#### *Griffin’s Ex’or & als. v. A. Macaulay’s Adm’r. Same v. E. Macaulay’s Ex’or. Dismal Swamp Land Co. v. A. Macaulay’s Adm’r & als.

April Term, 1851,

Richmond.

(Absent Cabell, P., and Mostoure,* J.)

1. Deeds of Trust—Sale of Land—Misapplication of Trust Fund—Liability of Co-trustee.—A person named trustee in a deed to secure debts, unites in sales necessary in the execution of the trust, and other formal acts, but he receives none of the trust funds; they being received by his co-trustee; and he is guilty of no fraud in relation thereto. Held: He is not responsible for the misapplication or waste of the funds by his co-trustee.

2. Same—To Secure Creditors—Statement of Amount of Debtsi—Effect.—A † ? trust deed to secure creditors reciting the amount of the debts due to the different creditors, is not conclusive, even as against the grantor and his administrator, of the amount of the respective debts.

3. Same—Evidence—Books of Grantor—Admissibility. ‡ —Under the circumstances, the books of the grantor in the deed of trust are proper evidence of the amount of the debts due to the creditors secured by the deed.

4. Same—Trustee—Estimated Rents.—Trustee not responsible for estimated rents when he has received none, where his delay in selling the property arose out of the difficulty of finding a purchaser.

5. Same — Creditor’s Right to Show Intention of Grantor. § ? creditor of the grantor in a deed to secure creditors, may shew by proofs that his debt was intended to be secured under the provision for another creditor.

*6.*Same— Same—Delay—Case at Bar.—Under the circumstances such creditor not barred by the delay from asserting his claim and obtaining relief.

7. Partnership—Incorporation-Suit for Debt—How Brought.—A debt is due to a partnership, and the partners are afterwards incorporated, and the debt then becomes the debt of the corporation. Held : It is competent to sue for it in the corporate name in a Court of equity.

*8. Deeds of Trust—Construction ǁ—Case ? at Bar.— Under the words in a deed of “all debts due the grantor,” the indebtedness of a partner of the grantor to the partnership will pass.

9. Same—Same—Same.—Under these words, a claim which the grantor has on a foreign government for damages for the detention of his ship, will pass.

10. Assignor and Assignee—Evidence—Answer—Case at Bar.—Under the circumstances, the answer of the assignor of a claim held to be competent evidence against his volunteer assignee, in a controversy between said assignee and third persons.

By deed bearing date the 15th of November 1797, Alexander Macaulay of the town of York, in order to secure the payment of the following debts, that is, in the first place, to secure the payment *£*2000. to Dr. Corbin Griffin of the town of York; in the second place, to secure the payment of *£*5000. to John Jamieson of the county of Culpeper; and in the third place, to secure the payment of *£*3000. to Francis Jerdone of the county of Bouisa, conveyed in trust to Thomas Griffin and Thomas Nelson, a tract of land in the county of Warwick, lots in the town of York, tenements and lots in the town of Norfolk, lots and tenements in Hanover town, thirty slaves, all the stock, furniture, tools, &c., upon or belonging to the land in Warwick county, the stock and furniture in Yorktown, which was specified, including all his household and kitchen furniture, all his goods in his store in the town of York, one ship called the Charles Carter, one rig called the Helen, one sloop called the John, ten shares in the Dismal Swamp Canal Company, one half share in the Dismal Swamp Band Company, and one moiety of a tract of eight thousand acres of land lying in the county of Norfolk, held in company with Isaac Sexton, deceased. And he assigned to the same persons “all debts due to him;” all of which debts were stated to be expressed in a schedule annexed to the deed; but there was in fact no such schedule.

*The trusts declared in the deed were, that the trustees should, as soon as they conveniently could, proceed to sell the property at public auction, and out of the moneys arising from the sale, should, after paying the expenses attending the execution of the trust, first pay the debt above mentioned to be due to Corbin Griffin, and fully indemnify him in all sums and charges in which he was or might be bound as security of Alexander Macaulay; in the second place, to pay the debt above mentioned to be due to John Jamieson, and fully to indemnify him as Macaulay’s security; and in the third place, to pay the debt above-mentioned to be due to Francis Jerdone, and fully to indemnify him as Macaulay’s security; and to apply the residue of the *272money arising from the sales of the property, if any residue there should be, to the use of any other creditors of Macaulay.

It appears that Macaulay, with the consent of the creditors, retained the trust property in his possession, and managed it for the purposes of the trust until his death, which occurred in July 1798. After his death the trustees took possession of all the property they could find; and it was sold in 1798, 1799, 1800 and 1801; except the Hanovertown property, which was sold in 1811 for *£*49. 10. Although the trustee Nelson joined in advertising the property for sale, in giving Corbin Griffin a power of attorney to sell the Norfolk property, in conveying the land sold, and perhaps in some other formal acts, yet in fact none of the proceeds of the sales went into his possession ; and he died late in 1803. Thomas Griffin was the acting trustee. He commenced to make payments to Corbin Griffin in September 1798; and these were continued until the 23d of November 1800. This was the date of the last payment made to Corbin Griffin during his life, though he lived until 1813. In December 1801 *the trustee Griffin commenced to make payments to John Jamieson; and in that month paid him *£*2297. Of this sum, *£*750 was the price of the one half share of the stock of the Dismal Swamp Hand Company, which was purchased by Jamieson; and *£*1200 was the price of the moiety of eight thousand acres of land in Norfolk county, which was also purchased by Jamieson. On the 11th of February 1804, Jamieson executed two papers, admitting he had bought this property to satisfy a debt due himself, which was discharged, or nearly so, and afterwards for the Dismal Swamp ¿and Company. And in July 1809 he conveyed the property to the company by two deeds, in which he recited that Jamieson was a manager of the Dismal Swamp Hand Company, and the intention of the deed of November 1797 was, after paj'ing a private debt due from Macaulay to Jamieson, to pay a considerable debt due from Macaulay to the Dismal Swamp Hand Company; and that the trust had been completely executed as to the claims of Corbin Griffin and John Jamieson as individuals.

In 1815 Robert Anderson, who had married Mrs. Peyton Southall, a daughter of Alexander Macaulay, qualified as administrator de bonis non upon his estate; and in July 1819 he exhibited his bill in the late Chancery court at Williamsburg, against Thomas Griffin in his own right and as administrator of his father Corbin Griffin, Carter Berkeley and Frances his wife, who was Frances Nelson, the administratrix of Thomas Nelson, John M’Neale executor of John Jamieson, and the sheriffs to whom the estate of Alexander Macaulay had been previously committed. In his bill he states that his intestate, Alexander Macaulay, a merchant of long standing and extensive dealing, having a short time before his death encountered considerable losses in his shipping business, by reason of captures at sea and mercantile failures, found himself, after many years of ^laborious enterprise, involved in difficulties and perplexities, from which he was unable with promptitude to extricate himself. These captures and losses having temporarily drawn from their usual course of trade so great a portion of his funds, he was unable to meet with his accustomed punctuality, the payment of all his moneyed engagements; and as is usual in such cases, many of his creditors pressed him with the lashes of the law. Owning and possessed of a very considerable estate in lands situated in various parts of the country, vessels and cargoes at sea, and in ports foreign and domestic,slaves, merchandise, debts, and numerous other personal estates, he could not justly, and therefore did not, apprehend that his creditors were jeopardized by his situation, although he had to encounter such numerous and extensive difficulties. Confident of his ability in time to command his funds, which were in amount beyond the just demands of his creditors, indulgence was all he wanted; but by many this was denied him. And in order to place his creditors on a more general and equal footing than some of them were willing to remain on, he conveyed to Thomas Griffin and Thomas Nelson as trustees, by deed dated on the 15th of November 1797, the greater part of his estate.

After stating the trusts of the deed, the bill charges that Macaulay, at the time of its execution, was not indebted to Corbin Griffin as much as *£*2000., or anything near that sum; and that he never was so largely indebted to him: and of the debt which he did owe him at the time of executing the trust, a considerable part of it was paid to him between that period and Macaulay’s death. That Macaulay was indebted to John Jamieson in only a small sum, at the time of executing the trust deed; and that he did not become more so after its date. The plaintiff believed that the debt of *£*3000. 'secured by the deed to Francis Jerdone was really due to him, and perhaps a greater sum; but that *neither Jerdone or Jamieson was bound as security for Macaulay for a. cent when the deed was executed, or became so bound afterwards. That Corbin Griffin was bound as Macualay’s security in several instances at the time of executing the said deed; and that he probably became a further security for him after its execution; but that from the debts for which he was bound as surety for him before the execution of the deed, Macaulay afterwards released him in a great degree, by the settlement of the debts before his death. And thus the sums of *£*2000. to Corbin Griffin, and *£*5000., to John Jamieson, were in a great degree merely nominal debts; and the *£*5000. to Jamieson almost entirely so. In order to secure these three sums however, amounting nominally and really together to ten thousand pounds, Macaulay had conveyed to Thomas Griffin and Thomas Nelson, by the said deed, property to an amount of more than five times the *273sum; most of which the plaintiff charged had been, could be or would have been realized bj' the proper diligence of the said trustees.

The complainant then proceeded to state the death of Macaulay, in July 1798, leaving a widow and four infant children. That the trustees took possession of all his property, and also of all his books and papers. That since his qualification as administrator, he called upon Berkeley, the administrator of Nelson, and upon Thomas Griffin, for an account of their actings and doings in execution of the trust, but had not obtained any satisfactory account. And after stating at great length, the property which he charged had gone into the hands of the trustees, and interrogating them with .great minuteness, upon all the subjects embraced in the bill, he asked for an account of their transactions, and a payment to himself of the amount which might be ascertained to be in their hands, and for general relief.

*Thomas Griffin filed an answer to the bill, which was excepted to by the plantiff, for his failure to respond to some of the allegations and interrogatories of the bill; and some of the exceptions being sustained, he filed an amended answer. He stated that some of the property mentioned in the bill, the trustees had never been able to find. That such was the fact as to the ships Helen and John. That the ship Charles Carter had been sold by a decree of the United States court, at the suit of Thomas Lane, who had a lien upon it. That other property mentioned in the deed had been sold by Macaulay, in his lifetime, who remained in possession of the property up to the time of his death, by the permission of the creditors. That he had never seen the schedule of debts mentioned in the deed. That the trustees proceeded soon after the death of Macaulay, to sell all the trust property they could find, and had applied the proceeds as stated in the account presented to the complainant.

The defendant further stated that the books of Macaulay shewed that he was indebted to Corbin Griffin at his death; and also that said Griffin was bound as his surety for a large amount. Of the debt due from Macaulay to Jamieson and Jerdone, the ■defendant Griffin knew but little, except that Macaulay during his life, frequently informed him that he was indebted to Jamieson for large sums of money, which Jamieson, as agent of the Dismal Swamp Land Company, had suffered Macaulay to receive, and for which Jamieson was bound to account to the company; and that Jerdone had lent him a good deal of money in his distress. But that, however all that might be, he conceived the trustees had nothing to do with this part of the case, for the trust deed itself acknowledging the existence of the debts therein mentioned, and directing payment thereof by the trustees, it was not for them to enquire whether the debts were due or not; but their

business was to ^execute the trusts and powers committed to them, in order to the satisfaction of these demands. He did not admit that Macaulay ever made any other payments to Corbin Griffin after the execution of the deed, than such as appeared on Macaulay’s books, or that Macaulay relieved him from his liabilities as his surety.

The defendant Griffin further said that he knew nothing pf the accounts between Macaulay and Corbin Griffin, except what was disclosed by Macaulay’s books; but as these books shewed a much less balance due at the time of the execution of the deed of trust that was therein stated by Macaulay himself, the defendant always conceived, that as trustee he was bound to settle with the creditors mentioned in the deed, according to its directions, and not according to the appearance of accounts existing prior to its date, and not then closed; and under these impressions all payments were made by the trustees, to Corbin Griffin and Jamie-son.

M’Neale, the executor of Jamieson, also answered the bill. After admitting the execution of the deed of trust, and that it secured to Jamieson *£*5000., he said that he did not admit that Macaulay was indebted to Jamieson in a small sum only; nor had he been able to discover the evidence of his being indebted to Jamieson in a sum less than the whole amount, although it was probable that such was the case; which, if it were so, ought to be shewn, as the deed was a solemn instrument, and carried upon its face evidence that the whole sum was due. That from the best information he had been able to obtain, Macaulay was considerably indebted to Jamieson, if not to the whole sum of *£*5000. He had been informed and believed that part of the sum of five thousand pounds consisted of *£*3000. or upwards, belonging to the Dismal Swamp Land Company, which was loaned by Jamieson to Macaulay some time in the year 1796; and that the other part of the debt secured by the deed of trust, to be paid to Jamieson, *was a private debt due from Macaulay to Jamieson; but as Jamieson was a careless accountant and kept no books, and had left no account of the transactions between him and Macaulay, the defendant was not enabled to say from anything derived from that source, what was the amount of the debt due from Macaulay to Jamieson; but from an account taken from the books of Macaulay, by Corbin Griffin, and furnished to the defendant, it appeared that on the 15th day of May 1797, a few months before the execution of the trust deed, Macaulay was indebted to Jamieson in about the sum of *£*173. 10. 7. And although it was probable that these two sums with the interest due thereon, formed the aggregate, to secure the payment of which the said deed of trust was given, the defendant could not admit it was the case, and it was probable that Macaulay might have been indebted to Jamieson on some other account that did not appear.

In October 1819, Elizabeth Macaulay, the *274widow of Alexander Macaulay, exhibited her bill in the late Williamsburg Chancery court, against Thomas Griffin, as trustee in the deed from Alexander Macaulay, and as executor of Corbin Griffin, Carter Berkeley and Frances his wife, late ■ Frances Nelson, widow and administratrix of Thomas Nelson, M’Neale as the executor of John Jamieson, and the sheriffs to whom the estate of Macaulay had been committed before Robert Anderson qualified as administrator, in which, after setting out the deed executed by Macaulay to Thomas Griffin and Nelson, she alleges that Francis Jerdone was her brother, and that he had assigned to her all his right in the *£*3000. secured to him by the deed aforesaid.

The charges as to the debts of Corbin Griffin and Jamieson, the conduct of the trustees, and the property conveyed, are substantially the same as in the bill of Anderson, administrator of Macaulay; but. there is nothing *said as to the embarrassments of Macaulay, or his motives or objects in executing the deed.

The bill further charged, that independent of the claim which the plaintiff had upon the trustees in virtue of .the assignment to her by Francis Jerdone, she had claims upon them and upon others who had since held the lands, for money due from them to her in right of her dower in the lands conveyed to the said trustees by Alexander Macaulay; for that the annual profits of a portion of the said real estate so conveyed were considerable, until the sales were all received by the trustees, and that she had as yet received from them only a portion of what came to their hands of the said dower interest.

The prayer of the bill was, that the Court would decree the defendants to render on oath, proper accounts of their and each of their transactions, and that the plaintiff might be paid the amount of her said several claims, and for general relief.

To the bill of Mrs. Macaulay, Griffin and M’Neale, answered substantially as they did to the bill of Anderson as administrator of Macaulay. Berkeley and wife answered that they knew nothing of the transactions in the bill mentioned, further than that Thomas Nelson was named a trustee in the deed of the 15th of November 1797; but they believed he never acted under the deed, .except to join in certain formal acts to which his assent was necessary; and that Thomas Griffin had been the sole acting trustee.

In 1820, the president and managers of the Dismal Swamp Band Company instituted a suit in the Chancery court of Williamsburg, against Alexander Macaulay’s administrator, Thomas Griffin, as trustee of Macaulay and executor of Corbin Griffin, Jamieson’s administrator, Berkeley and wife, Jerdone, and Turner Christian, executor of William B. Christian, which, owing to some error in the institution of the suit, was *permitted to abate. And then in 1823 the company instituted another suit in the same court against the same parties. In their bill they state that | as owners of a large tract of land in the Dismal Swamp, the members of the company had for many years derived a profit from working the timbers on said land into shingles, which operation had been attended to by agents under the immediate control of directors, until 1814, when by an act of the General Assembly of Virginia, the company was incorporated. That in the year 1793 and until 1797, Alexander Macaulay was a member and director, and as such had an equal control with other directors over the funds and property of the company. That during this period Macaulay as director, with the consent of John Jamieson, also a member and director, received and applied to his own use at different times, large sums of money, which with the interest, amounted in the month of November 1797, to the sum of 13,395 dollars 69 cents, with interest on the several items from their respective dates, at which time the affairs of Macaulay becoming embarrassed, he executed to Thomas Griffin and‘Thomas Nelson of York, a trust deed conveying an immense property to secure Dr. Corbin Griffin in the sum *£*2000., with other liabilities, said John Jamieson in the sum of *£*5000. and Francis Jerdone in the sum of *£*3000. and any balance for the benefit of his creditors generally.

They charge that at the time of executing this deed, Jamieson was still a member and director of the company; and that it was the object and intention of Macaulay to secure to the members of said company, through their director John Jamieson, the sum of money due to them; and that in fact the *£*5000. was intended to cover that sum, and a small debt due to Jamieson individually ; And although the' deed does not state the fact, they have abundant evidence to prove it, obtained through the frequent acts and acknowledgments of *Jamieson himself. And they exhibit two deeds dated July 20th, 1809, by one of which Jamieson conveys to William Nelson and others, members of the Dismal Swamp Band Company, a moiety of eight thousand acres of land; and by the other he conveys to the same parties a half share of the stock to the company. And they charge that in both these deeds, Jamieson expressly acknowledges that the deed of trust was intended, after paying a small debt to Jamie-son, to pay a large debt due the Dismal Swamp Band Company, and that the trust was completely executed as to the claim of Corbin Griffin and the individual debt due to Jamieson. That all parties have tacitly acknowledged the claim of the company through Jamieson. That they have not been disturbed in the enjoyment of the property transferred to them by the deeds aforesaid; and the trustee himself, a member of the company, not only in the full knowledge of these facts, but for two years past, had induced the company to believe that a large portion of the balance due to them would be paid by him out of funds still held by him as trustee. They charge that Griffin had been guilty of gross negligence *275and mismanagement in his execution of the trust. That he had failed to collect debts that he might have collected. That he had allowed property to waste without selling it. That he had not paid over to the proper parties the proceeds of such property as he did sell. And that he paid himself as executor of Corbin Griffin, more than he was properly entitled to under the deed of trust. They charge that Thomas Griffin had expressly promised to pay to them a sum of upwards of 5000 dollars, which he received in 1819 from the government of the United States, as due to Alexander Macaulay’s trust fund, and that he deceived them. And they charged that there was a large debt due the trust fund from the estate of William B. Christian and others.

*The plaintiffs refer to the suit of Anderson as administrator of Macaulay against Griffin and others, in which he claims any balance in the hands of the trustee as well as to collect all debts due the estate of Alexander Macaulay; and they insist that they are first entitled to any balance in the hands of the trustee, and to any fund which may arise out of the property conveyed in the trust deed until they are paid. They call upon the defendants to answer as to the facts stated in the bill. They ask that Griffin shall give an account of the trust fund and his administration of it. That Anderson shall exhibit an account of his administration of Macaulay’s estate, shewing the money and property he has received, and the debts he has collected. That M’Neale say what he knows of the claim secured to Jamieson, and whether he does not know that a great portion of the sum of *£*5000. was secured to him as a manager of the Dismal Swamp Hand Company ; and if from the books of Jamieson he can ascertain how much of said money was due to Jamieson individually. That Francis Jerdone say if he has received any portion of his debt due from Macaulay, and how much; and that Turner Christian, executor of William B. Christian, may shew what property he became possessed of as executor, and what disposition he had made of it. And that the plaintiffs may be considered as interested in the decision of the suit of Macaulay’s administrator.

In July 1824 Anderson answered the bill. He admitted that Macaulay had been a member of the Dismal Swamp Hand Company, but did not admit that he was a director of the company; or if he was that he had control over the funds of the company during the period referred to in the bill, equal to that exercised by their directors; but he alleged that a certain John Brown, then a member of the company, was the treasurer, and received and disbursed its funds. He denied that his intestate ever did, during the said period, either with or ^without the consent of John Jamieson, receive from the company and apply to his own use, either at different times or at any time, either large sums or any sum of money, other than such as may have been his dividends.

The defendant admitted the execution of the deed of trust by Macaulay to Griffin and Nelson, but believing as he said, that his intestate was not indebted at all to the Dismal Swamp Hand Company, he denied that Macaulay had any such object or intention in view as to secure to said company through said Jamieson or otherwise any sums of money whatever; or that the said *£*5000., or any part thereof, was intended to cover or secure any sum of money whatever to the company. He said that Macaulay’s debt to Jamieson was less than *£*200., and as he believed was paid off in 1801.

The defendant charged that the trustees had sold the property at most inadequate prices, and had conducted the sales improperly ; allowing Corbin Griffin to sell for them, and to buy at most inadequate prices, at his own sale. That Corbin Griffin and Jamieson were managers of the company, and Thomas Griffin the acting trustee under Macaulay’s trust deed, these parties claiming too under the trust deed *£*7000.; and yet under these circumstances, the company lay still for five and twenty years without making one effort to secure their alleged debt, which they now say amounted in November 1797 to the enormous but precise sum of 13,395 dollars 69 cents.

