
    Miller v. Trevilian and Others.
    April, 1843,
    Richmond.
    (Absent Stanard, J.)
    Debtor and Creditor — Application of Payments. — The principle laid down by Cabell, J., in Pindall’s ex’x &c. y. The Bank of Marietta, 10 Leigh 484, that “a debtor owing- a debt consisting- of principal and interest, and making- a partial payment, has a rig-ht to direct its application to so much of the principal in exclusion of the interest, and the creditor, if he receives it, is bound to apply it accordingly,” approved and acted on.
    Trust and Trustees — Equitable Relief to Cestui Que Trust of Bond Secured by Trust Deed. — A testator having- authorized a tract of land to be sold and the money put at interest for the benefit of his children, his executor sold the land and took a bond (secured by a deed of trust) to be paid the 21st of August 1820, with interest from the 25th of Detember 1817. On the 30th of October 1820, the executor received of the purchaser a sum of money, to be applied to the credit of the principal. The purchaser having sold part of the land and taken from his vendee four bonds, one pay-2 able the 16th *of April 1821, and the others on the 25th of December in the years 1821,1822, and 1823, the executor, on the 21st of January 1822, took an assignment of those bonds and of a deed of trust securing the same, and gave a receipt stating that they were to be credited in part of the principal at the dates at which those bonds were due. In June 1823, the purchaser injoined the executor from selling under his deed of trust, upon the ground of a defect of title to two parcels of the land, one of 16%, the other of 100 acres, part of which last parcel being included in the sale to the subvendee, the alleged defect of title was made the ground also of injunction by him. In 1835, the injunction of the first purchaser was perpetuated as to the price of the 16% acres, and dissolved as to the residue, so far as it remained unpaid. The executor having in the mean time removed from the commonwealth, a bill was thereupon filed by some of the legatees, against the purchaser, the trustee in his deed of trust, the executor, and another legatee, to ascertain the balance due. The bill averred, that many years since, the bond payable to the executor was transferred to the legatee defendant, to collect for himself and the others interested, and he had removed from the state ; that the complainants do not know where the bond is, or whether it is lost or destroyed; and that the trustee declines to advertise or sell, for want of the bond. As to all the defendants except the purchaser, the bill was taken for confessed. Held, 1. Equity has jurisdiction; on the ground that the legatees, though entitled to the balance due from the purchaser, are mere beneficiaries, having no legal right which they could assert at law ; and also on the ground that, the case being one in which it would have been improper for the trustee to sell until some proceeding was had to ascertain the amount due, the creditors had a right to come into equity to have the amount ascertained. 2. The purchaser, having in his hands evidence of all the payments alleged by him, has no right to require that the bond shall be produced before an account is stated. 3. The payments which the executor agreed should be credited against the principal must be so applied ; the case not being taken out of the influence of the principle laid down in Pindall’s ex’x &c. v. The Bank of Marietta, 10 Leigh 484, by the circumstance that the party who so agreed was a fiduciary, nor by any of the other circumstances before mentioned.
    Frederick Argyle of the county of Gooch-land died in 1811, having- made his will, which contained the following clauses: “It is my will and desire that all my 3 *just debts should be paid by my executors hereinafter mentioned; after which I desire that my wife shall remain in possession of the land whereon I now reside,'* until such time as my said wife and my executors shall think proper to sell it, and appropriate a part of the money arising from such sale to the purchase of a small tract of land, which they shall deem sufficient for the support of my said wife and children ; and after such purchase having been made and the purchase money paid, it is my will and desire that the residue of the money arising out of the sale of the land on which I live shall be put at interest for the benefit of my children, and the portion of each to be given up to them by my executors as they shall arrive to the age of twenty-one years.
    “Item, it is my will and desire that the land directed above to be purchased by my executors shall, at the death of my wife, be sold, and the money arising therefrom equally divided between my children.”
    The will was admitted to record in the court of Goochland county, and Isaac Curd alone qualified as executor.
    The land on which the testator resided contained by survey 1033 acres, and was sold by the executor on the 21st of August 1817, to .William Miller, for 27 dollars an acre, amounting to 27891 dollars, bearing interest from the 25th of December 1817, and payable one third the 21st of August 1818, one third the 21st of August 1819, and the other third the 21st of August 1820.At the time of the sale, the executor conveyed the land to Miller, and Miller executed three bonds to the executor for the purchase money, and a deed of trust upon the land, to Thomas Curd and Benjamin Anderson as trustees, to secure the payment of those bonds.
    Miller discharged the first two bonds, and on account of the third made the payments evidenced by the two following re-C61J3£s •
    4 ■ *' ‘1820, October 30. Received of William Miller 1500 dollars, to be applied to the credit of the principal of his bond due me in August last as executor of Frederick Argyle deceased.
    Is. Curd.”
    “1822, January 21. Received of William Miller, William Guerrant’s note for 400 dollars due 16 April 1821, said Guerrant’s note for 1777 dollars 50 cents due 25 December 1821, said Guerrant’s note for 2777 dollars 50 cents due 25 December 1822, said Guerrant’s note for 2777 dollars 50 cents due 25 December 1823, which said several sums are secured by deed of trust given by said Guerrant and wife, which is assigned to Isaac Curd executor of Frederick Argyle deceased by said Miller. Said several notes are to be credited on said Miller’s bond to me, in part of the principal of said bond (which was due on the 21st of August 1820), on the dates on which the notes aforesaid fall due. Also the further sum of 24 dollars 63 cents, to be credited as aforesaid on this day. The above named bond is the only one due me from said Miller.
    Is. Curd.”
    These receipts were exhibited by Miller with the bill of injunction filed by him in June 1823, in the case of Miller v. Argyle’s ex’or and others, reported in 5 Leigh 460, wherein he sought to obtain an allowance for an alleged defect of title to two parcels of the land, one of 100, the other of 16% acres. He stated in that bill, that he “had gone on to settle towards the discharge of his” third “bond, as per receipts of the said Isaac Curd, the sum of 9257 dollars 13 cents;” and further said, that from a statement made by him of the transaction between said Argyle’s executor and himself, estimating his loss at 116% acres, Argyle’s estate would be indebted to him 1435 dollars 88 cents, to carry interest from the 25th of December 1822. That statement was as follows: ■
    5 “William Miller to Isaác Curd ex-
    ecutor of Frederick Argyle deceased, Dr.
    1817, August 21.
    To 1033 acres of laud purchased at$27 per acre. 27,891 00
    Or.
    By two thirds of purchase money paid 18,594 00
    9,297 00
    To interest from 25th December 1817 to the 25th December 1822 . 2,789 10
    1820, October 20.
    By cash. 1,500 00
    By interest from 30 October 1820 to 25 Dec’r 1822. 193 75
    1821, April 6.
    William Guerrant's bond due this day. 400 00
    By interest from 16 April 1821 to 25 Dec’r 1822. 40 60
    1822, January 21.
    William Guerrant's note due 25 Dec’r 1821. 1,777 50
    By interest from 25 Dec’r 1821 to 25 Dec’r 1822. 106 65
    William Guerrant’s note due 25 Dec’r 1822 . 2,777 50
    By cash. 24 63
    By interest .from 21 January 1822
    to 25 Dec’r 1822. 1 35
    -- 6,82198
    5,264 12
    Wm. Guerrant’s note due 25 December 1823. 2,777 50
    Deduction from one year’s interest. 166 65
    ■-- 4,089 15
    
