#### Bruce et al. *v.*Child et al.

From Orange.

IVlien a Bill is filed to surcharge and falsify an account stated nine, teen years before, the delay must be well accounted for, to repel the presumption arising' from this acquiescence. For this purpose, it is not enough that the mistake sought to he rectified, was discovered within a few months previous to exhibiting the Bill, but it should appear why the discovery was not sooner made.

The Bill alleged a certain sum received by the Defendant, larger than that charged in the stated account. The Defendant, in her Answer, slated that her faculties were impaired by age and infirmities, and after so great a length of time since the transaction (about forty-years) she could not speak with certainty to the matters charged in the till, and said, in answer to the particular error, that she *believed*the sum charged in the stated account to be the true one, and did “ *expressly aver*that to be the sum she received from her attorney ,T. N. and no other.” The attorney, in his deposition, swore that he paid her the larger sum. *Held,*that the charge was sufficiently denied to bring the case within the rule, that a decree will not be made against a positive denial, on the unsupported testimony of a single witness.

This was a Bill filed August 28, 1812, setting forth that the Plaintiffs were heirs at law and distributees of *John M’Kerall,*late of Norfolk, Ya. who died intestate, January, 1776, possessed of, and entitled to, a very considerable. personal estate; that immediately upon his death, the Defendant, his widow, took possession of the personal estate, and on the 21st of October, 1784, took out letters of administration in Norfolk j that in 1785, the Defendant intermarried with *Child,*who possessed himself of the estate of *M’KeraM,*and afterwards died, leaving the Defendant his executrix.

*373That on or about the 1st of January, 1793, the Plaintiffs, children of *John M’Kerall,*and *William M’Kerall,*,, , i another of the children, who was made a Defendant to the Bill, and Mrs. *Child,*caused an account to be stated of the estate of *John M’Kerall,*whereby a balance of íS2057 G 7, was found to be. due to the estate from *Mrs. Child,*and on the 31st of January, 1803, the Plaintiffs received their shares under such settlement.

The Bill then charged, that in the settlement were divers errors, which were particularized *;*the only one material in the cause was the following, that the executrix gave credit for the sum of 1-220 only, Virginia currency, as cash received by her from *John Niveson,*of Norfolk, when in truth, she received 1-301 3 5.

It was further stated in the Bill, that the Plaintiffs never discovered this error until six months before filing the Bill ; that leiters of administration on the estate of *John M’Kerall,*w ithin North-Carolina, had been granted to the Plaintiffs, and that they had applied in vain to *Mrs. Child*to have the errors rectified.

The prayer of the Bill was, that the Defendant *Mrs. Child*might be decreed to rectify the settlement and account, and *to*supply and correct its errors and omissions, and pay to the Plaintiffs what might be coming to them.

The account and settlement, which were made part of the Bill, exhibited a balance due, as before stated, and contained also the following statement:

We *Absalom Tatom*and *John Hogg,*at the desire and request of the widow and heirs of *John M’Kerall,*heretofore of Norfolk, in Virginia, deceased, viz. *Mrs. Frances Child,*heretofore widow and administra-trix of said *John M’Kerall,*deceased, but now widow of *Francis Child,*Esq. deceased, *Miss Frances M’Kerall*daughter, and *John M’Kerall,*■and *William M’Ken-all,*sons of the said *John M’Kerall,*deceased (the said *William,*who isa minor, appearing and consenting hereto by his brother *John,*as is suggested by said *John)*having proceeded to state and settle the account of *Francis Child,*Esq. deceased, who intermarried with *Frances M'Kerall,*widow and administratrix of said *John M’Kerall,*deceased, for his, the said *Francis’s*intromissions with tlifi estate of said *John M’ K&i-all.*deceased, do, from the vouchers and statements handed to us by the parties, find the amount to stand as *374above stated, by which it appears that the net amount of said estate in the hands of the executrix of the said *Francis Child,*deceased, on the 1st day of January, 1793, was. &c. [then follows a statement of the gross amount, and the share of each.] In which account we have not included or taken into yieiv, any charge the said *Frances*may have against the said children for boarding, cloathing and schooling, previous to, and during her intermarriage with the said *Francis Child,*Esq. The said parties having, in our presence, assented to, and signified their approbation to this statement and settlement.