He denied that the trustees became assignees of all debts due to Macaulay at the time the trust deed was executed. ’ He alleged that there was a schedule of such debts as Macaulay conveyed by the deed, and that the surviving trustee withheld it as defendant believed, because he had collected many of those debts, of which no discovery ever would be made without its production. But if the deed passed all the debts then due to Macaulay, the defendant insisted that the claim which *his estate had on William B. Christian w'ould not be embraced therein; for Macaulay and Christian were partners in a mercantile concern in Hanover, and Christian survived Macaulay, who lived more than eight months after the date of the trust deed. That the partnership went on as usual, Macaulay continuing to supply the store with merchandise. That the concern had not been settled up, but a suit was then pending for that object; and that in that case the surviving trustee, Thomas Griffin, had filed an answer in which he disclaimed all right under the deed to claim any sum that might be found due to Macaulay on a final settlement of that concern.

Finally, the defendant denied that Macaulay owed the Dismal Swamp Company anything. But if he did, he denied the right of the company to claim payment through Jamieson, under the trust deed or otherwise. And he moreover denied their right to claim of him at all in a Court of chancery. He insisted that their recourse against him, if any thing was due, was in a Court of law: and in either case he pleaded the lapse of time as a complete and final bar to any claim which the company had or might set up against his intestate.

Griffin in his answer to the bill said that *276he had received no money from the United States government “under the treaty of peace with France.” That he had received money arising from the sale of the trust estate, the collection of debts and other sources, all or nearly all of which had been administered by him, and paid away as directed by the deed. That he had paid to the executor of Corbin Griffin, the first named creditor in the deed, the balance which appeared to be due to his estate. That he did this because he was advised by counsel that the trust deed ought to be his sole guide: that this deed expressly acknowledged a debt to be due to Corbin Griffin of *£*2000., and directed *the same to be paid. That the deed fully indemnified Corbin Griffin for his surety-ships for Macaulay; and that said Corbin Griffin had been compelled to pay considerable sums of money as the surety of Macaulay. That he was advised by counsel that the debt due from the estate of William B. Christian did not come within the deed, because that could only include such debts as were then due to Macaulay; and that the partnership of William B. Christian & Co. continued, and their operations proceeded until the death of Macaulay. That this debt arose out of this partnership, and became a debt only at the dissolution thereof.

Francis Jerdone in his answer said that there was no debt due to him individually from Macaulajr. That he had been informed and believed that Macaulay in his lifetime had transactions with a certain William Douglass; and received from him timber and produce from an estate at that time managed by said Douglass, of which estate defendant was half owner; and that Macaulay was indebted to Douglass and defendant on account of that timber and produce; but to what amount he was unable to say. That no payment had been made to him on that account either by Macaulay in his lifetime or by any one since. That since the death of Macaulay he had assigned to Mrs. Macaulay, his sister, the debt aforesaid, and that he therefore had no claim against Macaulay’s estate.

M’Neale in his answer said that he had been informed and believed that a part of the debt secured by the deed to be paid to his testator, consisted of the sum of *£*3000. or upwards, belonging to the Dismal Swamp Band Company, which was loaned by his testator to Macaulay, and for which Jamie-son feared he had incurred a personal responsibility. That the other part of the sum secured, or a considerable part thereof, was a private debt due from Macaulay to Jamieson; but his testator was careless and kept no books, and therefore *he could not say from any thing derived from that source, what was the amount of the debt due from Macaulay to Jamieson: but from an account taken from the books of Macaulay by Corbin Griffin, and furnished to the defendant, it appeared that Macaulay was indebted to Jamieson, on the 15th day of May 1797, a few months before the deed was executed, in the sum of about *£*173. 10. 7. And although it was probable that these two sums formed an aggregate, to secure the payment of which the deed was given, the defendant could not admit it to be the case, as it was probable that Macaulay might have been indebted to Jamieson on some other account also.

The defendant stated the purchase by Jamieson of the moiety of the tract of eight thousand acres of land, and the half share of the stock of the Dismal Swamp Band Company, and his conveyance of these to the company in 1809, for the purpose of reimbursing them for the aforesaid *£*3000. He also stated certain sums of money he had received in 1801. He further stated that since the death of Jamieson the defendant had settled his account with the Dismal Swamp Band Company, and had obtained from the company a complete discharge and release of and concerning the premises.

In July 1823, the two first of these causes were removed to the Chancery court at Richmond; and on the 18th of March 1825, the case of B. Macaulay against Griffin and others came on to be heard, when the Court made a decree directing the defendant Thomas Griffin to render before one of the commissioners of the Court accounts of the joint transactions of himself and Thomas Nelson, during the lifetime of the latter, as trustees of Alexander Macaulay, and of his own transactions as surviving trustee of said Alexander Macaulay,' since the death of said Nelson; and that he produced before the said commissioner, under oath if required, all the books and papers of every description, in his possession or *power, belonging to the estate of Alexander Macaulay; and that he moreover, if required, submit to be examined in solemn form touching the said books and papers, and his joint and separate transactions as trustee of said Alexander Macaulay. That he render before said commissioner accounts of his testator Cor-bin Griffin’s transactions with the said Alexander Macaulay, during their joint lives, and with the estate of the latter after his death; also an account of all receipts or collections made by the said Corbin Griffin of the debts or effects of Macaulay individually, or as agent of said Thomas Griffin and Thomas Nelson, jointly or separately, as trustees of said Macaulay; and that he also render before said commissioner an account of his actings and doings as administrator of the said Corbin Griffin.

And the Court further decreed Carter Berkeley and Frances his wife to render before the same commissioner an account of their intestate Thomas Nelson’s joint and separate transactions as a trustee of Alexander Macaulay deceased; and also accounts of their administrations of the estate of Thomas Nelson deceased.

And the Court further decreed the defendant John M’Neale to render before the same commissioner accounts of his testator John Jamieson’s transactions with Alexander Macaulay during their joint lives, and with *277the estate of the latter after his death; and that he also render an account of all moneys and effects of said Alexander Macaulay which came to his said testator’s hands, either direct from the said Thomas Griffin and Thomas Nelson, or from either of them, as trustees of the said Alexander Macaulay or otherwise ; and that he also render before the same commissioner an account of the dividends, proceeds and profits of the lands and Dismal Swamp Band Company’s shares, of the said Alexander Macaulay, which came to the possession, or whilst they remained under the direction of the said *John Jamieson or his agents. And that he also render an account of his transactions as executor of said John Jamie-son.

On the 25th of March, the Court, on the motion of the defendant Griffin, ordered that the cases of A. Macaulay’s administrator against Griffin and others, and of E. Macaulay against Griffin and others, should be consolidated, and thereafter prosecuted as one suit; and that the foregoing decree entered in the last of the causes, should be considered as entered in both.

In obedience to the foregoing decree, commissioner Baker in October 1826, made a report containing numerous statements of the accounts directed by the decree; and to this report the plaintiffs and the defendants filed many exceptions.

The case of the Dismal Swamp Band Company against Macaulay’s administrator and others, was removed to the Chancery court at Richmond by an order made on the 19th day of July 1825. And on the 7th day of March 1827, the three causes came on to be heard together; and after argument they were continued until the 29th of June 1829, when the Chancellor held that Anderson, as administrator of Macaulay, was not the proper plaintiff in the first of these suits; but that it should have been brought in the name of the widow and heirs of Alexander Macaulay. As to Mrs. Macaulay’s claims, he held that she not having joined in the trust deed, she was entitled to dower; and that so far as the trustees had sold any of Macaulay’s lands, she might waive her claim for dower therein, and might upon a proper bill for that purpose, be allowed compensation out of the purchase money, perhaps, in lieu of dower; or she might be allowed the benefit of any contract in relation thereto. And he also held that she was entitled as the assignee of Francis Jerdone, to the full amount assigned by him to her, as fixed bj1- the deed. And he left it to her counsel to x'say how far her bill made a proper case as to her rights, except as assignee as aforesaid, to any other matter or right she had under the said Alexander Macaulay. Wherefore the Court, setting aside so much of any order made in these causes, before or since they were consolidated, or any report under the same as conflicted with what followed, decreed that the bill of the plaintiff in the first suit be dismissed with costs. And that leave be given to the plaintiff in the second suit to amend her bill and make new parties within thirty days; and if not done within that time, that so much of her bill stand dismissed as an act of this day. And it was ordered that the second and third of these causes be so far consolidated as to render it unnecessary to take the account of the trustees in relation to the whole of the trust subject in both. And the accounts were referred to a commissioner with instructions.

On the 2d of July 1829, the three causes were again brought on, when the following decree was entered in them:

“The parties, by their counsel, having consented, as hereinafter mentioned, the decree pronounced in these causes on the twenty-ninth day of June last, is set aside ; and by consent of parties, in the first of these causes, in writing, Robert Anderson and Helen M. his wife, Robert Anderson, administrator of Alexander Macaulay jr., and of Francis Macaulay deceased, Patrick Macaulay and Elizabeth Macaulay, (which said Helen and Patrick are, and the said Alexander jr. and Francis were the children, and the said Elizabeth is the widow of Alexander Macaulay deceased, and his only heirs and distributees,) are admitted parties plaintiffs in the first of these causes; and by like consent the bill therein is amended so as to add to it a prayer, that the balance of the trust subject that may be found in the hands of either or any of the defendants, or with which either or any of them may be chargeable directly or iudirectly, *ma3r be decreed to the parties now admitted as plaintiffs, in their rights as heirs and distributees aforesaid, if the same should not be decreed to the administrator of said Alexander Macaulay deceased; and by like consent, the answers heretofore filed are to stand as answers to the bill in which the said parties are as aforesaid admitted plaintiffs, and which is amended as aforesaid, and the first of these causes heard on the bill so amended as aforesaid, the said answers with general replications thereto, the examinations of witnesses, exhibits and accounts heretofore filed or returned, without any further proceedings at rules. And thereupon these causes came on this day to be again heard together on the papers formerly read, and the pleadings amended in the first of these causes as aforesaid, and were argued by counsel: On consideration whereof, the Court doth recommit the reports made by commissioner Baker, with the several exceptions thereto, to any other commissioner of the Court, for him to re-state and settle the accounts between the parties, and make report thereof to the Court, with any matters specially stated deemed pertinent by himself, or which may be required by the parties to be so stated. It will not escape the attention of the commissioner, that in taking the accounts of the trustees, they should not be taken jointly unless they so expressly acted: it will follow, therefore, that where they did not so expressly act, each will be held to have acted for him*278self, and liable accordingly j and that whether one or more of the trustees permitted the said Corbin Griffin, in his lifetime, to interfere with the books of the said Alexander Macaulay deceased, he or they must be liable for his acts.

“The commissioner, in the absence of all other proof, will resort to the- trust deed as fixing the debts therein enumerated to be first charged on the trust fund, subject to be controlled by legal proofs in relation to the same. He will not be misled by the imaginary claims *of any party blotted out by time, but will suffer all such to sleep undisturbed. The trustees, however, cannot be protected, as to any of their own acts, by lapse of time.

1 ‘And the Court doth give leave to the plaintiff in the second of these causes, to amend her bill in relation to her dower claim, if she shall be so advised within thirty days from this day; and if not done within that time, so much of her bill is to stand dismissed as an act of this day. But if the plaintiff in ' the second of these causes, shall so amend her bill, the re-settlement of the accounts before the commissioner is not to be delayed thereby.”

The causes having been transferred by operation of law to the Circuit Superior court for the county of Henrico, on the 24th of November 1832, on the motion of the plaintiffs in the first suit, so much of the order made in these causes on the 29th of June 1829, as recommitted the report of commissioner Baker, with the exceptions thereto, was set aside. And Elizabeth Macaulay having died, the second suit was revived in the name of her executor, Robert Anderson; and on the 3d of December 1833, the first two causes came on again to be heard upon the papers formerly read, when the Chancellor—Brockenbrough—-delivered an opinion in which he passed upon all the exceptions to commissioner Baker’s report. The most of these exceptions it is unnecessary to notice; but the opinion of the Judge presents the questions which arise in the cause, and gives the facts in relation thereto; and will save the necessity of any other statement of them. That part of the opinion is as follows:

“The first question which arises in this case is, what was the extent of the debt due from Macaulay, at the time of the execution of the deed (that is, on the fifteenth day of November, one thousand seven hundred *and ninety-seven,) to the three preferred creditors, Corbin Griffin, John Jamieson and Francis Jerdone? I am not disposed to admit that the deed furnished conclusive evidence of the extent of that debt, as the counsel of Griffin contends. I have always supposed that in a Court of equity especially, it was allowable for either party to aver and prove that the true consideration of a deed is different from that expressed in the deed. This position is recognized to be correct by Judge Tucker, in the case of Duval v. Bibb, 4 Hen. & Munf. 113; and in the case of Epps v. Randolph, 2 Call 185, a different and additional consideration was allowed to be proved than that expressed in the deed; and in the case of Harvey v. Alexander, 1 Rand. 219, the Court decided, that where there was a good consideration, and a valuable consideration of only one dollar expressed in the deed, parol proof was admissible to prove other valuable considerations. If in those cases the true consideration may be proved, I do not see why a grantor in a deed of trust, or his representatives, may not be allowed to prove that the debts which he intended to secure, are not so large as is shewn by the recital of the deed.

“Again, I do not think that there is any distinct affirmation in this deed that the sums specified are actually due to the three preferred creditors, Griffin, Jamieson and Jerdone. In the beginning of the deed, it recites the purposes for which the subsequent conveyance of the mass of the grant- or’s property, real and personal, is made; it witnesseth, that the grantor, ‘in order to secure the payment of the following debts, that is to say, in the first place to secure the payment of two thousand pounds, current money of Virginia, to Dr. Corbin Griffin,’ &c. &c. This is not a direct affirmation, like an obligation by which he binds himself to pay the money, or a promissory note by which *hp*promises to pay it, but a mere recital that he intends to secure the *payment of a debt, from which the inference is that he does owe it. And in so declaring the duties of the trustees, it directs that they shall proceed ‘the debt to pay, above mentioned to be due to the said Corbin Griffin, ’ &c. This is not a simple affirmation, as in the before mentioned obligation, but a recital merely, from which it may be inferred, however strongly, that he does owe those sums to those persons. Would the grantor be estopped in any proceeding at common law, to deny that he owed those sums? I think not; for we have the highest authority for saying, that ‘every estoppel must be certain to every intent, and not to be taken by argument or inference. ’ And again, ‘every estoppel ought to be a precise affirmation of that which maketh the estoppel, and not to be spoken impersonally, ’ &c. Neither does a recital conclude, because it is no direct affirmation. Co. Eitt. 352 c. If this be true in common law, much more is it true in equity.

“In perusing this deed, it strikes the mind as a remarkable circumstance that Alexander Macaulay should be in debt, on the 15th day of November 1797, in the round sum of ten thousand pounds, to his three friends; and not only so, but that that sum should be composed of a round sum due to each of them; to one two thousand pounds, to another five thousand pounds, and to the third three thousand pounds. Is it possible, that to neither of them a few pounds, shillings, pence or farthings, less or more than the exact sums of two, three or five thousand pounds, were due on that day? Were those precise sums lent to him on that day, and no more or less? Or if the money *279lent, or articles sold, were advanced at previous times, did the interest on the advances, when added to the principal, make an aggregate of principal and interest, in each case, on that day, of the exact sums specified in the deed? It is not to be believed. The mind is necessarily drawn to the conclusion, that there were debts due to those three gentlemen *on that day, but that there was no settlement of accounts between them, no calculation of principal and interest; (if there had been, where are the settled accounts, the bonds or the notes?—none such are produced;) that the grantor was anxious to secure those particular creditors, in preference to others, who had not equal claims on him, and that sums were mentioned which were amply sufficient to embrace the whole amount due to each and all of them, leaving it to a future settlement to ascertain the precise amounts due to each.

“Having thus ascertained, at least to my own satisfaction, that the nominal sums recited in the deed are not those which are really due, and Dr. Corbin Griffin having left no bond, note or settled account of his debtor, and the defendant Thomas Grimn, either as trustee of Macaulay, or administrator of his father, having produced none, the next enquiry is, whether the mercantile books of Macaulay can be resorted to as evidence for the purpose of ascertaining the amount really due? Under particular circumstances, I think it is clear that the books, or even an account of a merchant, may be adduced as evidence in his behalf, against his debtor, and that they may form at least very strong presumption against him. If it be proved that a customer is in the habit of dealing with a merchant, and the latter render an account of items, which is delivered to the customer, with a request that he examine them, and he retains the account for that purpose, and makes no objections to the items, or makes objection to some of them, that account rendered is competent evidence to charge him. In this case, the deed of trust was executed on the fifteenth day of November 1797, and the grantor died on the seventeenth day of July 1798. During that period, it appears that Dr. Griffin had frequent access to the books of Macaulay, and particularly had a full view of his own account, and that he even made ^entries in his own account on Macaulay’s books, at the request of Macaulay; that the books were taken possession of by the trustees, after the death of Macaulay, and that the practice was continued by Dr. Griffin, with the permission of the trustees, of making such entries in those books, and he was appointed by the trustees their agent in assisting Miller Brown, the clerk, to post up the books.

‘ ‘Nothing can be more clear, than that Corbin Griffin and the acting trustee, his son, were perfectly acquainted with the fact that he stood creditor on those books for a much smaller sum than the two thousand pounds mentioned in the deed. Would not this circumstance create uneasiness in the mind of Dr. Griffin, even during the lifetime of Macaulay, if he were really a creditor to that extent? Would he not have expressed that uneasiness to Macaulay, and insisted strenuously on the account in the books being rectified, and made to consist with the true state of affairs between them? It seems to me that any prudent man having the least regard to his own interest, would have required it; and his failure to make complaint of the books and to require their correction, affords a strong presumption that in his own estimation they were right.

“There is another circumstance which appears to me to be strong, if not irresistible, to prove that the sum recited in the deed was not the actual sum due, and that the books shew the real amount of the debt. Corbin Griffin was the preferred creditor of Macaulay, over all others. Jamieson was, according to the deed, (and in fact, so far as the Dismal Swamp Band Company’s claim extended,) a larger creditor, but in point of preference he was second to Griffin. At a very early period it was evident to the trustees, as well as to Dr. Griffin, that there would be very great difficulty, from the proceeds of the trust fund, to pay the preferred creditors their debts, and to secure them in their 'liabilities for Macaulay. Dr. Griffin had every motive to wish for a speedy payment of his debt, and for his complete indemnification. If the large sum of two thousand pounds were actually due to him, it is not credible that he would be willing to see the greater part of that debt jeoparded by permitting the trustees to pay over to the second creditor the greater part of the large sum of three thousand pounds, in preference to his own. Yet such was the fact. The trustees, or one of them, certainly paid over to Jamieson large sums of money, with the full knowledge of Dr. Griffin, between the years 1800 and 1809, whilst they do not appear to have paid any thing to Dr. Griffin after the year 1800, in payment of his large debt, during the residue of his life, which continued some twelve or thirteen years. They not only paid Jamieson, but they pressed him, by letters, to assert his claim, and to attend at some of the sales. This knowledge and acquiescence on the part of Dr. Griffin, prove to my mind, very satisfactorily, that he was conscious that he had been paid all that was due, and that the books of Macaulay were to be relied on as evidence of the actual state of the debt.

“Connected with this question of the amount due from Macaulay to Corbin Griffin, is the subject of two payments made to Benjamin Waller, as attorney for Joseph Holmes & Co., in the lifetime of Macaulay, and which two sums are claimed by Thomas Griffin, as having been paid by Corbin Griffin as security for Macaulay, and as such within the deed; one of whose objects was ‘to indemnify him (Corbin Griffin) in all sums and charges in which he stands, or may be bound as security to the said Alexander Macaulay.’ These two sums *280are *£*250. paid to Waller on the nineteenth day of March 1798, and *£*300. on the twenty-second day of May 1798. It seems that Waller gave receipts to Corbin Griffin for these two sums, and hence the *claim set up to charge them against Macaulay. But in the document furnished by William Waller, executor of Benjamin Waller, marked WAC, these two sums are stated to be received from Alexander Macaulay. The difficulty then is, to ascertain whose money it was by which these two sums were paid. As to the *£*300., there seems to be not much dispute, from the document WAD, in Thomas Griffin’s handwriting, it appears that six slaves of Macaulay’s were sold by himself, ‘and money appropriated to discharge in part the debt due to Holmes & Co., with Corbin Griffin security' *£*300.’ In this instance then it clearly appears that although Benjamin Waller gave a receipt to Corbin Griffin on the twenty-second day of May 1798 for *£*300., yet that money was raised from the sale of Macaulay’s own slaves, and consequently the receipt to Corbin Griffin is not conclusive to shew that he ought to charge that sum to Macaulay'. The probability is, that as Corbin Griffin was security for the debt, and at that time, by request of Macaulay, made entries in the books of Macaulay, he was also requested to receive this money from the purchase of the slaves and pay it over to Macaulay’s creditor. As to the sum of *£*250., there is more difficulty, but I think an attention to the documents will clear up the difficulty. It seems that Benjamin Waller, as attorney for Holmes & Co., gave a receipt to Corbin Griffin, bearing date the nineteenth day of March 1798, for *£*195. 9. 2., on account of a judgment on a forthcoming bond obtained against Macaulay, with Corbin Griffin and Thomas Griffin as securities; and on the back of another bond, gave a similar receipt to Corbin Griffin for the sum of *£*54. 10. 10., in full of that bond which had been given by Macaulay, with Corbin Griffin as security. These two sums make *£*250. It further appears that on that very day Alexander Macaulay' executed a bond, with Cor-bin Griffin as security, for the same sum of *£*250., to *Philip Tabb of Gloucester. Hence, a very strong presumption arises that the money paid on that day to Waller for Holmes & Co. was the money borrowed by Macaulay from Tabb, and that Corbin Griffin was the bearer of it to Waller, and took the receipt in his own name. This presumption is much strengthened by the document WAB., furnished by William Waller, in which is this entry made by his father: ‘Holmes & Co. v. Macaulay,

*£*250, settled with Mr. Tabb the small bond, 54 10 10 Towards the second bond, . . . 195 9 2

*£*250 00 00

March 19, 1798.’

