#### FIELD AND OTHERS v. HOLLAND AND OTHERS.

The report *of auditors,*appointed by consent of parties in a suit in equity, is not in the nature of an award by arbitrators, but may be set aside by the court, although neither fraud, corruption, partiality, or gross misduet, on the part of the auditors, be proved.

Without expressly revoking an order of reference to auditors, the *9court may direct an issue to tried.

*8ERROR to the circuit court for the district of Georgia, in. a chancery suit, in which Field,' Hunt, ’Eajd°r and Robeson, were complainants, and Holland, Melton, Tigner, Smith, Cox and Dougherty, were defendants,

^he decree of the court below dismissed' the bill as to all the defendants.

The bill stated that, on the 21st of July, 1787, *Micajah Williamson*obtained from the state of Georgia a grant of 12,500 acres in Franklin county, in that state the 9th of July, 1788, Williamson conveyed to *Szveepson,*who, on. the 23d of July, 1792, conveyed to Ccw, who, on the *3d of September,*1794, conveyed to Naylor, who, on the 18th of December, 1794, conveyed to. the complainant Field, and one *9H.arland, ás tenants in ,common, and that Harland afterwards conveyed his undivided interest to the other eomplainaijts*

A court of equity may as certain *the*facts themselves, if the evidence enables them to do it, or may refer the question to a jury, or to auditors. After an issue ordered, a court of equity may proceed to a final decree, without trying the issue, or setting aside the order.

The answer of a defendant is evidence against the plaintiff, although it be doubtful whether a decree can be made against such defendant.

The answer of one defendant i

The plaintiffs cannot avail themselves of the answer of a defendant who is substanctially a plaintiff; it is not evidence *against*a co-defendant. If neither *the**10debtor, nor the creditor, made the application of the payments, the court will apply them to the debts *for which the security is most*precarious.

*9That the ■ defendants, Meltdn, Tigner and Smith, claim title to the land in virtue of a sale made hy the sheriff fcj the defendant 'Melton, upon two writs -of *fieri facias,*founded upon judgments obtained -by ■the defendant *Holland*against the defendant *Cox ;*one in the year 1793, for 1,556i. the other in 1794, fqr *3,0001.*which executions were levied, and sales mede thereon in 1799. That the complainants were ignorant of those judgments at the tim<! '4)f. their purchase. That the judgments, or the greater part thereof, were paid and discharged by ,Cox before the executions issued thereon; but the sheriff,' well knowing the same, proceeded to levy and sell, &c.

That John Gibbons, the complainants’ agent, exhibite'd to the sheriff an affidavit stating that the executions had issued illegally, on which it became the duty of the sheriff to return the same into court, and discontinue ministerial proceedings thereon until.the judgment of the court whence the executions issued was first had and obtainedin the premises, according to the provisions of' the act in such case made and provided., The .affidavi of Gibbon stated, that the executions were illegal because they had not been credited with a partial payment.made by Cox. •

The bill states that the sheriff’s sale was lently made with a view to get the land at a" very low ■price ; the sale being for 300 dollars; and the land worth *25,000.*That the put-chaser. *Melton,’*at the time of his purchase, knew of the complainants’ title, and indemnified the sheriff for proceeding in the sale, and agreed that he should participate in its benefits.