Tins "was signed by Messrs. *Tatom Sf*Hogg, and bore date 13th of August, ¡793.

A receipt for their shares, signed by Plaintiffs, and dated 1st of January, 1803, followed.

*Mrs.*Child, by her Answer (so far as it is here material) insisted on the great length of time *which had*elapsed since the accounts were settled by referees chosen by all parties j and as to the error in the sum re-, eeived from *Nevison,*she stated tiiat *JYevison*was her agent and attorney to settle and collect an account due from one *Sheddon*in Norfolk; that *Shcddon*had an account against her husband M’Ker.all,and thaton the adjustment of these accounts by *Mr. JYevison,*the balance due her liusband’s estate, as she believed, was *£320,*for which she had once accounted to Plaintiffs, and she expressly averred that, and no other, to be the sum received by her from *Mr. JVevison.*

*As*to the discovery of errors in the account by Plaintiffs, but six months before the Bill was filed, she denied it.

At March Term, 1824, of Orange Court of Equity, on motion of Complainant’s Solicitor, the cause was referred to the Clerk & Master of that Court to take the account, and report to the next term of the Court. At the following term, the Clerk & Master reported, that *Mrs. Child*had fully accounted for the estafe of *John*M’Kerall, except as to the sum of ¿681 3 6, Virginia currency, received from *John JYevison,*as appeared by his deposition, which was referred to, and which the Master stated to be the *only proof.*No exceptions were *375filed below to the Master’s report; but at the same term, the cause was removed to this Court, on the affidavit of *Mrs. Child.*

*Mr.Nevison’s*deposition stated, that *Mrs. Child,*while the widow of *M’Kerall,*and residing in North-Carolina, placed in his hands as an attorney, a number of claims belonging to the estate of *M’Kerall,*on various persons residing in *various*places; that the length of time rendered it improper for him to speak positively.

That one of these claims was against *Sheddon,*and the deponent believed was received by him at different times, and from different persons; but the deponent could not recollect with certainty, nor could he resort to his books, as they had been sent away during the late war, and had not been brought back; that the *onhj ciiúm*on which he ever received any thing for *Mrs. Child,,*was that against *Sheddon.*

The deposition further stated, that of the money thus received, the deponent “ paid to *Mrs. Child*the sums stated as per a memorandum on an annexed commission, which memorandum was taken prior to his books being sent away, to enable the deponent to state the sums so paid, in a deposition then intended to be taken, at the request »f *Mr. Bruce,*but which was prevented, he believes, by the interruption of the times.” The sums were then stated in three items, and exceeded the sum with which *Mrs. Child*had been charged in the settlement by ¿681 3 6.

Deponent further stated, that he made no agreement for the amount of his compensation; he charged a commission of five per cent, on money received ; for travel-ling on his client’s business, not only the travelling expenses, but a compensation for the same; and for all other business, customary fees according to the service, and that he made several journeys on the business of *Mrs. Child.*That not long before the late war, the Plaintiffs called on him and asked information relative to his transactions, as the agent and attorney of *Mrs.*Child, when he shewed them his books and vouchers, and gave them a memorandum.

*376On the opening of the cause here, *Badger*for Com-í^a'nan^s» said, at as no exceptions had been filed below to the report of the Clerk and Master, nothing remained p0¡, Complainants to do, but to move for a confirmation of the report, and to take a decree accordingly ; that the reference to the Master was an interlocutory decree, shewing that this was a proper case to surcharge and falsify in, and the question could not be here debated.

*Gaston,*contra,

contended, that this reference was not an interlocutory decree, and according to our practice, could not be considered as decisive of the question whether the account should be opened ; the reference to the Master w'as merely made on *motion*to expedite the cause; and of this opinion was the Chiee-Justice *;*but Hade and Henderson thought otherwise, and considered it necessary for Defendant to proceed first to set aside this order of reference, before any other step could be taken in the cause : whereupon *Mr. Badger*said, to save time and trouble, he was content the cause should be considered as on a petition to set aside the interlocutory decree. And on the next day, ,

*Badger*for Complainants,

argued as follows:

The bill seeks not to *open*or *unravel,*but to *surcharge and falsify*a stated account. When an account is opened both parties become actors, and proof must be offered by both *;*when leave is given to surcharge and falsify, the Plaintiff must produce the proof of error in the particulars alleged, and the whole account stands as stated, unless very clear proof be offered of such error. Hence, the Courts discourage applications of the former kind after a great lapse of time, but receive favourably the latter.