    2,610 55 ---
    Due W. Miller, $ 1,435 88"
    6 *The four bonds of William Guer-rant to Miller, which the latter assigned to Curd, were given upon a sale by Miller to Guerrant, at 15 dollars per acre, of 555% acres of the land bought by Miller from Argyle’s executor. And Guerrant alleging that he had paid off the two first bonds, and that the title was defective to 100 acres of the land which he had bought, to wit, the same TOO acres in respect to which Miller had alleged a defect of title, an injunction was awarded Guerrant (upon a bill filed by him in September 1823) to restrain proceedings under his deed of trust as to 2000 dollars. But afterwards an affidavit of Joshua P. Hunnicutt, the deputy surveyor of Goochland, having shewn that only about 72 acres of the land to which the title was alleged to be defective, was comprised in Guerrant’s purchase, the court, on the 17th of March 1824, dissolved his injunction except as to the sum of 1080 dollars, that being the price of 72 acres at IS dollars per acre.
    Subsequently, to wit, on the 25th of September 1824, judgments were obtained by Curd against Guerrant on his two last bonds. One judgment was for 2777 dollars 50 cents with interest from the 25th of December 1822 till paid, and the costs, but to be credited by 209 dollars 19 cents received 2d November 1822, by 200 dollars 20th October 1823, and by 2116 dollars 19 cents on the 24th of April 1824. The other judgment was for 2777 dollars 50 cents with interest from the 25th of December 1823 till paid, and the costs, but to be credited by 1080 dollars by injunction, and the balance of this judgment was to be discharged by the payment of 1704 dollars 16 cents with legal interest thereon from 25th September 1825* till paid.
    While Miller’s injunction case was pending in the county court of Goochland, 7 the following addition seems to have been made to the statement exhibited with his bill.
    “1822, December 25.
    By balance due Wm. Miller this day as
    above . 1,425 88
    By interest thereon from 25 Dec’r 1822 till paid.
    2 acres 1 rood 32 poles more of G-lebe land as per J. P. Hunnicutt’s survey at $27
    per acre. 66 15
    By interest on 66 15 from 25 Dec’r 1817 till 25 December 1822. 19 84
    1,521 87
    By interest from 25 December 1822 till paid 25th September 1825. 251 10
    $1,772 97’’
    On the 28th of December 1830, while the appeal of Argyle’s executor from the decree obtained by Miller in his injunction case was pending in the superior court of chancery, Miller filed, as exhibits in the latter court, a copy of the record in Guerrant’s injunction case (which was still pending), copies of the judgments obtained by Curd against Guerrant on his two last bonds, and the following assignment: “I assign the balance due on my judgments against William Guerrant in Goochland superior court of law, to William Miller, without recourse to me, this 9th day of November 1825. Is. Curd.” The superior court of chancery, in January 1831, reversed the decree of the county court, and entered a decree dissolving Miller’s injunction and dismissing his bill. Miller then appealed to this court, and the decision on his appeal is reported in the before mentioned case of Miller v. Argyle’s ex’orand others, 5 Heigh 460. It was pronounced the 19th of November 1834; and upon a copy thereof being transmitted to the circuit court of Henrico, the cause was heard in that court the 11th of November 1835. The executor of 8 Argyle now *admitted that the 16% acres of land, which had been recovered of Miller by a superior title, was a part of the land sold by the executor to Miller, for the title to which the executor was responsible ; and it was decreed that the injunction be perpetuated as to 440 dollars of the principal of the debt, that being (as the decree stated) the value of 16% acres of land at 27 dollars per acre, and Miller was declared entitled to a credit therefor as of the 25th of December 1817. Dor the rest, the counsel of Argyle’s executor took a decree which declared in general terms, that “as to the residue of the sum” contracted by Miller to be paid “and which may remain unpaid,” the injunction be dissolved and the bill dismissed; and then proceeded to dispose of the subject of costs.
    This decree dissolving the injunction, in general terms, for what remained unpaid, was merely a foundation for a new suit to ascertain how much was unpaid.
    In January 1836, a bill was filed in the circuit court of Goochland by John M. Trevilian and-his wife, and others, legatees of Frederick Argyle deceased, against Miller, Isaac Curd, Benjamin Anderson and Thomas Curd (the trustees in Miller’s deed of trust), John W. Argyle, and the widow and infant children of a deceased legatee, setting forth, that according to a statement made from that of Miller exhibited in his injunction suit, it appeared that if there were credited against the third bond the price of the 16% acres, the cash credited in Miller’s statement, and all the four bonds of Guerrant, there would still be due from Miller on the 16th of June 1823, when his injunction was obtained, the sum of 2136 dollars 34 cents, with legal interest from that date on 2074 dollars 12 cents part thereof. That the complainants know nothing of the payments credited to Miller in his statement, and therefore do not admit them That they have reason to believe that a 9 *large portion of one at least of Guerrant’s bonds has not been paid off, viz. the 1080 dollars as to which Guer-rant’s injunction yet stands; and unless Miller can shew that he has paid off this sum to Curd, it remains, with its interest, as a debt due from Miller, Guerrant having left this commonwealth many years since, notoriously insolvent. That Miller refuses to furnish any “statement of the amount due from him, or to enter into any settlement or make any payment unless and until his bond is produced. That the statement made from his, as before mentioned, has been submitted to him for revision and correction, if erroneous: but he has refused to correct or respond to it in any manner, other than by a demand of his bond. That the complainants, not having the bond, are unable to produce it. That, many years since, it was transferred to John W; Argyle, to collect for himself and the others interested. That Isaac Curd and John W. Argyle have removed from the commonwealth, and the complainants do not know where the bond is, or whether it has been lost or destroyed. That the complainants have been recently informed, that when Curd was about to leave the commonwealth, upon some settlement between him and Miller, the bond was surrendered by him to Miller. That they are advised it is their right to have a full and true statement from Miller touching the said bond, and the payments made by him, and the time and manner of such payments. That deeming at least 3154 dollars 12 cents due, with interest from the 25th of December 1822, they were willing to receive that sum, and called upon Benjamin Anderson, one of the trustees under the deed from Miller, to advertise and sell so much of the land as might be necessary to raise that sum, intending of course to have the cooperation of the other trustee; but Anderson positively declined to advertise or sell, for want of the bond. Two of the complainants made oath, that so much of the 10 bill as depended *upon their knowledge was true, and so much as depended upon the information of others they believed to be true.
    Miller filed a demurrer to the -bill, assigning for cause, that it did not charge that John W. Argyle had lost the bond, nor was there filed with the bill any affidavit of that fact.