Melton’s *answer*states, that in the year 17S7, naving land warrants, he surveyed three tracts of 920 acres each, on what he then supposed was vacant land, but which appears now to be within vYiinam*10son’s elder grant, of which he had no intimation till the year 1797, when he had sold parts of his surveys. Finding that Naylor had Williamson’s title, and being desirous of protecting the titles of so much of the .land as he had sold,' he purchased of Naylor 4,505 acres. That with the same.view, he afterwards purchased a judgment against Naylor, which he discovered was prior to Naylor’s deed to him; upon this judgment, he caused an execution to be issued, and-levied upon the land which he bought in.at a fair sale, under the execution, for 300 dollars. That afterwards, ifinding that the land' had been sold for taxes, - and purchased by George Taylor, he purchased Taylor’s claim, and paid‘him 300 dollars for it. That in June, 1799, he first heard of the claim of the complainants, and made a verbal agreement With Gibbons, their agent, for the purchase thereof, at a dollar an acre; but finding Holland had a prior judgment against Cox which bound the land, and which he was about to enforce by an execution and sale of the land, and Gibbons haying failed to compromise ■ with Holland, or otherwise to stop the sale, He (Melton) agreed with Holland that he (Melton) should become the pdrchaser at the sale, and would pay Holland 1,500 dollars for, the land without regard to the sum at which it might be struck off to him, which sum he has. paid . That this was done without any ■ fraudulent intention, and to secure his title ; being fully satisfied that the lands were liable to the judgments.

The answer of Dougherty, the sheriff, denies all fraud, combination, and interest in the transaction, and avers, that he acted merely in the discharge of his official duty; and that the sale was fair and *bona fide.*

Smith’s answer is immaterial, as it relates only to 75 acres of the land which he claimed .under a title prior to the complainants.

Tigner answers-.mérelv as to 3.57 acres which he ^purchased of the defendant Melton, in the year 1797-

*11Holland’s answer states, that subsequent to the two judgments, he made large advances to Cox in {roods, and took his obligations.

It states sundry payments and negotiations' made by Cox, particularly three drafts, or inland bills of exchange, given by. Cox to Holland in February, 1795, and payable in May, June, and July following, for which Holland gave the following' receipt: ‘c Washington, 21st February, 1795. Received from iTachariah Cox, Esq. three, sets of bills of exchange, dated the 5th and 15th instant, for twenty thousand dollars, payable in Philadelphia, which' when paid will be *on account of my demand against said*Cox.”

That in September, 1796, a settlement took place between Cox and Holland, of all their transactions *distinct from, and independent of, the two*judgments, and Holland took Cox’s note for 18,000 dollars for the balance, and gave a receipt, *with a stay of execution upon the two judgments*for three'years.

That the judgments *“never were dormant, but have been regularly kept alive and remain unsatisfied*

That it (was an established rule between Cox and Holland, that nil payments made were to go to the discharge of running and liquidated accounts, independent of the judgments, and that mode of settlement was adopted on their last settlement in 1796.

The *answer of Cox*states, positively, that *the judgments were paid and satisfied,*as early as the 14th of September, 1796,'by settlement of that date, when the parties passed receipts in full of all past transactions.

That the three bills of exchange, amounting to 20,000 dollars, were by him delivered to Holland *on account of the txvo judgments,*and ,that the bills have been *duly*paid and discharged.

That the' settlement of the 14th of September, 1796, was a final settlement of all account's prior to that day, including judgments, bonds, notes, and *12all demands whatever up t‘o that time; and *particularly*the judgments in question. That they exchanged receipts in full, (“ which receipt the defendant has lost or mislaid.”) That, upon the settlement being made, Holland promised and verbally engaged to enter up satisfaction upon the said judgments.

The *evidence*on the subject of the' payment of the judgments consisted principally of Mr. Vaughan’s deposition, and the letters and receipt of Holland for the bills for 20,000 dollars.

Mí. Vaugban stated, that althougn he had no particular knowledge how Holland and Cox'settled, yet when a new advance was made' by Holland to Cox, after the'l4th of September, 1796, he understood the *old concern*was settled. In a letter from Holland to Vaughan of the 18th of April, 1795, enclosing the bills, for 20,000 dollars, he says, “ you will oblige me much by procuring the payment of these bills. I have delayed the execution and sale of Mr. Cox’s property to the great mjury of my own affairs, and I request you may assure him that should the bills not be paid immediately, the consequence must be an assignment of the judgment against him, the result of which will be an immediate sale of. his property, which I will not be able tq prevent, unless his punctuality in this instance steps forward.” “ The late stoppage, of Mr. Morris and Nicholson, ! am fearful may affect them, but as they, together with Mr. Greenleaf, are concerned with Mr. Cox, in,the valuable property which my execution is upon, I expect they will *for their own sates*see me satisfied, and *these drafts paid, to prevent ivorse'*consequences.” He afterwards sgys, ‘5 Chave not security,b,y judgment to the *extent*of my debt "against him.” ' He ¿Iso urges Mr. Vaughan tq obtain security from Cox in case the bills should not be paid, in a letter of May 29, 1795, Holland again says, “ I hope yo.» will be able to make some arrangement for the payment of the 18,000 dollars, *as l feel a reluctance in pushing the execution*I haye against.the property of. *13Mr, Cox, although by doing so I would'make *some*thousands.”

