when it did become due, to set off against it his proportion of the profits of the works, a court of equity will presume that his interest was relinquished.

Upon the whole, therefore, I am of opinion, that Benedict Edward Ball onght not to have an account of the profits of the works either in right of Garrett or Dicks; and that the decree of the chancellor of the 28th of November 1808, ought to be reversed, and his decree of the 22d of December 1797 affirmed; and that the respective parties in this appeal, and in the appeal before the late court of appeals, pay their own costs by them incurred and expended in the court of chancery, in the late court of appeals,, and in this court.

Earle, J.

Concurred in the statement of facts, the reasoning and opinion of Judge Buchanan.

Gantt, J.

also concurred, except that he considered the decree of the chancellor of the 22d of .December 1797, erroneous, so, far as a perpetual injunction was decreed against the bond from Garrett to Giles, and that this court ought to dissolve that injunction,

Nicholson, J.

I am opinion in this case, that Benedict Edward Hall, as executor of Garrett, is not entitled to an account, there being no sucb circumstances of fraud disclosed as ought to induce the court to open a settlement voluntarily made by the parties sixteen years before the bill-was filed.

I am of opinion, that Benedict Edward Hall, as administrator of Dicks, is entitled to an account, as it does not appear to me that the evidence in the case is sufficient to warrant the conclusion that Dicks ever withdrew from the concern. Thinking, as I do, that Dicks’ administrator ia entitled to an account of stock and profits, the necessary consequence is, that I should decree the whole costs.to be paid by Gover and wife. But as the other members of the court disagree with roe in regard to Dicks’ claim, and as to costs, it follows that I cannot sign the decree of the court.

The decree of the court.

The arguments of counsel in this cause having been heard, and the bill, answers, and the proceedings in the case, read and considered, the Écmrt are. of opinion, that Benedict Edward Hall is ttot en» titled to an account either in right of .áraos Garrett or Peter Dicks. And the injunction granted by the chance!» lor. on the bond from Garrett to Giles of the 12th of March 1756, having been decreed by the consent of the counsel of the defendants in the court of chancery, appearing on record, it is thereupon, this 12th day of July, in the year of our Lord 1810, by the court of appeals, and the authority thereof, adjudged, ordered and decreed, that the decree of the chancellor of the 22d of December 1797, be and the same is hereby affirmed.

It is also adjudged, ordered and decreed, that the decree of the chancellor of the 28th of November 1803, be and the same is hereby reversed, annulled and made void.

And it is farther adjudged, ordered and decreed, that the respective parties in this appeal, and in the appeal be» fore the late court of appeals, pay their own costs by them incurred and expended in the court of chancery, in the kite court of appeals, and in this court,

Jno. Buchanan,

Jno. M. Gantt,

Rd. To Earle.  