    The demurrer being overruled, Miller filed an answer, stating that he paid towards the discharge of the principal of the third bond, as was agreed by Curd and him, the sum of 1500 dollars on the 30th of October 1820, and 7757 dollars 13 cents on the 21st of January 1822, per receipts; and crediting in addition 445 dollars 50 cents for the 16J4 acres, the principal of the bond was overpaid by 405 dollars 63 cents; which last mentioned sum, and the further sum of 94 dollars 16 cents due him from Curd for costs recovered against him and for clerk’s fees, are to be deducted from the interest that accrued upon the main sum before it was extinguished. That no other credits are claimed by him. That the bond was assigned by Curd to John W. Argyle, for him to collect the balance due on it for his own use and benefit, and not for the use and benefit of the heirs of Frederick Argyle deceased, as charged in the bill. That on the-respondent’s refusing payment to John W. Argyle on account of the supposed deficiency in the land, Argyle returned the bond to Isaac Curd. That Curd had possession of it in the fall of 1825. That it was then his, property, and the respondent believes it is at this time his property, as he has had no notice of the bond being assigned by Curd to any person whatever since that time. That the charge of the respondent’s having possession of the bond is false, he not having had possession of it since he executed and delivered it to Curd. That the respondent is under the impression, that if the heirs of Frederick Argyle deceased have a claim against 11 any person on account of *the said bond, it is against Isaac Curd and his sureties, and not against the respondent; but he does not know what is the-state of accounts between them and Curd, and does not know or admit that Curd is-indebted to them a single cent, or that they have a right to call upon any person, for any thing on account of said bond. That, finding the plaintiff Trevilian had not his bond, he had determined to have-nothing to do with him on the subject, and deemed it not necessary to respond to-his enquiries, or those of any other person, unless he was authorized by Curd to settle the matter, or produced his bond. That he conceives the complainants have no kind of right to call upon him for an exhibition of his accounts with Curd, or to ask any question about the time, place or means, when, where and how he may have paid off any debt which he may have owed to Curd; that he is advised they allege no shadow of right to claim any thing of him on account of Guerrant’s bonds, assigned by him to Curd; and that as it appears that Curd himself has settled that matter, and transferred his judgments against Guerrant to the respondent, ne foundation is laid in the bill to support any enquiry touching a discovery about the said bonds, or the manner in which they have been paid and satisfied. He avers, “that in no settlement ever made between the said Isaac Curd and him, was the matter of his injunction disposed of or meddled with. That matter was then in court, and remained to be disposed of as might be adjudged in court. “The matter,’’' he says, “of Guerrant’s injunction for the 1080 dollars, and all other matters concerning Guerrant’s debt, have long since all been paid off and 'satisfied. Not one cent is due on that account.’’
    The infant defendants answered by guardian ad litem. The cause was proceeded in as to Isaac Curd and John W. Argyle in the manner prescribed by law as to absent defendants. And as to the other defendants the bill was taken for confessed. 12 *The circuit court ordered that Miller rendered before a commissioner an account of the sums paid by him in part of the purchase money of the land, and the times at which and the manner in which the said payments were made, so as to shew the balance due from him. A report being made under this order, and exceptions filed thereto by both parties, the court, on the 19th of October 1837, recommitted the report with the exceptions to the commissioner.
    Under this order of recommitment an account was stated, whereby the price of the 1654 acres, the cash paid by Miller, and the two first bonds of Guer-rant, were all deducted from the principal, and there was likewise credited against the principal so much of Guerrant’s third and fourth bonds as appeared by the judgments thereupon to have been paid previous to the reassignment from •Curd to Miller. Exceptions were again filed; and the cause came on to be heard the 19th of October 1839.
    The circuit court was of opinion, that Miller was entitled to credit for the whole amount of the bonds assigned by him to the executor, on the days when they respectively became due; but that the credit should not be applied to the extinguishment of the principal, so as to leave the balances unproductive in whole or in part: and the court, adopting, in lieu of a report by a ■commissioner, a statement prepared by the court in conformity with its opinion, decreed accordingly.
    Prom this decree, on the petition of Miller, an appeal was allowed.
    Leigh for appellant.
    Miller states his belief that Curd was not indebted one farthing to the plaintiffs on account of this trust. And there is not any account taken, or directed, or asked for, of Curd’s administration of the trust found. Miller’s statement ought, under such circumstances, to be taken as correct. At all 13 ^events, upon the record as it stands, without any account between Curd and his cestuis que trust, or between Miller and Curd, it is impossible to decide that Miller is not to have credit for the payments mentioned in Curd’s receipts.
    There is then but the single question as to the application of the payments. And on this point the case of Pindall’s ex’x &c. v. The Bank of Marietta, 10 Leigh 481, is a conclusive authority in favour of Miller, unless, as to this matter, a distinction ■can be established between the transactions of individuals, contracting each in his own right, and similar transactions between an executor, legally selling the trust subject, and his vendee.
    Grattan for appellees.
    As to Miller’s allegation of his belief that Curd the executor was not indebted to the legatees of his testator, it is enough to say that there is no proof whatever even tending to justify that belief.
    The second receipt shews that two of the notes of Guerrant mentioned therein were not due at the date of that receipt. Even if money paid by Miller could properly be applied to the principal of the debt, there is no ground to hold that notes or bonds not yet due, taken as payment, can be so applied. Miller, too, was well aware that Curd was dealing improperly with the trust property. And a purchaser of trust property, confederating improperly with the trustee, and obtaining the trust subject for an inadequate value, will not be allowed to retain the advantage he has thereby acqtrired, as against the parties interested in the fund. Graff and others v. Castleman &c., 5 Rand. 195; Broadus and others v. Rosson and wife and others, 3 Leigh 12; Eisher v. Bassett and others, 9 Leigh 119; Keane and others v. Robarts and others, 4 Madd. C. R. eng. edi. p. 332, am. edi. p. 177; Wilson v. Moore, 1 Mylne & Keene 126, 6 Cond. Eng. Ch. Rep. 14 530. Moreover Miller *was himself the cause of the difficulty which Curd experienced in collecting Guerrant’s bonds. The injunction of Miller produced the difficulty. And that injunction was upon a ground which this court adjudged to be available only as to a very small part of Miller’s purchase money.
    Grattan also argued to shew that credit ought to be withdrawn from Miller for parts of Guerrant’s third and fourth bonds; to wit, the 1080 dollars as to which Guerrant’s injunction was pending, and the balance due upon the judgments against Guerrant at the time of the reassignment from Curd to Miller.
    [Leigh. As it seems the cause is to be argued upon the merits on every point, I now apprize the gentlemen on the other side, that' I shall take an exception to the jurisdiction of equity to decree against Miller on a bond upon which there was full remedy at law. I shall further insist that the plaintiffs are not entitled to recover without proof of the assignment of the bond, notwithstanding the bill was taken for confessed as to Curd the alleged assignor.]
    Stanard for
    If the plaintiffs had merely set forth the loss of the bond, and that they had it not, the bill, being sworn to, would have given jurisdiction to equity. Atkinson v. Leonard, 3 Brown’s Ch. Rep. 218; Toulmin v. Price, 5 Ves. 238; Cabell’s ex’orsv. Megginson’s adm’rs, 6 Munf. 202; Shields v. The Commonwealth, 4 Rand. 541. The case of Talia-ferro v. Eoote, 3 Leigh 58, may perhaps be relied upon on the other side. But in that case there was no affidavit of loss, and the statement in the bill was very vague and ■ unsatisfactory: it was not stated that the bond was lost, or was out of the power of the plaintiff, or even that any enquiry had been made for it. But in this case the bill was filed neither by the obligee 15 nor the assignee of *the bond, both of whom were out of the commonwealth. The plaintiffs are cestuis que trust who are entitled to the proceeds of the bond, but have no control over it, no means of enforcing its production, nor any remedy upon it at law. And their object is to obtain a discovery and account of the payments made by the obligor, and a decree for the balance appearing to be due.