It appeared fróm Mr. Vaughan’s account with Cox, ás state'd in his deposition, that the bills for 20.000 dollars, and also a draft On I. Nicholson for 2,570 dollars, and *lo per cent,*damages-on the 20,000 'dollars, excepting a balance of.about 1,500 dollars, had been paid before the 6th of February, 1796; and Mr. Vaughan had given up to Cox his. drafts of 18.000 dollars, and 1,000, ancl 3,000 dollars; all of -which had been given to Holland on account of prior claims. On the 23d of December, 1803, it was agreed by the parties to this suit, that *W. W., I. W,, and J.*6’., or any two of them be appointed auditors, with power to *examine*all papers and documents relative to payments made by Zachariah Cox, in satisfaction of judgments obtained by'Holland against him, and charged in the bill to be satisfied.

On the 21st of April, 1804, the auditors reported that they were .of opinion, from the papers laid be - fore them by both parties, that the judgments had been satisfied by.payments made prior to February, 1796.

Upon exceptions being taken to this-report, it waK set aside on the 14th of May, 1804, and *G.*A., J. *P. W., and P. S. were*appointed auditors by the court, to report whether the judgments were really satisfied; and that- they report a statement of the payments made <on the judgments.

On the 7th' of December, 1804, those audit >rs reported that they were of opinion that *no payments*appear to have been made on the judgments, no *vouchers*having been produced to that effect.

To this report exceptions were filed on the 14th of December, 1804. It does not appear upon the record that any order was taken either respecting the report or the exceptions to it.

*14On the 17th of May, 1805, the court decreed, that the bill should be dismissed with costs as to Melton, Dougherty, Smith and Tigner; and that Holland should bring an aciion of-debt upon the. judgments against Cox, who "was *to*appear by attorney and plead ■ payment, upon the trial of which issue,. the bill, answers, exhibits, and testimony in this cause was to be considered as evidence.

No other notice' is taken of the order for an issue at law, and on the 15th of May, 1807, the court passed the following decree.

“ This- cause is involved in much obscurity, but, upon' mature deliberation, we are of opinion that there is-sufficient, ground for us to decree upon. The defendant Holland is in possession of a judgment against Cox, which the latter contends is satisfied, and one of. the objects'bf t]jis bill is .to have satisfaction entered of record upon the said judgment. 1 he only difficulty arises upon the application-of sundry payments which' the complainants contend extinguished,the judgment, but which the defendant Holland replies ■ were applicable to other demands. The principle on which the court has determined to decree is this; that all payments shall be applied to debts existing when they were made, and as it appears that there were, sundry demands of Holland’s on Cox which- were not secured by judgment, that .those sums shall be first extinguished, and the balance only applied to the judgments.

“ This application of those payments is supported by general principles, as well as the partifiular circumstances of the case.

' “ 1. The payer had a right at the time of payment to have applied it to which debt-he pleased where a number, existed, but if he neglects to do so, generally, it rests in the option of the receiver-to make the application!, in this case Cox. takes'his receipts *generally.*Even when the large payment *15of 20,000. dollars was made, he takes a receipt on account»

“ 2. It appeará that the application of. those payments has. . actually been made in the manner we adjudge j for from a letter of Mr. Vaughan, through whom most of the payments were made, he intimates that he had given up the evidences of several debts to Cox, because they had been satisfied. Such an act'could only have been sanctioned by, a knowledge on his part that the mopey paid through him was in part anplicable to. those debts.

