#### James Wardlaw, et. al. v. Adm’rs. & Heirs of Henry Gray.

1a equity, as well as at law, the lo3s or destruction of a note must he proved by dis interested witnesses, in order to entitle the claimant to relief thereon.

'The statute of limitations cannot run between principal and agent until demand; •and an accounting between them cannot be considered a demand of monies collected by the agent previously and kept out of view by him at the time of such accounting.

Nor can a creditor prevent the bar of the statute by endorsing upon his demand, a payment of a very considerable part ofit.

The statute will run against a note’given by an agent for the funds received by him for his principal; and though the talcing of the note was no discharge of the trust, yet where the latter has neglected to avail himself ofhis legal remedy, the Court will not unravel the transactions between them merely for the purpose of evading the statute.

An agent who has stipulated to accouut semi-annually, is liable to pay interest on all sums received .and not accounted for, at the stipulated time. Where he holds back the funds and mixes them with his own, the Court might charge him with interest from the time he received them.

For sums received before such stipulation to account, the principal is entitled to interest from the accounting by the agent next succeeding the times of receiving those sums respectively.

Commissions cannot be allowed in any case where they are not stipulated for, or allowed by statute.

An account stated, or note given is *prima facie*evidence of a settlement of accounts between the parties; so also, the declaration of a party that only a small balance is due, is a strong circumstance against him when claiming a large amount; but all these circumstances are open to explanation and are not conclusive.

The obligor of a bond is a competent witness to prove payment by him to the agent of the obligee, in a proceeding by the latter, to recover the amount of such payment irom the agent. ,

Whenever the survivor is insolvent, a partnership creditor may proceed in equity against the estate of a deceased partner.

Such creditor has the right to resort either to the partnership property, or to the separate property of the parties; but as a party having two funds, he may be compelled by the separate creditors of one of the partners, to exhaust the partnership property, before he proceeds against that of an individual partner.

*'Before Ms Honor Chancellor JOHNSON, at Ahheville, June,*1837.

The following was the decree of the Chancellor:

The intestate, Henry Gray, is supposed to have died insolvent, and this hill was filed by creditors to obtain an account of the estate, and for marshalling the assets amongst the different classes of creditors. The accounts of the administrator with' the estate of his intestate and the demands of creditors, haye been stated by the *86commissioner of the court, and various questions, both of law and fact, have been brought before the court on exceptions to his report, which I shall proceed to consider, beginning with the exceptions taken on the part of the administrator to the commissioner’s original report.

’ By referring to my memoranda at the margin of the exceptions, it will be seen that the first five have been decided in the Court of Appeals, (2 Hill Ch. R. 644,) superceded by subsequent *orders*of the Court, or abandoned by the counsel.

The 6th exception is, the commissioner improperly allowed a demand exhibited by Owen Selby for $2,128 04£, on a sealed note represented to have been lost or destroyed.

This exception insists that there is not sufficient evidence of the loss of the note, nor of the fact that it was under seal, although it was conceded that the debt was otherwise just.

The only evidence of the loss of the note was the affidavit of Selby, that it had been destroyed by having been washed in his waist-coat pocket, filed with the demand exhibited to the commissioner; and he produced before the commissioner, fragments of a paper apparently mutilated by washing, but nothing remained to distinguish what it had originally been.

This evidence would have been inadmissible at law, but a different rule obtains here — at law the debtor could obtain no security against his subsequent liability on a lost note, especially in the hands of an innocent holder, and therefore strict proof is required. But here the Court will take care that the debtor is secured against all subsequent liability, and when the fact of the debt is clearly ascertained, the oath of the creditor is received as evidence of the loss.-

It appears from the evidence, that this note had been given by the intestate for articles purchased at the sale of the estate of one Hughy, of which Selby was the administrator. One of the witnesses (Cobb) stated that he saw the note in the hands of Selby *after the death of the intestate,*and that no credits were endorsed. It was sealed and contained the words “witness my hand and seal,” written in the same ink with the body of the note. The only suspicion as to the character of the note, arises out of the circumstances stated by Mr. Wardlaw, who was sworn as a witness, that the *87name of the intestate subscribed to the note, was in a different ink from the seal attached. The note was exhibited to him by Selby, when the defendant, the administrator, was present, and he pointed out to Selby this circumstance, and suggested to him a doubt whether it could be established as a specialty debt. Selby explained by saying that the note was prepared at the time of the sale, with the expectation that the intestate would then sign it; but he did not sign until afterwards — thus accounting for the difference in the ink.

The facts stated by the witness, Cobb, that the note contained the words “witness my hand and seal,” is a very strong circumstance to shew that it was originally sealed, and I think the explanation given by Selby, accounts very reasonably for the diversity in the ink. Every one who has any experience, knows that in the bustle and hurry of sales of estates by executors and administrators, especially in country places, there is not time to prepare the notes of the purchasers with proper care, and that blanks are usually prepared before; and that even then, those who live in the neighborhood, and whose credit is unsuspected, are frequently permitted to take the property away, and to give their notes at a subsequent day.

This exception is therefore overruled.

The 7th exception objects that the defendant is improperly charged with two bonds given by Michael Peasterand the intestate, to Patrick Duncan.

It is conceded that the bond was for the proper debt of Peaster, and that intestate joined in it as surety. Peaster has left the State* and went away in insolvent circumstances. The defendant insists* notwithstanding that the obligee is bound to exhaust his remedy against him, before- he can- resort to his intestate’s estate — I think not. The intestate, although in reality a surety to the bond. is i» form and legal effect, as much the principal as Peaster, and if Peas-ter, the obligor, was even now here; the obligee might elect-whom he would sue, if, as I suppose, the bond' is joint and several — certainly he is under no obligation to- pursue Peaster.

This exception is also- overruled.

The 8th exception opposes the bar of the- statute- of limitations-to various demands, amounting to a large sum,, exhibited in-behalf *88of Nicliolson & Duncan against the intestate. The specifications under this exception, designated as classes Nos. 1, 2, and 4, fall, I conceive, within the same general principle, and for that reason will be considered together. About the facts, there is, I believe, no diversity of opinion. Nicholson & Duncan, who resided in Charleston, had demands against a number of persons in this district, by bonds, and perhaps other securities in various amounts, and constituted the intestate their agent to collect and receive *these*demands. The evidence of their demands against the intestate, consists in receipts for money due to them commencing in 1826, and continuing down to the time of his death in 1831. It does not appear' on what terms the intestate originally undertook this agency; but in 1828, he entered into a written agreement, by which it was stipulated, that he should not receive any thing for his services, and that Nicholson & Duncan should not charge him any interest on the funds accumulated in his hands, provided he made them semi-annual returns in the months of January and June, of the sums collected by him. Nicholson & Duncan exhibited a book kept by themselves, which purports to contain the intestate’s semi-annual returns of the money received by him, and the money paid them, and the evidence now produced, shews that the intestate received other sums to a large amount not charged in these accounts. It is conceded that the statute would not operate as a bar to these demands, if it did notbegin to run until after the death of the intestate, and the question is, whether it could operate before that time.