    Miller is called upon to say what payments had been made by him to the executor, or to any person entitled to receive the money. He answers merely that he has paid 7000 dollars and upwards, as per receipts, and denies the right of the plaintiffs to call upon him for any discovery of his payments, or of his settlement with Curd the executor. There is not a particle of evidence to prove any payment, except the receipts of Curd the executor, and Miller’s assignment to him of the bonds due from Guerrant. And the question then is, how far those receipts and that assignment are evidence to prove such payments by Miller to Curd? There is nothing- in the terms of the receipt for Guerrant’s bonds, to entitle Miller to a credit for the amount, until it should be paid by Guerrant. And the evidence shews that two of the bonds were not paid to Curd. Guerrant, it appears, injoined the recovery upon them to the amount of 1080 dollars. At the utmost, Miller could only be entitled to a credit for the balance which remained after deducting the 1080 dollars. But in November 1825, Curd reassigned to Miller the balance. This assignment does not purport to be for value received; and that it was not for value received, may be inferred from the fact that it was “without recourse.” If the assignee relies upon the assignment as one for value, he ought to prove the consideration; the onus probandi is on him. There is not only no such proof, but every thing in the record conduces to prove that the assignment was without any payment by Miller. Miller had injoined Curd from proceeding on the trust deed given by him for the 16 purchase *money, and that injunction was then pending. If he succeeded in it, the amount already received by Curd on Guerrant’s bonds was more than he was entitled to receive; and therefore if Curd had attempted to enforce payment of the assigned bonds against Guerrant for the balance due on them, Miller (who was Guerrant’s vendor of the land for which the assigned bonds were given) might himself have injoined Curd from collecting that balance. On the other hand, if Miller failed in his injunction suit, Curd had full remedy to recover the balance of the purchase money by proceeding under Miller’s own trust deed. If it is to be supposed that Miller paid off the balance due on the bonds of Guerrant at the time of the reassignment, then it is to be supposed that he actually paid off the whole balance of the original purchase money to Curd, at the very time when he was suing in chancery, and had obtained an injunction, to be relieved from the payment of that. money to the amount of 116)4 acres of the land. As to the 1080 dollars injoined by Guerrant, it would be absolutely ridiculous to suppose that Miller, on the reassignment, paid that sum. Miller states in his answer, that “the matter of Guerrant’s injunction for the 1080 dollars, and all other matters concerning Guerrant’s debt, have long since all been paid off and satisfied ; not one cent is due on that account to Isaac Curd nor no one else.” What is the just, the only construction of this averment? It is that Guerrant had paid to Miller himself the sum of 1080 dollars; for there is no evidence that a single dollar of it was ever paid to the plaintiffs, or to Curd, or any other person for them.
    Upon the other, question, let it be supposed (for the sake of argument) that the payments were actually made in money by-Miller at the dates when the bonds become due. The case of Pindall’s ex’x &c. v. The Bank of Marietta admits, that in the ordinary case of creditor and debtor 17 dealing in their own right, the *creditor may refuse to receive a payment tendered with direction to apply it to the principal of an interest-bearing debt. He may agree so to apply it or not. The question here is, whether a stipulation so to apply a payment is legal and valid, when the nominal creditor is a trustee for others, and the debtor knows that he is dealing in that manner with the funds of the trust? The plain duty of Curd under the will was to sell the land, collect the purchase money, and put it out at interest for the benefit of the cestuis que trust. This duty was not performed in respect to the bond which fell due the 21st of August 1820. The trustee had no right to indulge his own feelings of kindness towards the purchaser of the trust subject, by delaying the collection and investment of the purchase money, or by accepting payments under a stipulation to apply them to the principal of the debt. Such benevolence could only be exercised at the risk and to the detriment of his cestuis que trust. It has been now supposed that the will, justly construed, required the trustee • to collect the purchase money, and invest the whole of it, principal and interest, in some productive fund: let Ut be, however, that the trustee was not bound to call in the purchase money, but was authorized to leave it on security in the hands of the purchaser: he was at least bound to leave it as an interest-bearing fund, and had no imaginable right to stipulate for applying payments to extinguish the principal of the fund, leaving the interest (however large the amount accrued) a dead, unproductive stock. Miller, the purchaser, had full notice of the trust. For he not only purchased under it, but the will itself was recorded in the court of which he was clerk at the time of his purchase. The cases of Fisher v. Bassett and others, and Keane and others v. Robarts and others, which were cited by mr. Grattan, shew the doctrines of courts of equity on this subject.
    18 *But this is not the case of a payment of money. The receipt acknowledges the assignment by Miller of Guerrant’s bonds; and the only sensible construction of the receipt is, that the amount of the bonds, if paid when they should become due, was to be credited against the principal of Miller’s debt. The bonds were not paid when they became due; and the failure of Guerrant to pay them was the consequence of Miller’s own act in injoiping Curd’s proceeding on his trust deed. Shall Miller be allowed to make this application of the amount of the bonds, when not only the natural increase of the fund by accruing interest is thereby prevented, but through his means, the recovery of the stipulated payments on account of the principal itself is suspended from 1823 to 1835, — at which last period Miller’s injunction was dissolved? If the transaction evidenced by the receipts had been between Curd and Miller in their individual rights alone, (instead of being a dealing with the funds of a written and recorded trust,) it would be most inequitable that Miller should be allowed, under such circumstances, and after such a lapse of time, to avail himself of the stipulation that the payments were tobe applied to the principal of the debt.
    Lyons on the same side.
    The fact that the bond was lost is itself sufficient to give jurisdiction to equity. 1 Madd. Ch. Prac. 24, 5. But 2. the bill shews that the bond had been assigned by Curd to John W. Argyle for the benefit of the plaintiffs; and shews not only that he was a trustee for them, but that this trustee was a nonresident. And 3. it states that the trustee in Miller’s deed of trust had refused to proceed to execute the trust. 1 Madd. Ch. Pract. 459; 2 Smith’s Ch. Pract. 325, 352.
