Columbia,

Nov. 1849.

#### *Samuel Mayrant, ex’tr. of Charles Mayrant,*v. *James S. Guignard, Junr. et al.*

The waiver by a trustee of the rights of his *cestui que trust,*by a contract execu-tory in its character, and without a valuable consideration, and in behalf of a party who was aware of the equities of the *cestui que trust,*will not be enforced to the prejudice of the trust estate.

Husband and wife cannot be witnesses for or against each other. And it makes no difference whether the interest of the husband or wife, to be affected by the testimony, be legal or equitable.

Where, on Circuit, the defendant moved for a continuance, that he might have time, not to prove a fact that he could swear actually existed, but to ascertain the existence of a conjectural fact, and if that should turn out on investigation, to have existence, that he then might prove it. — The Court *held*that the Chancellor had most judiciously exercised his discretion in refusing the motion and ordering the case to trial.

The party who seeks a continuance, must be prepared to make a very strong showing. — ■Nothing short of this will answer for the dispatch of business in the Circuit Courts of Equity.

*Before*Dunkin, Ch. *at Columbia, June,*1848.

Dunkin, Ch. A correct narration of the circumstances which gave rise to this litigation, would require a transcript, both of the pleadings and the testimony. It is proposed to ad - vert to only so much of the history as will render intelligible the judgment of the Court.

In the year 1833, the late Charles Mayrant, and his brother, .Robert P. Mayrant, one of the defendants, entered into an agreement, under which Robert carried to the west certain slaves of Charles Mayrant, for the purpose of engaging in agricultural pursuits. In the following year, (1834.) a crop was made, and in 1835, Robert sold to Alfred Fowler the slaves of Charles, eleven in number, as well as several other slaves, for a large sum of money — receiving in payment five thousand dollars in cash, and four notes of the purchaser for twelve thousand dollars each; the first note payable 1st February, 1836, and t'he others on the same day of each successive year; the last note falling due 1st February, 1839. Before the sale to Fowler, (to wit, in 1834,) Charles Mayrant had departed this life, leaving a last will and testament, of which his widow, Caroline Mayrant, was appointed executrix, and his brother, the late William-Mayrant, executor. It does not appear that Robert P. Mayrant had any authority to make the sale to Fowler; but the executrix and executor of Charles Mayrant, having power, under his will, to sell his property, confirmed the transaction of Robert P. Mayrant. This was done by executing titles to Robert for the slaves, and on the same day, (to wit, 12th July, 1835,) he executed *113to them his bond, conditioned for the payment of eight thousand dollars, in four equal annual instalments .of two thousand dollars — the first instalment payable 1st February, 1836, and the last on 1st February, 1839 — -the instalments not to bear interest until after they became due. Cote'mporaneously with the execution of this bond, and to secure the payment of the same, Robert P. Mayrant assigned to the said executrix and executor of Charles Mayrant the sum of two thousand dollars out of each of the notes of Fowler to him, and which fell due at the same time with the several instalments of his bond to them. Robert P. Mayrant had previously (to wit, on the 14th September, 1834,) executed a bond to William Mayrant, as executor of Charles Mayrant, dec’d., conditioned for the payment of five hundred and forty dollars, in five equal annual instalments; the first instalment falling due 14th September, 1835. On the 1st January, 1836, Robert P. Mayrant executed a paper, in which, after reciting that he was the,owner of a note for twelve thousand dollars, given by Alfred Fowler to himself, and payable Lst February, 1839 — that the consideration of the note was a sale of negroes by him to Fowler, among whom were sundry negroes included in the marriage settlement made between himself and his wife, with John G. Guignard and James S. Guignard, Jr.,, on the 12lh of May, 1831, he assigned the said note (a copy of which was annexed) to the said J. G. Guignard and J. S. Guignard, Jr., as trustees under the said marriage settlement, the proceeds of the note, when paid, to be laid out in other property, to be held subject to the trusts of the deed of May, 1831, and of another deed of 31st October, 1832. Endorsed on the original assignment, and in the handwriting of James S. Guignard, the elder, was the following memorandum: “Two thousand dollars of the above note was transferred, on the 12th July, 1835, to William Mayrant and Caroline Mayrant, executrix and executor of Charles Mayrant, by R. .P. Mayrant, by Way of collateral security for certain debts, and which have been nearly satisfied.” There was no evidence as to the time when or at whose instance this memorandum was endorsed. The next transaction, in order of time, is an assignment of Robert P. Mayrant to William Mayrant, bearing date 23d March, 1839, and executed in the presence of James S. Guignard, as subscribing witness. The instrument recites that. William Mayrant is surety for Robert P. Mayrant, in several bonds and notes, which amounted then to about seventeen thousand dollars, and in order to secure him against his liability on such bonds and note's, and to enable him to indemnify-himself against all his liabilities as security for the said Robert P. Mayrant, he, the said Robert P. Mayrant, assigns to William Mayrant all his “right, title and interest in two notes of Dr. A. Fowler for $12,000, which were made payable at theCom-*114mercial Bank in Columbia, secured by a mortgage' or deed of trust of lands and negroeswhich notes are now deposited in one of the Banks at Manchester, Mississippi. One of the said notes is paid, or nearly so; the mortgage or deed of trust, also, is hereby assigned.” Other debts and property are included in the assignment, and it is declared that “ William Mayrant shall have the right to apply and use any of the debts, notes or property above mentioned, in any way or manner which shall be necessary to enable him to indemnify himself against any of his liabilities as security for Robert P. Mayrant.”

It is not necessary further to notice, in this connexion, the individual transactions between William Mayrant and Robert P. Mayrant, but the Court will have occasion to advert to them in subsequent.periods of the inquiry.