Is the lapse of nineteen years, since the settlement, a bar ? I say, neither that, nor any other time is properly a bar.

*377The subject matter of the account, is one of *trust dl-*reef, and is entirely without the operation of the statute of limitations. As no time was a bar to the Plaintiff to have an account, so no time is a bar to him when he comes to correct the account. In regard to both, though the Court respects time, it creates no positive bar.— "Whatever the lapse of time may be, *whenfraud*is charged and proved, the Court will open an account. *Vernon*v. Vaudry, (á *Mk.*119),

*Ah fraud*is the ground on which an account is opened, so *mistake*is the ground on which to surcharge and falsify *y*and the Court will always, upon the latter ground, permit Plaintiffs to surcharge and falsify, where, if the former existed, it would open the account. *Clumbers*v. *Golding*(5 *Ves. jnn.*834. *SC,*9 *Ves. jun. 264). Brown-ell*v. *Brownell*(2 *Bro. Ch. &.*62).

The case of *Pitt'*v. *Cholmondley*(2 *Ves. sen.*564) and that of *Toogood*v. *Swanston*(6 *Ves.jun.*484) illustrate the distinction, between opening, and surcharging, and shew, that though the former is reluctantly granted, save for *fraud;*the Court anxiously extends the latter, whenever specific errors are assigned and proved.

*Hawks,*in answer, insisted, that in Equity, considerations founded on lapse of time, had their origin in *public policy*alone; that before any statute of limitations was in existence, Equity respected time *;■*and after statutes were passed regulating time in the Courts of Law, Equity, that there might be uniformity of decision on. the subject, only said, that in analogous cases in Equity, the same length of time should be adopted, not as a bar *propriojure,*but as evidence of acquiescence $ the result of w hich was simply to circumscribe, what had been more a subject of discretion in the Chancellor. *Smith*v. *Clay,*(3 *Brown Ch. Rep.*639, *note. Eden’s ed.J*

Expediency or policy, therefore, being the foundation of the rule in Equity, it would follow, that in *every case*where, from lapse of time, this expediency or policy applied, the Court would be influenced by it according to *378circumstances; that it hence followed, that a Bill to *sur-^larSe an("*an account, was no more entitled to favour, than a bill to have an account taken after great length of time; and though it was true, that on the former, the contest was confined to particular items of the account, and the onus fell on the Plaintiff to support his allegation of errors, yet it was clear that the Defendant might controvert by proof such allegation; and the difficulty of proof was no less as to the items complained of, than it would be on the whole account after great lapse of time. Here the time was 28 years, which would probably induce the Court to prevent the taking of an account had none ever been taken *;*witnesses were dead, vouchers lost, Defendant’s faculties impaired by age, her memory gone; and as liad been well said, *“*it is *too*hard, to force a man to keep his evidence by him forever.” This proceeding then not being entitled to favour, how ivas it to be considered as respected time ? The account is not impeached on the ground of *fraud.*Surely the Plaintiffs must come, even to surcharge and falsify, within *reasonable*time. The time at law, for an action of account, is three years ; Plaintiffs come here to correct a mistake, if it be one, after 19 years. (2 Eg. *Ca. ab.*576)

But the *onus*of proving the mistake is admitted to be on the Plaintiff. He must prove it *clearly.*It is* denied positively in the Answer, and the *only*evidence is *Nevi-son’s*deposition, which is far from being positive. The Court (if time be against us) will not decree against our positive Answer, on the deposition of a single witness.

This was not the case of an *express trust,*administrators and executors are, in Equity, trustees *by implication-only.*(1 *Maddocks*466). But if Defendant had been a trustee, the fiduciary relation between her and Plaintiffs was destroyed upon the settlement by *Hogg <§•*Tatoin, and she stood in a new relation, that of a debtor.

*379Gaston, on the same side, took the following grounds :

1. That the settlement by *Hogg <$f*Tatom, must be con-side-red an award, and as such was favoured in *law;*that it could not be set aside but on good grounds : it might be impeached for error, but this could be done only upon those errors being made manifest to the arbitrators; they must be convinced, and admit that they have committed an error, (l *Ves.jun.*369, 370. 2 *Ves.jun.*14. lb *Ves. jun.*447, 449).