“ The sums which we adjudge to have-been due to Holland are the following, viz.

i. *S**d

Amount of first judgment, 1,556 0 Q

Interest from 1st of May, 1793,

Amouftt of second judgment, 3,000 O O

Interest from 21st of June, 1793,

Amount of acknowledged acpount, 332 1.0 7

Interest from ljth February, 1794,

Note of Marcjh 1,1794, int. Feb. 1,1794,2,278 O O

Note due 1st May, 1794, 1,500 O 0

Intérest from 1st May, 1794.

“ The payments made by Cox arc-the following:

/. *s. d.*

1794, May 25th, amount paid, 11 13 4

June. 25th, amount paid, 1,^63 17 10

1795, Feb. 21, amount of bills '$20,000, 4,666 13 4

26, amount paid, 28 0 0

Bills on Greenleaf, 700 O 0

Bills on Cox himself, 11 13 4

“ Upon the foregoing data, the register will state the account between' the parties, calculating interest upon the whole amount bearing interest to the time of payment, and applying the payments according to their dates.”

The register having, upon these principles, stated *16an yccourit, . by which a balance of 11,086 dollars remained still due on the judgments, the court, by a final decree, dismissed the *bill;*and the complainants sued out their writ of error.

*Jones*and Harper, for the plaintiffs in error, contended.

J. That the court below erred in setting aside the report of the auditors who had been appointed by consent. Their report,' was like an *azvard,*which cannot be set aside but for fraud, or partiality, or gross mistake.

2. In not having decided upon the exceptions taken to 'the second report of the auditors.

3. In not enforcing or setting aside the order to try an issue.

*4.*In dismissing the bill as to the purchasers, and retaining it as to. Holland. The purchasers had notice of the payment of the judgments. The plaintiffs, at the time of the sale, could not be presumed .to have known the.full extent of the payments made. 'It was sufficient that the purchasers had'notice of the complainants’ claim, and that the validity of the sale would be disputed.

The 20,000 dollars, in bills, ought to be applied to the judgments, because that is most beneficial to the payer, as no other debt was then- bearing interest. The receipt is upon account of Holland’s *demand;*evidently alluding to the'single demand on the judgments. If it had been intended as a general payment, it would have, been on account of his demands, in the plural.

The object of the bill is to set aside the sheriff’s sale to Melton. He is the only real defendant. Holland is only incidentally interested. It would have been no cause of demurrer if he had not been, made a party, Ivor is Cox. a necessary party,

*17It is true that the answer of one defendant canttot betaken as evidence against‘another. If one defendant wishes to avail himself of the testimony of another, he' must take out a commission and examine him as a. witness. Holland’s answer is no more evidence in favour of Melton, than Gox’s answer is evidence against him. Holland’s answer is only evidence for *himself,*and no decree is sought against *him.*If, then, the answers of Cox and Holland'are both excluded, the only evidence is Vaughan’s deposition, and Melton’s answer. If Holland’s and Cox’s answer be both admitted, the result, will be the same, for one destroys the other. Cox is not discredited by Vaughan’s deposition. The only facts proved are the two judgments and the payment of 20,000 dollars.

If money.be paid *an account,*it is to be applied, in equity, most beneficially for the debtor. It is not now in'the power of the creditor to apply it to which demand he pleases. If neither party,- at the time of payment, made the application, it is the province of the court of equity to make it now. The court is to judge, from all'the circumstances of the case, what was the intention of the parties, and what application of the money would be most beneficial to the debtor.

Vaughan considered it as a settlement of all accounts.

Notice that the judgment was satisfied was not *necessary;*the purchaser was bound to take notice— *gqveat emptor.*But if notice was necessary, enough was given to put the purchaser upon inquiry.

Marshall, Ch. J. Can *he sheriff, in Georgia, sell the whole of a large tract fora small, debt? or must he confine himself to the sale of enough to pay the debt.