William Mayrant died in March, 1840, leaving a last will and testament, duly executed, of which his widow, the defendant, Sarah H. Mayrant, was appointed executrix. In the course of the spring or summer of that year, the complainant, Samuel Mayrant, went to the west for the purpose of collecting the debts due to Robert P. Mayrant, but returned without success. In the fall or winter of that year the defendant, James S. Guignard, Jr., who then had charge of the affairs of Robert P. Mayrant, being about to proceed to the West, an arrangement was made, on the 3rd December, 1840, which is set forth at large in an instrument of writing of that date, under the hand of the said James S. Guignard, Jr., as follows, viz: “Whereas, Robert P. Mayrant did, on the 12th July, 1835, transfer and assign to William Mayrant and Caroline Mayrant, executor and executrix of Charles Mayrant, the sum of eight thousand dollars,'say two thousand dollars, part of each of four notes of Alfred Fowler, of twelve thousand dollars each, by way of collateral security for the payment of Robert P. Mayrant’s bond to the executor and executrix of said Charles Mayrant, for eight thousand dollars, dated the 12th day of July, 1835, and on which bond there is now due a balance of two thousand four hundred and forty-one dollars'and twenty cents, and also another bond, due by said Robert P. Mayrant to. said executor Charles Mayrant, on which there is a balance due of five hundred and forty-four dollars and sixty cents, making in all the sum of two thousand nine hundred and eighty-five dollars and eighty cents, with interest on $2600 from the first day of the present month. ■ And whereas'the said Robert P. Mayrant did, on the 23d day of March, 1839, thansfer and assign to William Mayrant two notes of Alfred Fowler, of twelve thousand dollars each, by way of collateral security for certain bonds and notes of Robert P. Mayrant, which then amounted to about seventeen thousand dollars, but which now amount only to the sum of five thousand four hundred and twenty-eight *115dollars eighty cents, with interest on $4690 from the 'first day of the present month.. ,

“And whereas, James S. Guignard, Jr., intends going to the State of Mississippi, as agent or trustee for Robert P. May-rant, for the purpose of settling and adjusting the affairs of the said Robert P. Mayrant. Now, therefore, for the purpose of enabling the said James S. Guignard, Jr., more fully and completely to transact and settle all matters relating to the affairs of said Robert P. Mayrant at the west, Samuel May-rant, the attorney or agent for Caroline Mayrant, executrix of Charles Mayrant, as well as attorney or agent for Sarah H. Mayrant, executrix of William Mayrant, hath delivered to James S. Guignard, Jr., the two original assignments referred to; and hath himself, the said Samuel Mayrant, executed a power of attorney, authorizing the said James S. Guignard, Jr., to receive and collect all the assigned notes, &c. And powers of attorney are also intended to be obtained from the said Caroline and Sarah H., executrices as aforesaid, to the said James S. Guignard, Jr., for the same purposes, and forwarded to him in case they should be necessary, to act fully and completely. The said James S, Guignard, Jr., promises to use his exertions to collect all the debts due to Robert P. Mayrant, and with the first moneys received, will settle with and pay to the said Sarah H. Mayrant, executrix of William Mayrant, and Caroline Mayrant, executrix of Charles Mayrant, or to their attorney or agent, the said sums of $2985 80 and $5428 80, making together the sum of eight thousand four hundred and fourteen dollars sixty cents, provided that, as to the last note of Alfred Fowler, *to*wit: the note due on the 1st February, 1839, only two thousand dollars and interest from said date, shall be paid to the executrix of Charles Mayrant in preference to the claim of John G. Guignard and James S. Guignard, Jr.j trustees of Mrs. Frances Ann M. H. Mayrant.”

[Signed,] James S. Guignard, Jr.

Columbia, 3d December, 1840.

This paper, marked exhibit E of the bill, is in the hand writing of James S. Guignard, the elder, and the sums are taken from a statement of the amounts due, prepared by the same gentleman, and marked No. 2 exhibit to answer of Sarah H. Mayrant. He mentioned, in his examination, that all the parties knew, before the power of attorney was executed, that' two actions of trespass were pending irf the west, by Fowler against Robert P. Mayrant, in each of which actions the plaintiff had since recovered damages for five, thousand dollars.

What proceedings were taken by James S. Guignard, Jr., in the west, under these authorities, did not appear in the evidence, but after a protracted litigation with Dr. Fowler, in *116which he succeeded ill setting off the verdicts obtained by him against his debt to Robert P. Mayrant, a decree was finally rendered against Fowler fora large sum of money, exceeding $16,000. In the spring of 1846, the property of Fowler was tobe sold under this decree, and it was'supposed that it might be necessary that James S. Guignard, Jr., should bid off the property for the benefit of the parties for whom he was acting. It was agreed that he should do so, and on the 18th April, 1846, he executed the paper marked exhibit F of the bill, referring briefly to the several assignments above mentioned, and agreeing to receive the moneys, or bid in the property, to be held until it was ascertained what portion thereof belonged to each of the parties. It proved to be unnecessary for James S. Guignard *to*bid in the property. It was sold; and it appears from exhibit N, of J. S. Guignard Jr’s, answer, that he received from the proceeds of sales, in June, 1846, fourteen thousand three hundred and twenty one dollars twenty-seven cents, ($14,321 27.) The exhibit sets forth certain payments to other persons, leaving in his hands an admitted balance of ten thousand one hundred and thirty nine dollars and sixty seven cents, ($10,139 67.)