I think not. The statute will not run against a *demand*arising out of a technical continuing trust, until after the termination of the trust, and I cannot conceive of any case that would afford a better example of such a trust than the present. Nicholson and Duncan confided to the intestate the receiving of the monies due to them, for their use, and this imposed on him the obligation to account with, and pay to them, the amount received, and until he had performed this obligation, the trust necessarily continued.

There is another view of this matter which is equally, if not more conclusive. The statute will not run against a demand arising out of a fraud until the fraud is discovered. Now, the question propounded supposes, that the intestate received monies for which he *89did not account, and whether he neglected to do so from design, from negligence, or inadvertence, it is equally a fraud on Nicholson and Duncan. They depended on him alono for an account of the monies which he had received; they had no other means of obtaining information on the subject, and it would be as reasonable that the statute should begin to run before a cause of action arose, as that it should operate to bar a party who had no means of knowing that he had a right of action. So much of this exception as relates to the specifications above stated, must therefore be overruled.

The 3rd specification under this exception presents another question arising out of the statute of limitations.

The intestate was indebted to Nicholson on two promissory notes, both of which are barred by the statute, if timo is to be calculated from the time they came to maturity; but they are both credited of the same day each, with the sum of #1000; and if time is to be calculated from that time, then they are not barred. The credits are in the hand writing of Nicholson, and there is no other evidence of a payment or promise made by the intestate, and the question is, whether this is sufficient to take the case out of the statute.

•Formerly, very slight circumstances were held sufficient to take a cause out of the statute, but latterly, and as I think, in more strict accordance with the spirit of the statute, stronger' proof of a re-assumption of the debt has been held necessary; and although a payment of even a small part of the demand always has been held sufficient, I am not aware of any case in which a credit entered by the creditor, has of itself been held sufficient evidence of the payment. The only circumstance in aid of it here, is, that the credits equal about one-third part of the principal debt, and it is argued that a creditor would not willingly sacrifice so much. But if the rule be once established, that a creditor may prevent the bar of the statute by a credit endorsed for a portion of his demand, we shall never again hear of the plea of the statute to simple contract debts. Such a principle would, in effect, enable a party to fabricate evidence for himself in opposition to the spirit and policy of our whole *90system of jurisprudence. So much of this exception as is embraced by this specification must therefore be sustained.

The 9th, 10th and 11th exceptions, involve the liability of the intestate for interest on monies received by him for Nicholson & Duncan, and not paid over. And it is insisted, 1st. That he is not liable for any interest; 2d. If he was liable at all, he is not accountable for interest received before the date of the written agreement of 1828, until the 1st January 1829, when, by the terms of that agreement, he was bound to make his first return. If otherwise, he is entitled to commissions on the money so received.

Under any possible construction of the agreement, it imposed on the intestate the obligation, not only to return an account of the money received, but to pay Nicholson & Duncan the full amount of all that he had on his hands at the times specified; and I take it to be an universal rule that where there is an undertaking to pay money at a given day, if not paid, it will carry interest. The circumstance that the sum is not ascertained by the agreement, can not, I think, vary the case, especially when as in this case, the party bound had it in his power, and was especially charged to ascertain the amount. Besides, the agreement itself very clearly imports that it was the understanding of the parties, that the intestate was to pay interest on the balances in his hands. It provides expressly that he is not to pay interest if he makes semi-annual returns; which provision is useless if he was not bound for interest at all. It is not known whether there was any, or what agreement between the parties when the agency of the intestate commenced, nor indeed until the written agreement of 1828. That agreement is altogether in the prospective, and can not, by any construction, be made to apply to the preceding transactions. We are therefore led to conclude that there was no special agreement covering the transactions. That the intestate had undertaken to collect the money duo to Nicholson & Duncan, and to pay it over to them, is clearly established. He was, therefore, only bound to- pay on demand, and until demand no interest accrued. There is no proof of any positive demand; but the witness, Barker, proves that intestate, from time to time, rendered accounts of the money received *91by *him, from which a demand must he inferred.*He must therefore pay interest on the balances in his hands unaccounted for, from the time these accounts were respectively rendered.

There is no evidence of any agreement that the intestate was to receive commissions, or • any other compensation for his agency, nor was he a public agent or -officer. The undertaking was therefore voluntary, and he is not entitled to compensation for his services.

The 12th exception is founded on a misconception of the facts. Tench was the general agent of the intestate, and especially .authorized by him to receive money due to Nicholson & Duncan.

The 13th exception insists that all the demands of Nicholson & Duncan were improperly allowed.

The facts relied on in support of this proposition, are: 1st. That Nicholson repeatedly declared, after the death of the intestate, that he was indebted to him only in a small amount; 2d. That the notes referred to under the 8th exception, which were given after .the agency commenced, is evidence of a final settlement up to their respective dates; 3d. That the accounts current exhibited by Nicholson, shew that the intestate rendered semi-annual accounts, and. these are conclusive evidencex)f a final settlement; 4th. That there is no evidence of any agency prior to the written agreement of 1828; and therefore, the intestate was not liable to account beyond, that time.

Generally, an account stated, or a promissory note, is *p-iima, facie*evidence of a final settlement of all accounts between the parties; and certainly the declaration of apartv, that but a small balance is due him when he claims a very large amount, is a very strong circumstance against him, but none of these are conclusive. He may shew that the account stated, or the promissory note related to other matters than the subject matter in controversy, or that they even made an error as to the true state of the accounts, or that his declarations were made in ignorance of the true state of the accounts, or that the settlement was obtained by fraud, and that he was entirely misled as to the amount of the balance due.

It is scarcely .necessary to state here what was the .true state of this case. The intestate was the agent of Nicholson .& Duncan *92to receive monies for them, and was bound to render them semiannual accounts. They could not bo expected to know how much money he had received. The accounts rendered by himself were the only evidence they could obtain of the amount. The accounts stated could only, therefore, have been made up from the materials furnished by him; and so of the balances for which the notes were given. His own accounts must have furnished the data to ascertain the amount, and the declarations of Nicholson, as to the balance due, must have been made on the same foundation. This is not all — the defendant, the administrator, has exhibited an account current between the parties, in which the intestate has credited himself with the amount of one of these notes, as the balance due by him on the settlement of the accounts of that year, and the evidence abundantly shows that he had not therein charged himself with the monies received — tending irresistibly, I think, to the conclusion that Nicholson had confided entirely to his representations as to the state of the accounts; and when it is recollected that the defendant has produced no evidence whatever of any payment made by his iutostato, the circumstances relied on in support of this exception, are, I think, fully rebutted. The agency of the intestate before the agreement of 1S28, and indeed much farther back than this account runs, is most satisfactorily and conclusively established.