“So far then, I think the commissioner right in considering the two sums as paid to Waller for Holmes & Co., out of Macaulay’s own money, notwithstanding the receipts to Corbin Griffin. But in the further progress of this debt of *£*250., I think the commissioner most decidedly wrong. Macaulay, it is true, borrowed this sum from Tabb to pay a debt for which Corbin Griffin was secured, and against which he was indemnified by the deed of trust. To pay Tabb, Macaulay gave a new bond, with the same Corbin Griffin as security, who paid off that bond. The commissioner hir&self, shews in page thirty-three of his report, (note to account R,) that Corbin Griffin, after the death of Macaulay, on the sixth day of May 1799, paid *£*150., and on the twentieth day of August 1799, paid the further sum of *£*119. 10. 2., in full of the principal and interest of that very bond given on the nineteenth day of March 1798 to Philip Tabb. Surely then, Corbin Griffin ought to have credit with Macaulay’s estate for these two sums paid by him in discharge of the said bond. But the commissioner rejected these credits, and excluded them from the account R, on the ^ground ‘that the trustees were not authorized to pay them under the trust deed.’ In this matter I differ with the commissioner in opinion. The original bonds due to Holmes & Co., in which Cor-bin Griffin was security, were expressly embraced by the deed. The borrowing a part of the sum due on those from Tabb, and giving Corbin Griffin as security to him, could not place Griffin in a worse situation than he was before, if in fact he afterwards paid off the new bond. That fact is not doubted by the commissioner. According to every principle of justice and equity, it is of no importance whether Cor-bin Griffin paid off from his own money the sum of *£*250., on the nineteenth day of March *1798,*or the same sum, with its interest, on the sixth day of May and twentieth day of August 1799. The account R must be corrected in this particular.

“The next question to which I have turned my attention is, what are the principal subjects with which the trustees are to be charged. The account marked B, in the commissioner’s report, charges them with four principal subjects, that is, the value of the ship Charles Carter, of the brig Helen, the value and rents of the Norfolk property, and the rents of the Hanover town property. I have reflected on each of these subjects, and will briefly state the result of my reflections on each. And first, as to the Charles Carter. This ship, with all her tackle, apparel and furniture, was conveyed bj' the deed. It was dated on the fifteenth day of November 1797, though not recorded in York, until the nineteenth day of Rebruar3' 1798; the ship then lying in James river. It does not appear to have been recorded elsewhere than in York at any time. On the seventh da3' of January 1798, two executions were levied on the ship, by the marshal of the circuit court of the United States, in behalf of Robert Burton, and *281Donald & Burton; and on the nineteenth of the same month, a libel was filed against her by Thomas Blane, on two bottomry x'bonds, in the Federal District court then sitting at Williamsburg. To that libel Alexander Macaulay himself was made a party respondent, and he filed his answer on the eighth day of Februarj7. He does not, in his answer, set up the claim of his own trustees, nor make any mention of the deed; but he gives the history of the bottomry bonds, and seems to admit the claim of the libellant to be a just one. But William Kelson and others, styling themselves the Dismal Swamp Hand Company, did file their counter-claim, under the said deed of trust. The ground of their claim was, that the object of the deed of trust, inter alia, was to secure John Jamieson a large sum of money, which debt to Jamie-son, consisted in reality, for the most part, of a debt due from said Macaulay to the said company, and so they were beneficially included in the said deed. This claim brought directly before the District court the question as to the validity of the deed, and which of the three liens was the preferable one. The District court decided in favour of the libellant, and dismissed the claim of Kelson and others, and the ship was sold in March 1798. The case was carried by appeal to the Circuit court, where the claim of Kelson seems not to have been prosecuted, and that Court reversed the decision, and decided in favour of Donald & Burton, which decree was affirmed by the Supreme court, in February 1808.

‘ ‘It is sought to charge the trustees with the value of this vessel, on the ground that they neglected to prosecute the claim by appeal. It does not appear by any means certain, that if they had done so they could have succeeded. But the claim under the deed was asserted (though not by them), before the District court, and adjudged against it, and I do not know that it can be required of trustees to subject the trust fund to the expense of carrying on a litigious controversy in appellate courts, and where the result is ver3r uncertain, the *inferior court having decided against the claim. But however this may be, Macaulay was then alive; there is not the least reason to suppose that he wished the trustees to interpose this claim. Notwithstanding the deed, he acted almost until the day of his death, in transacting his own affairs, and (as the plaintiffs themselves contend,) disposed of some of the propert3r, and discharged some portion of the debts without their interference. The proof in the cause is not sufficient to satisfy the mind of the Court, that the trustees actually accepted the trust, Until after the death of the grantor, notwithstanding the remark made by the defendant Griffin, that ‘the trustees used their best exertions’ to prevent the sale. The Court cannot think it would be equitable to charge them with the value of this ship, seeing that they have not received one cent of the proceeds of the sale; that they did not at that time act as trustees, and consequently, could not be chargeable with neglect; and that the grantor under whom the plaintiffs claim, and whom they represent, neither required, nor wished that they should assert any claim.

“Next as to the brig Helen: She too was conveyed by the deed, and a document returned by the commissioner, proves that she cleared out from Cit3r Point, on the twenty-fifth day of June 1798. This was before the death of Macaulay, and before the trustees accepted the trust. I have seen no proof to shew that the trustees ever received anything on account of the brig or her cargo; and none that they were guilt3r of gross negligence in not recovering possession of her. I am of opinion that they should not be charged with her value.

“The next question sought to be charged against the trustees, is the Norfolk property. This property is conveyed to the trustees in the following terms: ‘doth grant, bargain and sell unto, &c., all those messages, tenements and lots, situate, lying and being in the town *of Norfolk,’ &c. The deed, by its terms, would seem to be a conveyance of the lots, &c., in fee simple. In point of fact the grantor had no fee simple property in Norfolk, and consequently could convey none. As I understand it, the following was the condition of that property: One Andrew Martin had leased, in March 1786, to Patrick Macaulay, the lot in question for the term of twelve years, at the annual rent of *£*40. and the taxes; to which lease there was a covenant, that at the end of the term, Martin might take the tenement, on paying for the improvements erected by the said Macaulay, or if he did not think proper to take them, then Macaulay, or his executors or administrators, might retain possession of the lot, paying the sum of *£*40. annual rent. In March 1796, Alexander Macaulay, as surviving partner of Patrick Macaulay & Co., conve3Ted these leasehold premises to John Nivison, in trust to pay the sum of *£*500., which the said Alexander owed to David Patterson, and to secure the further sum of *£*210., for which Patterson was bound as surety for said Alexander Macaulay, to one Wallace. On the seventh day of July 1798, ten days before the death of Alexander Macaulay, he executed another deed as administrator of Patrick Macaulay, to Nivison as trustee. This deed recites, that John Hamilton had become his security in two bonds of *£*250. each, with interest from September 1796, to David Patterson, and to indemniÍ3' the said Hamilton the deed conve3rs to the trustee his leasehold interest in the said lot, with all the accruing rents and profits, with power to sell on ten days notice, for ready money, on default of payment of the first bond. This deed, as well as the former one to Nivison, was recorded in Norfolk. What estate or right passed to the trustees Griffin and Nelson, on the day that they accepted the trust, under the deed of November 1797? They did not accept until after Macau*282lay’s death. Before that period he had, in the double character of surviving *partner and of administrator of Patrick Macaulay, parted with the chattel interest belonging to his brother’s estate. The legal title was in Nivison, and I do not perceive that their equity, or that of their cestuis que trust was superior to that of Nivison, and his cestuis que trust; if they could object to the Norfolk deeds that they passed Patrick Macaulay’s property to pay a debt of Alexander Macaulay, the very same objection might be made by Nivison, Patterson and Hamilton, tq the Yorktown deed. Nivison then having the legal title, and at least equal equity, Griffin and Nelson could only have an equity of redemption in the Norfolk property; or if Nivison should sell as the trustee under either deed of trust, they could only have a right to the surplus of the proceeds of the sale, after paying off the debt for which the said property was conveyed in trust.

“What then became of this property? It must be remembered that Macaulay died ten days after the last deed to Nivison. He had previously conveyed all of his property real and personal, to trustees; there was nothing left that was tangible, for an administrator to act on, and accordingly his estate was committed to the hands of the sheriff of York. Patterson was obliged to look to Hamilton the surety of Macaulay, for the payment of his *£*500. with the accruing interest, for it could not be got from Macaulay’s estate, and Hamilton would rely on the deeds to Nivison for his indemnity. The first bond to Patterson became due on the seventh day of July 1799, and Hamilton, on ■ paying it off, might immediately call on Nivison to sell the leasehold interest for cash, on ten days notice. It is probable that this was the course of things, and accordingly, although no deed is produced from Nivison to anjT purchaser, yet we find that on the twentj'-second day of April 1802, John Hamilton as attorney in fact for Thomas Hamilton, conveyed this very chattel interest to James Catón & Co., for the consideration of two thousand and ^twenty dollars, less than the amount of Macaulay’s bonds to Patterson, for which John Hamilton had been security. This deed recites that Nivison had sold the property under the deed of trust to him, and that Thomas Hamilton had become the purchaser. By the sale from Thomas Hamilton to Catón & Co., John Hamilton most probably became indemnified. There is nothing to shew that Macaulay’s debt to Patterson was overpaid by the sale to Thomas Hamilton, and if there was no surplus, Griffin and Nelson could get nothing from the Norfolk property. They had not the legal title, and their equitable claim could produce no fruit; and yet the plaintiffs claim, arid the commissioner reports a large sum against them, on account of this property. I am of opinion that this claim should be totally rejected.

“The next subject, though of inferior importance, is the Hanover town property. The lot there was owned by Macaulay, and passed by the- deeds. It was the duty of the trustees, or of the one who acted, to sell this property. It was not done until October 1811, when it was sold for *£*49. 10. The defendant Griffin alleges, that he offered it for sale in 1799, but was only offered one hundred dollars for it, and allowed it to remain in the possession of William B. Christian, who then occupied it, and who had occupied it from a previous period, namely 1796. Christian had been the partner of Macaulay, and continued on the premises until his death in 1805, without paying rent. Griffin says he left Christian in possession to take care of them; and takes credit for obtaining more for them when sold, than he was offered at the previous period. The allegations of Mr. Griffin on this subject, are not proved; but it is proved that the property was very unsaleable in that rapidly decaying village. Although Mr. Brand averaged the rents at forty dollars for the first part of the term, and thirty dollars for the residue, yet he does not say that it *was easy to get a tolerable tenant for it at any time, and we know that in such a place it must have been extremely difficult. What then should be the price that Mr. Griffin should pay for his neglect in not selling this property at an early period? I do not think that he ought to be required to pay the estimated annual rent; the interest of the money for which the property sold, appears to me to be a better criterion. The charge against the trustees for the rents should be struck out, and they should be charged with interest on *£*49. 10., (the price for which it was sold,) from the end of one year after the death of Macaulay, till the day of sale.

“The next question which I shall consider is, whether the money received by Mr. Griffin from the treasury of the United States, on account of thé unlawful seizure and detention of the ship Louisa, by the embargo of the French government of 1794, and for which compensation was allowed by the commissioners sitting under the Louisiana convention between France and the United States, passed or not, under the deed of the fifteenth day of November 1797, to the trustees of Macaulay. The words of the deed are, ‘the said Alexander Macaulay, by these presents, doth assign and grant unto the said Thomas Griffin and Thomas Nelson, &c. all debts due to him the said Alexander Macaulay, &c., all which debts are in a schedule hereto annexed, expressed.’ There was no schedule annexed to the deed. Either all of his debts of every description passed by the deed, or none whatever passed. The first part of the clause is sufficient to pass all his debts, and the subsequent clause, stating that they are expressed in a schedule, is merely an untrue affirmation, which is therefore inoperative, and ought not to be allowed to qualify and limit the general assignment of all his debts. Then the question arises, whether his claim on the French government for the illegal *283detention *of his vessel, be a debt due to him which was assignable?

“I am saved the trouble of a laborious and unprofitable discussion of this subject, by the recent decision of Maitland v. Newton, 3 Beigh 714, founded on the decision of Comegys v. Vasse, 1 Peters’ R. 193. In the former case, the debtor had assigned ‘all his estate real and personal, upon trust, that the trustees shall collect all debts due, or to become due to the grantor, on account of transactions prior to the deed, shall sell the real and personal estate, and institute suits at law, or in equity, for the recovery of the debts,’ &c. This deed was executed in 1809. The board of commissioners under the treaty of 1819, between Spain and the United States, awarded to the administrator of the grantor, a sum of money, on account of claims on the Spanish government, for spoliations before the date of the deed. The Court decided that that money passed by the deed. Judge Carr said that he had no idea of a right or interest vested in a man, which would not pass under a conveyance of all his real and personal estate. Upon what ground, I would ask, is it that such a claim, as is the subject of controversy in that case, would be embraced by the terms, ‘all his personal estate?’ Upon what other ground than that such a claim is a debt, which although it cannot be enforced in a Court of justice, yet is something due from the government that does the wrong to the citizens of the other country who sustained the loss, and who is therefore entitled to remuneration. In that point of view, the claim of Mr. Griffin as trustee, to this money, may I think be supported. The money was properly paid to him, and he is bound to apply it to the objects specified in the trust deed, and as such to account for it.”

The Chancellor then proceeded to consider the exception of Thomas Griffin, and having passed upon *them, he took up the exceptions of M’Neale. Upon his first exception, he says:

“As to the exceptions of the defendant John M’Neale, executor of John Jamieson: This defendant excepts, in the first place, to account N, because the commissioner regards alone the evidence furnished by the books of Macaulay of the amount due to Jamieson, and disregards the evidence of the deed of trust as establishing the sum of *£*5000. to be due him. The Court has already- expressed its belief that the sums recited in that deed were not the sums really due to the preferred creditors. The Court is strongly impressed with the belief that the sum of *£*173. 10. 7. was all that was due from Macaulay to Jamieson on the fifteenth day of May 1797, on private account. That is the balance appearing on the books of Macaulay, and a copy of the account shewing that balance is admitted by- the defendant M’Neale, to have been made out by Corbin Griffin and transmitted to him; that act of Corbin Griffin affords a strong presumption that the said Griffin believed that balance to be the true one, and M’Neale has not been able, from the books or papers of his testator, to charge Macaulay with a cent more on private account. But the Court is of opinion that the papers in these causes exhibit strong evidence to prove that Jamieson did lend to Macaulay, in the year 1796, or 1797, a large sum of money, probably *£*3000., of the funds of the Dismal Swamp Band Company, and that the deed of trust was intended to secure to Jamieson the re-payment of that sum, with interest, as well as of the private debt aforesaid, with interest. This exception, therefore, so far as it objects to the failure to bring the Dismal Swamp Band Company’s debt into the account N, ought to be sustained, but so far as it makes any other objection it should be overruled.”

^Having passed upon all the exceptions, the Chancellor recommitted the report of commissioner Baker with instructions to reform the same according to the opinion of the Court; and Thomas Griffin was directed to render accounts of his administration of Corbin Griffin’s estate, and also a continuation of his account as trustee. And M’Neale was directed to render an account of all moneys loaned to or received by Alexander Macaulay from the Dismal Swamp Band Company by direction of his testator, and for which Jamieson may have been in any way responsible to said company. And the commissioner was directed to state whether there was any evidence shewing that the trustee Thomas Nelson took any active part in the execution of the trust created by- the deed of November 15th, 1797; and if any how far he was chargeable.

In 1836 Thomas Griffin died, and in 1837 the suits of A. Macaulay’s administrator and B. Macaulay’s executor, were revived against Robert P. Waller, executor of said Thomas Griffin, and as administrator de bonis non of Corbin Griffin.

In December 1837 commissioner Baker returned another report in the cause; but he having gone out of office before the report was completed, it was objected to by the defendant on that ground, and the Court sustained the objection, and directed one of the commissioners of the Court to perform the order of the 3d of December 1833. And it was further ordered, that the defendant Robert P. Waller render before the commissioner all the accounts and statements required of his testator Thomas Griffin deceased, by the order aforesaid; that he produce before the commissioner all the books and papers of Alexander Macaulay, Corbin Griffin and Thomas Griffin, which may be in his possession or under his control, and in relation to such accounts and statements, books and papers, he submit to *be examined in solemn form before the said commissioner, if he shall be required.

In obedience to this decree, commissioner Shore, in December 1838, made his report. He reported that it did not appear that the trustee Nelson took any active part in the execution of the trust created, other than *284uniting with his co-trustee in a power of attorney to Corbin Griffin, to make sale of the shares of the Dismal Swamp Canal, and to sell some Norfolk property, and in advertising property for sale and in uniting in conveyances therefor. It seemed probable that all the trust funds received during his life were accounted for. And that all these funds had been received by Griffin, or directly by Jamieson.

The commissioner reported that it appeared from the books of Macaulay that he was debtor to Jerdone, September 25th, 1795, *£*347. 00. 9%., and that he was debtor to Jerdone, Holt & Douglass, *£*1139. 16. 3%. in September 1794, and to the Dismal Swamp Land Company, on the 23d of June 1797, *£*536. 1.

The commissioner reported statement A, being an account of the trustees with the estate of Alexander Macaulay, making the balance against them on the 31st of December 1803, 1659 dollars 74 cents, of -which 1361 dollars 57 cents was principal. Statement B was the same account, increased by a single additional charge, making the amount due thereon at the same date, 2040 dollars 64 cents, of which 1684 dollars 37 cents was principal. In these statements interest on the amount of the sale of the Hanover town property was charged from one year after A. Macaulay’s death. Statement C was an account of Thomas Griffin, surviving trustee of A. Macaulay. In this account the trustee is charged with interest upon the amount of the sale of the Hanover town property, from 17th of July 1803 until 17th October 1811, the time when it was sold.

And the commissioner excluded a credit claimed by Griffin of *4100 dollars paid to Corbin Griffin’s administrator, in July 1819, on account of the debt stated in the deed of 1797 to be due to him for Macaulay. This sum Thomas Griffin had received about the time he credited it in his account, from the government of the United States, on account of the ship Louisa, belonging to Alexander Macaulay, detained by the Trench government in the lifetime of Macaulay, and for which compensation was allowed under the treaty for the purchase of Louisiana. It was excluded on the ground that Corbin Griffin had been fully paid as early as November 23d, 1800, all that was due to him from Macaulay, either for a debt due or for money paid by Corbin Griffin as his surety. The amount due on this account was 7367 dollars 28 cents, of which 5336 dollars 91 cents is principal.

Statement E was an account taken from the books of Alexander Macaulay, shewing how much was due from Macaulay to Corbin Griffin according to these books. This statement shewed that there was due to Corbin .Griffin at the date of the deed, the sum of *£*254. 15. *3%.*That there were debits for merchandise on the same books, at .sundry times between the date of the deed and the death of Macaulay on the 17th of July 1798, *£*16. 8. 3., leaving due *£*238. 7. 0%.,= 794 dollars 51 cents. There was a further credit to C°rbin Griffin upon the books of Macaulay, of *£*630. 16. as of the 24th November 1798, which was excluded by the commissioner on the ground that Thomas Griffin admitted in his answer to Anderson’s bill, that it was advanced to the trustees. The commissioner states that the defendants’ counsel relies on the fact that the entry on the books of Macaulay, was made by Miller Brown, the clerk of Macaulay, who was then dead. Statement G is an account of the debt due from A. Macaulay to C. Griffin, according to Macaulay’s books, and of the moneys paid by Griffin as surety of Macaulay; and *the payments paid by the trustee to said Griffin. On this account from which the payment in July 1819 to Corbin Griffin’s administrator, who was Thomas Griffin, and the sum of *£*630. 16., above mentioned, were excluded, Corbin Griffin was found indebted on the 31st December 1801, 2997 dollars 80 cents, of which 2849 dollars 61 cents was principal. By this account the debt due to Griffin, and the money paid by him as surety of Macaulay, amounted to 5026 dollars 66 cents, and the payments made to him by the trustees amounted to 7876 dollars 41 cents.

Griffin’s administrator excepted to the report for failing to credit his intestate for various sums” which he claimed to be due to Corbin Griffin from Macaulay. Among them was, 1st. The item of *£*630. 16., appearing by Macaulay’s books to be due to Corbin Griffin. 2d. That the commissioner should have treated the claim of *£*2000., referred to in the deed of trust of November 1797, as due to Corbin Griffin from Macaulay, as really and bona fide due to him. 3d. That he should have debited the trust subject with 4100 dollars paid on 26th July 1819 by Thomas Griffin, in part satisfaction of the debt due to Corbin Griffin from Macaulay. 4th. To all the items in account G, bearing date more than five years before the death of Corbin Griffin, and which, after deducting the debits, constitute the aggregate balance of principal and interest of that account reported against him of 2997 dollars 80 cents, the defendant Waller excepted, because the same were barred by the statute of limitations; and that the statute required the Court to strike them out of the account. These items were from September 21st, 1798, to December 31st, 1800. Cor-bin Griffin lived until 1813, and the suit was not brought until 1819.

