#### Milberry S. Martin, Executrix, *vs.*James B. Campbell.

*Evidence*— Answer—Solicitor—Fee.

.Defendant contended that an agreement had been repudiated, and to prove it offered his own answer in another cause between the same parties *:*— Held, that if defendant could make proof in this collateral way, still the answer did not prove the fact, as the matter was not distinctly alleged.

A solicitor who has an interest in attending to a cause, cannot, it seems, charge for his services, there being no express agreement to pay.

BEFORE DARGAN, CH., AT CHARLESTON, FEBRUARY, 1858.

The decree of his Honor, the Circuit Chancellor, is as follows:

Dargan, Ch. Benjamin F. Hunt many years ago became the purchaser of a plantation on the Pee Dee river, in Georgetown district, called “ Richfield,” and of the negroes *206thereon, for the sum of $120,000; one-sixth of the purchase money was paid in cash, or its equivalent: the rest of the purchase money was payable in five equal annual instal-ments of $20,000 each, secured by bond and mortgage of the plantation and negroes; the bonds all drew interest. Two of these bonds, the subject matter of this suit, came into the hands of William Aiken by assignment, and were his property in his own right, and were negotiated' and assigned by him, as hereinafter stated.

The late Robert Martin, with the’ intent of becoming the purchaser of said bonds from William Aiken, and having engaged James B. Campbell as his agent in the negotiation for the said purchase, on 28th August, 1849, paid to said Campbell the sum of $30,000, the receipt of which the said Campbell acknowledged in the following manner: “Charleston, August 28th, 1849. Received of Robert Martin, Esq., the sum of thirty thousand dollars, in trust, to be paid this day to the Hon. William Aiken, for purchase money of his bonds of Col. B. F. Hunt, and all the securities thereto, consisting of mortgage of Pee Dee plantation and negroes, judgment in Common Pleas for Charleston district, and an order for foreclosure in the same Court, which bonds and securities, with interest to this date, amount to upwards of sixty thousand dollars.” (Signed) “James B. Campbell.”

A few days afterwards, the defendant, James B. Campbell, executed an instrument which he delivered to the plaintiff’s testator, Robert Martin, in which the terms of the contract were very fully and clearly stated as follows: “ Broad street, September 1st, 1849. The assignment of William Aiken to myself, dated this day, of his claims upon Col. B. F. Hunt, consisting of two bonds for $20,000 each, with interest, and a mortgage of Richfield and negroes, with a judgment, and an order of foreclosure in Common Pleas to secure them, which assignment is herewith enclosed, is *in trust for Robert Martin, Esq.,*who furnished the sum of thirty thousand dollars, which I paid to Mr. Aiken as the consideration for *207said assignment. Mr. Martin has my receipt for the money, which will show that this declaration is correct, and he is fully authorised to write over my signature on the margin of said assignment, whatever may be deemed necessary to confirm or establish his right to said claims, bonds and securities. The agreement between Mr. Martin and myself is, that after paying him in full thirty thousand dollars, with interest from the 28th of August, 1849, the balance which may be collected on said claims upon Col. Hunt, is to be equally divided.

*“*I am to contribute my professional services to collect said claims free of charge. (Signed) James B. Campbell. This declaration is made in consequence of the weather preventing me from seeing and settling with Mr. Martin this afternoon.” (Signed) “ J. B. C ”

On the first day of September, 1849, there was a still further declaration on the part of J. B. Campbell, of the terms of the agreement, in an instrument signed by him, and which is as follows:

*“*The State oe South Carolina, *City of Charleston,*

*“*Memorandum of an agreement, made and entered into by and between Robert Martin, Esq., and James B. Campbell. The Hon. William Aiken having this day executed an assignment to James B. Campbell, in trust, of his claims upon B. F. Hunt, Esq., and Robert Martin having on the 2Sth day of August, ultimo, (1849,) advanced the sum of thirty thousand dollars iu cash, being the full amount paid by the said James B. Campbell for said claims, aud the said assignment being in fact in trust for the said Robert Martin alone: Now, be it remembered that the said Robert Martin and James B. Campbell have agreed, and it is hereby agreed between them, as follows:

“ The said James B. Campbell has undertaken the entire management of said claims, aud agrees to prosecute the col*208lection and security of the same, and to devote thereto his best professional services without fee or charge.