This exception is therefore overruled.

14th Exception. Specification No. 36. W. Russell’s account for tuition. The terms of tuition were ten dollars per scholar for the higher branches, and eight for the lower. Intestate subscribed ten scholars and sent but two. The commissioner 1ms allowed $100, although it did not appear in what branches the scholars were taught. It was incumbent on this creditor to shew that he was entitled to the higher price. Twenty dollars must, therefore, bo deducted from this account.

Specification No. 39. Wm. Ruff’s account for services as clerk. The proof that Ruff was employed by the intestate as a clerk, and that his services were worth *$12 50*monthly, was very satisfacto-tory; but there was uo proof whatever of the time, and we are *93not at liberty to conjecture. This account can not, therefore, be allowed.

Specification No. 48. Dr. Vance’s medical account. Objected that the account does not contain the necessary specifications.— The account rendered is generally for medicine and attendance; but the commissioner states that in the absence of the solicitors, Dr. Vance submitted to him his original entries, and he therefore allowed it. This was irregular; they ought to have had an opportunity of a cross examination. He ought not, however, to be deprived of his demand by the error of the commissioner, and if the defendant desires it, the commissioner will open the report on this claim for further examination, otherwise it must be allowed.

Specifications No’s. 171, 173, 183, 184, 181, 174, 175, were abandoned by the counsel.

Specification No. 182. Rent paid by Janett M'Crea, to intestate, for Patrick Duncan.

Henry Ruff proved that he paid intestate $18, on account of - rent due by Jenett M‘Crea, to Patrick Duncan, and it is objected that he was an incompetent witness, as it went to discharge himself. It is not perceived in what his interest consisted. If he stood in the relation of agent merely, his evidence was admissible from necessity. Overruled.

Specification No. 191. Joseph Eakin proved that he paid to the intestate a sum of money, which he owed to Nicholson, and that the intestate tore his name off the bond and gave a receipt for the money, which is now lost, and it is objected that the charge was improperly allowed, because Eakin was an incompetent witness.

The general test by which to determine whether a witness is, or is not incompetent, are, 1st. whether immediate gain or loss would result to the witness from the judgment; and 2nd. whether the judgment would be evidence for or against him in a subsequent suit.

There are other tests, but they strike me as mere amplifications of these. See Starkie Ev. 1st. American from a new London edition, 87-105.

This case certainly does not fall within the first. The witness can not gain or lose immediately by the result of this suit. He *94could only be liable on an action at tbe suit of Nicholson on the bond. Would the recovery in this case be evidence for him in that suit! I think not. That would prove that Nicholson had recovered the amount from the defendant, but not that Ealdn had paid it. Suppose after that recovery, Nicholson had discovered that the money had not, in fact, been paid to the intestate, and was disposed to refund it, would it comport with justice that Eakin should be exempted1? Yet that must be the effect if the recovery is evidence, for if admissible at all, it is conclusive. Overruled.

Specification No. 196. A negro sold for Thomas Cobb. The proof is abundant that intestate purchased a negro from Cobb, and was to credit his bond to Duncan with the value. Overruled.

The other specifications under this exception were abandoned.

The intestate had drawn sundry bills of exchange on the house of R. Martin & Co. of Charleston, and other bills of exchange were drawn on the same house by the firm of Holmes & Gray of Augusta, of which the intestate was a partner. The firm of Holmes & Gray became insolvent and dissolved, and Holmes is also insolvent; and the question submitted is, whether Martin *Sc*Co. are entitled to prove the balance of their demand, including the bills drawn by Holmes & Gray, against the estate of the intestate.

The general rale of equity is, that the property of a partnership is liable primarily to partnership debts, and the separate property of the partners, for their several debts; but this is founded in the equitable rights of the partners, and not on the rights of creditors, -either as between themselves, or between themselves and the partners, for whether they are separate or joint debts, the partners are equally liable to the creditors; but as between the parties themselves the very nature of the contract of partnership implies that the separate property of the partners shall not be taken for the partnership purposes — that the partnership shall pay its own debts, and not subject the individual partners to that liability. It is obvious then, that the rule does not apply, when the partnership, as in this case, is utterly insolvent. The case of Bum v. Burn, (3 Ves. 573,) strikes me as being directly to the point. There the bond of an insolvent partnership was allowed to *95be set up as a specialty debt, against the estate of a deceased partner. In Exparte Elton, (3 Ves. 238,) the creditor of a partnership was permitted to prove a demand under a commission of bankruptcy against one-of the partners, but not receive a dividend until an account was taken, and the amount he might receive from the partnership funds were first ascertained; evidently proceeding on the principle, that if the partnership fund proved insufficient, he was entitled to participate with the separate creditors of the bankrupt.

This conclusion supercedes entirely the necessity of considering the question, whether Martin, one of the firm of Martin & Co. was a competent witness, for the demand consisted entirely of bills of exchange which were proved by other witnesses.

This exception is therefore overruled.

4th Exception, No. 195. Receipt from intestate to Bart. Jordan, for a note on John White & al. for $21 81^.

In this receipt the intestate undertakes to credit Jordan with the amount of this note, on a note given by Jordan to himself. No note of this sort is found amongst the papers of the intestate, and the presumption is, that the demand was credited according to the terms of the receipt. This demand ought not to be allowed.

No. 6. William Eppe’s account.

The note was *prima facie*evidence of the settlement of all accounts between the parties, and all of this demand must be excluded, but the noto and the account for rent which subsequently accrued.

No. 32 and 166. G-eo. Lomax’s demands.

This claimant presented four demands against the intestate, two of which were allowed, and two rejected by the commissioner; both parties have excepted to the report. The defendant, because the two were allowed, and Lomax, because the two were rejected. The exceptions of Lomax will be found under the second exception, filed by his solicitor, Mr. Burt. -

The circumstances are as follows:

1st. No. 32 — Is a receipt from intestate to Lomax, dated 2d Feb. 1828, by which he acknowledges to have received two notes, each for the sum of $450, drawn by John Marshall and himself, *96anti payable to Lomax, as administrator of Arnold, and for which he promises to account. These notes are both dated 2d February, 1828: one payable 1st Jan. 1829, and the other payable 1st Jan. 1830. On the back of one of these notes a credit is endorsed under date of 18th March, 1829, in the hand writing of intestate for #418 60. At the foot of the other note is the following — “19th March, 1829, #400, cash,” — hand writing unknown: on the back of this note are some calculations in figures, and the following memorandum in an unknown hand — “gave note for balance, *$58 72.”*These notes were obtained from Marshall, who was the real debt- or, for the purpose of being given in evidence, the names of the makers having been obliterated.

