#### FREDERICK C. MILLER *against*J. B. CHERRY *and others.*

1. Where there is a provision in a deed of trust, -that certain debts, naming them, are to be paid, and a further provision, that the debts shall be paid as they fall due, and some of the enumerated debts are due at the time of making the deed of trust,, these latter are to be paid.

2. Where a surety assents to a deed of trust, which gives him a preference over other sureties as to a large part of his liabilities, and is insisting on this preference against other sureties, he shall not be permitted to diminish the fund, which, in part, consisted of a debt due by himself to the maker of the deed, by setting it off with other liabilities to him, not secured by the deed.

*253. Where, a debt was truly described in a deed of trust, in every essential particular, except by its date, it will be permitted to come in, and will be considered as running to maturity front its true date, and not from the mistaken date set out in the deed of trust.

4. Where there are contradictory descriptions given of a thing, that description will be adopted, which, in its nature, is least liable to error.

Cause removed from tbe Court of Equity of Bertie county.

Willie Gr. Clary and B. J. Spruill, for several years before the year 1854, carried on the business of merchandise in the town of "Windsor, under the name of Clary and Spruill. In that year, (1854) Clary died, and the business devolved on Spruill as surviving partner. On .the 10th of February, 1855, finding the affairs of the partnership'hopelessly insolvent, the latter, as surviving partner, executed a deed in trust to the plaintiff, Miller, and to Joseph B. Cherry and Samuel B. Spruill. They all accepted the trust, but shortly afterwards, Cherry and S. B. Spruill made a power of attorney, whereby the sole execution of the trust was committed to the plaintiff. The deed in trust conveyed large lots of staves, lying at different wharves and landings, and all the debts due to the late firm of Clary and Spruill, whether due by note, bond or account, with power and authority to ship the staves, and to collect the debts in the name of the surviving partner. The deed provides for the payment of a large number of debts which are specified. After this enumeration, it contains these words : “ All which debts, shall be paid in the order in which they become due.” Some of the debts, amounting to about $5100, were already due. Some fell due in a few days after the execution of the deed in trust, (10th of February, 1855,) and the remainder between that time and the 11th *qi*April.

The fund realised under the deed of trust, only amounted to about $20,000, and would, if applied to the debts that -were due, and to the others as they successively fell due, be exhausted by debts due and falling due before or on, the 10th of March. These first debts were chiefly those on which S. B. Spruill was the endorser. The defendant Joseph B. Cherry was on paper which fell due after the 10th of March, and the questions made *26in bis behalf were : 1st, Whether, as executed, it was not the meaning of the instrument, that all the enumerated debts were to be paid *pro rata.*2nd. Whether if this were not so, the debts already dne, could be taken into the list of debts to be paid, as in strictness, only the debts *to fall due*in the future, seemed to be entitled to a priority.

Samuel B. Spruill was indebted to Clary and Spruill'for a store account, and, besides the several debts, secured by the deed of trust, he was liable for them on other debts not reached by it. ITe insists that he has a right to have this deducted from his liabilities for them, without regard to the trust, and that it ought not to go in as a part of the fund.

There was a draft described in the deed of trust, as being drawn by Benjamin J. Spruill, surviving partner, on Cherry, Cahill & Co. of Norfolk, Ya., for thirty-one hundred dollars, endorsed by William P. Gurley, and dated the seventeenth day of December, 1854, and having ninety days to run. There was a draft corresponding with this description, in every thing, except its date, which was the *seventh*of December, and it was insisted by Gurley that this was the draft intended to bo described, and that the variance was a mistake. If this draft was allowed to come in as being sufficiently described, another question was, whether it would have to rmrfrom the 7th or 17th. If from the former, it would fall due on the 7th of March, and would be reached by the funds realised under the deed in trust; if from the latter date, it would become due on the 17th March, and would not be secured at all.

The firm of Cherry, Cahill *&*Co., v/as also insolvent.

The bill was filed by the plaintiff, Miller, calling on the parties assuming these various positions, to interplead and have their conflicting claims settled by a decree of this Court, and prayed the Court to instruct him in the discharge of his duties in the premises.

Benjamin J. Spruill, Samuel B. Spruill, Joseph B. Cherry, Solomon Cherry, James Cahill, were made parties, and severally answered, insisting upon their claims as above stated. Replication to the answers.

*27The cause was set for bearing on the bill, answers, exhibits and former orders, and sent to this Court to be heard.

Winston, Jr., for plaintiff.

*B. F. Moore*and Smith, for defendants.

PeaesoN, J".

1st. The deed of trust directs the payment of certain debts therein set out, and particularly described by stating the amount of each, to whom due, how due, when due, and the date thereof, and concludes with these *words*— “ all which debts shall be paid in the *order in which they become due.”*

The fund turns out not to be sufficient to pay all these debts, and the order of payment prescribed, works an inequality to the prejudice of the defendant Cherry, who is liable, as surety, upon some of the debts which are the last to fall due. He insists that the debts shall be paid *jpro*rata, under the maxim that *“*equality is equity.”

"With every disposition to yield to the force of this maxim, we are unable to find any ground which will justify a departure from the order of payment so expressly laid down.

It was then suggested that the words “become due” look to the future, and, consequently, exclude those debts which were past maturity and already due at the date of the deed.

We cannot give this effect to the words, because these debts are particularly enumerated as being among the debts which are to be paid, in the order in which they become due, which repels the idea that reference .was made only to such debts as wore not then due.

