
    Sarah D. M'Cauley vs. Robert Heriot, Esq. Commissioner in Equity.
    Heard before his Honor Chancellor Desaussuee, at Georgetown, January Term, 1836.
    
      Commissioner’s Report.
    
    It having been referred to me to inqure into the amount of the purchases made by John Patterson and Baker Wiggins, of negroes sold by the defendant, as the property of Hugh M’Cauley, in the year 1819, I beg leave to Report — That at the said sale, John Patterson purchased two negroes at six hundred and seventy dollars each, making the sum of thirteen hundred and forty (1340) dollars; that the terms of said sale were, “For so much cash as will defray the expenses of the sale, and for the balance, a credit of seven years for four-ninths, and ten years for the remaining five ninths of the purchase money; that good personal security, and a mortgage of the property be taken for the payment of the interest annually, and the debt ultimately.” I further report, that the amount of Patterson’s purchase is three thousand one hundred and forty-nine dollars forty-three cents, from which is to be deducted $24, (bis proportion of the expenses of the suit,) with interest, from the 4th January, 1819, amounting to fifty-two dollars seventy cents, and leaving the amount due by defendant on Patterson’s purchase, three thousand and ninety-six dollars thirteen cents. I have charged the defendant with interest on the whole amount, from the day of salé, and interest upon the annual interest, up to the time when each instalment became due, and I have done so, because such would now be the claim of complainant, if defendant were to deliver up such a bond as was required by the terms of sale.
    In relation to the purchase of Baker Wiggins, Chancellor Johnston, (under whose decree the reference in this case is had,) directs that “subject to the account ordered in the case of the assignees of Marvin vs. Sarah M’Cauley, et. ah he, the defendant, do account for Wiggins’s purchases.” I was of opinion that the accouut in Marvin’s case should have been first taken, but as the respective solicitors seemed anxious to consider it at once, I have done so. The bond of Wiggins was placed in suit, and on the 25th of February, 1831, Mr. Heriot received the sum of sixteen hundred and twenty-four (O-lOOths) dollars, from which must be deducted the sum of forty-one (64-100) dollars, paid attorney for collection, leaving a balance of fifteen hundred and eighty-two forty-five hundredths dollars. On this sum, interest is to be calculated from the sixteenth day of March, 1834, the day of filing the bill. The defendant has offered certain receipts, which he claims as a set-off against the demand, either of Patterson or Wiggins. I cannot allow these receipts against the former, because the defendant has never credited the estate with any thing received from Patterson. I cannot allow them against the latter, because the estate of Hugh M’Cauley consisted of a large amount of bonds, other than the demands against Patterson and Wiggins; and as the commissioner made no annual report of this estate, I should be assuming too much to decide that this was all the money ever received. Indeed, upon the testimony embodied in the Cbaocellor’s decree, it seems that the obligors and securities of all the bonds taken at this sale, were solvent for many years afterwards; and it is fair to presume, that the interest was received regularly. The commissioner, therefore, is compelled to reject all these receipts. I am strengthened in this conclusion by the general principle, that if one acting in a fiduciary character, involves his transactions in doubt and mystery, he alone should be the loser.
    SOLOMON COHEN,
    Commissioner and Register in Equity.
    
      Dwceptions to Commissioner’s Report.
    
    Defendant excepts to so much of the commissioner’s report in this case, as charges the defendant with interest on interest, on the amount of the purchase by John Patterson.
    Defendant also excepts to so much of the report as charges the defendant with interest on the amount of John Patterson’s purchase, prior to the filing of complainant’s bill, which, it is contended, was the first demand by complainant, on defendant, for a settlement of that claim.
    Defendant also excepts to so much of the commissioner’s report as disallows credit to defendant, for the payment proved to have been made by him to complainant.
    EGLESTON & FROST, Defendant’s Solicitors.
    
    
      Chancellor’s Decree.
    