2d. No. 144. An order drawn by intestate, in which he requests Lomax to credit M'Cluskey with #150 on his note; this is dated 1st Jan. 1830; and it was proved that Lomax did credit him with the amount on a note due to him.

3d. No. 165. An account in the hand writing, and signed by the intestate, under date 1st Feb. 1830, in which he charges himself with three bales of cotton, bought of Lomax, and undertakes to account with him for the amount.

4th. No. 166. A receipt signed by Tench, as the agent of the intestate, dated 24th June, 1829, by which he acknowledges to have received of P. D. Klugh, #67 18f, for which he was to have credit on his note to Lomax.

This money was paid by Klugh to the intestate by the order of Lomax, and upon his presenting the receipt to Lomax, he credited his note with the amount.

I do not understand that the liability of the intestate for these demands, is questioned; but it is insisted in the defence that ho had accounted for them in his life time. In proof of this, a receipt is exhibited from the intestate to Lomax, as administrator of Arnold, dated 21st Jan. 1829, for $40, on account of a *ji. fa.*in the casé of Duncan v. Arnold; also another receipt from the same, on the same account, dated 6th Feb. 1829, for $788 61, and also a third receipt from the intestate to Lomax for $344 22, for which he was to have credit on his bond to Duncan. This is dated *6th*March, 1830. The intestate and Lomax lived in the. same neigh*97borhood, and were on terms of great intimacy, hut it does not appear that either Lomax, or his intestate, Arnold, was indebted to the intestate personally.

In reviewing these circumstances, it will be perceived that the intestate was authorized to receive from Lomax, as the administrator of Arnold, the amount of Duncan’s *fi. fa.*against him, and that he was also entitled to receive from Lomax, the amount of his personal debt to Duncan. This, in itself, would furnish a motive to place in the hands of the intestate the means of raising funds to pay these demands, and it is difficult to conceive what other motive could have induced Lomax to place Marshall’s notes in his hands, or to accept his orders in favor of M'Clusky & Klugh. But the strongest, and, as I. think, a very conclusive circumstance in the defence is, the receipt from the intestate to Lomax, of the 6th March, 1830, for $344 *22,*on account of his bond to Duncan. The circumstances show, I think, very decidedly, that the intestate had before received the whole amount due on Marshall’s notes — it is subsequent in point of time to the account for the cotton, and to the orders drawn in favor of Klugh & M'Cluskey, and although that receipt imports that the amount is paid in money, it is not probable that Lomax would have paid money to the intestate, when he had in his own hands at the time, a large amount to which he was entitled, and I think that no part of this demand ought to have been allowed.

The exception of the defendant is therefore sustained, and that on the part of Lomax necessarily overruled.

6th Exception. Demand of M. A. Peaster.

Intestate conveyed to Peaster a tract of land, for which it is conceded he had no title. Peaster had, I think, a right to prove his demand for the purchase money and interest.

This exception is overruled.

*Exceptions by Creditors.*— James Jervey, the executor of Nicholson, who has died pending the suit, also excepts to the report.

1st Exception: That the commissioner has neglected to report on the claims for money received from William Thomas, and on *98account of the sales of Joseph Conn’s land. These matters are ordered back to the commissioner for a report.

3d Exception: A. Lghts’ claim — Patrick Duncan sold or conveyed to one "White, a tract of land, and took a mortgage to secure the payment of the purchase money, and the intestate, as the agent of Duncan, some time after undertook to convey the same lands to Lights, probably with the consent of White, but there was no conveyance from White, nor was his mortgage to Duncan cancell-ed or satisfied.

I cannot distinguish this from the case of Peaster, before noticed. The title to the land is clearly in White, and is bound by his mortgage to Duncan. This claim ought, therefore, to have been allowed to Lights.

This exception also objects, that the commissioner rejected a claim, in behalf of Nicholson for $107 62¿> received by intestate, from John Keller, on account of Duncan.

The evidence is, that the intestate, as the agent of Duncan, purchased a tract of land sold under execution, as the property of one Joseph Conn, at the suit of Duncan, and afterwards sold and conveyed the same land to Keller, for the sum *above stated.*

If, as the case supposes, (and the evidence leaves no doubt about it,) the intestate purchased as the agent of Duncan, he must account for the sales. Sustained.

The third exception relates to interest on Nicholson’s demands, and has been disposed of under the defendant’s 9th, 10th, and 11th exceptions.

4th Exception: The commissioner has rejected all the demands presented and proved by James Nichilson and his executor, after the first Monday of March 1836, &c.