Anderson, administrator of Macaulay, also excepted to the report; but it is not necessary to'notice his exceptions. *In March 1839, Waller, as the executor of Thomas Griffin, and as the administrator of Corbin Griffin, answered the bill of Anderson as administrator of Alexander Macaulay. He says, That in regard to any payments which have been made by Thomas Griffin the trustee, to Corbin Griffin, on account of his debt secured by the deed of trust of November 1797, whether in fact due to the said Corbin or not, they cannot now be recovered ba<?k by the plaintiff, because the claim is barred by *285the statute of limitations, which is relied on as if formally pleaded; and he insists that all payments made by the said Thomas Griffin the trastee, according to the provisions of the' trust deed under which he acted, are valid payments, and that the estate of said Thomas Griffin cannot be required to refund them; for whose estate the defendant also claims the benefit of the act of limitations as if duly pleaded.

Waller also answered the bill of Elizabeth Macaulay, relying upon the same grounds of defence as in the case of Anderson, administrator of A. Macaulajr.

On the 3d of February 1841, the Court refused a motion of the defendant to compel the plaintiffs to make the Dismal Swamp Land Company, Jerdone and others, parties defendants to their suits. And on rules severally made upon the plaintiffs and defendants, the Court, on the 8th of February, allowed the plaintiffs to prove by oral testimony in Court, the assignment by Jerdone to Elizabeth Macaulay, of the debt secured by the deed of November 1797; and allowed the defendant Waller to file in the cause the papers in the case of the Dismal Swamp Land Company against Macaulay’s administrator, saving to the plaintiffs the right to object at the hearing to said papers as evidence. And it was admitted by the plaintiffs that the signature “Francis Jerdone,” to his answer in said cause, was in the handwriting of said Jerdone. And thereupon the plaintiffs urging the Court to proceed with the trial of these *causes,the defendant Robert P. Waller, executor and administrator de bonis non of Thomas and Corbin Griffin, applied for a continuance of the causes until the next term, upon grounds stated in writing ; but which it is not necessary to state: And the Court having refused the continuance, the said Waller, and William Major sheriff of the county of Culpeper, and as such administrator de bonis non with the will annexed of John Jamieson deceased, severally filed their petitions for a rehearing of the decrees made in these causes on the 29th of June and 2d of July 1829, and on the 3d of December 1833. The grounds assigned by Waller, are that:

1. The whole of the said decrees are erroneous so far as they recognize, admit or establish, a right in the administrator or distributees, or either of them, of A. Macaulay deceased, to call in question the validity of the deed made by the said A. Macaulay, on the 15th of November 1797, under the circumstances disclosed by the pleadings and evidence in the case in which they are plaintiffs.

2. So far as they recognize, admit or establish, a right in Elizabeth Macaulay, as assignee of one of the creditors and cestuis que trust provided for in said deed, to call in question the validity thereof.

3. So far as they reject the claims of Cor-bin Griffin and John Jamieson to the sums of *£*2000. and *£*5000., respectively admitted by said deed to be due to them.

4. So far as they recognize the remaining books of A. Macaulay, (though it is proved that most of his books were lost or destroyed at the two fires in York, of 1804 and 1814,) as “the boobs of A. Macaulay.”

5. So far as they establish a charge against Thomas Griffin, trustee, &c., of 9 dollars 90 cents per annum, from July 17th, 1799, to October 17th, 1811, as and for, or in lieu of, the yearly rents and profits of the house and lot in Hanover town, sold by the trustee K‘Thomas Griffin in the year 1811, in the face of evidence that the house and lot were not, and could not be rented out during that time, or sold before that time.

6. So far as they direct an account to be taken of the assets of Corbin Griffin’s estate, when it appeared on the face of the pleadings and on the evidence, that every item of charge which arose or could arise against Corbin Griffin’s estate, arose and accrued more than five years before his death, (in fact, more than twelve years.) And

7. Because it appears by the deed of 1797, that the trust funds, after satisfying the preferred creditors, were to be applied to the satisfaction of the other creditors of Macaulay, and those creditors have neither been made parties, nor has any provision been made in the said decrees, nor steps taken before the commissioner to contend said creditors before the Court, or the commissioner, and allow them to prove their several demands.

It is unnecessary to state the grounds for a rehearing assigned by the administrator of Jamieson, except that the suit was defective for want of parties; and that the decrees disaffirm the validity of the deed of November 1797, and permits the plaintiff to introduce the books of Macaulay as evidence to impeach it.

The causes were argued at the November term 1841, and came on for decision in January 1842, when the Chancellor—Robertson—after discussing the principles of law on the pleadings and proofs, and holding that the deed of the 15th of November 1797, was not conclusive as to the 'amount of the debts due to the preferred creditors, proceeded:

“It remains to consider what is the extent or mode of relief which this Court may properly administer? What were the debts really due to preferred creditors at the date of the deed? To what extent have they been paid? What sums .are now due from the parties *before the Court? And to whom are the balances payable? These are the enquiries to which the Court is now to direct its attention.

“First then, as to the claims of the preferred creditors. There are three reports of commissioners among the papers. That of commissioner Baker of October 1826, under the decree of Chancellor Taylor, of March 1825; a second one of the same commissioner, made in 1836, under the decree of Judge Brokenbrough, of December 1833; this being regarded informal, a third was *286made and returned by commissioner Shore, in November 1838, under the order of Judge Nicholas, of July 1838, directing him to perform the decree of December 1833. Pursuing the directions of this last decree, commissioner Shore has regarded the deed of 1797 as prima facie evidence merely, and resorted to the books of Macaulay to ascertain what sum was due the preferred creditors. The debt due Corbin Griffin, instead of *£*2000., 6666 dollars 67 cents is stated, as it appears on Macaulay’s ledger E, according to the commissioner’s . view of the entries at 794 dollars 51 cents. By another statement embracing all payments subsequent to the deed by Corbin Griffin, on account of suretyship, and all pa3'ments to him out of the trust subject, a balance is shewn against him of 2997 dollars 80 cents, with interest from the thirty-first of December 1800, on 2849 dollars 61 cents. Satisfied as I am from all the facts and circumstances in proof, that the sum mentioned in the deed was neither due to nor claimed by Corbin Griffin, I concur in Judge Brockenbrough’s opinion, that the books of Macaulay under the circumstances, were proper evidence. The representative of Corbin Griffin has produced no account or memoranda whatever shewing the nature or amount of the debt, but relies solely on the deed, though in his first answer he cautiousl3r abstains from asserting a belief that the amount nominally inserted in the deed was ^really due; contending himself with remarking that the deed itself acknowledging the existence of the debts therein mentioned, it was not for the trustees to enquire whether the debts were due or not, but merely to execute the trusts. The amended answer is nearly as vague and unsatisfactory. In that he says, ‘there appeared on Macaulay’s books a balance due Corbin Griffin of , but he does not know that more was not due; on the contrary, he has every reason to believe that the sum of *£*2000. provided for by the deed, was actually due,’ and then proceeds to assign reasons entirely inconclusive, namely: first, that he cannot imagine that Macaulay would by his own deed, shew a greater amount against himself than actually existed ; and 2dly, because the plaintiff himself admits that amount when he sa3Ts, that to secure certain sums of money amounting nominally and really ¿to *£*10,000., Macaulay conveyed by deed of trust, property more than ten times that amount. Thomas Griffin was the acting trustee in the deed, shewn to have had some knowledge of the affairs of Macaulay, at least as far back as 1789. He was the son and only child of Corbin Griffin; resided with him, and after his death qualified as his administrator. In his first answer, he says that Macaulay frequently told him that the persons named in the deed, Corbin Griffin, Jamieson and Jerdone, had been very friendly to him by lending him large sums of money, and becoming his sureties, and then adds: that as to Corbin Griffin, this respondent knows, certainly, that at time of the execution of the deed of trust, the said Alexander Macaulay was indebted to him in the sum of , as fully appears by the books of the said Macaulay himself, from which a copy of the account of the said Corbin Griffin with the said Macaulay has been extracted, and is hereto annexed, marked B. Corbin Griffin is proved to have stood high in the confidence of Macaulay; and both he and Thomas *Griffin must have had access to the books of Macaulay, both before and after Macaula3’’s death. This appears by their entries in ledger E. All the books and papers of Macaulay, as well as those of Corbin Griffin, are proved, or must be presumed, after their deaths, to have come into the hands of Thomas Griffin. If he either could not, or would not, produce any account, memoranda or evidence to ascertain the' nature and amount of the debt, every principle of justice seems to require that the books of Macaulay himself should be resorted to as the best guide, though perhaps not an unerring one, to conduct us to the truth. What is the balance shewn by those books, is itself a matter of contest. The apparent balance is considerably more than stated by the commissioner. I dissent with the commissioner, and consider the apparent balance as that for which Corbin Griffin’s estate should have credit. The account as appearing upon ledger E, excluding all entries made subsequently to Macaulay’s death, sustains the commissioner’s statement. It consists of numerous debits against Corbin Griffin, commencing January 7th, 1793, and ending April 1798, for merchandize, the eight last of which, from October to April 1798, inclusive, are proved to be in the handwriting of Thomas Griffin. All the residue as well as the credit of *£*694. 8. 9%., posted under date of January 1, 1793, seem to be in the handwriting of Macaulay’s regular clerk, Miller Brown. Besides the credit just mentioned, there is another of *£*630. 1. 6., posted immediately before the first, under the-date of twenty-fourth November 1798. The commissioner allowed the first only *£*694. 8. *9%..,*and deducting the aggregate debits down to April 1798, *£*4556. 1. 9., made the balance in favour of Corbin Griffin, *£*238. 7. *0%..,*or 794 dollars 51 cents, as stated in his report. The second credit seems to have been disallowed, either because it was posted after the death of Macaulay, or because supposed 'to be in *the handwriting of one of the Griffins, or for the reason stated by commissioner Baker. Thomas Griffin, in his examination before commissioner Baker, says in answer to the 35th interrogatory, that it is in the handwriting of Miller Brown. This is probably the fact, though Shield’s deposition would seem to ascribe the entry to Corbin Griffin. The journal and day book of that year are lost or destroyed. Whether the items composing it, and which may have been various, (the entry as posted is ‘sundries,’) bore date before or after Macaulay’s death, *287July 1798, they ma3T have been for money advanced under the trust deed to Macaulay, or to pay debts for which Corbin Griffin was bound as surety, and consequently a just charge against the trust fund. If in the handwriting of Brown, the clerk of both Macaulay and of the trustees, the entry ought certainly to be received as correct; even if in the handwriting of Corbin Griffin, who seems also to have been authorized, both by Macaulay and his trustees, to make entries, the entry ought not to be discredited on the supposition that he abused the trust reposed in him. Commissioner Baker in his first report, assigns a different reason for rejecting this credit, namely: the supposed admission of Thomas Griffin, in his answer, that the money was advanced by Corbin Griffin to the trustees after Macaulay’s death, and their failure to credit it in their account. If true, this might be a reason for charging them, but not for refusing the credit to Corbin Griffin, whose funds may have been so advanced and applied. But this alleged admission is stated as a matter of belief only, qualified by the remark, that he can give no information of the particulars of the entry, and a positive disclaimer, on oath, in answer to the 35th interrogatory, of any knowledge of the transaction. Admission of a personal representative to bind his testator’s or intestate’s estate, ought to be unqualified and positive.

But I feel constrained to say, without relying *on the evidence recently thrown into these causes by Thomas Griffin’s executor, tending to convict him of utter incapacity for business, that the defect of his memory and the inaccuracy and inconsistency of his statements, to say the least of them, are too often manifested in these causes, to allow much weight to any admission of his affecting the estate or character of another. The credit in question cannot be refused without reflecting harshly upon the integrity of Corbin Griffin, as well perhaps as affecting considerably the pecuniary interests of his estate. If denied, it throws upon him the imputation of making a false entry to swell his claim against the estate of a deceased friend; and moreover, unless the *£*2000. mentioned in the deed was really due to him, fixes upon him the guilt of receiving largely more than the just amount of his claim. I am strongly impressed with the belief, that Corbin Griffin at the time of his death, owed nothing to the estate of Macaulay, but that his account was finally closed at the date of his last receipt, twenty-third November 1800, on an estimate of his debt, assuming the apparent balance in his favour in ledger E, and adding thereto his payments as surety for Macaula3r. There are strong circumstances independently of-the high character of Corbin Griffin for integrity, or rather consistently with that character, to sustain this view. Corbin Griffin died in 1813. The last pa3,ment he appears ever to have received from the trustees of Macaulay, was made on the twenty-third of November 1800. Up to that time all payments to him, for

which his receipts are produced, amounted on a rough estimate (without adding interest, ) to..... 7,876 00

His payments on account of suretyship, (without interest added,) 4,129 00

Balance due him by ledger E, as stated by commissioner Shore, 794 51

-- 4,923 51

526 'x'Shewing an excess overpaid, by this statement, of 2,952 49

Allow the rejected credit, *£*630. 1. 6., . . . 2,106 00

And there is an excess

only of ..... $852 49

But this balance wfill be still farther reduced by allowing interest on the credit, *£*630. 1. 6., and probably entirely extinguished by allowing interest on the credit of *£*694. 8. 9%., posted under the date of 1st January 1793, stating an interest account according to mercantile usage, or the method generally adopted in such cases by the commissioner of the Court. To present another view, take the balance by commissioner Shore against Macaulay, on the 23d November

1800......... 2,849 61

Deduct credit of *£*630. 1. 6., . 2,100 25

Heaves,......$ 749 36 Deduct further interest on the 2100 dollars,

*{£*630. 1. 6.,) and on *£*694. 8. 9., and the balance will probably be extinguished or turned in Corbin Griffin’s favour, according to the date assumed for commencing the interest. His receipt for the last payment made him, 23d November 1800, has manifestly been erased and altered in several places. Among other alterations, the words ‘in part’ have been substituted for some others, not now distinguishable. The solution offered, that the words erased might, have been ‘on account,’ and the change made to avoid the repetition of the same word, which occurs immediately after ‘of my account,’ does not seem to accord with the appearance of the paper; nor is it probable that so suspicious an erasure and alteration would have been hazarded merely for the sake of euphony.

*“ Again, very shortly after that date, namely, in December 1801, payments were made to Jamieson, apparently in cash, to the amount of 1156 dollars 66 cents, and in property, to the amount of 6500 dollars, embracing very nearly the whole trust subject. This is said, by Thomas Griffin, to have been done with the assent of Corbin Griffin; but is it probable, that Corbin Griffin, acquainted as he was, with the condition of Macaulay’s affairs, would have given such assent, unless his prior claims had been satisfied? Is it credible, if he really claimed the *£*2000. mentioned in the deed, more especially, if, upon. *288the basis of that claim and others, there was, as is made to appear by one of the statements of Thomas Griffin, at the date of the receipt of November 1800, and after deducting the payment therein mentioned, a balance due him of upwards of (£ 1840.) 6000 dollars? At that time the recovery of the claim of Macaulay’s estate for French spoliations in 1794, could not have been anticipated. It does not seem to have been known to Thomas Griffin, until 1813, and was not received until 1819. But for its fortunate recovery, this supposed balance due Corbin Griffin in 1800, would have remained, as at his death thirteen years after, forever unextinguished. His assent to the payments of Jamieson, over whom he had preference, would have been, under the circumstances, a gratuitous surrender of the entire amount. The conduct of Thomas Griffin himself, the contradictory statements in which he has involved himself, by attempting to establish a larger balance in favour of his father’s estate, at the date of the receipt just mentioned, are circumstances too significant to be overlooked. As early as August 1799, in a tetter to Jamieson, he expresses his hope that the trustees will be enabled to close the accounts between Macaulay’s estate and his father’s soon. In his first answer to the bill of Anderson administrator, &c., filed in 1820, he admits that *upon a settlement of the trust transactions, there will be found a balance in his hands, yet undisposed of, of ; which he says, ‘is claimed by the Dismal Swamp Band Company, as well as by Mrs. Macaulay, both of which parties have forbidden this respondent to pay the same to the other. This respondent has therefore hitherto omitted to discharge the same, and prays the decree of the Court in the ' premises. ’ In his answer to Mrs. Macaulay’s bill, there is a similar admission. With his first answer he filed an account, (A,) in which the trustees are credited, under date of 26th Juljr 1819, as follows: By cash paid T. Griffin, balance due estate of C. Griffin, as his administrator, £951. 13. 9. This exhibit he withdrew from the papers, and in lieu of it filed with his amended answer in 1825, another account, in which the credit under the same date is thus altered: By cash paid T. Griffin, administrator of Corbin Griffin, £1230, making a difference in the credit of £278. 6. 3., and in effect changing the character of the credit to a payment on account, or in part, instead of a payment in full, without suggesting any reason for the change, or even noticing it. On a rule, in March 1829, to produce the original exhibit (A) and other papers withdrawn by him, he returned it with an affidavit, that he verily believed it was in the exact condition in which it was when he withdrew it; yet, comparing it with an official copy, it appears to have undergone very material alterations; the item of credit of the 26th July 1819 having been altogether suppressed of omitted, together with some other items. In the same affidavit he says that the exhibit filed with the amended answer, with some slight differences, and some explanations, is the same with the original exhibit, (A,) as far as the first goes; yet, as already stated, the substituted account augments the credit in July 1819, 270 odd pounds, and changes the form and meaning of the entry in the original exhibit, (A,) a payment *of the balance due his father’s estate in July 1819. Satisfied with the sum of £951. 13. 9., and admitting in his first answer, a balance of the trust funds in his hands, subject to the claims of the Dismal Swamp Band Company or Mrs. Macaulay, he exhibits a statement, (C,) founded on the alleged balance in 1800, and shewing, after crediting the amount in the substituted account of £1230., in July 1819, a balance at the last date due Corbin Griffin, of £2740. 2. 9. The entry in the substituted account of £1230., has been altered, as well as the same sum in the account (C) just mentioned, and the date of his own receipt to himself for that sum, is changed from 26th July 1819 to 26th July 1820. The whole sum recovered o'n account of French spoliations was but little upwards of 5000 dollars; very insufficient to pay the balance pretended to be due in 1800; yet there are several depositions or affidavits, those of Page, Wilson, Butler, &c., going very strongly to prove that just previous to its receipt he procured the Dismal Swamp Band *Company to*join him, as sureties in a bond, to enable him to receive it, on the suggestion that the whole, or a considerable portion at least, would properly belong to them, under the provision of the deed nominally securing Jamieson, and that he afterwards declined paying them, allowing that he had paid about 2500 dollars to his father’s estate, while one of his accounts shewed a payment of £951., (3344 dollars 33 cents), and the other of £1230., (4100 dollars.) These affidavits are excepted to; but the exceptions made for the first time, in October 1841, seem to be too late; the affidavits appearing to have been before commissioner Baker in 1826, and as to two of them, Wilson’s and Brown’s, the objection urged, of interest, does not apply, since they held shares only in a fiduciary or representative character.

^“Before leaving the subject of Corbin Griffin’s claims, I should not omit to notice the credit claimed for his estate, by his administrator, founded on the receipt of Benjamin Waller, for £195. 9. 2. and a credit on the back of a forthcoming bond; both of which are given for payments, by Corbin Griffin, on 19th March 1798. These sums, amounting, together, to £250. seem to have been, on that day, borrowed of Philip Tabb, and a bond given for the amount by Macaulay, with Corbin Griffin, as surety. The bond was afterwards paid by Corbin Griffin, £150. 10. 2. on 6th May, and £119. 10. 2. 20th August 1799. The administrator, Thomas Griffin, unjustly, it seems, claimed a credit, both for the sum paid with the money borrowed, and that paid to Tabb, on the bond; and *289the commissioner, as erroneously refused to credit either. But Corbin Griffin is not shewn to have claimed both; nor do I presume that he committed, or meditated injustice, by taking the receipts in the first instance, in his own name. It is true, the money borrowed would appear to be Macaulay’s, as he was the principal in the bond to Tabb. But it was borrowed to pay off a debt, for which Corbin Griffin was surety, and he also became a security in the new bond, which he afterwards paid. He might have taken the receipt in his own name, and claimed the credits at once, with the full expectation, as Macaulay was much embarrassed, if not insolvent, that he would be compelled to take it up, indeed, with the understanding of all parties, that he would do so; or he might have feared, that the change of the debt might endanger his security, under the deed; a danger, shewn not to be wholly ideal, since, in point of fact, the commissioner has taken that view, rejecting the credit in the first instance, because the money was Macaulay’s, and in the second, because the new bond ivas not provided for by the deed. All that, as an honest man, it would have been incumbent on Corbin Griffin to do, if *he claimed the credit on the first payment, was to protect Macaulay against the new bond, which he did, and not claim credit for the second payment, which there is no reason to believe he ever intended. Judge Brockenbrough corrected the error of the commissioner, by directing the credit to be given once; and as to the effect, the result is the same, whether it be credited ■as of the first date, or of the second. Justice requires me further to say, that I see no reason to draw unfavourable conclusions against Corbin Griffin, from the fact of his taking a receipt in his own name, for the yj300. paid Waller, May 1798, and for which his estate has been denied a credit, on the ground, that this sum was the price of Macaulay’s slaves,sold to pay that debt. The receipt might have been literally and honestly according to the fact. Corbin Griffin might have paid the amount in anticipation of the sale, or if the sale was on credit, in anticipation of the payment, and with no view or purpose of making a fraudulent charge. It does not appear, that he ever set up a claim founded on that receipt against the trust fund.