The complainant is the executor of Caroline Mayrant, who was surviving executrix of Charles Mayrant, deceased, and he applied to the defendant, James S. Guignard, Jr., for payment of the amount due under the assignment of Robert P. Mayrant, and according to the undertaking of the defendant, under date of 3d December, 1840; Sarah H. Ma.yrant, executrix of William Mayrant, deceased, having already notified the defendant that she interposed no objection to the priority of the claim of Charles Mayrant’s estate on the said funds. The defendant having declined to comply, this bill was filed on the 24th April,' 1847, and the answer of James S. Guig-nard, Jr., was filed on the 17th June, 1847. The objections of the defendant to the payment of the debt due to the estate of Charles Mayrant, deceased, are set forth particularly and at large, and it is proposed to consider them in order.

It will be remembered, that by the instrument executed by the defendant, on the 3d December, 1840, at which time he received from the representative of Charles Mayrant the original assignment and the authority to act, he acknowledged that there was, at that date, due to the estate of Charles Mayrant, the sum of $2985 80, with interest on $2600 from 1st December, 1840, and he thereby engaged “to use his exertions to collect all the debts due to Robert P. Mayrant, and with the first moneys received, to settle with and pay” to the representative of the estates of William Mayrant and of Charles Mayrant, the specific sums acknowledged to be due, with the single qualification, that, out of the Fowler *117note due 1st February, 1839, only $2000 and interest should be paid to the estate of Charles Mayrant, in preference to the claim of the trust estate.of Frances A. M. H. Mayrant. The defendant, in his answer, admits that several payments had been made on the $8000 bond, to the estate of Charles May-rant, *“*the three first of which have been accurately credited,” “but that he has been informed lately, and believes, and hopes to be able to prove to the satisfaction of the Court, that the fourth credit thereupon should have been four thousand four hundred dollars, ($4400) instead of two thousand two hundred and eighty'dollars $2280,) as this defendant has lately been informed and believes, and ascertained to his satisfaction, that in November, 1838, William Mayrant, as the executor of the said Charles Mayrant, received on account and in part of said notes given by said Fowler, and on account of said assignment thereof to him and said Caroline Mayrant, the sum of four thousand four, hundred dollars, which should have been credited on said bond of eight thousand dollars, and which the defendant submits would very nearly have satisfied the same.”

The Court is of opinion that there is much force in the objection suggested in the answer of the executrix of William Mayrant, that this error, like the other difficulties now made by the defendant, was not intimated at an earlier period, and before the power of attorney was executed — that the person who could best have explained the transaction, if any explanation were necessary, has been seven years in his grave, and that it was not until six years after the defendant had received authority, and had executed the instrument of 3d December, 1840, nor until after he had received the funds, that any doubt was suggested as to the correctness of the statement, the result of which is incorporated in the said agreement of the defendant. Certainly, after what has been done, after the time which has elapsed, and after the death of a principal party to the transaction, the Court would require strong evidence to shew that the receipt on the bond of 13th December, 1838, signed by William Mayrant, for $2280, should have been a receipt for $4400. The allegation is, that in November, 1838, William Mayrant, as executor of Charles Mayrant, received on account of the Fowler notes, and on account of the assignment thereof to the estate of Charles Mayrant, the sum of $4400. The proof is, that on the lllh October, 1838, Robert P. Mayrant executed to William Mayrant, individually, a power of attorney to collect the notes due by Dr. Fowler. The power is witnessed by James S. Guignard, the elder. At that time, three of Fowler’s notes had fallen due — the fourth note was not due until 1st February, 1839. William Mayrant went to Mississippi, collected $4400 from Fowler, and in 1838 return*118ed to South Carolina. Three instalments of the $8000 bond 0f p, Mayrant to the estate of Charles Mayrant, ' were then past due, and a balance of what had fallen due was jn arrear an(j unpaid. The remaining instalment of $2000 was not due until 1st February, 1839, when the last note of Fowler would fall due, and on which it was chargea-blei William Mayrant, on his return, to wit: on the 13th December, 1838,- accounted with Robert P. Mayrant for the $4400 received from Dr. Fowler, by crediting his bond to the estate of Charles Mayrant with $2280, (that being very nearly the amount then due on the bond) and paying to Robert P. Mayrant, in cash, $2120, the balance of the $4400, for which he took his receipt in full, in the following words, viz“ Rec’d. Dec. 13, 1838, of William Mayrant, the sum of four thousand four hundred dollars, being the amount received by him of Dr. Alfred Fowler, on account of his notes to me — $4400.—(Signed) Robert P. Mayrant.” On the transaction thus stated, it is difficult to perceive on what principle William Mayrant was’ bound to credit the $4400 on the $8000 bond to the estate of Charles Mayrant; nay more — what authority he had to require Robert P. May-rant then to pay or allow in settlement the amount of the instalment which was to fail due in February, 1839, and for the payment of which another fund had been provided. It was proposed, however, to examine the defendant, Robert P. Mayrant, as a witness on behalf of the trust estate of Frances A. M. H. Mayrant, and to prove by him, not that he had not received in cash from William Mayrant $2120, the balance of $4400 after the credit on the bond, but *“*that William Mayrant, on his return from Mississippi, in December, 1838, told him that he had received the $4400 for the estate of Charles Mayrant, but that a difficulty arose between them on the subject, and that in consequence of his (Robert’s) remonstrances, William had paid him over in cash, the balance as above stated.” Admitting this to be true, the Court deemed the testimony immaterial. William Mayrant was acting under a general power of attorney from Robert P. Mayrant to collect the Fowler notes. Suppose that in collecting the $4400, he received the money, intending, and with the view, to appropriate the whole to the $8000 bond of the estate of Charles Mayrant, which was not then due; what satisfactory answer could he, the attorney in fact of Robert P. Mayrant, offer to the remonstrances of his principal *1*He had received nothing on the note due February, 1839, nor was there any evidence even that he knew of the assignments to the trustee. But without dwelling longer on the effect of the proposed testimony, the Court was of opinion, and so ruled, that Robeit P. Mayrant was not a competent witness for the trust estate. The contest *119is between the complainant, as executor of Charles Mayrant on the one side, and the trustees of Frances A. M. H. May- ( rant, the wife of the defendant, Robert P. Mayrant, on the other side. According to the provisions of the deeds of 1831 and 1832, the funds claimed by the trustees are for the use of Mrs. Mayrant during her natural life.