June 18, 1834, Chancellor Johnston made a decretal order, “that the commissioner do give two months notice by insertion in such public paper or papers, as he may deem proper for all the creditors of Henry Gray, at the time of his death, whose demands shall not have been fully and properly paid by his administrators, to come in before the commissioner and prove their demands; and that such of them as shall not come in and prove their demands, on or before a peremptory day, to be fixed by the commissioner, *99shall be excluded from the benefit of this decree,” and. that the creditors should be enjoined, &c. In February or March 1835, the commissioner advertised in some of the public gazettes, that creditors should come in and prove their demands on or before the first Monday of May succeeding, and that if they failed to come in and prove their demands before the first Monday in June 1835, they should be excluded from the benefit of the decree. At June term 1835, Mr. Nicholson submitted an affidavit, that he had seen this notice of the commissioner for the first time, in March — that illness unfitted him for any business, from May to Christmas 1834, and that for some time afterwards his great age and infirmities prevented him from travelling in the very inclement season suc-ceding Christmas; that as soon as he was able he set out, and reached Abbeville in April 1835, and from that time until 19th May 1835, was laboriously engaged in the prosecution of his claims; that his claims consisted of very numerous sums of money, which Henry Gray, as his agent, had collected from a multitude of individuals in this district and elsewhere, and for a long series of years, and of which he (Mr. N.)_had no knowledge but such as he could get from the voluntary information of such persons as had paid to H. Gray; that many of these persons had removed from the State, and that he could only procure their testimony by commission; and that from these and other circumstances, he had not been able to preve his demands within the time limited; and that he was under a necessity, which had just become known to him, to proceed to England to attend to business of great importance, in the Court of Chancery there. Upon this affidavit Chancellor De Saussure, on the 19th of June 1835, extended the time within which creditors might come in and prove their demands, on pain of exclusion from the benefit of the decree until the first- Monday of March, 1836. On the 15th of June, 1836, Mr. Nicholson submitted an affidavit to the commissioner, reiterating the substance in his other affidavit, of the nature of his demands, and further stating that H. Gray had had semi-annual settlements with him, which deponent had supposed to be full, until he discovered by receipts found in the hands of numerous individuals, that very many and large sums were omitted from these settlements, by the carelessness or *100fraud of said Gray; that said Gray so far as could be discovered kept no books, or full written statements, of his receipt of monies, or other transactions of his agency for deponent, although he left some loose memoranda of little service, and that deponent could only prove his demands, by adducing Gray’s receipts as he might find them in the hands of numerous individuals; that deponent could make additional proof of the account of Robert Martin & Co. of Gray’s agency, and of other facts suppletory to the establishment of his demands, &c. — that deponent was necessarily absent from the United States from 1st of June to Christmas 1835; and that severity of weather prevented him, in his state of age and infirmity, from attending to his business here until some time in Feb. 1836. Upon this affidavit the commissioner, on 15th June, 1836, passed an order that “Mr. Nicholson have further time to consider of said report,” (the report of the commissioner on the demands against the estate of H. Gray,) “and to procure further proofs of his demands already presented before the 2d Monday in October next.” On the' same day, 15th of June, 1836, Chancellor Johnston overruled an appeal from this order of the commissioner, and “ordered that James Nicholson do, before the 1st Monday of October next, present to the commissioner a full and connected statement *of all Ids demands,*verified by affidavit, that they are just, and that all proper payments and discounts have been allowed, stating sums, names, dates and all particulars as to each item, accompanied by all original papers, which form any part of his evidence, and by all his books and papers, having any connexion with the settlements made between him and Henry Gray, and by such books and papers of other persons connected with his proof, as he can procuro, or when these books and papers cannot be procured, by distinct reference to them, with statement of pages and other particulars, and where they may be found; and that the foregoing statement with its accompaniments be kept by the commissioner, until the case be decided, open to the inspection of all persons concerned,” and “that all creditors whose demands are contested have leave to offer *suppletory proof*until the 1st Monday of October next,” and “that Micajah H. Peaster, have leave to pre*101sent and establish his demand,” never before presented, “for breach of warranty under the extended rule,” &c.

Mr-. Nicholson died in September, 1836, and after his death, namely, 29th of September, 1836, a connected statement of his demands, not complete in all respects as to dates, affidavit, &c. but containing all the claims his executor now seeks to set up, was filed in. the commissioner’s office. On the 13th of March 1837, James Jervey, executor of Mr. Nicholson, made affidavit “that he had examined the schedule which had been deposited in the office of the commissioner in equity, for Abbeville district, and as far as his knowledge extends, he believes the same correct, and that this deponent understood, and verily believes that the said James . Nicholson was industriously engaged in collecting and arranging his proofs in support of his claims, against the estate of Henry Gray, when he was suddenly taken ill and died,” &c. Upon hearing this affidavit, Chancellor Johnston, on the 14th March, 1837, “ordered that the commissioner in equity, for Abbeville district, do receive testimony in support of the claims submitted by the said James Nicholson, against the estate of Henry Gray, in the case of James Wardlaw, for himself and other creditors v. the administrators and heirs of Henry Gray, until the 1st day of May next, notice being given to the solicitors representing the other interests in the said case,” and “Mr. Nicholson’s executor being bound to come to trial at the next term,” &c. The notice required in this order was given to the solicitors before the suppletory proofs were ordered.

Without going further back than the order of the court of the 15th June, 1836, there can, I think, be no question, that Nicholson had under that order, the right to file other accounts than those which he had before presented, and to offer evidence in support of them until the 1st October following. The terms are, that lie shall present to the commissioner a full and connected statement of *“dll his demands*verified by affidavit,” &c. Nicholson died before the time limited by the terms of this order, and it could not be expected that his executor could come in prepared to do all that this order required. I doubt, indeed, whether he could have been regularly made a party, or his rights concluded without *102a bill of revivor. In any view of it, I think, no laches can be imputed to him. I am, therefore, of opinion that these accounts were improperly rejected. The other parties, acting under the impression that these demands were concluded by the terms of the order and on that account, neglecting to attend the reference, ought not to be concluded by the evidence then taken. The commissioner will therefore open any or all the demands, which fall within this class, that may be required by the defendant or any of the creditors, and take the evidence *de novo*and report thereon.

5th Exception: Fred. Gray’s demand on a lost note.

Gray’s affidavit of the loss of the note was of itself sufficient evidence of that fact, but not of the existence, or contents of the note; as there was no other evidence of this fact, the claim ought not to have been allowed. Exception sustained.

6th Exception: M. Peaster and the intestate were jointly bound to Duncan in two bonds for the debt of Peaster. Peaster made several payments on these bonds to the intestate as agent of Duncan, and the question is, whether these payments are to be charged against the estate as specialty or simple contract debts. The bonds were discharged by these payments *pro tanto*as effectually as if they had been to Duncan, and they are only entitled to be charged as simple contract debts. That, I understand, is the rule adopted by the commissioner. Overruled.

7th Exception: Claim of Nicholson for $788 61 received by intestate in the case of Duncan v. Arnold.

The proof of this claim is, I think, as conclusive as any other; but I think it was stated at the bar, that this was amongst the claims which were not presented within the time prescribed by the order of the Court; if it is, it must fall within the rule laid down on that subject.

8th Exception: As to the costs of suit at law.

The commissioner must take an account of these costs, but the payments must be postponed until all other demands of every other grade are paid: Hutchison v. Bates, (1 Bailey, 111.)

An exception is taken in behalf of John D. Adams, because the commissioner rejected a receipt from the intestate as the agent of Duncan, for *$760.*The receipt, it is admitted, was signed by the *103intestate, but it is apparent on the inspection that most of the words in the body of the receipt have been retraced with a different ink from that in which it was originally written, and my own impression is, that the original sum expressed had been erased, and a different one inserted — no explanation whatever is given of these suspicious circumstances, and the rule of law is too clear to admit of a doubt, that the receipt is not evidence of the payment of the debt. The claim was therefore properly rejected.

The solicitor on the part of Adams, prayed an issue at law to try the fact of the alteration, and I would willingly have ordered it, if there had been any doubtful matter of fact, but a dozen verdicts would not satisfy any one of the absence of a fact which is obvious to the senses; nor restore the original writing of the receipt.