“As to the debt secured by the deed to Jamieson, all concerned seem to have concurred is repudiating the deed, as evidence, either of its true character or amount. The sum specified in the deed, as due to him, is _£5000. (16,666 dollars 67 cents). In December 1801, he received from the trustees, two payments, amounting to 1156 dollars 66 cents, probably in money, and during the same month, in addition, a half share in the Dismal Swamp Hand Company,valued at 2500 dollars, and 4000 acres of land, purchased at the price of 4000 dollars, all trust funds, amounting to 7656 dollars 66 cents. In his receipt to the trustees, for the half share, and land, dated 17th December 1801, and again, in an acknowledgment under seal, dated 11th Eebruary 1804, he admitted the purchase of this property to be for the benefit of the Dismal Swamp Hand Cornpany, *and by deeds dated 20th July 1809, conveyed it to them; reciting, that the purchase was intended, after satisfying an individual debt due to himself, to paya considerable debt due them; and also, that the debts due to himself and Cor-bin Griffin, individually, had been fully satisfied. These deeds were duly recorded. Corbin Griffin was named among the grantees. Neither he, nor the company of which he was a member, appear ever to have disclaimed the deed; on the contrary, the company, in their bill filed in 1823, which is made an exhibit in these causes, allege that they have never been disturbed in their enjoyment of the property. They allege also, that Thomas Griffin was a manager, and for the two years preceding their bill, the president of the company. The presumption is, that both Corbin and Thomas Griffin, have received their proportion of this property; could they have done so without conceding the right of Jamieson, so to dispose of the trust subject; and would Corbin Griffin have done so, unless his prior individual claims had in truth been satisfied?

“In 1811, a settlement wras made between the company and M’Neale, executor of Jamieson, in which the payments to Jamie-son, of 1156 dollars 66 cents, together with money received by him from Grimes in 1804, arising from profits of the land, ivere charged to his estate, and credits given for money paid Mrs. Macaulay, (her dower interest for dividends, and for his claim against Macaulay,) thus stated: ‘By cash due Colonel Jamieson, from the trust on Macaulay’s estate, with interest, 687 dollars 50 cents.’ On the account thus stated, a balance appears against Jamieson’s estate, of upwards of 1000 dollars, which the company released, by an agreement, under sale, dated at the time of the settlement, (28th May 1811,) and referring to it. The copy of this agreement filed, is verified by the signature of ‘Corbin Griffin, one of the managers,’ with whom the settlement was made. Now of the ^5000. ^mentioned in the deed, all that was apparently ever claimed by the company, or admitted by Jamieson, was ,£3000., their money, as was alleged, lent by him, on their account, to Macaulay. If the deed had been regarded as fixing the real sum due, it follows, that the residue, ^2000., was due to Jamieson. Had he claimed that amount instead of a balance of more than a thousand dollars, against him, on the account just mentioned, there would have appeared a much heavier balance in his favour, against the trust fund. But it appears from the entry in that account, that his claim, with interest added, against the trust on Macaulay’s estate, ivas only 687 dollars 50 cents. The precise period to or from which the interest was computed, is not given; but computing interest on the bal*290anee appearing by Macaulay’s ledger B, due from Macaulay’s estate, to Jamieson, ¿173. 10. 3J^., 578 dollars 40 cents, either from May 1797, when it seems to have been due, or from the date of the deed, November 1797, and the close approximation of the sum to that in the settled account, renders it well nigh certain, in connection’ with other facts in the case, that Jamieson’s claim was adjusted, not according to the deed, but according to Macaulay’s books. According to the deed, Jamieson’s estate would have been entitled to 6656 dollars 67 cents, in 1797. His executor settles the debt as amounting in 1804, to 687 dollars 56 cents, and in his answer to the Dismal Swamp Band Company, states that the account of his testator was taken from the books of Macaulay, by Dr. Corbin Griffin ; he relies on the settlement just mentioned, and affirms, that it does not appear from any thing he has been able to discover, that his testator has ever received from the sale of the trust funds, on his own account, more than his said debt of ^173. 10. 7., with the interest due thereon, nor does it appear that the said trust fund has been made chargeable by his testator with any other or greater sums than his *said debt, and the said sum of ^3000. with the interest due, &c.

“Judge Brockenbrough laid some stress upon the circumstance that the sums provided for by the deed, were all in round numbers: And I must acknowledge, notwithstanding the severity of the strictures upon the suggestion, that this circumstance is not without its influence on my mind, connected with the array of facts and circumstances forced upon its attention by the course of the argument, or my own examination. It is passing strange, to say the least, that debts due to three different individuals, composed evidently of various items, should, with interest added to the same date, eventuate in round thousands precisely, and two of them (deducting the claim of the Dismal Swamp Band Company from the aggregate secured to Jamieson,) in the same sum, ^2000. each. But throwing this out of view: The circumstances under which the deed was executed; the cotemporaneous exposition of the parties, evidenced by their acts and admissions; the fact that Corbin Griffin received no payment after the date of his receipt of 23d November 1800; the appearance of that receipt; his acquiesence in, and ratification of, payments from that time to creditors (over whom he was entitled to priority), of almost, if not entirely, the whole trust fund then existing, or expected to be realized, amounting to upwards of 7500 dollars when, if the deed really recited his debt, he was himself entitled to much the larger part of that sum: The repeated acknowledgments of Jamieson, in his receipt to the trustees; his sealed obligation of Bebruary 1804, and his deeds of July 1809; and the subsequent settlement of his executor, M’Neale, with the Dismal Swamp Band Company, in 1811, by which Jamieson’s debt was estimated at something upward^, of 500 dollars, in place of ^5000.: The failure of all the preferred creditors, their representatives, and the trustees, the latter having possession of *Macaulay’s books, to produce any book,' settlement, memorandum, account or evidence,, shewing the origin, nature or amount of the debts to be different from that ex-hibted by the books of MacaulajT: The withdrawal and alteration of some of the exhibits filed in these causes; the mutilation of others; and the confused entries made- and obliterated, or cancelled, after Macaulay’s death, in his ledger B, the only one of his books—except a tattered day book, apparently of 1788, recently produced— which the flames, or the negligence of Thomas Griffin,has suffered to escape;—all tend to impress upon me, without being conscious of a disposition to draw over-strained inferences, or indulge in undue suspicion or harsh epithets, a settled conviction that the deed of 15th November 1797, was not designed, nor understood by the parties, to ascertain the sums due the several preferred creditors, and that the contradictory account and statements of the defendant Griffin, by no means conduce to-, disclose, if they were not fabricated to conceal, the truth of the transactions to which they relate.

“The claim of Jerdone, the last of the, preferred creditors, assigned to his sister, Mrs. Macaulay, the original plaintiff in the second of these causes, appears to rest on a common ground with that of the two first, as respects the evidence of its amount, notwithstanding the expression of a belief by Anderson, in his bill, that the ^3000. secured to Jerdone by the deed, and perhaps a greater sum, was really due to him. It is not necessary now to state minutely the reasons for my opinion. It rests in part upon the circumstances already commented on, and partly on the evidence more directly bearing upon that claim. No party in these causes, except Anderson, the representative of Macaulay, seems to have any right or interest in 'this question ; that claim being confessedly postponed to those both of Jamieson and Corbin Griffin. The general creditors under the deed, or of the .estate *of Macaulay-—or even his dis-, tributees, if no such creditors appear —may have an interest; that interest ■ it is. the duty of the administrator to protect. But no such creditor or distributee asserting a claim, and no party before the Court being injured, this Court perhaps can object to no disposition of any remaining fund, should there be such a fund, after satisfying the parties claiming under the deed, as may be asked by Anderson, who unites in himself the character of executor of the assignee of Jerdone, and administrator of Macaulay, upon his responsibility, in case of any future claim of creditors or distributees. This subject will be hereafter provided for.

“Considering that the account of Corbin Griffin,, with the trustees, was finally and. *291fairly closed on the 23d November 1800, and that if, in the absence of the statement according to which payments or adjustments were made of his claim, a balance should appear against his estate, after the lapse of nearly 19 years, a settlement apparently fair and final with the authorized trustees, should not be set aside, there seems to be no necessity to delay these suits by directing a new account upon the principles now stated, with a view to ascertain how the balance would stand. The decree to be rendered may at once assume that there is no balance either way, since the Court is satisfied that 'this is the proper conclusion, and the means are wanting upon which a precise adjustment could now be made.

“But as to Jamieson, he himself conceded what is indeed abundantly proved, that he had received a very large sum over and above what was due to him individually. The excess, he admits, was received in a fiduciary character, and the whole, or nearly the whole, was turned over by him to the Dismal Swamp Band Company, to whom he admitted it belonged. Without deciding whether his estate may not be responsible eventually, it rests primarily upon the company who actually received *and enjoyed this excess, to account for it. They are not before the Court, although they appear to be prosecuting a claim in this Court against the trustees of Macaulay, or rather their representatives, and others, claiming a balance to be still due to them under the provision of the deed in favour of Jamieson. The record in that suit is made an exhibit in these causes. Nor the present, all that can be done, or seems proper, is to direct an alternative statement to be made by a commissioner, crediting Jamie-son’s estate with the amount appearing on Macaulay’s books, (by which he and his executor seem to have abided,) and with any' just payment by him to Mrs. Macaulay, and charging him with all money or property received from the trust subject, and after applying these payments so as to extinguish his claim, balance his account by a transfer of the excess to the debit of the Dismal Swamp Band Company, in their account with the trustees, hereafter to be adjusted.

‘ ‘The next enquiry is, for what amount are the estates of the trustees, jointly or severally', responsible. Nelson is shewn to have taken some part in the execution of the trust; but his acts seem to have been chiefly', if not exclusively, intended merely to give effect to those of his co-trustee. It does not appear that he received any part of the funds, money arising from sales, or otherwise. Besides this, the account rendered by Thomas Griffin to Anderson in 1817, of the trust transactions, is rendered in his own name as acting trustee, and all commissions credited to himself. In those exhibited with the original and amended answers, although rendered in the name of both the trustees, the commissions on the whole amount of the receipts are stated as T. Griffin’s, and in the last, specially stated as on the amount, *£*7219. 9. 10., received and disbursed by' him as trustee, &c. Here again, without finally deciding that Thomas Nelson’s estate may not be eventually *liable for the acts performed jointly or severally by him, or upon further proofs to contribution in respect to. such acts, the primary responsibility attaches, I think, most clearly to Thomas Griffin for whatever balance may be due on account of the trust. It remains to ascertain what that balance is. Commissioner Shore’s report, made under the decree and opinion of Judge Brockenbrough, pronounced in December 1833, presents three statements of the trust transactions:

“1. Statement A; shewing a balance due from the trustees jointly, on the 31st December 1803, principal and interest, of 1659 dollars 74 cents.

“2. Statement B, a balance, same date, against the same, 2040 dollars 64 cents.

“3. Statement C, a balance against T. Griffin, surviving trustee, 31st December 1824, 7367 dollars 28 cents.

“After attentively examining the numerous exceptions of all the parties to the original report of commissioner Baker, the comments of Judge Brockenbrough upon them, and the reformed report of commissioner Shore, I am of opinion that these statements ought to be sustained, and that the two last statements exhibit the balance for which Thomas Griffin, the surviving trustee, should be held liable.”

The Chancellor then proceeds to consider other exceptions to the report, which it is unnecessary to notice.

The decree of the Court is as follows:

“This day came the parties, by their counsel, in these causes, which were fully heard together on the eighth day of November last, and time then taken by the Court to consider of its judgment to be given in the same, and the Court having maturely considered the records and the arguments of counsel, is of opinion: Nirst, that the deed of trust executed by Alexander Macaulay to Thomas Griffin and Thomas Nelson, trustees, on the fifteenth day of November one thousand seven hundred and ninety-seven, does not furnish conclusive evidence *of the extent of the debts thereby intended to be secured to the three preferred creditors, Corbin Griffin, John Jamieson and Nrancis Jerdone, but that it is competent for the parties to shew, by other evidence, that the said debts' were of less amount than the sums specified in the said deed. Secondly, that under the circumstances, the books of Alexander Macaulay are admissible evidence against Cor-bin Griffin and John Jamieson, and their representatives, in ascertaining and fixing the several amounts due to them from the said Alexander Macaulay, and intended to be secured by the said deed. Thirdly, that all claims or demands of the said Corbin Griffin against the said trust fund, under and by virtue of the said deed, and intended to be secured thereby, were finally closed and fully satisfied by the last payment to him, evidenced by the receipt pur*292porting to be dated the twenty-third day of November, one thousand eight hundred, so that there is no balance due either to or from the said Corbin Griffin’s estate on account of the said trust matters. Fourthly, that the book of Alexander Macaulay, (ledger E, folio one hundred and six,) exhibited the true amount of his indebtedness to John Jamieson, on individual or private account at the date of the said deed, and consequently that his individual claim under the trust deed has been greatly overpaid, but as it appears that the greater part, if not the whole of the excess, after satisfying his individual debt, was paid over by the said Jamieson to the Dismal Swamp Eand Company, on account of a claim alleged to be due to them for moneys of the said company advanced by Jamieson to Alexander Macaulay, and as the said Dismal Swamp Eand Company are prosecuting a suit in this Court for the establishment of their said claim, and the recovery of a balance still claimed to be due to the said company on account of the monejrs so advanced, it is not proper at this time to decree the payment of such balance as may *be due on account of such over payments to the said Jamieson, but that branch of these causes should be reserved for the future action of this Court. Fifthly, that as Thomas Griffin appears to have been the principal acting trustee, and the acts of Thomas Nelson seem to have been intended merely to give effect to those of his, the said Griffin, who received and disbursed the trust funds, the primarjr responsibility for whatever balance that may be due on account of the trust, attaches to the said Thomas Griffin, and should be decreed against his estate in the first instance, as well the balance due on the joint account of the said trustees as that due on account of the surviving trustees; without however, now deciding that the said Thomas Nelson’s estate may not be eventually liable for the acts performed jointly or severally by him, or upon further proof to contribution, in respect to such acts. For these and the reasons more fully set forth and contained in a written opinion this day pronounced in these causes, which opinion is ordered to be filed with the papers and made a part of the record in these causes, but is not to be spread at large on the order book, the Court rejecting and overruling all exceptions and petitions, and setting aside all reports and statements of the commissioners, and all orders and decrees heretofore made in these causes, so far as the said exceptions, petitions, statements, orders and decrees may conflict with the said opinion and this decree, and affirming and sustaining the residue, would now proceed to dispose finally of the trust funds remaining due from the trustees, Thomas Griffin and Thomas Nelson, jointly, according to statements A and B of commissioner Shore’s report, and from Thomas Griffin, as surviving trustee, according to statement C of commissioner Shore’s report, but that it appears by evidence in these causes, that the Dismal Swamp Eand Company are now prosecuting a suit in this Court to subject the said trust funds to the payment *of an alleged claim or demand said to be secured, or intended to be secured by the said trust deed, in consequence of which said suit, the Court is of opinion that the said trust fund should be decreed to be paid into bank, to await the decision of the said Dismal Swamp Eand Company’s suit, or such further action of the Court in these causes as may hereafter be deemed proper. And the plaintiffs being willing for the present, to take such a decree against the defendant Robert P. Waller, as executor of Thomas Griffin, deceased, de bonis testatoris, with liberty, should such a decree prove unavailing, to apply to this Court for further relief in the premises against the said defendant, Robert P. Waller, executor as aforesaid: The Court therefore, doth adjudge, order and decree, that the said defendant, Robert P. Waller, executor of Thomas Griffin, deceased, out of the assets of his said testator, in his hands to be administered, if so much thereof he hath, and if not, then so much thereof as he maj- have, pay into the Exchange Bank of Virginia, at Richmond, to the credit of this Court, in these causes, and subject to the future order thereof, the sum of two thousand and forty dollars and sixty-four cents, with interest on one thousand six hundred and eighty-four dollars and thirty-seven cents, part thereof, to be computed at the rate of six per centum per annum, from the thirty-first day of December one thousand eight hundred and three, until paid, being the balance due by the said statements A and B of commissioner Shore’s report, from the joint trustees, Thomas Griffin and Thomas Nelson; also, the further sum of seven thousand three hundred and sixty-seven dollars and twenty-eight cents, with the like interest on five thousand three hundred and thirty-six dollars and ninety-one cents, part thereof, from the thirty-first day of December one thousand eight hundred and twenty-four, until paid, being the balance due by the said statement C of commissioner Shore’s report, from the said *Thomas Griffin, as surviving trustee; which said several sums of money, with interest as aforesaid, or so much thereof as he may have, the said Robert P. Waller executor as aforesaid, is ordered to pay as aforesaid, on or before the first day of April next, having been served with a copy of this decree, at least sixty days prior to that day, or that he then shew cause to the contrary. But nothing in the said opinion or this decree contained, is to be held in any manner as deciding the validity of the alleged sale by the trustees, Thomas Griffin and Thomas Nelson, of the half share of Dismal Swamp Eand Company stock and the individual moiety of eight thousand acres of land, conveyed by the said trust deed of the fifteenth day of November one thousand seven hundred and ninety-seven, or as settling or in any manner affecting any question arising in the said suit of the Dismal Swamp Eand Com*293pany, herein before referred to as depending in this Court. And the Court doth further adjudge, order and decree, that the bills of the plaintiffs respectively be dismissed as to the defendant Robert P. Waller, in his character of administrator de bonis non of Corbin Griffin deceased.”

From this decree Waller as executor of Thomas Griffin and administrator de bonis non of Corbin Griffin, applied to this Court for an appeal, which was allowed.

After the above decree was made, the Dismal Swamp Band Company obtained leave of the Court to file a supplemental bill in their case; and it was filed at July rules in 1841. In this bill they say that in October 1828 they were informed by their counsel that there was another suit pending in the Court, brought by Macaulay’s administrator against Griffin, claiming an account of the trust fund, and in which an account had been rendered setting forth Mr. Griffin’s claim to the money; and that in that case the justice of his claim was litiga ted. That in this state of the case it was ^determined to bring the case of Macaulay’s administrator v. Griffin, first to a hearing. If Griffin was entitled to the money, the creditors would have nothing to dispute about. If that point was decided against Griffin, then the rights of the respective creditors would come up for consideration.

ThejT state the joint proceedings in the three causes in 1829; the setting aside of that decree and the opinion and decree of Judge Brockenbrough in 1833; giving extracts from his opinion upon the exceptions of Jamieson’s executor to the commissioner’s report. They complain that account of moneys belonging to them, received by Macaulay from Jamieson, were directed in causes in which they were no parties. They say that they had been apprised of these proceedings for the first time at the previous April term, when they emploj'ed counsel and asked leave to file this supplemental bill.

They charge that there is a considerable debt due from Alexander Macaulay to them; and that it had been clearly shewn that the deed of November 1797 was intended to secure the payment of that debt. Thej- refer to the deeds of Jamieson of 1809, conveying to the company the moiety of the tract of 8000 acres of land and the half share of the stock of the company, and to the admission therein contained, that his debt, and also the debt to Corbin Griffin, had been paid; and they allege that Corbin Griffin, as one of the members of the Dismal Swamp Band Company, was one of the grantees in these deeds. That he had been as much in the enjoyment of the property thus conveyed to them, and of the profits thereof, as the other grantees; and being one of the managers of the company, he knew that the fact of his payment was stated in the deeds; and he also knew the truth of the statement.

They charged that Thomas Griffin knew that Corbin Griffin’s claim had been satisfied long before the act of *Congress of the 20th of February 1819, appropriating 5209 dollars 20 cents, for the value of the ship Bouisa and cargo, and his failure to pay to the company the money received under that act, especially after the promises he had made them, was an act which could not be justified.

They charge that Anderson, as administrator of Alexander Macaulay, had obtained a decree against the executor of William B. Christian for 10,504 dollars 63 cents, with interest from the 31st of December 1829, and that he had received the whole amount. And they insisted they had a right to have this money applied to the payment of their debt; the said Christian having been indebted to Macaulay at the time he made his deed of the 15b November 1797, by which Macaulay assigned for the purposes of the trust, all debts due to him. And making Anderson as administrator of Alexander Macaulay, and as executor of Elizabeth Macaulay, Robert P. Waller as executor of Thomas Griffin and administrator de bonis non of Corbin Griffin, Frances Berkeley administratrix of Thomas Nelson, and William Major sheriff of Culpeper county, and as such administrator de bonis non of John Jamieson, parties defendants to their bill, they asked that an account might be taken of the debt due from Alexander Macaulay to the complainants, and also accounts of all property, moneys and effects, out of which that debt ought to be paid; that they might have a decree against the party properly liable for the debt, or for payment out of the property liable for it; and for general relief.

Waller as the executor of Thomas Griffin answered, saying he had no personal knowledge of the transactions spoken of in the bill; and referred to the answer of his testator. He also answered as administrator de bon's non of Corbin Griffin. He said that though no decree was asked against his intestate’s estate, either in the original or supplemental bill, he felt it his *duty to put in issue the allegation that Corbin Griffin’s claim on the estate of Alexander Macaulay had been paid before the 20th July 1809. He called for better proof of the fact than the recital in Jamieson’s deed of that date. That Corbin Griffin was not estopped by the recital in that deed from denying the fact. He did not sign the deed, and as he was then a very old man, he probably never knew of the recital in the deed, if he ever knew that such a deed was made. And he pleaded the statute of limitations in bar of the complainant’s claim.