Swanst. 39.

5 Russ. 19.

4T.R. 678.

A suit in Equity often contains many issues, and as the general rule requires all persons in any way interested to be made parties, leave is frequently given for a party defendant to be examined in reference to a point in which he has no interest. The rule is fully stated by Mr. Gresley in his Treatise on Equity Evidence, 242 *et seq.*Leave is granted, on motions suggesting that the party is not interested, and saving all just exceptions. Every objection holds good, except the single formal one of his being a *party*— Roger *son*v. *Whittington. “*Appendant to the rule; we have discussed,” continues Mr. Gresley, “ is the exclusion of the husband or wife of the party, for both are considered in law as one person; or as Lord Coke expresses it, *quia sunt duce animce in carne una.*This restriction applies to every sort of interest in the suit. It is looked upon as a matter of public policy. Where either of them is pecuniarily interested, the rule is still more strict; and the Courts do not consider this as a matter of technical form, but have excluded the evidence of a husband, tending to support any interest of his wife, whether legal or equitable, or whether she was a party to the suit or not. The judgment of Sir John Leach, Master of the Rolls, in *Gregg v.*Taylor, is cited, in which he says: “ It is a settled rule of law, proceeding upon sound policy, that husband and wife cannot be witnesses for or against each other; and the case of *Davis v. Dinwoody*has decided, what indeed was clear in principle — that it makes no difference whether the interest of the husband or wife, to be affected by the testimony, is legal or equitable.” In the case of *Davis v. Dinwoody*the testimony of the husband, in support of his wife’s interest, was directly opposed to his own interest. But still the Court held the rule of exclusion applicable. From these authorities it seems sufficiently apparent that Robert P. Mayrant could not be examined as a witness in support of his wife’s interest.

The next objection stated by the defendant, James S. Guignard, Jr. to the payment of the demand of the estate of Charles Mayrant, is, that William Mayrant, in his lifetime, had received large sums of money on account of two notes, and a bill of exchange of one Marcus Pierce, and that, after making all proper deductions, there was still remaining in the hands of William Mayrant, a sum sufficient to satisfy the balance due on the bond of $8000, and the bond of $540 *120due to the estate of Charles Mayrant, as well as any balance ¿110 t0 william Mayrant, on account of his liabilities for Robert P. Mayrant — and “ at all events, defendant insists that w'illiam Mayrant, in his life time and as executor of Charles Mayrant, deceased, had in his hands, possession and power, funds of said Robert P. Mayrant, more than sufficient to satis fy the said bonds of $8000 and $540, and applicable to the satisfaction of the same.” The Court does not propose to state, with circumstancial accuracy, the facts in relation to the transactions with Marcus Pierce; but only so far as will enable the Court to determine whether the defendant has established that William Mayrant, in his lifetime, and as executor of Charles Mayrant, deceased, received from this source funds sufficient to satisfy the debts due by R. P. Mayrant to the estate of Charles Mayrant, deceased, and which funds were properly applicable to the satisfaction of those debts. Some time after Robert P. Mayrant had sold out to Dr. Alfred Fowler, a written agreement was entered into between Robert P. and William Mayrant, bearing date 7th December, 1835. From this agreement, it appears that a planting interest was to be established, on joint account, in Carroll County, Mississippi. Robert P. Mayrant had purchased six hundred and forty-six acres of laud in that county, of which he sold William a moiety, for four hundred and seventy-one dollars. William owned twenty-six negroes, a moiety of which he agreed to sell to Robert, for four thousand three hundred and eighty dollars, and William was to send, besides, eleven negroes, nine of whom were workers in the field, which belonged to him exclusively, and for which he was to draw shares. Thejr hired an overseer, and Robert P. Mayrant started, in company with the overseer and the negroes, for the West. It was part of the agreement, that the title for the twenty six slaves should remain in William, as security for the purchase money. Immediately after the arrival of Robert P. Mayrant at the place of destination in Mississippi, he sold out the whole establishment — land, slaves, mules, wagons, etc. to Marcus Pierce; and the first intelligence that William Mayrant received of the transaction, was in a letter from Robert, of which the following is an extract: — “ I got thirty-six thousand dollars for our property. It was so fine a price that I accepted it without your advice. I have a bill of exchange on New Orleans for thirteen thousand two hundred dollars, and twenty-four thousand dollars secured, I am sure, to your satisfaction. Now is the time, if ever there was, to make money,” &c.