    In regard to Curd’s duty as trustee, reference may properly be made to the authorities in respect to the duty of agents, and the limitations on their powers 19 *when acting in the discharge of the business of their principals. Hogg v. Snaith and others, 1 Taunt. 347; Smock v. Dade, 5 Rand. 639, and Wilkinson & Co. v. Holloway, 7 Leigh 277. Can the rule regulating the application of payments between ordinary creditor and debtor (about which there is no dispute) be fairly and justly applied to payments made by a debtor to a trustee? Cases shewing that a dealing by a third person for the assets of a decedent’s estate, with notice of the trust, and of misapplication (actual or intended) on the part of the executor or trustee to whom the payment is made, is a fraud on the part of the purchaser and cannot be sustained, have been already cited. The court is farther referred, in respect to the same principle of equity, to 2 Williams on Ex’ors 609-12, and Field v. Schieffelin, 7 Johns. Ch. Rep. 157 (a case of a guardian dealing improperly with the estate of his ward). In Stevens v. Barringer and others, 13 Wend. 639, it is decided that after payment of the principal of a debt, an action will not lie for the interest. Supposing that case to be properly decided, there may be a total loss of the interest in this case in consequence of the application stipulated for by Miller in respect to his payments, should that stipulation be held binding.
    Lyons also argued as to the effect of the reassignment from Curd to Miller of Guer-rant’s bonds, and insisted that the proper inference was that nothing whatever had been paid for that reassignment.
    Leigh in reply.
    The gentlemen on the other side have taken unnecessary trouble in citing authorities to shew that equity has jurisdiction to set up a lost bond. The objection here is, that no ground is furnished by the bill for the jurisdiction of eqrtity on that score: there is no allegation in the bill that the bond has been lost or destroyed, or that any enquiry was made for it in the custody where it would 20 naturally be found — that *of John W. Argyle or Isaac Curd. But the refusal of the trustee in Miller’s deed of trust to act is also relied on. To sustain the jurisdiction on this ground, the fact of such refusal must be proved: and there is no proof of it. The bill is taken for confessed as to the trustee Anderson, but his confession is no evidence against Miller. [Allen, J. Cannot the cestui que trust, at his option, treat the deed of trust as a mortgage, and go into equity to have it enforced?] It was so argued in Ambler & others v. Warwick & Co., 1 Leigh 201, but the judges did not take that view; they decided the case on its special circumstances.
    But suppose that equity can take jurisdiction. The assignment to John W. Argyle for the benefit of the plaintiffs is averred in the bill: and that averment must be proved, and proved as it is alleged. Miller’s answer may be taken as an admission that the bond was assigned to Argyle by Curd: but how does it appear that it was assigned to him for the benefit of the plaintiffs? The circumstance of the bill being taken for confessed as to John W. Argyle cannot avail against Miller. The assignment must be proved, unless admitted b3r the assignor and the parties against whom relief is sought. Corbin v. Emmer-son, 10 Leigh 663.
    Miller refused to settle when applied to by Trevilian, unless the bond were produced. Looking to the ordinary motives which govern men in their transactions with one another, there can be no reasonable doubt as to the ground of that refusal. If the bond had been produced, it might have shewn, and probably 'would have shewn, that every credit claimed by Miller was authenticated and established by endorsements on the bond. Why was that bond not produced? Curd and John W. Argyle, though out of the state, were not beyond the reach of visit or communication from the plaintiffs. Yet no attempt was made to procure the bond, nor any en-quiry made about it (so far as the 21 record *shews), either of Curd or Argyle. Why was this? It is easjr to suppose one inducement on the part of the plaintiffs, and difficult to suppose any other:' — Curd was insolvent, (the argument on the other side so supposes,) while Miller was perfectly solvent, and had executed a deed of trust on a tract of land amply sufficient to secure the whole amount of the bond. It would no doubt be highly agreeable to the plaintiffs to take Miller’s admission of his execution of the bond, and deprive him, by their own failure to produce it, of the benefit of the evidence which might be afforded by the endorsements upon the bond (in all probability the only evidence in existence) of his satisfaction of it. [Lyons. Miller never ventured, in the court below, to make a suggestion of any such ground for requiring the production of the bond.]
    There is no pretence for saying that Miller is not entitled to credit for the sum of 1080 dollars injoined by Guerrant. The result'of Miller’s injunction suit shews that this sum ought not to have been injoined. Curd has not assigned it to Miller. Guer-rant’s injunction suit is still open; and if Curd has not been paid this amount, he can yet get it. But Miller says it has been long since paid and satisfied. :
    As to the balance on the judgments which was reassigned; when we see that Curd ■had power, through Guerrant’s trust deed, instantly to enforce the payment of this balance, and no motive to assign it but for money, and see also that he has assigned it without noticing the receipt which he had previously given, it is not to be conceived that he should have made such assignment without having received actual payment of the balance. Counsel on the other side rely upon the circumstances of the reassignment being without recourse. That circumstance is of no force to shew that the assignment was without consideration.
    It frequently occurs where value has 22 been paid. And the reassignment *in this case being to Miller the original debtor and first assignor, it was natural and proper, and conformable to the ordinary course of business, that Miller, even if he paid the whole of the original debt which remained due to Curd, should take back the subject he himself had assigned, without recourse to Curd. If such recourse had not been excluded by the terms of the reassignment, Curd would have been a guarantor, without consideration, of Guer-rant’s debt to Miller.
    Was it a fraud on the part of Curd the trustee, participated in by Miller the purchaser of the trust subject, to stipulate that the payments should be applied to the principal of the debt? What was the subject to be so applied? It was bonds due from Guerrant to Miller, secured by Guerrant’s deed of trust. Curd the trustee, by taking the, assignment of these bonds, acquired a further security (the personal security of Guerrant) for the payment of Miller’s debt. Can it be contended that this transaction, leading to the acquisition of additional security, was a fraud on the trust, or even an improper or unwise exercise of the trustee’s discretionary power? There is not the smallest particle of proof that Curd either acquired, or designed to acquire, any personal advantage by the transaction; nothing to shew that it was not a judicious and beneficial arrangement, in fact and design, for the interest of the cestuis que trust. It is notorious,' — a part of the history of the country, — that the price of lands fell rapidly and greatly between 1817 and 1823: and Miller’s trust deed, though ample security when given, might have become wholly inadequate at the time he assigned these b.onds of Guerrant. The question is whether the acquisition of the bonds by a stipulation to apply the proceeds to the principal, was, under- these circumstances, a fraud, for which Miller is to be charged with interest notwithstanding that : : stipulation. If it were shewn that Curd had gained or purposed any actual advan-23 tage to himself, there might be *some pretence for holding Miller responsible. But nothing of the kind appears. And it is only on the assumption of such advantage gained or purposed, that the appellees’ counsel can assimilate this case to those which they have cited . respecting the fraudulent misapplication of funds of a cestui que trust or principal, by the trustee or agent. In Graff and others v. Castle-man &c., S Rand. 195, and Fisher v. Bas-sett and others, 9 Leigh 119, there was an actual application, known to the purchaser at the time, of the trust funds to the individual benefit and use of - the trustee. In Hogg v. Snaith and others, 1 Taunt. 347, Smock v. Dale, S Rand. 639, and Wilkinson & Co. v. Holloway, 7 Leigh 277, the party misapplying or commuting the debt was a mere attorney, having only a naked power to collect, and possessed of no authority or discretion to compromise, , commute, or make any other arrangement on behalf of his principal, much less to make such arrangement in execution of a design to apply the proceeds to his own use.
    