The administrator of Jamieson professed to know nothing personally of the matters stated in the bill; and he referred to and relied upon the answer of M’Neale, executor of Jamieson, to the original bill.

Anderson answered as administrator of Alexander Macaulay and as executor of Elizabeth Macaulay. He admitted the statements as to the previous joint action of the Court in the causes. He insisted that the opinion expressed by Judge Brocken*294brough, respecting the probable indebtedness of Macaulay to Jamieson for money of the complainants lent by Jamieson to Macaulay, was not sustained by any sufficient evidence in the said suits. That the suit of the company was not then ready for a decision for want of proper parties; and no decision could have bound the company, and therefore no opinion of the Judge could bind any other party. He denied that Jamieson ever was treasurer or cashier of the company, or had control of the money of the company; or ever was authorized to settle the accounts of the company with their debtors, and take security for the amount due from them; and especially to take such security in his own name.

He complained that though he was a member of the Dismal Swamp Band Company, and asked to be allowed to examine their records, he had been refused. He *said that it was true Judge Brockenbrough directed M’Neale, the executor of Jamieson, to render an account of all moneys loaned to or received by Macaulay from the Dismal Swamp Band Company by the direction of Jamieson, and for which Jamieson may have been in any way responsible to the company; but that M’Neale had never attempted to render this account; nor did he ever attempt to shew that there was any thing due from Macaulay to Jamie-son on that account. And the reason why he could not render the account was that in truth no such money had ever been lent by Jamieson to Macaulay, or received by him under authority derived from Jamieson. He insisted that what M’Neale said in his answer on the subject was not evidence against Macaulay’s representative. He did not pretend to have received his information from Macaulay, but referred to a letter of John Brown of Richmond, who was one of the company. That no bond, note, receipt, or other evidence is referred to, to prove that the loan was made; and there was no proof, if a loan was ever made by Jamieson, it was made to Macaulay.

He insisted that the advice of their counsel was no sufficient excuse for the delay of the plaintiffs in preparing their case. That no obstacles had been thrown in the way of their progress, their bill had been answered by all the parties in 1824 and 1825; and if they had applied to the Court after July 1829, when the order of the previous June had been set aside by their consent, they would.either have had an account directed or their bill dismissed; which latter result the defendant believed they expected. That all the books, .papers and accounts, as well as all the property of Alexander Macaulay, as early as the latter part of the summer of 1798, on his death passed into the hands of Thomas Griffin and Thomas Nelson, the trustees in the deed of November 1797. That after the defendant’s ^marriage with the daughter of Macaulay he was denied access to the said books and papers by T. Griffin, and denied access also to the books, papers and accounts of the Dismal Swamp Band Company. And in this state of things, well known to Thomas Griffin, the surviving trustee, and the president of the company, their suit had been permitted by them to lie dormant for a long course of years, tha!t the defendant at great expense of money and labour might bring a reluctant trustee to account, and shew the amount actually due from him; and that then the complainants might come in and sweep away the whole by means of a very vague, indefinite, contingent and stale claim; not as yet supported by evidence sufficient to shew any debt to be due from Macaulaj' to the complainants. And he relied on the statute of limitations, and also upon the lapse of time and the staleness of the demand of the complainants, in bar of their claim.

The defendant further objected that the complainants were not authorized to sue for the claim they had set up, because if there was such a debt due, it was due before the complainants were incorporated; and should be sued for in the name of the survivor of the old company or his representative. He denied further that the trustees had ever sold the moiety of the 8000 acres of land and the half share of the company to Jamieson. He said that they knew they had no right to pay to Jamieson, out of the proceeds of the trust estate, more than the sum of £173. 10. 7., and its interest; and that they had no right to pay any part of the proceeds of sales to the Dismal Swamp Band Company, as there was nothing due to them from Macaulay at least under the trust deed. They therefore never conveyed the said land and stock to the said Jamieson or the company.

As to the claim to the amount recovered by the defendant from William B. Christian’s executor, he relied on *all the grounds before taken by him in his former answer, and on the grounds of defence taken hereinbefore.

The papers filed by the plaintiffs shewed that Alexander Macaulay had received in the years 1795, 1796 and 1797, of the moneys of the Dismal Swamp Band Company, some thirteen thousand dollars; but as he was a director of the company, and there is evidence in the record that he acted in the management of the affairs of the company, it does not certainly appear what part of this money he received to be dispensed for the company, or what part he received as a loan. There is, however, an account filed made out by Thomas Griffin when he wras president of the Dismal Swamp Band Company, which charges Macaulay with these moneys, amounting . to 13,395 dollars 69 cents, and credits him with the price of the land and half share of the stock of the company conveyed to them by Jamieson. And there is also evidence of a settlement between the company and M’Neale, the executor of Jamieson, by which they take this land and stock in full of all claims they have upon him for moneys of the company received by him.

On the 29th of October 1841 the plaintiff filed in the cause a copy of the record in the *295case oJE Anderson administrator of Alexander Macaulay against the executor of William B. Christian; from which it appeared that Anderson had recovered from Christian’s estate on account of his indebtedness to Macaulay, the sum of 10,504 dollars 29 cents, with interest on 5045 dollars 29 cents, at the rate of five per cent, per annum from the 31st of December 1820 until paid. And thereupon in November 1841 Waller applied to the Court for leave to amend his answers, and set up a claim to this money as a part of the trust fund, under the deed of November 1797; and to have the same applied in the first place to the payment of the balance which he claimed *was still due from Alexander Macaulay’s estate to the estate of Corbin Griffin. The Court refused to permit him to amend his answers, but ordered that the amended answers which Waller proposed to file should be filed among the papers in the cause, as a part of the proceedings therein on that day.

Extended as is this statement, there are many facts not stated which are referred to in the opinions of the Judges in the Court below. The opinion give these facts with sufficient minuteness, and they need not be stated here.

The cause came on to be finally heard in June 1843, when the Chancellor—Robertson —delivered the following opinion:

1 ‘ The original bill in this case was filed in July 1823. Its object was to establish a secret trust in favour of the plaintiffs in a deed executed by Alexander Macaulay, on its face securing certain debts to Corbin Griffin, Francis Jerdone and John Jamie-son, dated November 1797. The plaintiffs allege that their claim against Macaulay, with interest to November 1797, amounted to 13,395 dollars 69 cents, and, was included in the provision of the said deed securing ¿5000. to John Jamieson. Macaulay’s administrator R. Anderson, Thomas Griffin the surviving trustee and administrator of C. Griffin, the representatives of the deceased trustee, M’Neale executor of Jamie-son, Francis Jerdone, and the executor of W. B. Christian, an alleged debtor to the trust, are made defendants. No bond, note, account, or evidence of any kind, to sustain the plaintiffs’ claim, was exhibited with the bill. The deed of trust, including apparently the whole property of the grantor, provides for paying in succession : 1. To Corbin Griffin, ¿2000. 2. To J. Jamie-son, ¿5000. 3. To F. Jerdone, ¿3000., and to indemnify each in the order named in all sums or charges in which they stand bound as security for Macaulay. The residue, if any, *to the use of any other creditors of Macaulay. The bill charges the trustee, T. Griffin, with gross negligence, with misapplication of the funds, fraud and deception, especially in reference to a claim recovered by him, as trustee, from the government of the United States, under the treaty with France. It refers to documents to shew that Corbin Griffin and Jamieson had been fully satisfied.

“The administrator of Macaulay, Anderson, requires proof that Macaulay was, as the bill alleged, a director of the company. Denies, if a director, that he had a control more than that of any other; that he ever applied the company’s funds to his own use; asserts that the books and papers of Macaulay were fraudulently withheld by a member of the company—once its president, (T. Griffin, the surviving trustee;) that the plaintiffs themselves illegally withheld from the administrator the means of shewing how his intestate disbursed moneys he might have received; denies any debt from Macaulay to the company, or any security designed by the former for the latter; states his belief that Jamieson’s debt did not exceed ¿200. ; that he received large sums, which overpaid his claim, charges under dealing in reference to Macaulay’s estate in sales of property, &c., especially sales of a share, or part share, in the company; and of 4000 acres of land, for 1 dollar per acre, (which were said by Jamieson to be bought by him for the company, after satisfying his own debt,) the income of which for the two years before the sale, 1799 and 1800, is stated to have been,......$1,000 In 1801, the year of the sale, . . 3,000 And in 1802 and 1803, . . . 2,000 The administrator dwells on many acts of imputed misconduct in the trustee T. Griffin, and of his father C. Griffin, and of the company, and relies upon the lapse of time as a presumption against the justice of the ^plaintiffs’ demand, and a ground for dismissing their bill. Thomas Griffin, surviving trustee, in his answer denies all fraud, says he received moneys as trustee, paid C. Griffin’s administrator (himself) a balance appearing due, being advised by counsel that he must go according to the deed, which must be his sole guide, and goes into an argument to shew that when a man makes a deed of trust acknowledging a debt, his trustee is bound to pay it. He admits that he took possession of some books and papers of Macaulay, the most important of which were placed in two trunks, one of which was burnt in 1804, in his dwelling house, and the other, as he believes, also consumed when a part of the town of York was burnt in 1814.

“Francis Jerdone seems to know very little about the debt secured to him. ‘ He says in his answer, that Macaulay had transactions with one William Douglass, and received timber and produce from an estate managed by Douglass, of which he (I) was half owner, and he believes Macaulay was, at the time of his death, indebted on that account to himself and Douglass, but to what amount he is unable to say. Since the death of Macaulay, he (I) has assigned to Mrs. Macaulay the debt considered to be due him on the account above mentioned.’ M’Neale, executor of Jamieson, expresses his belief, that the trust deed was intended to secure a private debt due Jamieson, and a debt for which he was in some way responsible, due from Macaulay to the plaintiffs. He refers to a letter of J. Brown, to *296shew that the company about July 1796, had upwards of £3000. they were desirous of putting at interest, and the disposal whereof seems to have been given to Jamieson, and is of opinion, that the loan of it must have been made at least 12 months anterior to the deed of trust. He states that Jamieson was a careless accountant, kept no books, and has left no account of the transactions between himself and Macaulay, and the defendant *has no means of saying what was the debt due from the latter to the former, but from an account taken from the books of Macaulay, and furnished by Corbin Griffin, it appears to have been £173. 10. 7., on the 15th May 1797. This defendant adverts to the sales made to his testator, by the trustees of Macaulay in 1801, for an undivided moiety of 8000 acres of land, and a half share of company stock, and payments of money to and receipts by Jamieson from the trustees, and 2000 dollars from Grimes, &c. ; and states the conveyance by Jamieson in 1809, of the 4000 acres of land to the company, and the said half share of stock, without any other consideration, as he believes, than the £3000. and interest, lent by him to Macaulay (for the company). Finally, he relies on a settlement with the company and discharge in May 1811. This cause was brought to a hearing, together with two other causes pending in this Court, namely, Anderson, administrator, &c. v. Griffin,' &c., and Macaulay (Mrs.) v. the same, and in June 1829, an order was made in the two last causes recommitting certain accounts to another commissioner. The order of commitment was set aside in November 1832. In December 1833, Judge Brockenbrough delivered an opinion in the two causes just mentioned. This cause appearing to have been left at rest, in consequence of the advice as it seems by a supplemental bill recently filed, of the plaintiffs’ counsel, who thought it proper as the suit of Macaulay’s administrator would call for a settlement of the trust subject and decide upon the trustee’s claim to keep the money, on the ground of his father’s claim (C. Griffin) to wait until that point should be settled. The plaintiffs have again put their cause in motion by filing in July 1841, a supplemental and amended bill, and by taking sundry depositions returned September 1841; answers have been filed by Macaulay’s administrator, by T. and C. Griffin’s representatives, and by Jamieson’s administrator. *It is not necessary at this time to set forth their answers in detail. The plaintiffs now ask a decree, at least for an account, and if their prayer be granted, this account is now for the first time to be settled, after the lapse of 45 years from the time of the death of the supposed debtor, 46 years after the date of the deed under which the plaintiffs claim as secret incumbrancers, and a still longer period from the date of the transactions on which their alleged claim is founded; after the death of all the original parties to the deed, including both trustees. It is an account now to be made up, after Macaulay’s representatives have, not only by death of parties and witnesses, lost the benefit of testimony which might have thrown light upon these very obscure transactions, but has been deprived by the act of God, or the fraud or neglect of those who took possession of his books and papers, of all the aid they might have derived from that source, and this not only without the production of any bond or note executed by the supposed debtor evidencing the amount of debt, but without production or exhibition even of an account or statement by the plaintiffs themselves during the whole progress of this long litigation, or of any evidence establishing their demand, except the inferences deducible from the deed and statements of Jamieson and his executor, and the evidence introduced recently in the cause (in 1841). The excuse offered in the supplemental bill does not appear to me to justify the course which the plaintiffs have pursued. Their claim was an adversary claim, both to that of Corbin Griffin and of Macaulay’s administrator. To the former, not upon the ground of priority, it is true, but upon the ground of satisfaction, and they were not justified in laying by while the controversy was carried on by Macaulay’s administrator, with a view to sweep the fund in case the latter should succeed in establishing the liability of Griffin the trustee, especially as this course subjected *the estate of Macaulay to all the disadvantages of meeting their claim arising from lapse of time, a period now as already said, of 40 odd years from the date of the transactions. Nor would any decree in the case of Macaulay’s administrator v. Griffin, &c., have been evidence in favour of these plaintiffs against Griffin, and it was the more incumbent upon these plaintiffs to bring their case speedily, or at least with ordinary diligence, to a hearing, not only because of the antiquity of their claim, its unascertained amount, and the secret nature of the trust; but because they themselves alleged in their bill, that he trustee Griffin had been guilty of gross negligence and misapplication of the trust subject. As to the trust itself, there is a strong objection to the attempt at any time, and especially after a long time has elapsed, to a parol proof of a secret trust. I do not think the admissions of Jamieson or his executor, are proper or sufficient evidence under the circumstances, on which this Court should set it up. I am strongly inclined to the opinion that something, possibly the whole amount claimed by the plaintiffs, was intended to be embraced in the provision for securing Jamieson £5000. But this impression is not, I think, the result of adequate legal proofs. It may be difficult to believe that Jamieson would admit a debt nominally due himself to be due to another, if it were not so; but that does not make the admission—not taken in the form of a deposition—evidence against the grantor. Besides, there is evidence too strong for my mind to resist that the deed did not correctly set forth the sums due *297the several incumbrancers. As to the amount secured to Corbin Griffin, Thomas Griffin seems to rest his defence for paying it upon the sole ground that the deed acknowledged it. Jamieson’s debt is hardly pretended to have exceeded the sum mentioned in Macaulay’s book—something upwards of £170—though stated as £5000. And Jerdone expresses a belief that something, *he does not know how much, was due to him, as part owner of a tract of land with another, from which Macaulay received timber and produce. The debt secured to him by the deed, separately, was put at £3000.

"All these sums were put down in round numbers; and while the fact may very possibly be accounted for without imputing fraud to Macaulay, and indeed it is difficult to impute fraud to him without implicating in the charge all the cestuis que trust; yet, as already remarked, my mind cannot resist the conclusion, that the sums were in a great degree nominal.

"It is further to be remarked, that the company, through the agency of the trustees and Jamieson, have already received a very considerable part of the property conveyed by Macaulay; property sold apparently at a great sacrifice; bought in by Jamieson, and suffered by the plaintiffs to remain in his hands unconveyed, notwithstanding the trifling amount of his claim, for eight or nine years after the purchase.

This property consisted of 4000 acres of land, sold at 1 dollar per

acre,........4,000

And a half share of stock, (in 1811, M’Neale sold Jamieson’s half share at 5000 dollars, see C. Griffin’s letter with defendants’ depositions,) . 2,500

It seems that Jamieson also, about the same time, received from the trustees, ........ 1,156

Making, $7,656

While his own private debt was £173. 10. 7.

“finally. Without going into other litigated questions, touching the right of the present plaintiffs, as an incorporated body, to succeed to the rights of the old unincorporated company, or adverting to the want of sufficient evidence to establish the items of the account accompanying the depositions returned in 1841, I am x'of opinion that this old litigation ought to be brought to a close, and that less injustice is likely to arise from the dismission of the bill, than from any decree founded upon the evidence now to be obtained. The delay of the plaintiffs does not seem to me to be justified by the reasons assigned. The necessity of a settlement of their accounts with Macaulay’s estate was apparent from the terms of their bill, to entitle them to any relief. The Court has indicated the necessity of such an account, even while the plaintiffs seem to have withdrawn themselves from the controversy, by directing Jamieson’s executor to render an account of the amount due from Macaulay to Jamieson, as treasurer of the Dismal Swamp Hand Company. The plaintiffs complain of this direction, as interfering with their claim in suits to which they were not parties, and of which proceedings they had no notice. But they did know of the pendency of these suits; and made the proceedings in them a reason for omitting to proceed with their own. Had they been active, the Court would most probably, at an early period, have directed the account they now ask, and which it does not now seem, can be directed with justice to the representatives of Macaulay. Without deciding that the admission of Jamieson, even though not in the form of a deposition, is incompetent or insufficient evidence that the debt, or a part of it secured to him, was actually due to the plaintiffs, or that the plaintiffs might not, as against Griffin, have claimed an account of his trust transactions, had the amount of their debt been clearly stated in the deed, or proved to have been liquidated and ascertained at the date of the deed, or at the period of Macaulay’s death; and without deciding that the vouchers and evidence recently filed are insufficient to establish a claim to the amount thereof, or to any part, against Macaulay, (although the debt, if established by them, is very different from that supposed by Jamieson’s executor, who represents Macaulay *as a borrower of a specific sum of about £3000. in the hands of the company for investment in 1797, whereas the vouchers in question are for various sums received at different times, and from different persons;) passing over these objections, the prevailing argument with the Court for refusing the accounts is, that unliquidated as it has been suffered to remain now for a period of between 40 and 50 years, no adjustment of it upon safe and proper principles is to be expected, and that the delay is justly ascribable to the plaintiffs. While the Court does not, upon the pleadings and evidence, .feel justified in this suit in disturbing the plaintiffs in the enjoyment of what they have received and been permitted to retain of the estate of Macaulay, it feels equally restrained from affording them, under the circumstances, the decree they now ask for further accounts;—leaving the parties upon the ground on which they stood, and seemingljT acquiesced in, from the sale to Jamieson in 1801, or at least from the conveyance to the Dismal Swamp Hand Company in 1809, up to the institution of the present suit, a period in one view, of 14 years, and in the other, of two and twenty.”

In pursuance of this opinion the Court dismissed the bill with costs. Whereupon the plaintiffs applied to this Court for an appeal, which was allowed.

The three causes came on to be heard together in this Court.

Patton and Cooke, for the appellant Waller executor of Griffin.

It is now fiftj'-three years since the deed which gave rise to this controversy was executed. That deed was executed in No*298vember 1797, and Macaulay' died in July 1798. In one year after his death the trustees had proceeded to execute the trust, and to sell all the property conveyed, except an interest in the Dismal Swamp *Land Company, and some Dismal Swamp land; and these were sold in 1801.

By 1801 Corbin Griffin had received, beside the amount he had paid as surety for Macaulay, a sum greater by upwards of 2000 dollars, than the amount which the appellees say was his real debt. And by 1804 Jamieson had received 2500 dollars more than the amount to which the appellees may say he was entitled.

From 1804 until 1819 there was no sale or transaction in execution of the trust, except the sale of a house and lot in Hanover town, and the payment of a small debt for which C. Griffin was the security. And there were the two fires in the town of York, one in 1804, and the other in 1814, in which the books and papers of Macaulay were scattered, and many of them irretrievably lost.

At the date of his deed Macaulay was overwhelmed with debts, all of which have been lost to the creditors. And in 1815, after his estate had been again and again committed to sheriffs because of its supposed insolvency, Anderson qualified as administrator de bonis non. In 1819 .the claim upon the French government for the capture and detention of the Louisa was discovered, and the amount, upwards of 5000 dollars, was paid to Thomas Griffin, the trustee.

The deed of 1797 provided for the payment to Corbin Griffin of a debt of ^2000, and although Macaulay lived for eight months after the execution of that deed; although there were many creditors whose debts were lost; although Mrs. Macaulay’s bed was sold under this deed for the payment of this debt, yet neither Macaulay in his lifetime, nor these desperate creditors, nor Mrs. Macaulay herself, nor her daughter and her first husband Peyton Southall, were ever heard to doubt the validity and justice of Corbin Griffin’s claim, until Anderson, who had married Mrs. South-all, filed his bill *as administrator of Macaulay, seeking to impeach the debt due to Griffin, and to set up that of ¿£3000. to Jerdone. His bill was filed in 1819. That of the Dismal Swamp Land Company was commenced in 1820; but for some error in the institution of the suit it was temporarily abandoned, and was recommenced in 1823. As'to the consolidation of the causes, the case of Claiborne v. Gross, 7 Leigh 331, shews it cannot be done.