“ This stunning transaction,” says the widow of William Mayrant in her answer, “ broke up her husband’s plan of making a planting establishment in the West, and he did the *121best he could to save himself under the necessity thus imposed upon him by the said Robert P. Mayrant. He ^ was obliged either to ratify the act of his brother, or abide the risk of receiving nothing. If he repudiated the sale, he must go or send to Mississippi to recover the negroes by process of law, or else he must proceed against his own brother here, who had no means of reimbursing him for the loss of his property.” Under these circumstances, the sale was affirmed. William Mayrant received the bill of exchange, on which he realized about twelve thousand dollars, and on the 27th October, 1836, an arrangement was made between them, both in relation to the bill of exchange and the two notes of Pierce, and the appiopriation of the proceeds, which is explicitly set forth in a receipt for those papers, or rather for the nett proceeds of the bill and an order for the notes given on that day by William Mayrant to Robert P. Mayrant, of which a copy is exhibited with the answer. “ When the said bill of exchange,” (runs the receipt) *“*is paid by the acceptor and the amounts of the two notes realized, then the same are to be appropriated as follows. The expenses which may attend the collection of the same, and transmitting or remitting the amounts to this State, to be paid therefrom. The said R. P. Mayrant is to be paid out of the amounts, the sums advanced for the purchase of the lands, and the amount advanced for the removing of the said negroes mentioned in the within agreement, with interest, and also his personal expenses incurred. And the said William Mayrant to be paid the amount advanced by him for the purchase of the within mentioned twenty-six negroes, one moiety of which he agreed to sell to the said Robert P. Mayrant, with interest. He, the said William Mayrant, is also to be paid out of the amounts which may be received on the above mentioned bill of exchange and notes, the value of his eleven negroes mentioned in the within agreement — also the amount advanced by him for the removal of the said negroes, and the amount paid by the said William Mayrant to one William Bell, under a contract to go out with the said negroes, and oversee the place, to be settled according to the terms of the within agreement, with interest; and after the payment to the parties respectively of the above amounts, which are yet to be settled and ascertained, then the balance to be equally divided.”

As has been stated, the receipt sets forth that the bill of exchange, which was not then at maturity, had been discounted, and the proceeds, (12,014) received by William Mayrant. A memorandum to the receipt, states that the two notes of Marcus Pierce had been deposited with Hamer &. Co. of New Orleans; and that “a joint power of attorney was given by said William and Robert to Henry Yaughan, *122to collect and manage said notes for their mutual benefit, according to their interests under the original contract.” This memorandum is signed by both William and Robert P. Mayrant. Next in order of time is a letter from James S. Guignard, the elder, to William Mayrant, dated Columbia, 30th March, 1839, in which, after acknowledging the receipt of his letter, enclosing an assignment to be executed by Robert P. Mayrant, and which, he tells him, had been executed, and referring also to other matters, the writer continues : “ You did not send me the statement of your and Robert’s affairs. He wishes to know the *exact amount*of what he owes you, which he cannot ascertain himself, as there are expenses, <fcc. which he can tell nothing about. Do send it.” “In reply to this letter,” says Mr. Guignard in his testimony, “ William Mayrant sent the statement, of which Exhibit (No. 6) is a copy “ made by himself,” (the witness.) Exhibit No. 6, is an account made up to January, 1839, and sets forth the sum received by William Mayrant, on account of demands against Marcus Pierce, and his appropriation of the same on the basis of his receipt of 27th October, 1836. According to that statement, a balance remained due in November, 1838, to William Mayrant, of $1609 30 cents, and to Robert P. Mayrant of $1679 14, on the Marcus Pierce'transaction. When this statement was exhibited to Robert P. Mayrant, “ he objected,” says Mr. Guignard, “ to Catharine’s price, and the eleven negroes sold to Pierce, as overcharged.” It does not appear that these objections were communicated to William Mayrant, nor was there any evidence that they were well founded. But on the 1st December, 1840, (the year following) and after the death of William Mayran t and preparatory to the expedition to the West, of James S. Guignard, Jr. to arrange the affairs of Robert P. Mayrant, Mr. Guignard, the elder, made out a statement, which is styled, “Statement of Western and other matters, in regard to Robert P. Mayrant and William Mayrant, and estate of Charles Mayrant, made 1st December, 1840, by J. S. G.”

In this account, the statement furnished by William May-rant in March, 1839, is assumed to be correct, and the balances, due to William and Robert P. respectively at that time, are taken from that statement. — In a memorandum, the following is added by Mr. Guignard: “It is supposed that Wm. M. received a partial payment on this debt in Nov. 1839, and when ascertained, to be accounted for.” — It was true and it was admitted at the hearing, that William Mayrant, to whom a balance of $1609 30 was due in January, 1839, or November, 1838, under the arrangement of 27th October, 1836, received under the execution against Pierce in November, 1839, $1554 76; and it is also true and was admitted at the hearing, that Robert P. Mayrant, to whom a balance of *123$1679 14 was due at that time under the same arrangement, received, on the 21st April, 1840, under the same execution against Marcus Pierce, the sum of $3814. There was no evidence whatever that William Mayrant had, at any time, received any other moneys whatever on account of the debt of Marcus Pierce, except those for which he has given credit in the statement made by him, and the sum received in November, 1839, of $1654 76. It is, then, quite apparent, so far as the Court may judge from the testimony submitted, that in relation to the transaction with Marcus Pierce and the agreement of the parties thereuppn, the estate of William May-rant is largely the creditor, and not the debtor, of Robert P. Mayrant. The Court does not perceive how this conclusion can be obviated, unless the defendant, James S. Guignard’s remaining *objection to the*complainant’s demand should be substantiated. The defendant proceeds in his answer to say , that he “ has been informed and believes that the greater part of the balance of said two notes given by Marcus Pierce and others, has been, or is likely to be, utterly lost, through the entire mismanagement and negligence of said William Mayrant in his life-time, and therefore this defendant has been legally advised, and insists, and humbly submits to this Honorable Court, that his estate should bear the entire loss thereof, and that no part thereof should fall on Robert P. Mayrant.” In what manner or upon what principle this supposed negligence of William Mayrant in collecting a debt due to Robert P. Mayrant and himself, could afford any answer to the claim of the representative of Charles Mayrant, or could warrant the defendant in withholding from that estate the amount due, was not suggested either in the answer or in the argument, nor is it perceived by the Court. It is not intimated that William Mayrant, in his fiduciary capacity as executor of Charles Mayrant, undertook the collection of Pierce’s notes ; and if he had done so, it would scarcely affect the legal result. It is but just, however, Jo the defendant, to say, that although this charge was not formally abandoned, it was not insisted on or urged in the argument of counsel. But the charge oí “ entire mismanagement and negligence,” remains on the record, and evidence was brought from Mississippi to establish the charge. Something is due to the memory of a gentleman who, in life, was an ornament to his profession, and enjoyed in an eminent degree the confidence and esteem of all who had the advantage of his acquaintance. The testimony is altogether in writing, and it is not proposed to recite it, or to incorporate any part of it in the decree. It has been carefully considered by the Court; and it is quite adequate to say that the charge of mismanagement or negligence is without the shadow of foundation. So far as the testimony sheds any light upon the transaction, William Mayrant exhibited all the vigilance, sagacity and anxiety for the recovery of the debt, *124which a man of sound judgment could be expected to evince ,in the security of his own interests. It seems to the Court impossible to doubt this, after an impartial perusal of the testimony, and particularly of his correspondence with Henry Yaughan, Esq., the friend who had been entrusted by both William and Robert with the charge of this matter. Whether the warn of success in collecting the second note of Mar- . cus Pierce was attiibutable to the folly or the fraud of the attorneys employed, or to any other cause, it is not material now to ascertain. It is enough only to decide that the charge of “entire mismanagement and negligence,” on the part of William Mayrant, is as unsubstantiated by the testimony as it is improbable.