    Under the decree heretofore made in this case, the defendant, formerly commissioner of this court, was ordered to account for and pay over the amount of Baker Wiggins’s bond, and was declared responsible for the debt of John Patterson, in the same manner as if he had taken the bond and mortgage, and collected the money. It was referred to the present commissioner to take an account of the amount due. The commissioner has reported that the amount due by the defendant on account of Baker Wiggins’s bond, is seventeen hundred and ninety-four dollars and seventy-six cents, and the amount due by him on account of the purchase of John Patterson, is three' thousand and ninety-six dollars and seventy-three cents.
    The defendant excepts to this report — First, because, on the pur- ■ chase of John Patterson, interest upon interest is charged against the commissioner. On reference to the decree of the chancellor, it will be perceived, that he regards the commissioner as having taken a bond and mortgage from Patterson, and collected the money on it according to the terms of sale. Mrs. M’Cauley was entitled to the annual interest, and it should have been paid to her. The commissioner not having paid it, is liable for interest on it in the same manner as Patterson would have been, had he been in default in paying' the annual interest. This exception is overruled.
    The second exception is, that the commissioner has allowed any interest on the amount of Patterson’s purchase, prior to the filing of comp lainant’s bill. — It is very clear, from what has been said in respect to the first exception, that the court presumed the defendant to have collected the amount of John Patterson’s bond as it became due. The first payment of principal was due on the 4th January, 1826, and the last on the 4th of January, 1829. The amount of principal and interest due at these dates was $2,376 59. — The bill was filed on the 6th March, 1834. The commissioner has allowed' interest on the original principal sums from January, 1826, and January, 1829, to the time of making up his report. It appears from the testimony, that in 1829, Mr. North, as the solicitor of Mrs. M’-Cauley, required a settlement from the defendant, but at his (the defendant’s) request, fore bore to urge the claim until an effort was made against Benjamin D. Heriot. This attempt proving unavailing, the bill was filed. There is much reason to say that the complainant is entitled to the intermediate interest; but as the chancellor who tried' and decided the case, considered the demand of Mr. North made in 1829, as waived, and the point has not been strenuously urged by the complainant’s solicitor, I shall without sending back the report, allow interest on the amount due in 1826 and 1829, from the time of filing the bill on 6lh March, 1834, making the amount due on Patterson’s purchase $2695 35, instead of $3096 73, as reported by the commissioner ; and the second exception is thus far sustained — and I consider this a very favorable view to defendant.
    The third exception is, because the commissioner has refused to credit the defendant for the payments proved to have been made by him to the complainant. It was referred to the commissioner to ascertain and report what was due to the complainant on account of the bonds of Wiggins and Patterson. The defendant produced certain orders of the complainant which he had paid ; all the orders were of a date prior to the time when the defendant collected Baker Wiggins’s bond. They do not purport to have been drawn on account of that bond. On the contrary, the complainant has transferred the proceeds of that bond to another person (A. Marvin.) According to the receipt in the hand-writing of the defendant, I5th January, 1825, he regarded it as his duty to collect the bonds belonging to the estate of M’Cauley. They were all in his possession until after 1.822, and were amply secured. The interest on these bonds due 4th January, 1822, would exceed by several hundred dollars, the entire amount paid by the defendant to or for the complainant. He made no annual returns. I cannot presume that between January, 1819, and February, 1831, (when Baker Wiggins’s bond was paid) the defendant had not collected, as he was bound to do, as much as met the orders of the complainant, which have been produced. Qn this point the reasons stated by the commissioner are satisfactory, and the exception is overruled.
    It is therefore ordered and decreed, that the defendant pay to the complainant the sum of $2,695 35, with interest on-.$2,376 59 from 6th February, 1836, being the amount due on account of Patterson’s purchase.
    It is further ordered, that he pay to the assignees of A. Marvin, the sum of $1,794 76, with interest on $1582 45, from 3d February, 1836, being the amount reported to be due on account of Baker Wiggins’s bond, and which has been assigned by the complainant to the assignees of A. Marvin.
    It is finally ordered, that the defendant pay the costs of these proceedings.
    HENRY W. DESAUSSURE.
   Chancellor J. Johnston

delivered the opinion of the court.

This is an appeal from the decision of Chancellor Desausstjre, upon the report of Mr. Commissioner Cohen.

No grounds of appeal have been set down, but we learn from the argument of the defendant’s solicitor, the objections taken to the decree.

They relate entirely to the exclusion of the receipts offered by the defendant. The complaint is, that they were excluded, as credits upon the purchases of Wiggins and Patterson, upon a mere presump, tion, that Mr. Heriot received, and paid over the interest on the other bonds, and that the receipts were given for his disbursement of that interest. And, certainly, the commissioner states in his report, that he did proceed on that presumption. But Mr. Heriot’s answer, as appears by the brief of it, does not leave the matter to be presumed. He admits, that be received the interest on the bonds, (making no distinction among them,) while in his possession. True, he says, he did not receive it regularly ; but he has, neither in his answer, nor in his annual reports, given such an account, as to enable the court to ascertain the interest received on the bonds, or distinguish the particular bonds on which he received. Under such circumstances, what could he expect, but that the commissioner should consider him as having received the interest on the bonds generally, and refuse to credit him for payments on Patterson’s and Wiggins’ bonds, until the receipts produced by him, excluded the interest on the other bonds T

EgrestoN & Frost, for the motion.

DunkiN, c ntra.

Filed 20th May, 1836.

It is ordered that the appeal be dismissed.

J. JOHNSTON.,

We concur,

A. P. BUTLER,

B. J. EARLE,

JOSIAH J. EVANS,

WM. HARPER,

JOHN B. O’NEALL,

S. S. RICHARDSON,

DAVID JOHNSON  