And whether the award was the result of a submission without rule of Court, or under a rule, it had the same validity, and stood on precisely the same grounds at Law, and in *Equity.*— (Kyd 10, 276, 327, 329, 330, SSI.) And here, there was no admission of error by arbitrators, no attempt made to obtain it, and no cause shewn for not attempting it.

That if evidence short of the arbitrators admissions •would do, here there was no satisfactory evidence of any *error;*it rested on *one*witness, unsupported by any proof, and positively contradicted by *Defendant;*which would not be sufficient if this were an original enquiry, even though witness should be positive. ■

2. That if the award might be reviewed, Plaintiffs had not come in time. In .the case of a bill of review, the time was fixed by analogy to that prescribed by the statute.for writs of error *;*and here a writ of error must be brought within live years. Awards are protected by time at least, as effectually, as the judgments of tribunals, whose decrees may be reversed by a superior tribunal. *South-Sea Company*v. *Bwmstead,*(-2 *Eq. Ca. alt.*80, *pi.*8. *Kyd*362.) It was true that the mistake was alleged to have been discovered only six months before, bill filed j this should have been accompanied by an affidavit, according to the analogy of bills of review, for new matter *discovered.*— (Mitford 66) $ but the allegation was denied, and no reason was shewn why Plaintiffs could not make discovery sooner.

*3803. if the settlement by *Hogg and Tatont,*was not an award, but a stated account, it might indeed'be cor-*t*rebted, if erroneous, and the party might be permitted surcharge and falsify before the Master *;*but he must first prove to tiie satisfaction of the Chancellor, that there was an errors when it was clearly shewn, then,and not till then, was there a ground to surcharge and falsify.— (5 *Veseif,jun.*835, 83G. 9 *fres. jun. 265.*2 *Ves. sen.*566. 6 *fres.jun.48T.)*But the enquiry here was not very material as the Master had reported the evidence, and stated it to consist of *one*deposition.

4. But as an account, it was still open to the question of time. The fiduciary relation between the parties was dissolved by the settlement, and the Plaintiffs had a new *legal*right and a corresponding remedy, which might have been enforced within *three*years; he should have come here within the same time. In England, the limitation in cases of this kind is six years.— *Booth*v. Warrington, *Western*v. *Cartwright*(2 *Eq.*Ca. *ab. 2 part 576,)*the latter case commented on in 2 Seho. *and LeJ.*636.

*Badger,*in reply. — The report of *Hogg Tatont,*has not the character of an award ; they were not chosen to settle a dispute, for none existed, but were mere auditors to take an account, which when taken, was the stated account of the parties, not the determination of arbitrators.

The case in 2 *Ves.*14, > was an application to Equity to set aside an alleged mistake of a fact by an arbitrator who was to decide a disputed matter j and jt. was held that it could not be done, without the admission of the arbitrator that he liad mistaken the fact, because he was absolute as to the facts and the legal consequences resulting therefrom. The same remark will apply to 18 *Ves. 447.*

As to deficiency of proof, *Nevison’s*testimony is post-*tive,*founded on entries made in his books in the course of his business, states the amount paid over after deduc-*381Ron of every charge *;*and defendant’s denial is not positive, her answer begins witii a declaration that her age ° *’*is great, and memory imperfect, and every allegation or denial must be understood as being made with distrust and doubt.

As to the analogy supposed to be found in the case of a Bill of Review, there is no decision that an application to correct error in an award, must be made within the period prescribed for a bill of review *;*besides, there is an essential difference between an award and a *decree;*while both ascertain the amount, the latter only can compel its own execution.

The case of *Horeden*v. *Lord Jlnnesláj,*2 *Scho. and Lef,.*cited on the other side, investigates that class of cases where conflicting claims in Equity exist. These aré clearly distinguished from controversies between trustee and *cestui que trust,*in a case of direct trust. In the latter, time operates only as evidence, as a circumstance from which an inference of fact arises. This doctrinéis well stated and illustrated in *Morse*v. *Roy all,*(12 Fes. *jun.*374.)

The Court will not examine the *evidence*to ascertain whether there be an error, before they refer it to the Master to take an account, with liberty to Plaintiff to surcharge and falsify_(14 *Ves. jun.*579.)