Samuel Roseman excepts to the report, because the commissioner refused to allow a demand in his behalf for four bales of cotton.

Roseman delivered to intestate four bales of cotton, in October 1829, to be sold and the proceeds applied to the paymeut of Rose-man’s bond to Duncan. The intestate insured and shipped the cotton from Hamburg to Charleston, and it was lost in the passage. He paid for other cotton shipped by the same boat and under the same circumstances, and admitted his liability to pay Roseman for his. On the 1st March, 1 8 — , he gave Roseman a receipt for #120, on account of his bond to Duncan. The question is, whether the value of the cotton was included in this receipt.

This is very like the case of Geo. Lomax, before noticed, and must be governed by it; besides, the amount corresponds very nearly with the value at which the cotton was estimated. Overruled.

It is ordered and decreed the commissioner do reform and correct his report according to the principles of this decree, and that Owen Selby do enter into bond with ample security, to be approved by the commissioner, in double the amount claimed to be due him, on the note represented to have been lost, to indemnify the defendant against all liability on account of the said note, and that in default thereof he shall not be entitled to receive any part of the said demand.

*104From this decree, the administrators appealed on the following grounds:

The administrators, contesting the demand of any creditor, for the benefit of the heirs and of every other creditor, and expecting the co-operation of all whose interests they are sustaining, appeal from the decree; .and maintaining here most of their own exceptions, which were not abandoned by them on the circuit, and opposing the exceptions of Jas. Jervy, executor of Nicholson, and the exceptions of other creditors, they make the following objections to the decree:

1st! Owen Selby’s demand. The proof of the loss was insufficient — especially when the circumstances of suspicion are considered.

2nd. The statute of limitations applicable to Nicholson’s demands. The relation between Nicholson and H. Gray did not constitute a *technical continuing trust.*

*"The fraud*was only, a failure to pay money when it was due, and cannot arrest the statute.

The accounting next subsequent to the receipt of any particular sum was tantamount to a *demand,*and from that *time the*statute began to run.

3rd. Interest on Nicholson’s demands. Before the written agreement, there could be no obligation to pay interest without proof of a promise to pay at a particular day, or of a demand.

The agreement could not raise the obligation to pay interest, if it did not also give the benefit of the statute of limitations.

4th. Commissions. Before the agreement, a right to a reasonable compensation for H. Gray’s services, as for all labor, will *be*implied, where there is no proof of an intention to render them gratuitously.

5th. All Nicholson & Duncan’s demands. The facts and circumstances proved, create the fair presumption that they were all adjusted in the lifetime of the intestate.

6th. Joseph Eakin’s testimony. He was an incompetent witness to charge H. Gray’s estate, by discharging himself from paying for the land now in his possession, as to which his claim for titles will depend upon the event of this demand.

*105"7tli. Bills of exchange drawn by Holmes & Gray. The joint creditors have no right to come upon the separate estate until the separate creditors shall have been first Satisfied.

The surviving partner should have been first pursued to insolvency.

8th* A Lites* claim. The moftgage of White to Duncan was not produced within the time limited by the order of the Court; it is therefore extinguished, and Lites’ title good.

9th. *$107*63, received by H. Gray, from John Keller. H. Gray did not purchase the land as agent of Duncan.

10th. New demands presented by Nicholson, The order of 15th June, 1836, and all subsequent orders prior to this decree, by *“all Ms demands”*mean all the demands presented by Nicholson, according to the order of June 1835, which had alone been noticed by the commissioner, as brought to the view of the Court; and any indulgence now, beyond what was contemplated by Chancellor Johnston, in June 1836, would seriously injure all other parties, who, since 1835, have been delayed only by Mr. Nicholson, and would now give to his executor great favors and advantages, which Mr. Nicholson would not have even hinted at in 1835 or 1836, and the very beginning of which was positively refused by Chancellor Johnston in 1836.

*Wardlaw Sf Perrin,*for administrators.

James Jervey, executor of John Nicholson, makes the following objections to the decree:

1. As to the bar of the statute of limitations, as to two promissory notes due to Nicholson.

The circumstance, that there were mutual running accounts between Nicholson & Gray, many of the items of which have accrued within the time of the statute, amounts to an acknowledgment of the notes, and a promise to pay them.

The credits endorsed on the notes, in the life time of the intestate, take the notes out of the bar of the statute.

As the notes were given for balances due to Nicholson by Gray, as his agent, and the relation of agency continued until the death of *106Gray, the notes were part of a trust, not within the bar of the statute.

2. As to opening the proof of the new demands presented by Nicholson.

The solicitor of the other parties had notice that the executor of Nicholson was talcing these proofs, and their mistake of the rights of their clients should not subject the executor of Nicholson to the expense and trouble, and probable loss of taking the evidence *de novo.*

If the proofs be opened at all, they should be opened generally.

3. As to the payments to Gray on the bond of Peaster & Gray.

Gray was bound to Nicholson by specialty, and having never accounted for the payments made to him by his principal, Peaster, nor endorsed them on the bond, he continued to be liable for the whole amount of the specialty.

*F. H. Wardlaw,*for executor of Nicholson.

In addition to the facts mentioned in the decree, the executor of Nicholson brings to the notice of the Court of Appeals, that *the*administrators of Gray have rendered an account against Nicholson, (which has been allowed by the commissioners,) the items of which beginning in 1824, run down to the death of Gray, in April 1831, for monies paid by Gray, on account of Nicholson, to the sheriff, clerk, attorneys, tax-collector, *See.*and for corn, work, merchandize, &c. furnished for Nicholson’s plantation in Abbe-ville.

*Extracts from, the Commissioner’s Report of Evidence.*

No. 43. The demand of Owen Selby, and Joseph Hughey, administrators of John Hughey, deceased.

The demand is for $2210 19, the amount of a note said now to be lost. Owen Selby alleges that Henry Gray gave to himself and Joseph Hughey, as administrators, a note with a seal, for the amount of $2210 19, dated some time in Nov. 1830, due twelve months after date, and that it was given for purchases made by H. Gray, at the sale of the effects of their intestate.

*107Ephraim Davis sworn, says that the sale of the estate of John Hughey took place in November 1830, on a credit of twelve months after day of sale; that Henry Gray attended the sale, and made several purchases. Witness saw the notes prepared by the administrators for the sale. Some of these notes were sealed., some were not. Witness gave a sealed note for *$100,*or thereabouts, for purchases made at the sale.

Thomas Cobb sworn, says, he saw a note in the possession of Owen Selby, and signed by Henry Gray; this was some time after the death of Henry Gray; this note was for upwards of 12100. It was drawn payable to Owen Selby, as administratoi’, and was sealed. There was no credit given on the note at the time witness saw it.