Johnson, J. The sheriff cannot, divide a tract *18of land. If there are several tracts of land, he may sell that which comes nearest.to the sum.

*Harper.*

An objection has been made t;o the copy of the deed from Williamson to Sweepson, that it does not appear that the original deed was recorded in due time.

But this objection comes too late in the appellate court. Not having, been made in the court below, it must be considered as hav'ing been waived.

The first report of the auditors was pursuant to their authority, and can only be impeached for corruption, or gross impropriety of conduct, or mistake appearing upon the record.

*F. S. Key*and *C.*Lee, contra.

. The report made by auditors, ■ under an order made by consent, may be set aside as well as a report-made -by auditors under a reference made by the simple order of the court.

This report was excepted to because the.auditors, report only their *'opinion*generally, that the judg-' ments were satisfied, and do not report the payments in particular which had bden made upon them.

•Livingston, J. . It does not appear what., was done with those exceptions.

*Key.*

It is to be presumed that they were properly disposed of. The cause was afterwards fully heard,’

The. second report states, that no payments appear to have been made upon the judgments. The exceptions to tliis report were abandoned.

As to the issue ordered to be tried, it was a mere interlocutory order, which the court was not bbund to *pursue;*but might, if they thought proper, pro *19ceed to a final hearing without trying the issue, or setting it aside formally,

No notice that the judgments were satisfied, is averred or proved. The payments were not made upon the judgments, and have been properly applied to other accounts. 1 •

If Cox did not at the time direct to which account the payments should be applied, Holland might apply them to which account he pleased. If neither party has applied them, the court will apply them to claims not secured by judgments.

Every debt due to Holland from Cox made but one demand. The notes due to Holland were payable in May; the bills for 20,000 dollars did not become due till after May, although drawn in February. If the bills were given on account of the judgments, there would have been á stay of execution until'the bills became payable. When arrested in Philadelphia, Cox did not allege that the judgments had been satisfied; nor is it averred in his answer.

No good title is shown from Williamson. The ■ original deed is not produced, and it does not appear from the copy whether the original was recorded in due time.

The first auditors exceeded their authority; they were only authorized to do a ministerial act, blit they assumed to act *judicially.*

The report of the second auditors was correct; they were competent to say that no payments had been made upon the judgments. Cox’s answer is no evidence against Holland. If the complainants wished to avail themselves of Cox’s testimony, they ought to have taken out a commission and examined him.

But Holland’s answer is evidence for him and *20those claiming under him, and is conclusive unless contradicted by two witnesses.

Cox’s answer is discredited in a material pointy viz. '-the-paym'ent of' the judgments.

This court decided in the case of the *Mayor*& *Commonalty of Alexandria*v. *Patton &*others, (ante, v. 5. p. 1.) that if the debtor do not, at the time of payment, direct to which account it shall be ^applied,' the creditor may *at any time*afterwards apply it-to which account he pleases. In equity, all debts bear interest.

*February*12.

Marshall, Ch. J.

delivered the opinion of the court as follows ':

In this case some objections have been made *te*the regularity of the proceedings in the circuit court, which will be considered before the merits of the controversy are discussed.'

In May term, 1803, the following order was made.

> “*By consent of parties, it is agreed, that William Wallace, Jame.-j Wallace and John Cumming, or any two of them, be appointed auditors, who-shall have power to examine all papers and documents relative to payments made by Zachariah Cox, in satisfaction of judgments obtained by said Holland against said Zachariah, and charged in said bill to be satisfied, and that the testimony of John Vaughan, taken by complainants before Judge Peters, and now in the clerk’s office, may be produced by them to said auditors. And it is further agreed, that-said auditors may meet at any .time after the first day of April next, and not before, on ten days’ notice given to the adverse party.”

> The auditors returned the following report.

> “ We are of opinion, from the papers laid before *21us, by both' parties, that the judgments in the above case have been satisfied by,payments made prior to February, 1796.”