“And the said Robert Martin is to take and receive the first money or monies collected thereon, and as fast as the same shall be collected from time to time, until the said sum of thirty thousand dollars, with interest thereon from the *28th*day of August, 1849, shall be paid in full; and then after the said sum, principal and interest shall be paid in full, whatever other or further sums shall be collected, received or paid on said assigned claims, shall be equally divided between the said Robert Martin and the said James B. Campbell, one moiety to each, share and share alike; and in case of the death or other disability of the said James B. Campbell before the final close and completion of his duties under this agreement, then the said Robert Martin shall be at liberty to select and employ such counsel or attorney in the place of the said James B. Campbell, as he shall prefer to complete his said duties, and the costs and fees and reasonable charges consequent thereon, shall be paid and deducted out of and from the share and interest of the said James B. Campbell, under and by virtue of this agreement. Witness our hands and seals, this first day of September, A. D. eighteen hundred and forty-nine.

(Signed) JAMES B. CAMPBELL, [l. s.]

In the presence of Virgil Maxcy.”

The whole principal and interest due on the two bonds of B. F. Hunt, assigned by William Aiken as aforesaid, have been received by Campbell, or are subject to his order; and this bill is filed by Milberry S. Martin, executrix of Robert Martin, deceased, against Campbell, for an account of said moneys so received by him, in pursuance of the agreement which has been recited, and which, so far as they have not been received, are subject to his order, and for general relief.

The only controversy between these parties is, whether in *209respect to the Aiken bonds, the plaintiff^ testator was the owner of said bonds, and Campbell, the agent and trustee, with the right to one moiety of the balance realized after Martin was reimbursed for his advances and interest, or whether Campbell is the owner of the bonds, with only a pledge of the same to Martin, to secure him for the money he had advanced for their purchase. If we accept the defendant’s version of the transaction, *he*is entitled to the whole of the clear profits of the speculation, amounting to $34,000 or $35,000, and Martin is only to be reimbursed for his advances of money and interest. But by the plaintiff’s statement, the defendant is only entitled to one-half of the profits, and Martin to the other half.

If we are governed by the original contract, reduced to writing by the defendant himself, there can be no ground for any difference of opinion. In that view of the case, the plaintiff’s interpretation is the correct one. The language is peculiarly felicitous and significant to express the meaning and intention of the parties. In the receipt for the $30,000,, of the 28th August, 1849, the defendant acknowledges that? he has received that sum, not as a creditor or borrower, bufe *in trust.*In the defendant’s statement of the contract of lstr, September, 1849, he acknowledges that the assignment of the-bonds, and the securities, *is in*“ *trust for Robert Martin,, who furnished the sum of thirty thousand dollars, lohich was paid to ./liken, as the consideration money for the assign*ment.” *He authorizes Martin “to write over his signature,, on the margin of the assignment, whatever may be deemed,*‘ *necessary to confirm and establish his*right’ *to said claims,., bonds and securities.”*“ The agreement between Mr. Martin and myself is, that after paying him in full ‘thirty thous- and dollars, with interest from 2Sth August, 1849,’ the balance which may be collected on said claims upon Col. Hunt, is to be ‘equally divided.’”

“ I am to contribute my professional services to collect said claims free from all charge.”