The Court has now considered and discussed the several grounds assumed by the delendant in his answer, as justifying his refusal to pay the demand of the complainant. According to the best judgment of the Court, they afford no ground for the refusal. There may be subsisting equities between Robert P. Mayrant, or the trustees of Mrs. Mayrant, and the executrix of William Mayrant, deceased. None have been established which can, in $ny manner, affect the right of the executor of Charles Mayrant, deceased. As between the other parties defendant, it would be premature for the Court, at this time, to make any final decree. Either of those parties, who desire it, may have.an order of reference, for the purpose of stating the accounts between them, or may adopt such other measure as they may be advised to.

It is ordered and decreed that the defendant, James S. Guignard, Jr., pay to the complainant the sum of two thousand nine hundred and eighty-five dollars, with interest on % two thousand six hundred dollars, from the first day of December one thousand eight hundred and forty, in conformity with the terms of his engagement.

The defendant, James S. Guignard, Jr., moved the Court of Appeals for a re-hearing, or to reverse or reform the decree, on the following grounds:

1. That as the defendant, James S. Guignard, jr., had sent an agent in due time to the State of Mississippi, for the purpose of procuring certain exemplifications and original papers, material to the right understanding of the case and to his de-fence, which said agent, from some misapprehension, failed to procure, the cause should have been continued, to enable said defendant to procure said exemplifications and original papers.

2. That under the circumstances of the case, Robert P. Mayrant was a competent witness, and his testimony should have been received.

3. That William Mayrant, as the acting executor of Charles Mayrant, received and had in his possession funds arising from the assignment of Robert P. Mayrant, sufficient to pay *125to himself as such executor, the said debts due to him as such executor, which were applicable to the payment thereof, and^ which should have been applied to the payment of the same, and which the law regards as thus applied.

4. That if any doubts were entertained whether William Mayrant, as such executor, received, and had in his possession, funds arising from said assignment, sufficient to pay said debts to himself as such executor, a cross bill and reference should have been ordered, to adjust the accounts between William Mayrant and Robert P. Mayrant, to ascertain the balance due by the former to the latter, and to make that balance liable for the payment of said debts to the executor of Charles Mayrant.

5. That the answer of the defendant, Mrs. Sarah Mayrant, should not have been regarded as evidence against the defendant, James S. Guignard, jr., and more especially as the same was not sworn to, or even signed by her.

6. That Robert P. Mayrant was *non compos*mentis, and utterly unfit to transact any business, from his attack of paralysis, on the 13th of October, 1838, for upwards of a year, and especially on the 13th of December, 1838, when the receipt for $4,400 was given to William Mayrant, and which therefore ought not to be regarded as valid and obligatory.

*7.*That the paper of which complainant’s exhibit E is a copy, was signed by the defendant, James S. Guignard, jr., under a misapprehension and ignorance of the true state of accounts between William Mayrant and Robert Mayrant, and upon a reliance on the representations of the complainant, together with statements in the handwriting of William May-rant, or taken from them, and without any satisfactory information from Robert P. Mayrant, who was not then, and had not been in a fit condition to give any, and therefore the same ought not to be held obligatory; nor ought any statements made by James S. Guignard, Sen., to be held binding, as he was under a like misapprehension and ignorance, and was no agent of Robert P. Mayrant.

8. That the decree requires the defendant, James S. Guig-nard, jr., to pay to the complainant, not only the balance remaining due on Robert P. Mayrant’s bond, of the 12th July, 1835, for $8,000, but also the balance remaining due on Robert P. Mayrant’s bond, of the 14th September, 1834, for $540; although no part of the debts due by Alfred Fowler was ever assigned to secure the payment of the latter bond; and although the defendant James S. Guignard, jr., by his agreement of 3rd December, 1840,.expressly reserved the lien of the assignment in favor of the trustees of Mrs. F. A. M. H. Mayrant, upon the note of Alfred Fowler, due 1st February, 1839, except as to the amount of 2,000, previously assigned to the executor and executrix of Charles Mayrant; and al*126though the whole fund now in the hands of the said James S. Guignard. jr., is insufficient, by many thousand dollars, to satisfy the just claims of the trustees of Mrs. F. A. M. H. May-rant.