The bill of Anderson as administrator of Macaulay against Thomas Griffin as trastee under the deed of 1797, ought to have been dismissed for want of proper parties, on the final hearing; the objection for want of parties having been made and insisted on in the progress of the cause. These necessary parties were Jerdone, or Mrs. Macaulay claiming as his assignee, who was named cestui que trust in the deed, and the Dismal Swamp Land Company, which was known to be a beneficiary under the provision for Jamieson; and as Jamieson’s debt was assailed, it was peculiarly proper that they should have been parties to defend their interests. It is true that the causes were heard together in 1829; but afterwards even this ceremony was dispensed with. Moreover Griffin stood as the holder of alleged trust funds; and he had a right to insist that all the beneficiaries, especially those to whom payments had been made, and whose debts were impeached, should be made parties. Indeed the decree of the Court shews that the Judge below thought that justice could not be done so as to protect Griffin until the case of the Dismal Swamp Land Company was settled. Besides this there was a trust for the creditors generally; as to whom there is not even a suggestion that they have been paid; and yet no reference is had to them in the pleadings or in the decree of the Court. We understand the rule to be imperative that all creditors specifically provided for shall be made parties; a,nd especially when ' their claims are disputed. Sheppard ■ v. Starke, 3 Munf. 29; *Jamieson’s adm’x v. Deshields, 3 Gratt. 4; Finch’s Free. 207; Clark v. Long, 4 Rand. 451. But the bill should have been dismissed on another ground, as a matter of course, when it appeared that the debt of an acknowledged creditor, Jerdone, for more than sufficient to absorb the whole trust fund, was unsatisfied; and that creditor no party to the cause. Ricks v. Commonwealth, 1 Gratt. 416; 2 Rob. Pr. 263; Ward v. Van Bokkelen, 2 Paige’s R. 289.

We come next to enquire whether the deed of 1797 is a valid and bona fide deed so far as the debt of Corbin Griffin is concerned. We say that neither Macaulay’s administrator, nor Jerdone or his assignee, nor Jamieson, nor the Dismal Swamp Land Company, had a right to question the amount of Corbin Griffin’s debt in 1797. No bill to impeach a bond or deed can be entertained except for fraud, accident or mistake. No fraud, mistake, secret trust or error is charged in either bill as to the debt of Corbin Griffin. The only fraud charged is the fraud imputed by Macaulay’s administrator, Anderson, to Macaulay in making the deed to delay | hinder and defraud creditors. It is not alleged there was any mistake in the grantor or ignorance on his part, nor fraud on the part of the grantee, in fact nothing is alleged which can justify the Court in going behind the deed. Thompson v. Jackson, 3 Rand. 504; Sleev. Bloom, 20 John. R. 669, 685; Chambers v. Goldwin, 9 Ves. R. 254; Kinsman v. Barker, 14 Ves. R. 578. If errors are relied on they ought to be specified. If the amount mentioned in the deed was put in to cover the balances when ascertained, or advances to be thereafter made, such fact could not be shewn without an allegation in the bill to that effect. Taylor v. Haylin, 2 Bro. Ch. Cas. 310; S. C. 1 Cox’s Cas. 435. It must be alleged, and it must be proved, that there was *299error, or mistake, or fraud, and it must be shewn why the bond was given for ¿£2000., if so much was *not due. Johnson v. Curtis, 3 Bro. Ch. Cas. 266. There is not a shadow of proof of any mistake in the settlement of their accounts. The probability is that the transaction was a loan of ¿£2000. at one time to relieve Macaulay from his embarrassments.

*No*case, English or American, can be found to justify the bill in this case. It is true that cases may be shewn of guardian and ward, and trustee and cestuis que trust; but the'principles governing these cases do not apply. The cases are exceptions to the general rule. Lewis v. Morgan, 3 Anstr. R. 769. Certainly the deed must operate as strongly in favour of the grantee to establish the debt admitted therein to be due to him, as would a settled account. And it is settled that the acknowledgment of a debt as one item may be recovered under a count for an account stated. Knowles v. Michel, 13 East’s R. 249; Highmore v. Primrose, 5 Maulé & Sel. 65. There ought not to have been any account ordered going behind the deed as to Corbin Griffin’s debt. And in fact the order made in 1825 does not embrace any such account. The just construction of the order is, that the ¿£2000. was to be taken as an item of credit to Corbin Griffin, which was to be diminished by payments made, moneys received of the trustees, &c.

. Corbin Griffin died in 1813, some six years before any bill was filed to impeach his debt of ¿£2000. The plaintiff and those having a right to sue were under no disability, and therefore the great lapse of time between the date of the deed and its impeachment is strong, if not conclusive, to shew that the parties interested knew that the debt was just. It is true the trustee was bound to account for any balance in his hands after paying the debt. But after such a lapse of time the acts of the trustee would be regarded by a Court of equity with the greatest indulgence, instead of being subjected to the rigid scrutiny justified in recent transactions. *But Corbin Griffin was no trustee, but a creditor, whose debt is assailed by his grantor and another cestui que trust. The lapse of time is therefore a bar. Carr v. Chapman, 5 Leigh 164; Lacón v. Briggs, 3 Atk. R. 105; Beckford v. Wade, 17 Ves. R. 97; Gregory v. Gregory, Cooper’s Ch. Cas. 201; Hovenden v. Ld. Annesley, 2 Sch. & Lef. 607; Elmendorf v. Taylor, 10 Wheat. R. 168. If a bond or promissory note is called for as evidence of the debt due from Macaulay to Corbin Griffin, the Court may properly presume that it has been executed and is now lost. 1 Ch. R. 40. Now these cases are cases of trusts; and the rule is much stronger as between mere creditor and debtor, where there is no fiduciary relations between the parties. Ray v. Bogart, 2 John. Cas. 432; Coleman v. Lyne, 4 Rand. 454; Bolling v. Bolling, 5 Munf. 334; 1 Story’s Equ. Jur. $ 523, 529; Atkinson v. Robinson, 9 Leigh 393; Caruthers v. Trustees of Lexington, 12 Leigh 610; Stearns v. Page, 7 How. Sup. Ct. R. 819; Prevost v. Grata, 6 Wheat. R. 481.

We insist that no grantor in a deed or obligor in a bond can be permitted to impeach it on the ground that the deed or bond is without consideration, or that the real amount due is less than it calls for. It is true that a general recital in a deed does not estop the grantor, but the recital of a particular fact does. Huntington v. Havens, 5 John. Ch. R. 23; Stoughton v. Lynch, 2 John. Ch. R. 209; Rainsford v. Smith, 2 Djrer’s R. 196 a. Then is there not in the deed of November 1797, a distinct recital of the debt of ¿£2000.? And in the granting part of the deed and the declaration of trusts, is not the debt clearly recited and affirmed? Powell v. White, 11 Leigh 309.

If a grantor in a deed has been imposed upon, or if by mistake in a settlement of accounts, the deed is made for too much, or it is made for a nominal *sum to cover what shall afterwards be found due, then on proper allegations in the bill, the true state of things may be proved, notwithstanding the deed. But no such thing is alleged here. Apart from a fraudulent design on the part of the grantor, there is no hypothesis consistent with the facts, or which can be plausibly maintained, except the real existence of the debt as recited in the deed. Harvey v. Alexander, 1 Rand. 219. This and the cases like it shew that it is competent for a grantee to shew that there were other considerations than those stated in the deed. But they do not shew that a grantor may dispute or diminish the amount recited in the deed to be due. 7 John. Ch. R. 340; Schermerhorn v. Vanderheyden, 1 John. R. 139; Clarkson v. Hanway, 2 P. Wms. 203; Peacock v. Monk, 1 Ves. Sr. 128; Eilmer v. Gott, 4 Bro. Par. Cas. 230. All these cases shew that the grantor cannot avoid his obligation or deed by alleging that so much was not due as is called for by it. Why a mere voluntary bond may be enforced by the obligee. 1 Fonb. Equ. ch. 5, $ 1, p. 254, note a ; Boughton v. Boughton, 1 Atk. R. 625. If suit had been brought for the ¿£2000. by Corbin Griffin, can any one doubt that he might have recovered a judgment for the amount. This doctrine is fully developed in the case of Ellison v. Ellison, 6 Ves. R. 656, and is discussed with great ability in Bunn v. Winthrop, 1 John. Ch. R. 329. And we refer also to Jackson v. Ashton, 11 Peters’ R. 229; Knox v. Smith, 4 How. Sup. Ct. R. 298.

A grantor or a volunteer under him cannot impeach his deed on the ground that it was made to delay, hinder or defraud creditors. The bill in this case whilst it does not in express terms, does impliedly, charge that the deed was made to bring the creditors to terms. The allegations do in effect, amount to a charge that the deed was made to hinder, delay and embarrass the creditors of Macaulay. Could there have been an honest *intent on the part of *300the grantor in making this deed, if the fact be true, which it is the effort of the plaintiff below to prove? It is impossible. We refer to Austin v. Winston, 1 Hen. & Munf. 32; a strong case in support of the general principle; but making an exception where there is imposition, or oppression on the part of the creditor grantee. Starke v. Littlepage, 4 Rand. 368; Jones v. Comer, 5 Leigh 350; Bird v. James, 8 Leigh 510; Owen v. Sharp, 12 Leigh 427; Reichart v. Castator, 5Binn. R. 109; Jackson v. Garnsey, 16 John. R. 189.

Again, no party to a deed claiming under it can impeach it. The Dismal Swamp Land Company do not controvert the debt of Griffin; but Mrs. Macaulay assignee of Jerdone does. She has no right to be here, except by virtue of this deed. She therefore cannot impeach it; Corbin Griffin could not prove his debt to be more than ^2000., nor can she shew it to be less. Collins v. Janey, 3 Leigh 389. The only evidence by which Griffin’s debt can be reduced are Macaulay’s books. And by the same books it appears that there is nothing due to her.

The books of Macaulay''Were not admissible as evidence for the purposes for which they were introduced. It is said that Corbin Griffin had access to and made entries in these books. Of what importance to Cor-bin Griffin was it that Macaulay’s books did not credit him for the *¿2000.,*when he had a deed of trust from Macaulay to secure it? Of what value are such books, when it is shewn that Macaulay had received at least 13,000 dollars of money belonging to the Dismal Swamp Land Company, and yret the books shew nothing of it? There is nothing in the books as to the item of *¿250.*now acknowledged or proved to be a proper credit to Corbin Griffin. There is no proof that Corbin Griffin ever made any entries in the books in the lifetime of Macaulay. It is true that Thomas Griffin makes an ^admission to that effect in his answer; at least admits of such entries in the ledger; but Thomas Griffin evidently founds his admission on the books alone. How these entries were of course made in the ledger after the items were charged in the journals. Corbin Griffin made these entries after the death of Macaulay. He then, it is true, added up the accounts, made entries, &c., with a view to the collection of the accounts then appearing to be due.

Stanard and R. T. Daniel, for Macaulay’s administrator.

We say that neither the Dismal Swamp Land Company nor Corbin Griffin’s administrator have shewn any right to the fund in the hands of the trustee Thomas Griffin. What is the bill of Macaulay’s administrator but a bill by this grantor against the trustee and others for an account of the trust fund, and an execution of the trust according to its true meaning? Such a bill will lie, even though it contains an express allegation that the deed was made to delay and hinder creditors. The case of Austin v. Winston certainly cannot be relied on by the appellants. And the case of Starke v. Littlepage was a case at law in which it was held that the deed, though fraudulent as to creditors, was good between the parties.

But we go further and say that an express trust will be executed, though the deed was made to delay, hinder and defraud creditors. Bird v. James, 8 Leigh 510. In this case both parties were held bound, the one to his grant of the slaves, and the other to his payment of the bond given for the pretended purchase money. So Owen v. Sharp, 12 Leigh 427, establishes that the parties to an express trust will both be compelled to execute it. And in Turner v. Campbell, 3 Gratt. 77, though there was no trust expressed on the face of the deed, yet as the trustee admitted the trust and disclaimed *all beneficial interest, this Court entertained a bill for the settlement and execution of the trust. And to the same effect is Lewin on Trusts, 24 Law Libr. 84.

But does the bill in fact allege any fraud, or does it make any statement from which fraud is to be inferred? The fraud which prevents a party’s seeking the aid of a Court of equity is moral, not constructive fraud. M’Cullough v. Somerville, 8 Leigh 415. Here the deed is made a part of the bill; does any fraud appear on its face? There is certainly nothing there appearing to delay or hinder creditors. Does the expression of a belief that the round sums of ^2000., &c., were not due at the time the deed was executed, amount to a charge of fraud? There is no charge of an intent to delay. And there was no secret trust reserved for the benefit of the grantor. Indeed no objection of this kind was made until 1841. On the contrary Griffin went on to account, and is found asking for a decree.

Having seen that our bill can be maintained, we come next to enquire into the claims of the cestuis que trust under the deed. And we say that the deed does not conclude the grantor as to the amount of the debts secured thereby. On this question we refer to Johnson v. Little, 14 John. R. 212; Duval v. Bibb, 4 Hen. &Munf. 113; Wilson v. Shelton, 9 Leigh 342; Radcliff v. High, 2 Rob. R. 271; 1 Greenleaf’s Evi., § 26, note 1, *l*285; Haigh v. Brook, 37 Eng. C. L. R. 108. A recital to estop a party to the deed, must be certain to every intent. Does the deed necessarily import that the round sums of ^2000., of ^3000. and ^5000. were fully due in addition to the liabilities of the cestuis que trust as sureties? By no means. These sums were intended to cover both. Thomas Griffin does not pretend there is due to Corbin Griffin ;£2000. besides the amount appearing to be due by Macaulay’s books. Corbin Griffin never in his lifetime treated this *¿2000.*as a certain, fixed, settled debt. On the contrary *all the acts of Corbin and Thomas Griffin are disclaimers of any such pretension. Is there any rule of law or equity which re*301quires this Court to shut its eyes and ears to these disclaimers. Book at the conduct of Corbin Griffin and the trustees after the death of Macaulay. Grom the period of his death in 1798 down to November 1800 all the payments from the trust fund were made to Corbin Griffin. After that date down to 1813, the time of his death, no further payments are made to him. In December 1801 the payments to Jamieson commenced, and were made with the knowledge of Corbin Griffin. By the arrangements made in 1801 with the full knowledge of Corbin Griffin, nearly the whole remnant of the trust fund in hand and the property left, was transferred and conveyed to Jamie-son, and by him to the Dismal Swamp Band Company. At this time the claim upon the French government was wholly unknown ; and Christian’s debt was considered and admitted by Thomas Griffin, the trustee, not to be a part of the trust fund. So that there remained of that trust fund some small debts and property not amounting all together to 1000 dollars, which was all that was left to pay Corbin Griffin’s debt, though according to the pretensions now set up for him, his demand against the trust fund was for more than 3000 dollars. And in 1811 as one of the managers of the Dismal Swamp Band Company he personally settled the account of Jamieson and the company, with the trust fund, thus bringing home to him knowledge, if he did not have it before, of the manner in which the fund had been disposed of. But we will not pursue this question further. The record seems with facts all leading irresistibly to the same conclusion that Corbin Griffin had been fully paid off in November 1800; and that it was so understood by himself and the trustee.

*As to the lapse of time, and the right of Anderson the administrator of Macaulay, at the late period of filing his bill, to go into the questions we have been discussing, we have to say that lapse of time was never relied on until 1838. Thomas Griffin set up no such defence in his answer. On the contrary if not in terms, he does impliedly assent to an account. And thus the case is brought within the principle of Mason v. Dunn, 5 Gratt. 384. But if the defence of lapse of time had been made by Thomas Griffin in his original answer, it would have been of no avail when relied on under the circumstances of this case, by a trustee who has never before rendered an account.

Bet us now look into the case of the Dismal Swamp Band Company. Their bill was filed in 1823. They claim under the provisions of the deed of 1797 made for the benefit of Jamieson. What right has the Dismal Swamp Band Company, which was not incorporated until 1814, to ask for the execution of a trust made for the benefit of an unincorporated association in 1797? Even upon the supposition that the latter could claim under Jamieson’s name, it must be shewn that the present corporation has succeeded to the rights of the association or partnership. This question is distinctly raised in the answer of Anderson. Does the acts of incorporation transfer the debts due to the association to the company incorporated by them? There is nothing on the face of the charter to make the transfer. If the act had incorporated exactly the same individuals who constituted the association, the act would not of itself have transferred their debts. Beffingwell v. Elliott, 8 Pick. R. 455; Scots Charitable Society v. Shaw, 8 Mass. R. 532; Head & Amory v. Providence Ins. Co., 2 Cranch 127. But in fact the individuals are not identical. Bellows v. Hallowell and Augusta Bank, 2 Mason’s C. Ct. R. 31.

*But if these rights are vested in any corporation they are vested in the Dismal Swamp Band Company; and not in the president and managers of the Dismal Swamp Band Company. The act of 1820 speaks of it by the former name, and this act repeals the act of 1814. A corporate company can only sue by its corporate name, unless especially authorized to sue by some other name. The President *&*College of Physicians v. Talbois, 1 Bd. Ray. 153; Porter v. Nekervis, 4 Rand. 359; Mason v. Farmers Bank, 12 Geigh 84; Bank of Virginia v. Craig, 6 Geigh 399. This last case shews that the same principles are as rigidly adhered to in equity as at law. If the suit was brought originally in 1823 by a wrong name, the error cannot be cured by an amended bill in 1841 in the right name.

Bet us look to the deed under which, if at all, the company must sustain its claim. What, according to a fair construction of the deed, was the debt due to Jamieson, in whose name the benefits of the trust are conveyed to the company. The real object of the deed was to secure to Jamieson what was then due to him, or might become due to him on account of responsibilities incurred in behalf of Macaulay, either to the Dismal Swamp Band Company or any other person. The company in their bill evidently take this view of the subject. When then they released Jamieson from all responsibility in 1811, can they still insist on recovering any further against the fund which is only responsible to them because of Jamieson’s responsibility; and for whose responsibility alone it was the purpose of the deed to provide an indemnity. Indeed after getting this security provided by Jamieson in 1811, nothing further is heard of this claim of the company until 1823. If they had a right to anything further from the trust fund, why was not that claim asserted at an earlier day? This claim arising in 1797 is never asserted until 1823. Never until that period had the ^representatives of Macaulay or his creditors an opportunity to contest the claim or its amount. Neither Corbin Griffin or Jamieson had any interest in contesting this claim, as they were to be first paid; and it was in fact the interest of Thomas Griffin as a member of the company that the claims should be sustained.

*302Upon what principle is it that dealings between Jamieson and the company are to affect the rights of Macaulay’s representatives? Even in the case of an assignment the admissions of an assignor, no matter when made, cannot be brought to bear in favour of his assignee. But if Jamieson’s admissions can be used do they prove any specific amount; or the extent of the claim of the Dismal Swamp Land Company? A “considerable debt” may be 1000 dollars or 5000 dollars. In contemplation of law an English sixpence is “a large sum of money.”

In the case of the Commonwealth v. Ricks, 1 Gratt. 416, the admissions of a trustee in favour of the cestuis que trust were discarded by this Court. The admissions of Thomas Griffin, therefore, made at a time when as a cestui que trust he was interested in establishing this claim cannot be used against Macaulay’s representative. The bill of 1823 does not pretend to fix the debt due, but asks for an account. That i's, it does not claim the difference between the debt due to Jamieson and the ¿£5000. The trust in- favour of the Dismal Swamp Land Company, if to be set up at all, is to be set up as a parol trust in contradiction of the express terms of the deed. And it was the duty of those claiming the benefit of the trust to have filed their bill at an early day, in order that the parties interested in opposition to the trust might have an opportunity to contest it while the facts were recent .and the parties cognizant of the transaction were here to explain it. But the bill was not in fact filed until 1823, after the death of Macaulay and Jamieson: Mrs. Macaulay the Assignee of Jerdone was not made a party until 1841, nor were the items composing this large claim brought into the record until the same year. Even after the suit was brought the company were guilty of gross laches in its conduct. Though an answer was promptly filed calling for the items of the account, the proof of their debt and the right of the plaintiffs to assert their demand, no order was made in the cause until 1827.; another order was made in 1829 which was set aside in 1832; and this was the last order made or act done in the case until 1841; when leave was given to amend the bill and to make Mrs. Macaulay assignee of Jerdone a party. Erom 1832 to 1841 there is strong evidence to shew that the parties regarded the suit as abandoned. As to Mrs. Macaulay no suit can be said to have been commenced until 1841; and yet as far back as 1820 the company knew that Mrs. Macaulay was the assignee of the debt. Now this Court has held that laches in the conduct of a suit may be made the ground of rejecting a claim. Hayes v. Goode, 7 Leigh 452; Caruthers v. Trustees of Lexington, 12 Leigh 610. And the Court must be satisfied that it can extend the relief sought without the hazard of doing injustice to the defendant. And what sort of an account is filed at last ? Some of the items, the .Court will see upon the face of the matter are not due. Several other items it will be seen are such as if the account had been presented at a proper time, might in all probabilitjr have been explained away. Macaulay was an acting manager of the company at the time the money was. received, and it must therefore be uncertain whether he received the money as manager and expended it for the uses of the company, or whether all or a part, and if a part, how much was borrowed by him or applied to his own use. It will be seen too-that in 1798 the company in the case of the libel of the ship Charles Carter stated their claim a’s being at least 9000 dollars; *but now, upon these same evidences of debt, it is spoken of as having then been upwards of 13,000 dollars.

The claim upon the Erench government was not a part of the trust fund. It is true that Judge Brockenbrough regards it as passing bjr the deed, and relies on Maitland v. Newton, 3 Leigh 714; and Comegys v. Vasse, 1 Peters’ R. 193, as authority for his opinion. By the deed Macaulay assigns “all debts due to him.” Was this a debt due at the date of the deed? The two cases cited do not sustain the Judge. It was under the broad terms, .“all estate and interest real and personal, ’ ’ that the fund in the first case was held to pass. The case in 1 Peters was decided under the broad provisions of the bankrupt law; and even in that case it was contended with great force that a claim like this did not pass.