Cross-examined. Says he read the note, it was made payable to Owen Selby and Joseph Hughey, as administrators; that he read it very particularly, and is certain that it contained these words: “Witness my hand and seal.”

This witness was again examined by the claimant, and says that Owen Selby is a man highly respected in his neighborhood? witness says the word “hand and seal” were in the same ink as the rest of the note. The sale bill of the estate of John Hughey was introduced, from which it appears that Henry Gray purchased at the sale $2210 19, worth of property. John Hughey’s sale took place on the.23d of Nov. 1830. At another day, viz: on the 24th Feb. 1836, the administrators offered a receipt, given for $500, and dated 16th Feb. 1832, signed by Owen Selby, and given to John F. Gray, as a set off to the above demand, of which the following is a correct copy:

“Abbeville C. H. 16th Feb. 1832.

“Received of Jno. Ferd. Gray, administrator of Henry Gray, five hundred dollars, in part payment of a note (appearing on its face to be under seal) from Henry Gray, dated 24th Nov. 1830, for twenty-one hundred and twenty-eight dollars 4-J- cents, payable twelve months after date, to Owen Selby and Joseph Hughey, administrators of the estate of John Hughey, or bearer, now in my hands.

*108This five hundred dollars shall be taken and considered as part of the rateable share, to which the above note shall be entitled upon apportionment of the assets.of H. Gray’s estate, if that estate shall prove not wholly solvent; and the question whether the above note is a specialty or not, shall be still open, and I will be bound to refund, if upon apportionment five hundred dollars shall not fall to the share of the said note.

OWEN SELBY.”

D. L. Wardlaw was then sworn, for the administrators. Says he was the attorney of the administrators of H. Gray; advised them to pay off the specialty demands against the estate of Henry Gray; that on the 16th February, 1832, John F. Gray, in company with Owen Selby, came to'his (witness’) office. Owen Selby had in his possession a note signed by Henry Gray for $2128 04J cents, with a seal affixed after the name “Henry Gray,” but the seal was in different ink from the name “Henry Gray.” He (the witness) informed Mr. Selby at that time, that he doubted whether the note was a sealed note; that he believed it was not, and communicated his doubts freely to Mr. Selby. Witness does not recollect whether the words “hand and seal” were in the same ink as the rest of the note, or whether they were in different ink from the seal: witness does not recollect in whose hand writing, whether in Gray’s or not — the body of the note was; does not recollect whether the amount of the note, or the sum, was in the same ink as the balance of it. Mr. Wardlaw says that in reply to his doubts of the correctness of the note, Mr. Selby said he expected to have H. Gray to sign the note at the sale, but Gray did not sign until afterwards. Witness says he did not charge himself particularly with the character of the note, as he expected Mr. Selby would produce it, when he might attempt to make good his demand against the estate of Gray.

No, -191. The demand of Joseph Eakin.

James Nicholson presents a receipt, said to have been given by Henry Gray to Joseph Eakin, but now lost, for $443, date not fixed.

Joseph Eakin sworn, says that he paid to Henry Gray, as the *109agent of P. Duncan, the amount of his (witness’) bond, due Iienry-Gray for land purchased by witness. At the time he paid Henry Gray his bond, Gray tore his (witness’) name off the bond. Witness says he purchased a tract of land from James Nicholson, and gave his bond to Henry Gray for the purchase money. This tract of land contains 978 acres, for which he was to pay $1 per acre for 700 acres, and S7J cents per acre for the balance.

The evidence was objected to on the ground that it goes to discharge the witness from his liability to James Nicholson. This objection was made by the administrators.

At another day, namely, on the 26th April, 1837, the claimant offered additional evidence of his demand. Jos. Eakin sworn, says he paid to Henry Gray, the amount of a bond he had given to Gray, for the purchase of some land sold to him by H. Gray, as the agent of P. Duncan. H, Gray kept the bond after tearing the witness’ name off it, as he said to settle with James Nicholson for the amount of it.

The solicitor for Nicholson gave the administrators of H. Gray notice to produce the original bond given by Joseph Eakin; but the administrators did not produce it.

*Brief of Geo. Lomax’s Demands.*

Geo. Lomax presents four demands:

1. No. 32. The amount of two notes, drawn by John Marshall and Henry Gray, to Geo. Lomax, administrator of John Arnold, each for *$460;*one due 1st Jan. 1829, the other due 1st. Jan. 1830; both dated 2d Feb. 1828; which notes Henry Gray, by his receipt, dated 2d Feb. 1828, acknowledged to hold in his possession, “to be accounted for to Geo. Lomax, as administrator,” with interest, $900. Allowed by the commissioner.

2. No. 144. The amount of an order drawn by Henry Gray, dated 1st Jan. 1830, requesting Geo. Lomax to credit D. H. M'Clnskey’s note with $150, from this date. Rejected by the commissioner.

3. No. 165. The amount of three bales of cotton, weighing 891 at 8-J cents, which H. Gray, by writing, dated 1st Feb. 1830, said *110should “be accounted for with Geo. Lomax,” $75 73. Rejected by the commissioner.

4. No. 166. The amount paid H. Gray, by P. D. Klugh, which, by writing, dated 24th June, 1829, H. Gray said he had received, and for which P. D. Klugh is to have credit on his note, with Geo. Lomax, $67 18f. Allowed by the commissioner.

The hand writing of H. Gray is proved to all the papers.

As to 1st. No. 32. The notes are produced with the names of the makers cut through. On the first is a credit endorsed by H. Gray, acknowledging that 18th March, 1829, he received from John Marshall $418 60. On the inside of 2d, in unknown hand, these words and figures: “19th March, 1824, $400 cash.” On back of 2d these figures:

“450 418 60

31 40 426 87

458 27 — gave note for balance, $58 72,” in unknown hand. Nicholson proves that he got the notes from Marshall, and handed them to Lomax: Marshall in Mississippi: No proof, beyond what appears on the note, to whom he paid. Mr. Nicholson proves that when he received the notes from Marshall they were mutilated as they are now.

As to No. 144. D. Raburn proves that Lomax held anote on M’Clusky, and that Lomax was indebted to Nicholson for himself and as administrator of Arnold — no proof of credit to M’Clusky by Lomax — M’Clusky removed before reference.

As to No. 165. The order is proved by Ellis, and Jesse S. Adams proves that Geo. Lomax gave credit to Ellis for the amount on a note of Ellis’ which he held.