9. That the decree, while not undertaking to settle the accounts between Robert P. Mayrant and the executrix of William Mayrant, yet assumes that Robert P. Mayrant is indebted to the said executrix; and also assumes, erroneously, that the eleven negroes of William Mayrant, sold to Marcus Pierce, are not overcharged against Robert P. Mayrant, although the effect of the charge, or estimated value, is to make Robert P. Mayrant the insurer of profits which were never realized, but have been entirely lost under the mismanagement of William Mayrant.

All of which are respectfully submitted.

*Gregg Sf*Gregg, Solicitors for J. S. Guignard, Jr.

*F. J.*Moses, complainant’s solicitor.

Curia, *-per*

Dargan, Ch.

This Courtis perfectly satisfied with the decree of the Circuit Court, except in one particular ; which will be hereafter adverted to. Being content to adopt the views of the presiding Chancellor, except in reference to a particular point, it will be unnecessary to enter into any detailed consideration of the various grounds of appeal, discussed before this Court. Some observation, however, on the first ground, may not be inappropriate or uncalled for.— This ground is an appeal from the acknowledged discretion of the Circuit Court, in ruling the case for trial in opposition to a motion for a continuance, It assumes that this authority has been indiscreetly exercised. It is unnecessary to say that a discretionary power of continuing causes, or ordering them to a hearing, must necessarily be lodged with the tribunal charged with their trial. It is, furthermore, sufficiently obvious that the presiding Chancellor is a more competent judge of the causes that should operate as a continuance, than an appellate jurisdiction. It follows that an appeal from an exercise of this authority, can find but little favor in a Court of Appeals. I will not say that no case can occur, in which an appeal would lie, from the discretion of the Chancellor in matters of this nature, to the discretion of this Court. On the contrary, I think it very clear that this Court does possess the power, which it will exert at its own discretion, of reviewing the manner in which the Circuit Court has exercised its discretionary powers ; and in a proper case would interpose. But it must be an extraordinary case, and one in which it must obviously appear that the power to order a case to trial, in opposition to a motion to continue, has been rashly and indiscreetly exercised, that would warrant the interference of this Court. After these remarks it is but justice *127to the presiding Chancellor to say that, in the opinion of this Court, his discretion, in this case, has been most judiciously exercised. To say nothing as to whether there had not been'' ample time, from the filing of the bill to the term at which the case was tried, for the defendant to have made all the necessary preparations for the trial, there appears to be something preposterous in the ground on which the motion for a continuance was urged; (with deference be it said, to the eminent and learned counsel who submitted it.) The defendant moved for a continuance, that he might have time to prove, *not*a fact that he could swear actually existed, but to ascertain the existence of a conjectural fact, and if that should turn out on investigation to have existence, that he then might prove it. This seems to me to be a total perversion of all the rules upon this subject. If there had been actual proof before the Court of the supposed fact, of which so much has been said; namely, that William Mayrant had signed the receipt to Fowler for the $4,400, as “ executor of Charles Mayrant,” it does not appear to this Court that it would have been material. This sum was received on the third note of Fowler, which fell due on the first day of January, 1838. William Mayrant had a right to apply only so much of this sum as was sufficient to pay the third instalment on the $8,000 bond, which fell due at the same time.— And this much was so applied. He had no legal or equitable authority under the assignment, to apply any of the proceeds of the third Fowler note as a ^re-payment on the fourth instalment of the bond of Robert P. Mayrant to the estate of Charles Mayrant, which was actually not then due. It is true he collected more than was sufficient to satisfy the instalment of the debt to the estate of Charles Mayrant that had fallen due, but the excess he had collected, not under the assignment to him as executor, but under another and distinct authority; under a power to him in his individual capacity. The excess thus collected, over what was *then*due to Charles Mayrant’s estate, he had no right to apply in further satisfaction of that claim, without the consent of Robert P. Mayrant, his principal. This consent was withheld. If, therefore, Wm. Mayrant had subscribed the receipt to Fowler, as “executor of Charles Mayrant,” it would have been an immaterial fact, inasmuch as it was proved that he only applied what, under the assignment, he was entitled to apply to the third instalment of the bond, and had paid the balance to Robert P. Hayrant, who had a right to receive it. This act of receiving would be referred, by this Court, to the different authorities under which he received the money.— The peculiar form or style of his signature, would avail nothing. So much as he was entitled to receive under the assignment, would be referred to that instrument, and be dis*128posed of as it directs, and the excess would be referred to his other authority as agent, and subject to the undoubted legal claims of his principal. It was for the purpose of being allowed time to prove a fact thus immaterial, and at best, but conjectural as to its existence, that a motion to continue the cause was made, and a refusal to grant that motion has been made a ground of appeal to this Court. I have said more than I had intended, and certainly more than was necessary, on this part of the case. It is, however, a fit occasion to say, on this subject of continuances, that under the great facilities afforded for the preparation of causes for trial in this Court, and the infrequency of the sittings of the Circuit Courts, promptitude in bringing on causes to a hearing, may be reasonably expected, and will certainly be exacted. The party who seeks a continuance, must be prepared to make a very strong showing. Nothing short of this will answer for the despatch of business in the Circuit Courts of Equity.