On exceptions this report .was set aside.

By the plaintiffs in error it is contended, that the order under which the auditors proceeded was equivalent to a reference of the cause by consent, and that their report is to ire considered as an award obligatory on all-the parties, unless set aside for some of those causes'which are admitted to vitiate an award. But this court is unanimously of opinion, that the view taken of this pqint. by. the plaintiffs is, incorrect. The order in question bears no Resemblance tb a rule of court referring a cause to arbiters. It is a reference to “ auditors,” a term which designates agents or officers of the court, who examine and digest accounts for the decision of the court. They do not decree, but prepare materials on which a decree may be made. The order in this case, so far from implying that the decision of the auditors shall be made the decree of the court, does not even' require, in termsy that the auditors shall form any opinion whatever. They are merely-directed to examine all papers andvdocumerits relative to payments made in satisfaction of the judgments.

Frbm the nature of their duty they were bound to report to the court, -and to state the result of their examination', but this report was open to ex- ' ceptión, and liable to be set aside. In the actúal case the report was a very unsatisfactory one, and was, bn that account, as well as on account, of the objections tb its accuracy, very properly set aside. .

The cause was again referred to auditors, who reported that no evidence had been offered to them of payments, to be credited on the judgments alleged by the plaintiffs to have been discharged.

The defendants insist that this • report ought to *22haVe terminated the cause. But the court can perceive no reason for this opinion. If tiñere were exhibits in ’the cause which proved that payments had been made, the plaintiffs ought not to be deprived of the benefit of those payments, because the auditors had not noticpd the vouchers which established the fact.

The court, without making any order relative to this report, directed, ah issue for the purpose of ascertaining, by the verdict of a jury, the credits to. which the plaintiffs were entitled.

■ It was. completely in the discretion of the court to ascertain this fact themselves, if the testimony enabled them to ascertain it; or, if it did not, to .refer the question either to a; jury, or to auditors. There was, 'consequently, no-error, either in' directing this issue, or in. discharging it.

But, .without trying the issue, or setting, aside the order, the court has made an interlocutory decreé, deciding the merits of the case by specifying bóth the debits and credits which might be introduced into the account, and directing, their clerk td state, an account in conformity with that specification;

This interlocutory decree is undoubtedly an implied discharge of the order directing an issue, and is substantially equivalent to such discharge. Had the issue been set aside, in terms, in the body of1 the decree, or by a previous order, it would have been more formal, but the situation of the case and of the pai'ties would have been essentially the same. The only real objection to the proceeding is, that the *parties*might not have been prepared to'try the cause'in court, in consequence of their expectation that it WQuld be carried before a jury. There is, however,' no reason to believe that this could have been the fact. Had there been any objection to a hearing on this ground, it would certainly have been attended to, and, if overruled, would have been respected by this court. But no objection appears to have been made, and *23the inference is, that the cause was believed to be ready for a trial.

These preliminary questions being disposed of, the court is brought to the merits of the case.

The. plaintiffs claim title tp a tract of land in the state of Georgia, under several mesne conveyances from MiCajah Williamson, the-original patentee. In the year 1793, while these lands were the property of Zachariah Cox, one of the defendants, two judgments were rendered against him in favour of John Holland, alsq a defendant, for the sum of 4,556/. sterling. These judgments remained in force until the year .1799, when executions were issued on them, which were levied on the lands of the plain-' tiffs held under conveyances from Cox, made subsequent to' the rendition, of the judgments. John Gibbons, the agent of the plaintiffs, objected to the sale, because, the judgments were satisfied either, in whole or in part, but as he failed to take the steps prescribed in such case by the 'laws of Georgia, the sheriff proceeded, and the lands were sold to Melton and others, who are also defendants in the cause.

This bill is brought to set aside the sale and conveyance made by the sheriff; and it also contains a prayer for general relief.