      
      He had been counsel for the appellees.
    
    
      
      Trustees — Duty as to Sale of Trust Property — Sacrifice of Property. — In Morriss v. Virginia State Ins. Co., 90 Va. 373, 18 S. E. Rep. 843, the court said : “It is the trustee’s duty to forbear to sell, and to ask the aid and instructions of a court of equity, in all cases where the amount of the debt is unliquidated or in good faith disputed, when any cloud rests upon the title, when a reasonable price cannot be obtained, or when, for any reason, a sale is likely to be accompanied by a sacrifice of the property, which, at the cost of some delay, may be obviated. 2 Minor Inst. 287 ; 1 Tuck. Com. 106; Lane v. Tid-ball (Gilmer 130); Wilkins v. Gordon, 11 Leigh 547 ; Miller v. Argyle, 5 Leigh 460; Miller v. Trevilian, 2 Bob. 25 ; Bryan v. Stump, 8 Gratt. 247.”
      The principal case is cited in this connection in Muller v. Stone, 84 Va. 837, 6 S. E. Rep. 223 ; Spencer v. Lee, 19 W. Va. 195.
      See foot-note to Shurtz v. Johnson, 28 Gratt. 657.
    
    
      
      The purchase money of 116% acres of land at 27 dollars per acre amounted to 3145 dollars 50 cents, and 5 years interest thereon to 943 dollars 65 cents, making together this sum of 4089 dollars 15 cents. Deducting 4089 dollars 15 cents from 5264 dollars 12 cents, there would have been a balance against Miller of 1174 dollars 97 cents. But then by bringing into the account 2610 dollars 55 cents for Guer-rant’s fourth bond, and deducting therefrom the 1174 dollars 97 cents, a balance would appear to be due Miller of 1435 dollars 58 cents, which corresponds within a few cents with the balance mentioned in this statement. — Note in Original Edition.
    
    
      
      Why this judgment, rendered the 25th of September 1824, was, as to the balance, to be discharged by a sum of money bearing interest from the 25th of September 1825, does not appear from the record. —Note in Original .Edition.
    
   ALLEN, J.