There is, as I have said, one particular in which, in the opinion of this Court, the decree needs to be reformed, and this arises on a question made in the 8th ground of appeal. There cannot be a reasonable doubt that the complainant, as the legal representative of the estate of Charles Mayrant, has a *lien*upon the fund in the hands of the defendant, James S. Guignard, for the balance due upon the eight thousand dollar bond of Robert P. Mayrant, and this by virtue of the assignment of Fowler’s notes for that purpose. This assignment was the first in point of time, and conferred a *lien*earlier than and paramount to all others. I do not wish to add a word to what the presiding Chancellor has so well said in relation to this part of the case. But the smaller bond for five hundred and forty dollars, though unquestionably a just debt, stands upon an entirely different footing. It has not been protected by any assignment or lien upon the securities from which the fund in dispute has been derived. The Court considers the stipulations of the defendant, James S. Guignard, of the date of 6th December, 1846, (exhibit E. of complainant’s bill,) to the effect that this bond, as well as the balance due on the larger bond, should be first paid, as inoperative; or at all events insufficient to bind the trust estate, as regards *its*claims upon the fund. In the first place, it is doubtful whether the parties, at that date, did not deem the Fowler debt sufficient to satisfy both claims. And the agreement was evidently framed under a mistaken opinion, that both of the bonds due the estate of Charles Mayrant were covered by the assignment. Be that, however, as it may, it was [a waiver by a trustee of the rights of his *cestui que*trust, by a contract executory in its character, and without a valuable consideration; and in behalf of a party who was aware of the equities of the *cestui que trusts.*This Court *129will not enforce such an agreement to the prejudice of the trust estate. And that part of the decree which gives to thev complainant an unqualified right to be paid the balance due upon this bond for $540, out of the fund in the hands of the defendant, James S. Guignard, is erroneous, and must be reformed in the manner hereinafter expressed.

This brings me to the consideration of another aspect of the case. The fund in dispute is the nett proceeds, and the commingled and undistinguishable product of the third and fourth notes of Dr. Fowler, upon which one entire decree was rendered, and this much realized under that decree by the sale of his property. Each of these notes was for $ 12,-000. Upon that due 1st January, 1838, a *payment of*$4,400 has been made to Wm. Mayrant, and by him correctly applied. The balance of the note and interest was due. Upon the other note (due 1st January, 1839,) the whole amount of the principal and interest was due. On the trial of the suit instituted in the Court of Equity, in the State of Mississippi, against Dr. Fowler, to recover the amount due upon these two notes, he succeeded in setting up, as a discount against them, the amount of two verdicts, each for the sum of $5,000, which he had recovered against Robert P. Mayrant for certain trespasses committed by him against said Fowler. And the decree was for the balance due upon the two notes, after deducting the discounts. Fowler became insolvent, and the sales of his property did not satisfy the whole amount for which the decree was rendered. The amount actually realized by the sales, was further and greatly reduced by the heavy expenses incurred in carrying on a protracted and fiercely contested litigation, at a distance from the parties interested in its prosecution.

William Mayrant had become the surety of Robert P. Mayrant for a considerable amount; and to indemnify him against these liabilities, the latter had assigned to the former, by an instrument bearing date the 23d day of March, 1839, the second and third notes of Dr. Fowler, subject to the pri- or claim of the estate of Charles Mayrant. And to indemnify and secure the trust estate of his wife, F. A. M. H. Mayrant, for the 17 negroes of that estate, which he had sold to Dr. Fowler, he had assigned to the trustees, (of whom the defendant, J. S. Guignard, is one,) the fourth note of Dr. Fowler, due 1st January, 1839 ; subject also to the prior claim of the estate of Charles Mayrant, for two thousand dollars and interest. The trust estate had no assignment of or *lien*upon Dr. Fowler’s third note. But as the amounts due upon these two notes were blended in the decree, and the fund in controversy is the nett amount realized from that decree, it cannot be said that this fund has been collected upon one of these notes, and not upon the other. It follows *130that if the estate of William Mayrant still has claims against Robert Mayrant, on account of the surety liabilities intended to be covered by the latter’s assignment of the third note of Dr. Fowler, it constitutes an equity which cannot be disregarded in the distribution of this fund.

Whatever rights of priority, or in the way of *lien,*the estate of Wm. Mayrant may have upon the fund, have been waived by the executrix of that estate, in behalf of the estate of Charles Mayrant. The executrix has, in her answer, so waived her rights, and thus has made the waiver a matter of record. The Court is disposed to carry into effect this transfer of *lien,*and by virtue thereof, to substitute (as regards priority of claim upon the fund) the *estate*of *Charles*Mayrant in the place of Wm. Mayrant. And it is the judgment of the Court, that any *lien*which the estate of Wm. Mayrant may have upon the fund in the defendant’s hands, shall operate for the benefit of the estate of Charles Mayrant, towards the satisfaction of the bond for $540. If the *lien,*in favor of Wm. Mayrant’s estate, should be for less than sufficient to satisfy this bond, it shall operate *pro tardo*for the benefit of the estate of Charles Mayrant; if for more than sufficient to satisfy the bond, the residue shall remain for the estate of William Mayrant.

It is ordered and decreed that it be referred to the Commissioner to stale the accounts between the estate of Wm. Mayrant and Robert P. Mayrant, and if lie finds and reports a balance in favor of the estate of Wm. Mayrant, that he carefully discriminate and show how much, if any, be due on the liabilities intended to be secured in the assignment before referred to, and how much on general account. If the complainant should find a balance due the estate of William Mayrant, on account of surety liabilities, a question will arise as regards the apportionment of the fund between the estate of Wm. Mayrant and the trust estate. This question is reserved, as also all questions not adjudged by the circuit decree and the decree of this Court.

It is ordered and decreed that the circuit decree be modified as herein before explained, that in all other respects it be affirmed, and that the appeal, except as to the eighth ground, be dismissed.

DuNkin and Caldwell, CC. concurred.

*Decree modified.*