As the judgments constituted a legal lien on the lands in question, and the title at law passed to the purchasers by the sale and conveyance of the public pfficer, the plaintiffs must show an • equity superior to that of the persons who hold the legal estate. That equity is, that the legal estate was; acquired under judgments'which were satisfied, and thatsuffi-cient notice was given to the purchasers', to put them, on their guard.

If the facts of ithe cause support this allegation, the equity of the plaintiffs m'ust-be acknowledged; but it is incumbent on them to make out their case.

*24. In the threshold of this inquiry;, it becomeé necessary to meet an objection suggested by the:plaintiffs relative to the testimony of the cause. It is alleged that neither Holland nor Cox are nec.essasy or proper parties, and that their answers are both to' be excluded from consideration.

The correctness -of this position cannot be admitted. The. whole equity of the plaintiffs depends on the' state of accounts between Holland and Cox.' They .undertake to prove, that .the judgments ■ ojb‘tained by Holland against Cqx are.satisfied. Surely to a suit instituted' for this purpose, Holland and Cok are not only, proper but necessary parties. Had they been omitted, it would be incumbent on the plaintiffs to account for the omission, by showing that it was not in their power to make them parties. Not only are they essential to a settlement of accounts between themselves, but, in a possible state óf things, a decree might haye been rendered against one or both of them. Neither, is it to be--admitted that the answer of Holland is not testimony against the plaintiffs. ' He .is the party against whom the fact, that the judgments were discharged, is to • be established, and against whom it'is to operate. This fact, When established, it is true, affects the purchasers also, but it affects them consequentially,- and through him. It affects them as representing him. Consequently, when the fact is established against or for him, it binds them.

The plaintiffs themselves call upon Holland for a discovery. They aver that, the judgments were discharged, and expressly .'require hiifi to answer- this allegation. They cannot now be allowed .to say that this answer is. no testimony.

The situation of Cox is different. Though nominally a defendant, he is substantially a plaintiff.Their interest is his interest: their object is his object. .Hey as well as the plaintiffs, endeavours to show that the judgments were satisfied. ' He is dot to be considered as really, a, defend ant, nor does the. *25bill charge him with colluding to defraud the plaintiffs, or require him to answer the charge ,of contributing to the imposition alleged to have been practised on them. It is not in the power of the plaintiffs, in such a case, to avail themselves of the answer of a party who is, in,reality, thou ah not in form, a plaintiff;

The answer of the defendant Holland, then, where it is responsive to the bill, is evidence against the plaintiffs, although the answer of Cox is not testimony against Holland.

The evidence in the cause, theh, is the answer of Holland, the deposition of Vaughan, and the various exhibits and documents of debt which are found in the record. Does this testimony support the interlocutory decree which was rendered in May term, 1805?

That decree specifies the dehits and credits which •are to be allowed, and directs a statement to be made showing how the account will stand, allowing the specified items.

To thL order two objections may be made.-

1. That it ought, to have been more general. If this be overruled,

2. That its principles are incorrect.

Upon the first objection it is to be observed, that a court of chancery may, with perfect propriety, refer an account generally, and, on the return of the ' report, determine-such questions as may be contested by the parties ; or it may, in the first instance, decide an} principle which the evidence in the cause may suggest, or all the principles on which the account is to be taken. The propriety of the one course or of the other depends on the nature of the case. Where items are numerous, the testimony questionable, the accounts complicated, the superior *26advantage of a general reference, with a direction to state specially such matters as either party may require, or the auditors may deem necessary, will readily be perceived.

Where the account depends on particular principles which'aré developed in the cause, the convenience of establishing those principles before the report is taken will.also be acknowledged.

The discretion of the judge will be guided by the circumstances of the. case, and his decree ought not to be reversed because he has pursued the one course . or the other, unless it sháll appear either that injus-, tice has been actually done, or that there is reason to apprehend it has been done.