As to No. 166. The order of John H. Tench, as agent of Gray, requesting Lomax to give P. D. Klugh credit, is proved; and it is proved by Klugh, that under authority from Lomax to do so, he paid the amount for Lomax to Gray, and Gray, in his presence, authorized Tench to write the order to Lomax. Lomax gave credit to Klugh accordingly. Klugh gave the order to Lomax.

*111Respecting all Lomax’s demands, there was proof that he owed Duncan or Nicholson, for himself, and as administrator of John Arnold and others, but no proof that he owed any thing to Henry G-ray individually.

The administrators, denying the sufficiency of Lomax’s proof, contend thatH. Gray has, if bound to do so, accounted with Lo-max as follows:

In the case of P. Duncan v. John Arnold, *Jr. fa.-,*Geo. Lomax produced to sheriff, and obtained credit on the execution, H. Gray’s receipt, 21st January, 1829, for *$*40 00

Likewise, H. Gray’s receipt, dated 6th Feb. 1S29, 788 61

$828 61

$[ XXX XX XXXX ], March 6, H. Gray gave to Geo. Lomax a recept for $344 22, “for which he is to have credit on his bond to P. Duncan,”

$1172 83

It was proved that Lomax and Gray were intimate — lived near each other, and had much intercourse.

Johnston, Ch.

With respect to Selby’s claim, this Court does not concur with the Chancellor. The only evidence of the loss of the note was the affidavit of Selby himself, that it had been destroyed by having been washed in his waist-coat pocket. Such affidavit is good to give jurisdiction to this Court. But, there must be proof of loss or destruction from disinterested witnesses, as well in equity as at law, before the contents of the instrument can be established, so as to allow the claim, or ground relief thereon. The first question must be, whether there is a debt, and what is its amount and character. Upon ascertaining this, a decree goes for it, and then to guard the debtor against future liability, indemnity is ordered. This last is only a consequence of establishing the demand. That must be done in the ordinary way. Secondary evidence of the contents of the instrument can only be let in upon proof of the loss or destruction of the best evidence, which is the instrument itself. The importance of the rule is very apparent *112where the inquiry is, as in this case, whether the seal was added to the note after its execution. As the witness, Cobb, did not see the note executed, it might be very true that when he first saw it, it had a seal attached to it; and yet true, also, that the seal was put to it after it was given. It appears that when the note was presented to the administrator, it was challenged; and that when Sel-by afterwards came forward to establish his demand, he did not produce it. He had an interest to establish it as a sealed instrument, in order to obtain a larger proportion of the assets. But, if in fact, the seal was not genuine, he had an interest to keep that out of view. To allow his own oath of loss for proof, would be to receive his own testimony in his own case, in a matter of more or less importance, just in proportion as the face of the note would have furnished evidence of genuineness or fabrication of the seal. This exception is sustained.

With regard to the application of the act of limitations to Nicholson’s demand, generally, this Court concurs with the Chancellor. The case of Lever v. Lever, (1 Hill C. R. 62,) is upon the very point, that the statute cannot run between principal and agent until demand. The circumstances relied on do not show a demand of the monies kept back by the agent.

The Court also concurs with the Chancellor with respect to the two promissory notes due to Nicholson. The indorsement of a credit on them, by him, is, (as proof of acknowledgment by the debtor,) no more than the written declarations of Nicholson himself of such acknowledgment. The act of limitations must prevail. No doubt the trust funds received by Gray were the consideration of the notes; and that the taking of the notes was no discharge of the trust. But it afforded a legal remedy by the express agreement of the parties. In such cases it would seem to be against principle to unravel the transaction merely for the purpose of evading the statute, and giving a remedy to one who had just as good a remedy at law, but neglected to avail himself of it.

Upon the subject of interest; the Court is of opinion that with regard to the sums received by Mr. Gray, prior to the written stipulations between him and Nicholson, the latter is entitled to interest from the accounting by the former next succeeding the *113times of receiving those sums respectively; and that for sums received by Gray after the written stipulations, the computation of iuterest must begin from the time, at which by the stipulations he should have accounted for them. The Court might have gone further, for it appears reasonable that when an agent holds back funds and mixes them with his own, he should pay interest from the time he received them. But this has not been asked.

With respect to commissions, the rule is settled that where not stipulated for, nor secured by statute, they never can be allowed.

Upon that ground of appeal which insists that the facts and circumstances proved, create a fair presumption of full settlement in Mr. Gray’s life time, it would be sufficient to rely on the judgment of the Chancellor, who had better opportunities than we have to estimate the proof. But wo see enough to satisfy us of the correctness of his conclusion on the point.

With regard to the competency of Joseph Eakin, as a witness, the reasoning of the Chancellor, if reasoning were necessary on a point so plain, is entirely satisfactory.

Upon the subject of the bills drawn by Holmes and Gray, the decree must stand. Co-partnership creditors have aright to resort either to the partnership property, or to the separate property of the partners, at their pleasure; the obligation of the partners being joint and several, co-partnership creditors, therefore, have two funds. But the private creditors of a partner cannot go against the partnership funds beyond their debtor’s interest in them, which is for the balance left after payment of the partnership debts. They have but one fund. The principle is familiar, that he who has two funds to resort to, shall be compelled, at the instance of one who can only resort to one of them, to take satisfaction, if it can be obtained, out of the other. But, here, it is admitted the partnership funds are exhausted, and that Holmes is insolvent, so that the partnership creditors’ only resource is the estate of Gray. At law, their remedy is only against the survivor, Holmes. But whenever the deceased has participated in the consideration of the debt, (as all partners do,) if the survivor is insolvent, equity always affords relief.

*114With regard to Lites’ claim, the Chancellor’s decree was correct upon the facts presented to him. If the counsel could have ar- ' gued upon a different state of facts here, the Court would have been willing to reform the decree. As it is, the parties have leave to agree among themselves, or vary the facts upon further reference.

The ground of appeal respecting the sum received from Keller has not been pressed; and the Court see no error in the decree.

With respect to the new demands presented on behalf of Nicholson, this Court thinks that, under the orders made in the case, the circuit court had a discretion left in it to receive them for proof. My own impression is, that they should have been excluded. But we all agree that the order requiring proof *de novo,*of what was proved before, was erroneous. It must stand subject to proof on the other side.

With regard to the bond of Peaster and Gray, the majority of the Court is entirely satisfied with the view presented by the Chancellor. The fact of payment by Peaster to Gray, as agent, does not in the opinion of my brethren (but such is not my own opinion,) affect the case.

An appeal has been taken on Lomax’s demand; but upon careful examination of the evidence, the Court is satisfied with the opinion expressed in the circuit decree.

With respect to the after discovered receipt of Adams, that ground of appeal is sustained.

Let the cause be remanded to the circuit court, and let the circuit decree be modified according to this opinion.