2nd. At the time the deed of trust was executed, the defendant S. B. Spruill was indebted to Clary and Spruill for a store account. The defendant S. B. Spruill insists that he has the right to deduct the amount of this debt from the amount of his liabilities for Clary and Spruill, without regard to the trust. This debt, among others, is transferred to the trustee, to be collected and paid out as a part of the fund, in the order prescribed. At law, the action would be in the *28name of Benjamin J. Spruill, surviving partner ; and Samuel B. Spruill, provided lie lias paid an equal amount of the debts for which he is liable as surety, would have a right to extinguish this debt and bar the action by the plea of set-off. But the parties are in a Court of Equity, where other considerations are involved. To say nothing of the fact that the defendant Spruill lias made no payment as surety, and is, consequently, not as yet a creditor, there is the fact that the deed is made to him as one of the trustees, and the further fact that lie is the person mainly interested and benefitted by its provisions; so, the question is, can he claim *under*the deed, and, at the same time, *against*it ? We think it clear, in analogy to the doctrine of election, that while he is claiming under the deed, and insisting that the trust fund shall be collected and paid out in the order prescribed, it is against conscience to set up a right by which the fund will be diminished, and the security, which was executed in pursuance of an arrangement between him and others, for their mutual benefit, defeated *pro tanto.*As lie is so largely ben-efitted, we assume that lie elects to claim under the deed, and it will bd declared that the store account due by him, constitutes a part of the trust-fund, which lie is not entitled to diminish by way of set-off, or otherwise.

3rd. Among the debts enumerated, is one with this descrip*tion*— “ A draft on the same, (Cherry, Cahill *&*Co., of Norfolk,) drawn by the same, (B. J. Spruill.) at ninety days ; dated 17th December, 1854, with W. P. Gurley as endorser, for the sum of three thousand one hundred dollars.” No debt answering this description precisely, exists. But there is a debt which answers every particular of the description, save that it is dated on the 7th of December, 1854, instead of the 17th day of December, 1854. The question is, must this debt be rejected? If not, must it be ranked as a debt becoming due ninety days after the 7th, or the 17th of December, 1854?

This is a latent, as distinguished from a patent ambiguity, and presents a question of identity, as distinguished from a *29question of construction, which is fully discussed in *The President, &c., of the Deaf and Dumb Institute*v. *Norwood,*Bus. Eq. 65. The difficulty occurs in fitting the description to the thing. If a debt, answering- the description in every particular, existed, that would be “the thing.” But there is no such debt. That under consideration answers the description in six particulars out of seven, i., e., it is a *draft*on Cherry and Cahill, of Norfolk, by B. J. Spruill, at ninety days, with "W. P. Gurley, endorser, for $3100. But it does not answer a part of the-seventh particular, i. e., it is dated the 7 th, not the 17th of December, 1854. So, it does not fit precisely ; the figure 1 before the 7 being the discrepancy.

It would be strange if the legal effect of this slight variance were to render the deed inoperative in regard to this debt. It may be that, in *special pleading,*such a variance is fatal. But there is a distinction between pleading and deeds, wills, obligations and the like. In respect to the latter, the law gives them effect *“ ut res ma'gis valeat guam*pereat.” The reason of the distinction is a sound and practical one. “ If the name be mistaken in a *writ,*a new writ may be purchased of common right, but if it were fatal in *leases*and *obligations,*the benefit of them would be wholly lost, and, therefore, one ought to be supported and not the other.” *The Mayor of Linn*Regis, 10 Rep. 120; *Mayor of Stafford*v. *Dolton,*1 Bos. and Pul. 41. Ve think it clear, under the maxim *ut res magis valeat*&c., that an error-in a part of one, out of seven particulars of description, is not fatal, and that the debt in question is sufficiently identified by those particulars of the description in which there is no variance, and that the other particular, or the disagreeing part of it, may be rejected as su-rplusage.

We do not put our decision on the ground of correcting a mistake ; for equity does not interfere for that purpose against creditors, but leaves them to stand on their rights. Our decision is made under the rule that where more than one description is given, and there is a discrepancy, that description will be adhered to, as to which there is the least likelihood *30that a mistake would, be committed, and that be rejected, in regard to which mistakes are more apt to be made. This is a rule of frequent application. If a tract of land be described by natural objects, or corner trees, and also by course and distance, and there turns out to be a discrepancy, the latter description is rejected.

So, if a father had made a parol gift of five negroes to his son, and in his will says, “ I give to my son five negroes, to wit, (giving their names,) being the negroes I have heretofore put into his possession,” and it turns out that the will names the wrong negroes, that description will be rejected, and the other description adhered to ; for he is more apt to be mistaken as to the names, than as to the fact that they are the negroes which he had before put into his son’s possession, as to which there can be no mistake; *Lowe*v. Carter, 2 Jones’ Eq. 383. This does not conflict with *Barnes*v. Simms, 5 Ire Eq. 392; for in that case there was but a single description, to wit, the name. If that had been rejected there would have been no description at all. In *Knight*v. *Bunn,*7 Ire. Eq. 77, the note of D. A. E. Bicks did not correspond with the description in the deed in a *singlepartieulcvr,*and by rejecting the particulars of description which did not correspond, no description would be left.

In our case we can reject one description — that in regard to the date — and still have six other particulars of description in regard to all which there is a full correspondence. So, the question is reduced to this — Is it more likely that there should be an error in *sixpa/rtieulars*than in *one ?*

As the debt in question fits the description, the date being rejected as erroneous, it follows that it must be paid according to the true date.

PbR CueiaM. Decree accordingly.