In this case it might, perhaps, have been more satisfactory had the parties been permitted to lay all their claims and all their objections before auditors, so that the precise points oi difference between them, and the testimony upon those points, might be br.ought in a single, view before the court*

But it is to be observed that two orders of refer-ence had before been made, on neither *>f which Was á satisfactory report obtained. That an issue had been directed, which had, for -several terms, remained untried. The probability is, that the controversy depended less on items than on principles, and that all parties were desiroüs of obtaining from the court a decision of those principles. That no debits nor credits were claimed but those which were stated in the papers, and that all parties wished the opinion o£ the court, on the .effect and application of those items. Kinder such circumstances, a judge would feel much difficulty in withholding his opinion.

In such a case the justice, of thé- cause could be defeated only by the exclusion of some item which ought to be admitted, or by an Erroneous.direction with respect to those items which were introduced.

*27This court perceives in the record no evidence of any credit to which' She defendant Cox might be entitled, which is not comprehended in the recapitulation of credits allowed him in the circuit court, and they are the more inclined to believe that no such omission was. made, as the fact would certainly have been suggested by the counsel for the plaintiffs, and the - circumstances . under which they claimed the item disallowed by the court, would have been spread upon the record, it is true, an additional Credit is claimed in the assignment of errors j but the testimony in the record does not support; this claim.

The majority of the court, therefore, is of opinion, that there is no error in the interlocutory decree, unless it shall appear that the principles it establishes are incorrect.

The items claimed by Holland, and allowed by the -court, aré'supported by documents, the obligation of which has not been disproved.

There is, then, no question on the merits but. this. Were the payments properly applied by the court, or were they applicable, to the judgments ?

The principle, that a debtor may control, at will, the application of his payments, is iiot controverted. Neither is it denied that, on his omitting, to make this application, the power devolves on the creditor. If this -power be exercised fey neitheiv it becomes the duty of thy court j and, ip its performance, a sound discretion is to be exercised.

It is contended by the plaintiffs that if the payments have .been applied by neither the creditor nór the debtor, they ought to be applied in the manner most advantageous to the debtor, because it must be presumed that such was his intention

The correctness of this conclusion, cannot be conceded. When a debtor fails to, avail himself of the. power which he possesses, in consequence of which *28that power devolves on the creditor, it does not appéar unreasonable to- suppose that he is content with the manner in which the, creditor will exercise it. If neither party avails himself of his power, in consequence of which it devolves on the court, it would seem reasonable that an equitable application should be made. , It being equitable that the -whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious. That course has been pursued in the present case.

But it is contended, that bills for 20,000 dollars were received, and have been applied in discharge of debts which became due two months afterwards.

It the receipt given for these bills, purported to receive them; in payment, this objection would be conclusive. If an immediate credit was to be given for thejja, that credit must be given on a debt existing at the time, unless this legal operation of the credit should be changed by express agreement. But the receipt for these bills does- not import that immediate credit was to be given for them. They are to be credited when paid. The time of receiving payment on them is the time when the credit was to be given ;. and, consequently, the power of application, which the creditor’ possessed, if no agreement to the contrary existed, was then *to*be exercised. • It cannot be doubted that he might have - credited-the sums so received to any debt actually demandable at the time of receiving such sum, unless this power "was previously abridged by the debtor.

It is contended that it was abridged; and that this is proved by the form of the receipt. The receipt states, that the bills, when paid, are to be credited\ on account of the demand of Holland against Cox, and the plaintifFs insist that the words import a .single, demand, and one existing at the time the receipt was given.

This court is not of that opinion. The whole *29debt due from one man to the other, may well constitute an aggregate sum not' improperly designated by the term demand, and the receipt may very fairly be understood to speak of the demand existing when the credit should be given.

. If the principles previously stated be cprrfect, there is no evidence in the cause which er. bles this court to say that there was not due, on the judgments obtained by Holland against Cox,, a sum more than equal to the value of the lands sold under execution. If so, the plaintiffs have no equity against the purchasers of those lands, whose conduct appears, tp have been perfectly unexceptionable ; and the bill, both as to them and Holland, was properly dismissed.

It iá the opinion of the majority of the court, that there is no error in the proceedings of the circuit court, and that the decree be affirmed.