The appellant, in argument, has objected to the jurisdiction of a court of equity to grant relief upon the case made in the bill. It seems to me, the relation which the plaintiffs bore to the subject entitled them to the aid of a court of equity under the circumstances of this case. By the will of the testator, his executors were empowered to sell his lands, and after providing for the support of the widow and children, the residue of the money arising from the sale of the lands was to be put out at interest, and the portion of each to be paid on attaining the age of twenty-one. The executor sold the lands, and took bonds payable to himself, and a deed of trust to secure the payment. Upon the last of these bonds a large balance is claimed to be due. The executor and trustee has removed from the commonwealth. The bill avers, that many years *since, the bond was transferred to John W. : Argyle, one of the legatees, to collect for himself and the others interested ; that John W. Argyle has removed from the state; and that the complainants do not know where the bond is, or whether it is lost or destroyed. John W. Argyle is made a defendant, and the bill, both as to him and Curd the executor, is taken for confessed. The answer of Miller, though it denies that the bond was assigned to John W. Argyle for the benefit of the other legatees, admits that when payment was refused, John W. Argyle returned the bond to Curd the trustee, who had it in his possession in 182S, and that it was then, and, as respondent believes, still is his property. The legatees had no legal right which they could assert in a court of law. As beneficiaries, and so entitled to this fund, equity alone could give them relief. Whether the bond is lost or destroyed, or is still in possession of the trustee, it is not pretended that the proceeds, if there be any thing due, are not the property of the legatees. The trustee, the legal owner, has removed from the commonwealth; and having failed to perform his duty by collecting the money, the legatees are of necessity driven into a court of equity, to assert their equitable title.

The debt was secured by a deed of trust, and the bill avers that the trustee has refused to act; and as to him the bill is taken for confessed. It is unnecessary to determine whether every creditor by deed of trust, like a mortgagee, has a right to call his debtor into a court of equity at his pleasure. Here it is averred that the trustee refused to act, and the bill is taken for confessed; and whether this would be considered as evidence, so as to affect the other defendant, or not, is immaterial in this case, as it is perfectly clear upon the facts, that it would have been improper for the trustee to sell until some proceeding was had to ascertain the amount due. The beneficiaries were ignorant of the *state of the accounts; the debtor refused to give them any information ; and in this state of the affair, a sale by the trustee would have been irregular. If he had attempted to sell, a court of equity would have restrained him at the instance of the debtor. There can be no valid objection to the jurisdiction of the court, when invoked bjr the creditor in the first instance to ascertain the amount of the incumbrance, in a case where, at the instance of the debtor, the court would have arrested the trustee until the amount had been determined. I think that on both grounds the jurisdiction is clear.

Upon the merits, it is objected that the amount due cannot be determined until accounts are taken between Curd and his cestuis que trust, and between Miller and Curd. So far as Miller’s interests are involved, an account between Curd and his cestuis que trust would seem to be unnecessary in this case. Curd has set up no claim to the proceeds of this bond. He is a party to the suit, and his rights will be bound by the decree. There seems to have been no question made in the case, that Curd held this bond in his fiduciary character alone. It cannot be a matter of any importance to Miller, how the accounts may stand between this fiduciary and the beneficiaries. If Miller owes the money, he is bound to pay it to some person, either to the trustee or the legatees; and as all are parties, any payment made under the decree will protect him against all claims hereafter.

As to the account between Miller and Curd, the bill was filed to adjust that, and it has accordingly been taken. The question as to the amount due arises upon the various aspects in which the account has been presented by the commissioner. The plaintiffs have not controverted the right of Curd to receive payments; they do not seek to charge Miller with money upon the ground of misapplication by their trustee; they allege *their willingness to allow credit for all payments made to him, and have filed their bill to obtain from the defendant a disclosure of those payments. The demand was most reasonable, but has not been met with the frankness and candour to which it was entitled. The right of the plaintiffs to call for an exhibition of the accounts of payment is denied. Instead of the fair disclosure which common honesty required this debtor to make to these legatees seeking to gather up the fragments of their father’s estate mismanaged by their trustee, he contents himself with the general averment of payment. His answer, instead of explaining what seemed doubtful, appears designed to involve the transactions between Curd and himself in still deeper obscurity. The plaintiffs and the court are driven to the necessity of making up the account from such facts as were within their reach and furnished by the record. If it does not contain a full exhibition of all the transactions between Curd and the defendant, it is not for the latter to complain; it was certainly in his power to give a full explanation, if he had thought proper to do so. It has been argued that the defendant has a right to insist on the production of the bond before any account is stated, because the endorsements on the bond may shew what credits ought to be allowed. The defendant has made no such allegation in his answer. He in fact admits that he is entitled to no other credits than for the deficiency in the land, the amount of the receipts, and some small claims for costs and fees. The evidence of his payments he has in his own hands. The difficulty arises from the subsequent acts of the parties in regard to some of the claims mentioned in these receipts: and on this point he has chosen to leave us in the dark.

[The judge then detailed minutely all the facts, and stated his inferences from them. A considerable space (about 7 pages) would be occupied by this portion of *the opinion; and the reporter omits it, because the facts will be found in the statement which he has made, and the reasoning of the judge was upon the particular circumstances, and not illustrative of any principle of law. The conclusion to which he came will appear by the decree, in which he and the other judges concurred.]

It remains to determine how the credits are to be applied.

It is not controverted that in ordinary cases the party who pays money has the power to apply it as he chooses. The rule has usually been applied where the creditor held different securities. But in the case of Pindall’s ex’x v. The Bank of Marietta, 10 Leigh 481, there was but one debt; and judge Cabell, delivering the opinion in which the other judges concurred, says, that “a debtor owing a debt consisting of principal and interest, and making a partial payment, has a right to direct its application to so much of the principal in exclusion of the interest, and the creditor, if he receives it, is bound to apply it accordingly.” It is argued that this rule of law is founded on the supposed agreement of the parties; that a contract, express or implied, lies at the foundation of it. It is said that the creditor is not bound to receive the payment, unless he be permitted to apply it first to the interest; that this is his right. But as he may waive his rights, he may agree to a different application; or if he receives the payment with directions so to apply it, the law implies the agreement from the act of receiving. And from this it is argued, that though persons sui juris may make such agreements, fiduciaries dealing with the trust estate have no such power; and that a person dealing with them with notice cannot be permitted to affect injuriously the rights of those interested in the estate, by such an application of payments.