Taylor, C. J. — The object of tiiis Bill is to surcharge for an omission made in a settled account'dosed between the parties, something less than twenty years before the filing of the Bill, and relative to transactions which date their existence about forty years before. In such a case, there ought to be clear and satisfactory evidence of the existence of the error, and I do not think that the deposition of *Nevison,*singly opposed to the Answer, containing as strong a denial as the nature of the subject admits of, affords such evidence.

The Master’s report is founded solely on that testimony, as appears upon the face of it, and this warrants the. application of the rule, that there cannot be a decree in *382this Court, upon the testimony of a single witness, un* su!)lK),'fe^ by circumstances, against the positive denial in an Answer, which is responsive to the Bill. Her Answer jSj that upon the adjustment of the accounts by *J.*Nevison, she does believe that the balance found to be due was ¿£¡836 IS 4, the sum with which she is charged by the referees *;*“ and she does expressly aver that to be the sum she received from her said attorney *J. Nevison,*and no other.”

1 am also of opinion, that the Complainants have not sufficiently accounted for the delay in not exhibiting this claim at an earlier period. The reason stated in the. Bill is unsatisfactory, that they did not know of it until six months before, the filing of the Bill. When the account was stated by the referees, at the instance of all parties concerned, it is fair to presume, that men of business •would take the obvious and easy methods to become acquainted with their rights, that they mi a;! it be prepared to exhibit just, and repel unjust charges. *Mr. Nevison*was known tobe the attorney for the estate, and charged with the collection of debts due to it. When the account was stated, the administrators are charged with money paid by *Nevison y*and it was entirely in the power of the Complainants to ascertain, within a reasonable period from the settlement, whether greater sums had been received from the attorney than the estate had been credited for. Long delay, in matters of account, places the accounting party under insuperable difficulties, especially where he is to be,charged by memorandums of a third person. An earlier application might have revived the memory of circumstances serving to shew that the credit has been rightly given. The very forbearance to make a demand, is considered as affording a consciousness that it was satisfied, or an intention to relinquish it.

*“*The Court will not aid stale demands, where the party has slept upon his right, and acquiesced for a great length of time; the activity of the Court can only be awakened by conscience, good faith, and reasonable di*383Mgence ; where these are wanting, the Court is passive and does nothing. Laches and neglect are always discouraged ; and therefore, from the beginning of this jurisdiction, there was always a limitation to suits in this Court.” 3 *Bro.*639. — In one case it has been held, that if the party, upon a notice that nothing veas due, did not investigate his own accouut, and never made any demand for the money, a demurrer should be allowed upon the statute of limitations. 19 *Vesey*188. That case wap within the statute of limitations ; but it held, that though the Court follows the law by analogy to the statute, it does not adopt it in all cases. It may be equitable to demand a debt, though not *legal;*but if be not equitable, the party will be left to law- After a great length of time without suit, it shall be presumed that the balance is satisfied. Though this is not a case affected by the legal limitation, yet it comes within the law of this Court, and presents a case wherein laches have made-the demand inequitable. 5 *Vesey,*678.

I am of opinion that the Bill should be dismissed.

Hah, *Judge.*—

M’Kerall, the first husband of the Defendant *Mrs. Child,*part of whose estate is now sought after, died about the year 1776 *;*his residence was at Norfolk, in the State of Virginia. Early in the revolutionary war, his widow and children removed to Hills-borough, in this State. In the year 1793, when the parties were of full age, a settlement was made between them by two persons chosen for that purpose. In this settlement, *Mrs. Child*was debited with a certain sum of money received from *Nevison,*the witness, a resident of Norfolk. Nineteen years afterwards, the present Bill was filed. The Complainants allege, that *Mrs. Child*.received a larger sum of money from *-Nevison*than she was debited with in the settlement, and that they did not become acquainted with that fact, until within six months before the suit was brought. They give us no reason, however, why they did not become, acquainted with it. *384*JV'evison*was as easy of access then as afterwards; facts could have been established with more certainty then, than nineteen or more years afterwards. The mind and memory of *Mrs. Child,*who is now well stricken in years, was then much nearer their wonted vigour.

For these reasons, I have but little hesitation in saying, that the Bill ought to be dismissed with costs.

Bx the Court,

Bibb dismissed with Costs.