It is objected that there were not proper parties to the bill of Mrs. Macaulay and Alexander Macaulay’s administrator. On this point we refer to Mitford’s Pleadings 233. As to Jerdone he had assigned his interest absolutely, and therefore was no necessary party. 2‘ Rob. Pr. 272. As to the Dismal Swamp Land Company they do not appear by the deed to be interested, 'nor does it appear that Mrs. Macaulay knew in 1819 that they claimed to be prior incumbrancers.

And why should Anderson have made Jerdone a party to his bill? Jerdone has never to this day questioned the validity or amount of the incumbrances prior to his; and in fact has assigned his debt absolutely to Mrs. Macaulay. As to the Dismal Swamp Land Company if it cannot recover in its own suit, there can be no necessity for making it a party in this. Besides, Jamie-son’s ex’or was a party, and the fact that the company might call Jamieson to account did not make it a necessar3r party. Mayo-v. Murchie, 3 Munf. 358, 401. Jamieson was the party representing the debt, and he not only might but did represent the company. Indeed the company refused *in 1820 to go into any settlement with Anderson because suits were pending by which all the questions would be settled: thus submitting to the representation of their interest by Jamie-son. But this objection comes from Thomas Griffin. The company have never asked to be made a party. On the contrary, the case of the company was allowed to sleep *303for years whilst the other two cases were progressing and until the appeal was taken to this Court. As to Griffin the order of the 2d July 1829 was made by his consent in all these causes, and after that consent order no objection for want of parties can be properly heard. Mayo v. Murchie, 3 Munf. 3S8, 401.

This question about parties was never raised until 1841, sixteen years after the order of consolidation made on the motion of Griffin, in the two first of these suits, and twelve years after the consent decree made in all the causes; when it was raised by Waller executor of Thomas Griffin. So far as the motion was to make Anderson a party to Mrs. Macaulay’s suit and vice versa, the rule of consolidation made at the instance of Thomas Griffin himself is an answer to it.

It is said that the decree was erroneous in not requiring an enquiry before the commissioner as to the creditors of Macaulay. The general creditors provided for in the deed must have been creditors before the 15th of June 1797. Is it to be supposed that now in 1850 there is any danger of their appearance in any way that could affect the interests involved in these suits.

The proposition that a party cannot claim under and against a deed does not apply to a case like this. There is no claiming against the deed by the appellees, but it is only asked that the deed shall be made to speak and to operate according to its true intent and the purpose and objects of the grantor. The case of Tate v. Giggatt & Mathews, 2 Geigh 84, does not apply to this case. Here is not a conveyance of an equity of redemption *but of all the estate. 2 Story’s Gqu. Jur. *%*1092. The doctrine on this subject is explained in Clark v. Guise, 2 Ves. sr. 617. Suppose that the prior debts had been paid, would not the subsequent incumbrancers or creditors be entitled to the whole subject. They would be entitled to the whole subject because the whole estate and not the equity of redemption was conveyed. In Tate v. Giggatt & Mathews, 2 Geigh 84, and Spengler v. Snapp, 5 Geigh 478, the creditor bought or took his conveyance of only the equity, and if the prior debts had been paid he could still have had only what he purchased, to wit, his equity of redemption.

As to Christian’s debt. Could the Dismal Swamp Gand Company have sued Christian alone? And is it any better when they join the trustees? Is not the bill multifarious? Mitford’s PI. 159. No collusion is charged against the trustees and Christian. How again can they join Anderson as to this subject? There is a joinder of subjects and parties which the rules of equity do not permit.

The statute of limitations is a protection to Anderson as to this debt of Christian. He had recovered and held the debt adversely to the trust for more than five years. Nor did this debt pass by the deed. Collins v. Janey, 3 Geigh 389.

Robertson and Morson, for the Dismal Swamp Gand Company.

The justice of the demand of the Dismal Swamp Gand Company was -admitted by Macaulay in his lifetime, by Thomas Griffin the trustee, and by Jamieson; and until 1824, there never was a question of the justice of their claim. In the lifetime of Macaulay, and with his knowledge, the company asserted their claim under the deed of 1797, by their answer in the libel suit in relation to the ship Charles Carter. Thomas x'Griffin made off the account of the company from the same vouchers now in the record, making that account precisely what is now claimed; and Jamieson, by his receipts dated in 1804, and by his deeds in 1809, in the most solemn form, admitted that the ¿£5000. secured to him by the deed of 1797, was intended to cover a large debt due to the company; and these admissions are competent evidence of the fact. 34 Gng. C. G. 35; Starkie on Gvi. part 2, p. 291. Judge Brockenbrough in his opinion in 1832, recognized it as a just debt; and Judge Robertson, whilst he-dismissed their bill in 1841, on the ground of their laches, admitted that their claim was originally just: And indeed the evidence in the record is abundant to establish the fact.

It is however objected that the Dismal Swamp Gand Company cannot claim as cestuis que trust, under the deed of 1797,, because not named in it. This question was submitted to the late Chief Justice Marshall in 1799, when he was at the bar, and his opinion was in favour of the company. But surely we need not argue at this day their right to claim through Jamieson.

It is argued on the other side, that the release bjr the company to Jamieson, is a bar to the prosecution of the claim against Macaulay’s estate. But a discharge of Jamieson the surety, does not discharge Macaulay the principal. Here is no express undertaking by an obligation, to which the principal and surety are parties. The responsibility of Jamieson is merely of a collateral or accessory character. But in fact no such release of Jamieson is given as is supposed.

Have the company lost any of their original rights by laches? Thomas Griffin the trustee, cannot and does not deny their right to call on him for an account of the trust fund. They claim under a direct trust, and in such a case the trustee cannot defend himself by setting up the laches of the cestuis que trust. 2 Rob. *Pr. 256, 257, where the distinction is taken between direct and implied trusts.

But in fact the company has not been guiltjT of any laches. There were but three years between the date when the trustee promised to account to the company for the trust subject and the commencement of their suit in 1820; and certainly no charge of laches can be predicated on that delay. Nor was the conduct of the suit such as to justify the charge. The failure to bring the sui t to an end, was in part imputable to Anderson, if any body, and not to the company.

It is also made a question whether the *304Dismal Swamp Band Company as a corporation can sue for the debt due to the individuals before their incorporation. At law there might be something in this objection. If the suit was at law, perhaps it would be necessary to sue in the name of the members of the partnership for the benefit of the corporation. The case cited from 5 Mass. R. goes to this extent and no further; and the case from Alabama is to the same effect. In a Court of equity the rule is different. The exclusive beneficial owner has a right to sue. If therefore the corporation has the beneficial ownership of the debt, the corporation alone is the proper party to sue. Anderson has recognised the right of the corporation to the rights and property of the old company. Why did he call upon them to account with him, if they had not succeeded to the rights of the old partnership.

Again: The possession of all the deeds, muniments of title, &c. by the corporation, is circumstantial to shew the succession by the present company; Anderson has impliedly admitted it; Griffin the trustee has again and again recognised their rights. But if any doubt exists on this subject, proper bonds might be required for refunding to the proper claimants, or for indemnifying the trustee. The Court has frequently required bonds in cases of analogous character.

*But it is said, if the company had any right to sue they have sued in the wrong name. They ought, it is said, to have sued in the name of the Dismal Swamp Band Company, and not of the President and Managers of the Dismal Swamp Band Company. But in fact they may sue in either name. It is said the act of 1820 repealed the charter of 1814. In both acts the company is styled the Dismal Swamp Band Company; and in both the “president and managers” are authorized to sue. 2 Bac. Abr. title Corporation, letter C, p. 256; Angel & Ames on Corporations, $ 62, 510, 514. But if there has been any mistake in this respect, it could only be taken advantage of by plea in abatement, and there is no such plea in the cause. Angel & Ames on Corporations, *'i*582-586; Mason v. Farmers Bank, 12 Beigh 84.

Upon what principle is it that the debt recovered by Anderson from William B. Christian’s estate is not a part of the trust subject? The debt was created before the date of the deed of November 1797; and all debts were transferred by the deed. The case of Collins v. Janey, 3 Beigh 389, has been referred to by counsel on the other side to shew that the claim did not pass by the deed. In that case the debts transferred were “the debts now due.” Here the deed transfers “all the debts.”

” But it is said Anderson is protected by the statute of limitations. This however cannot avail him. The suit by the Dismal Swamp Band Company has been pending ever since 1823. Anderson is a party to it, and has had full notice of the claim of the company to this debt.

It is argued also, that the claim upon the French government does not belong to the trust fund; that it is no debt; that it is a mere claim for damages arising out of a tortious act. It is enough to refer, in reply, to Dunlop *v. Keith, Í Beigh 430; 2 Rob. Pr, 200, 201; Williamson v. Bowie, 6 Munf. 176.

As to the debt of Corbin Griffin, we may well leave it upon the argument of the counsel of Macaulay’s administrator, without detaining the Court to add anything to it.

As to Mrs. Macaulay’s claim as assignee of Jerdone, it is not necessary to say much, as if the company recovers, there will be nothing left for her. If the company cannot claim under the deed, how can Mrs. Macaulay. Jerdone admits he has no debt due to him individually; but claims under the trust for a debt due the firm of Douglass & Co., of which he was a member.

As to the claim of Anderson as administrator of Macaulay, he of course cannot touch the fund until all the creditors of Macaulay are satisfied.

Finally the decree in the first causes was erroneous, if for no other cause, because the three causes were not heard together. If the omission to make the Dismal Swamp Band Company a party could be cured, it could only be by bringing on the causes to be heard together; and we ask that in this Court they may be so heard, and that one decree may be entered in all of them.

*

The ? case was argued before his appointment.

†

 tDeeds—Recitals.—On this subject, see principal case cited in *foot-note*to Monteith v. Com., 15 Gratt. 172.

‡

 Same—Evidence—Books of Grantor—Admissibility. —In Cann v. Cann, 40 W. Va. 138, 20 S. E. Rep. 917, it is said: “That original entries on plaintiff’s books may, in certain cases, be evidence for himself, see Downer v. Morrison (1845), 2 Gratt. 250. See also, *Griffin*». *Macaulay (1861),*7 *Gratt. 476.”*

§

 Same—Creditor’s Right to Appear before Cominos sioner.—In Feamster v. Withrow, 9 W. Va. 323, it is said: “In all cases of this sort, each creditor interested in the trust subj ect, and who is a party, should be allowed to appear before the commissioner, and should be permitted, there, if he chooses, to contest the claim of any other creditors. Stor. Eq. Jur. vol. 1, sec. 548; Wilkins v. Gordon and Wife, and Others, 11 Leigh 547; *Griffin's JSx'r et als. r. Macaulay's Acim'r,*7 *Gratt. 476,*2 vol. Robinson (old) Practice 46.” See also, citing the principal case, Conrad v. Buck, 21 W. Va. 411.

ǁ

Deeds ? of Trust—Construction.—Upon the question of the description of tie debts secured in a deed of trust, see the principal case cited in *foot-note*to Wickham v. Lewis Martin, 13 Gratt. 427; Feckheimer v. Nat. Bank, 79 Va. 85; Lewis v. Glenn. 84 Va. 965, 6 S. E. Rep. 866; Keagy v. Trout, 85 Va. 899, 7 S. E. Rep. 329.

ABBBN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as it appears that Thomas Griffin was the acting trustee under the deed of trust executed by Alexander Macaulay, on the fifteenth day of November 1797, to Thomas Griffin and Thomas Nelson; that he received the proceeds arising from the trust fund, and disbursed the same so far as they have been accounted for; that although the said Thomas Nelson joined in the execution of the trust by uniting in the sales made necessary to accomplish the purposes of the trust, there is nothing to impute to him any fraud in any of the transactions connected therewith; *and as it is not shewn that there is any part of the trust funds in his hands, the parties interested in said trust fund, and the representatives of said Macaulay, have made out no case for charging him for any of his acts as trustee, separately or jointly with his co-trustee, Thomas Griffin. The Court is therefore of opinion, that the bills should have been dismissed as to the representatives of said Thomas Nelson.

The Court is further of opinion, that there is no error in so much of the decrees appealed from as decided that the said deed of trust does not furnish conclusive evidence of the extent of the debts thereby intended to be secured to the three preferred creditors, Corbin Griffin, John Jamieson and Francis Jerdone, and that it was competent for the parties to shew by other evidence that the said debts were of less amount than the sums specified in said deed. .

*305The Court is further of opinion, that there was no error in so much of said decrees as decided that all claims or demands of said Corbin Griffin against the said trust fund, under and by virtue of the said deed, and intended to be secured thereby, were finally closed and fully satisfied by the last payment to him, evidenced by the receipt purporting to be dated the twenty-third day of November 1800; so that there is no balance due either to or from said Corbin Griffin’s estate, on account of the said trust matters.

The Court is further of opinion, that there was error in overruling the exception of the executor of said Thomas Griffin deceased, to the charges against him, contained in commissioner Shore’s report, for thirty-nine dollars and sixty cents, and eighty-one dollars and sixty-seven cents, interest on forty-nine pounds ten shillings, the sale of the Hanover town property,—■ the Court being of opinion, that the trustee was not responsible for interest on the estimated value of said property, or for the rents thereof, it appearing that no rents were in *fact received, and it not being shewn that the trustee was in any default in not making sale of the property at an earlier period. Deducting said charges of thirty-nine dollars and sixty cents and eig'hty-one dollars and sixty-seven cents, and correcting commissioner Shore’s report, statements A, B and C, in this respect, the true balance due upon said statements A and B would be two thousand and one dollars and four cents, with interest on ofie thousand six hundred and eighty-four dollars and thirty-seven cents, part thereof, from the thirty-first day of December 1803, until paid, and the true balance due on statement C will be the sum of seven thousand two hundred and eightj--five dollars and sixty-one cents, with interest on five thousand three hundred and thirty-six dollars and ninety-one cents, part thereof, from the thirty-first day of December 1824, until paid;—which sums, with the interest thereon as aforesaid, constitute the true amount of the trust fund remaining due from the acting trustee, Thomas Griffin, and for which his estate is responsible to the parties entitled thereto. And all exceptions, petitions, statements, orders and decrees conflicting with this opinion in regard to the amount of the trust fund remaining due from the acting trustee, are overruled, and those conforming thereto are sustained and affirmed.

The Court is further of opinion, that under the circumstances appearing in this case, the amount due to John Jamieson, on his individual account, must be taken to be one hundred and seventy-three pounds ten shillings and four pence half-penny, amounting, with the interest thereon, to the sum of six hundred and eighty-seven dollars and fifty cents, as appeared upon the settlement made with the Dismal Swamp Hand Company. The said Jamieson, by his deeds to said company dated the twentieth day of July 1809, having acknowledged that the trust in the deed of Alexander Macaulay to Thomas Griffin and

Thomas Nelson had *been completely executed as to the claim of said Jamieson as an individual, and the representative of said Jamieson not having produced any evidence shewing anything more to be due to his testator as an individual, the sum so appearing on the statement aforesaid, made the basis of the settlement with the Dismal Swamp Band Company, must be taken as the true amount of the debt due to said Jamieson, and intended to be secured by the said deed of trust; and all exceptions of the executor of said Jamieson in conflict with this opinion, in regard to the amount of said debt, are overruled.

Ror the excess over said sum of six hundred and eighty-seven dollars and fifty cents, paid to said Jamieson out of the proceeds of the trust, fund, after crediting him with the sum paid to Mrs. Macaulay for her dower interest, his estate would be responsible, but for the settlement with and release by the Dismal Swamp Hand Company.

And the Court is further of opinion, that it satisfactorily appears that the provision in said deed for the benefit of John Jamie-son was intended to secure the individual debt of said Jamieson, and also the debt due by said Alexander Macaulay to the Dismal Swamp Band Company, an association of which said Jamieson was a member. The interest of the company in said deed was asserted shortly after its execution, and in the lifetime of the grantor, and in his own name, in connection with the other members of the association, he being also a member, by the claim preferred in the Rederal court in the case of the libel against the ship Charles Carter and said Macaulay. The right of the compan3r was recognized by the said Jamieson and the trustees, and the creditor first preferred; payments ceased to be made to the preferred creditor, Corbin Griffin, after the year 1800, and soon thereafter purchases were made by said Jamie-son of valuable property belonging to the trust subject, which property was purchased for the Dismal *Swamp Band Company on account of the claim so as aforesaid recognized to be due to the company; and the property being afterwards conveyed to the company, has been held, so far as the record discloses, without controversy ever since. After such repeated recognitions by all connected with the transactions, and the acquiescence by all interested in controverting their right to claim under the deed, it is too late to raise the objection now.

Nor can laches be imputed to the company so as to defeat their right to recover. Their right to claim under the deed having been acknowledged as aforesaid, pa3rments to and acquisitions of property by them, in satisfaction of their claim, having been acquiesced in, there was no necessity for, nor would there have been any propriety in the institution of proceedings to assert a right under the deed, after such acts of recognition and acquiescence, and when the same had never been controverted. The *306trustee, the party directly accountable, has not denied, and could not deny, his liability to account for his manner of administering this direct trust, and when the cestuis que trust were apprised of the receipt of a large sum by him, and of his refusal to pay the proceeds over, suit was instituted within a reasonable time thereafter.

The delay which occurred after the institution of the suit, is accounted for in part, by the temporary loss of papers, the improper conduct of the other claimant in setting aside the order recommitting the causes, after the three causes had been heard together, and the order had been made recommitting the three suits to settle the accounts between the parties. Nor is there anything in the evidence on which the claim of the company depends, which renders an account improper. The vouchers-filed by them, furnish prima facie evidence of the amount due, and under the circumstances, should be so received, subject • to the right of the contesting *parties to shew that the funds belonging to the company and received by Alexander Macaulay were paid over or applied by him to the use of the company.

The Court is further of opinion, that it sufficiently appears that the claim originally belonging to the association has been turned over to and is in fact the property of the incorporated company, and said incorporation being now the real owner of the debt, it was competent to sue for and recover the same in the corporate name, in a Court of equity:—more especially as the trustee and the representative of said Jamieson are parties to the suit, and the latter has not controverted the right of the company, in its corporate name, to recover the fund intended to be secured by the deed by the provision in favour of his testator.

The Court is further of opinion, that there is nothing in the pleadings or proofs to justify an enquiry into the regularity of the sales of the one half share in sai'd company, and the moiety of the tract of eight thousand acres, purchased at the trustees’ sale by said Jamieson, and by him conveyed to the company by his deeds of the twentieth day of July 1809. In adjusting the amount due to the said company, it should be charged with the price paid for said property, and also with the amount of the trust fund received by said Jamieson, over and above the sum of six 'hundred and eighty-seven dollars and fifty cents, the individual debt due said Jamieson, and the sums paid to Mrs. Macaulay for her dower interest, the excess being the balance for which said Jamieson would have been responsible, but for the release and acquittal of the company, given on the twenty-eighth day of May 1811; but the trust fund, not- : withstanding such release, is to be credited : as against the claim of the company, with : the sum for which said Jamieson would < have been responsible. And for the amount : which upon an account to be taken upon c the principles aforesaid, may appear < to be due to the company, *with interest, the said company is entitled i to be first satisfied out of the trust funds ascertained to be due from the estate of Thomas Griffin, surviving- trustee, as aforesaid.

And as to the claim of said Francis Jerdone, the Court is of opinion, that there is no satisfactory evidence shewing what, if anything, was due to him. The answer of said Jerdone, which under the circumstances, is proper evidence against the volunteer, claiming by virtue of a gift and transfer from him, states that there was no debt due to him individual^ from the estate of Macaulay; and there is no evidence whatever in the record ofe the debt which he had been informed was due to himself and William Douglass.

The Court is further of opinion, that the debt due from William B. Christian was • embraced *by*the deed of the fifteenth day of November 1797, and passed to the trustees for the benefit of the creditors therein named, or provided for, and if the fund ascertained to be in the hands of the trustee should be insufficient to discharge their claims, or prove unavailing, thej’ will be entitled to a decree against the administrator of said Alexander Macaulay, for the amount of the debt collected from Christian’s estate, or so much thereof as may be sufficient to discharge their claims.

And the Court is further of opinion, that if none of the general creditors secured by the deed of the fifteenth da3r of November 1797 should appear, make themselves parties, and establish their claims within a reasonable time, to be prescribed by the Court, the residue of the trust fund, ascertained to be due by this decree from the estate of Thomas Griffin, should any remain after satisfying the amount ascertained to be due to the Dismal Swamp Land Company, should be paid over to the administrator of said Macaulay.

The Court is therefore of opinion, that the decrees aforesaid, so far . as they conflict with the principles *above : : : < : c < declared, are erroneous; therefore it is decreed and ordered, that the same in those particulars be reversed and annulled, and the residue thereof be affirmed; and also that the appellees, who are executors and administrators, out of the estates of their testators and intestates in their hands respectively to be administered, and the other appellees in their own right, do pay unto the appellants respectively their costs by them expended in the prosecution of their appeals aforesaid here. And it is ordered, that the causes be remanded to the Circuit court of chancery for Henrico county, with instructions to direct an account of the claim of the Dismal Swamp Land Company upon the principles herein indicated, and for all necessary steps in the mean time, to enforce the payment, and for the security of the trust fund, until the causes are matured for a final hearing, and for further proceedings in order to a final decree according to the principles of this opinion and decree.

i Which are ordered to be certified to the said Circuit court.