To whatever source the power of the debtor is traced, whether to a supposed contract implied from the act of deceiving payment with directions as to the application, or to a distinct rule of law independent of such contract, would seem to make no difference as to the result. The law sanctions the power, either as just in itself, or arising from a fair and legal contract, and therefore'to be enforced. When, therefore, the debtor here stipulated for such an application, he exacted nothing which the law forbids to others in his situation. The right is that of the debtor; he may decline making the payment, unless it is applied as he directs: and I do not perceive how this right is to be affected by the character of the creditor. If the bond had been given to the testator in his Lifetime, the debtor’s right, as against him, would be clear. Can his death, in consequence of which the executor receives, change the obligation or impair the rights of the debtor? The right is one of some value; as for instance in a case like the present, where the bond was for nearly 10,000 dollars, on which, when it became payable, nearly 1800 dollars of interest was due. Suppose the debtor, having the principal, and wishing to stop interest, insists on so applying the payment: if the creditor refuses to receive it, the debtor can put his money to interest, and so provide a fund to meet the interest on his debt as fast as it accrues, until he obtains the means to extinguish it entirely. But if the payment is applied to the interest, a balance of principal is'left, and the debt accumulates again. And how is the creditor injured? The interest on his debt is not an interest-bearing fund. If he refuses to receive the money and apply it to the principal, his interest remains as it was, a dead capital. If he does receive it, as money is worth the interest, he is receiving interest on pre-ciséis' the amount he would have been receiving it upon if the money had not been paid. And how does the fact of his being a fiduciary vary this state of things? Whilst the debt remained unpaid, he was receiving interest on the principal alone: . *by receiving the principal and reinvesting, the estate is not injured. To hold that the power to direct the application in such cases does not exist, would in effect be to decide that every debtor to a fiduciary must pay interest on the interest of his debt. If there were any agreement to give time or indulgence, the case might be different. But here nothing of that kind is suggested. If an executor or other fiduciary, after receiving a payment with a direction to apply it to the principal, neglects or delays to collect the interest so as to make it an interest-bearing fund, the cestui que trust, in a proper case, might charge him for such a breach of duty; and an agreement with the debtor to commit such a breach, might charge him. But here the debt was due. Notwithstanding the receipt, the executor might the next day have proceeded to enforce payment of the balance, principal and interest, by a suit, or a sale under the deed of trust. If he improperly delayed, the debtor is not liable for his neglect. There may have been, and (in the absence of all proof to the contrary) it is to be presumed there were good reasons for the conduct of each in this case. By the direction of the will, the money was to be put out at interest. It was well secured by the bond of the purchaser, and the deed of trust. The executor may have thought it to be for the benefit of all to let the debt rest in that condition. There is some hazard in lending money. Experience has shewn that investments, even in government securities, are sometimes precarious. It was equally the interest of the debtor to relieve himself from this consuming moth, though few men in our country could at once command the means of discharging so large a sum. By retaining the money and using it, he would at least be realizing as much interest as was accumulating against him on the same amount of the debt; and therefore he properly insisted, that if it were received, he should derive the like advantage from it, by applying "'it to the principal; in the mean time leaving it to the executor, in the discharge of his duties, to enforce payment of the balance at once, or permit it to remain. The same reasoning applies to the bonds of Guerrant. While Miller retained them, the interest equalled the interest of a like amount of his principal, and when the executor received them, he was entitled to the accruing interest on them; the operation being precisely the same as if the money had been paid to the executor and at once loaned out, attended with this advantage, that whilst Miller continued bound as assignor, the executor acquired the additional security of Guerrant’s bonds. In any view I can take of the transaction, it appears to me that the agreement was perfectly legal, and could only affect the estate injuriously, in this or any case, by an improper delay of the executor to enforce payment of the residue. For this, if anj' such delay occurred, Miller is not responsible. It has been argued, that after Miller assigned, he impeded the collection bjr his injunction. The bill did not injoin the executorfrom proceeding to collect the bonds of Guerrant; it sought to prevent a sale by the trustee for the balance due. Miller’s bill and injunction interposed no obstruction to the proceedings against Guerrant.

It seems to me, therefore, that the cases which have held the debtor liable for aiding in a fraudulent misapplication of the funds of the estate to the debts of the trustee, have no bearing on this case. In insisting on the application of the payments to the principal, the debtor exercised no more than a legal right. In agreeing to it, the executor subjected the estate to no loss. The interest would have remained a dead fund, if he had refused to receive the payment. The loss, when any loss is sustained from such an application, results from the subsequent improper delay of the executor in proceeding to enforce payment of the balance. For such improper delay, the executor may under certain circumstances be held liable; but the debtor is not responsible, unless he has entered into an agreement to procure such improper indulgence, and the payment has been made in pursuance thereof. I think the court erred in disregarding the agreement of the parties here.

The decree drawn by judge Allen was concurred in by the other judges, and entered in the following terms:

This court is of opinion that the circuit court erred in deciding that the appellant Miller was entitled to credit for the whole amount of the bonds of Guerrant assigned to Isaac Curd the executor of Frederick Argyle; and that there was error in deciding, that, under the agreement of the parties, and the circumstances of this case, the debtor was not entitled to apply the payments evidenced by the receipts dated the 30th of October 1820 and the 21st of January 1822, to the principal of the debt. The decree is therefore reversed with costs, and the cause remanded, with instructions to recommit the report to a commissioner, to audit, state and settle the accounts upon the following principles.

The commissioner is to charge Miller with the amount of the last bond, deducting therefrom the price of the 16j¿ acres of land as of the date of the bond, and also allowing all the other credits allowed in the commissioner’s second report, made under the order of October 19, 1837, recommitting the former report; and also a further credit, as of the 25th of September 1825, for the excess due at that time on the judgments assigned, over the sum of 1772 dollars 97 cents,* the amount claimed by Miller as having been overpaid; the reassignment of the judgments being evidence that such excess was paid by Miller to Curd as a consideration for the reassignment. And Miller is to be also allowed a *further credit for the sum of 1080 dollars in-joined by Guerrant, in the event of his shewing, by satisfactory proof, that this sum has been paid to Curd or the legatees of Frederick Argyle; but not otherwise.

And in stating the account, all payments received under the two receipts before mentioned, and also the amount assumed to have been paid by Miller, as the difference between the sums before referred to, at the settlement in September 1825, should be applied to the principal of the debt, according to the terms of the receipts, as of the times when the notes on which payments were received fell due: that is to .say, where the entire note was paid, crediting the principal of the note paid, as of the date it fell due, against so much of the principal of the debt; and where but part of the note was paid, crediting the payments, and the payment supposed to be made in consideration of the reassignment at the settlement in 1825, against the principal, as of the dates of such payments, actual or assumed.

And the commissioner is to report the said accounts to the circuit court, together with any special matter deemed pertinent by himself, or required by either of the parties to be stated, in order to a final decree. 
      
      This sum ol 1772 dollars 97 cents is the same mentioned in the addition to Miller's statement. That addition will he seen ante, p. 7. — Note in Original Edition.
     