*210Can anything be plainer? If there be any significancy in language, this means that Martin was to be reimbursed for his outlay of money, with interest on the same, and that he and Campbell were to be partners in equal shares or proportions as to the balance — Campbell contributing his services free of charge. He contributes his services as an equivalent for an equal share of the profits. If the speculation was entirely Campbell’s, and the money advanced by Martin to be only a simple debt from Campbell to him, where was the necessity, or meaning of the provision, that Campbell was to contribute his professional services free of charge for attending to his own business! The same terms and stipulations are iterated in *the memorandum of the*agreement of 1st September, 1849, and the terms of the contract are made so clear and explicit, that the most ingenious sophistry cannot distort them into any other meaning than that which the language imports. In truth, this is so unambiguous, that I suppose it cannot be the intention of the defendant to deny the contract as it originally stood, and as I have construed it; and I suppose him to have meant simply, that the contract was afterwards abandoned or modified, though I am not authorized to say, from anything that occurred in the trial, that this concession was made.

The contract then stood originally as I have stated it. If this be true, it will hardly be disputed that the onus is upon the defendant to prove such modification or abandonment.

I will proceed to consider the only evidence bearing on this question which has been submitted: One of the bonds for $20,000, given by B. F. Hunt to Charles T. Brown, for the Richfield plantation and negroes, had fallen into the hands of the late William Mathews, and was bequeathed by him to his grand-children, namely: Wm. M. Hunt, B. F. Hunt, Jr., and Mrs. Mootry, together with the mortgage and other securities. John H. Tucker also held sundry bonds of B. F. Hunt, Sr., secured by a mortgage of Richfield and the negroes thereon, which he claimed to have an equal *lien*with *211that of the Mathews and Aiken bonds. On the 16th of February, lS52,a Tucker filed a bill against B. F. Hunt, to foreclose his mortgage on Richfield and negroes, and with the view of having the rights of all the parties who claimed to have *liens*upon this property adjudicated, he made the aforesaid legatees of Mathews parties defendants. He also made parties defendants to the bill, James B. Campbell and Robert Martin, as assignees of the Aiken bonds. Among other things, the plaintiff, Tucker, sought from Campbell and Martin a discovery, “ whether the transfer of the Aiken bonds was for his (Aiken’s) own use or that of Robert Martin, or any other and what person, or for both, and for any other and what use or uses, and what were the terms thereof.” Martin, in his answer responding to this part of Tucker’s bill, says, “that some time in the summer, A. D. 1849, James B. Campbell, one of his codefendants, being engaged in a negotiation with the Hon. William Aiken, for the purchase of certain bonds of Benjamin F. Hunt, secured by the mortgage of a plantation called Richfield, with the negro slaves thereon, applied to him to know if in case he should make such purchase, whether he (the defendant, Martin,) would advance and loan him a large sum of money to aid him in said purchase; to which this defendant assented, first informing Mr. Aiken of his intention to aid Mr. Campbell in case he should sell said bonds and mortgage to him. This defendant had previously known of said bonds and mortgage by reason of his confidential relations with Mr. Aiken, and had formed some opinion of their value, which, together with his reliance upon the confident opinion of Mr. Campbell, induced him to believe them to be ample security for the amount of the loan Mr. Campbell desired. Accordingly, on the 1st of September, A. D. 1S49, this defendant advanced and loaned to Mr. Campbell a large amount of money, which was paid by Mr. *212Campbell to Mr. Aiken, and his purchase completed ; very-soon thereafter, Mr. Campbell deposited with this defendant the assignment by William Aiken of said bonds and mortgage for the said loan. Subsequently, and since that time, this defendant and Mr. Campbell have had sundry understandings and agreements about the loan and the said bonds and mortgage ; all of which have been entirely satisfactory to both parties, and are of no interest or concern to the plaintiff.” This is the language of Martin in his answer to the bill of John H. Tucker vs. B. F. Hunt and others. I speak in the strictest conformity with the facts when I say, that this is the only evidence that tends to show that the contract, as expressed in the instruments which I have recited, was in any respect modified or changed, from, what it was expressed to be in those instruments. While *there*it is represented in the plainest language, that the assignment of the bonds and the securities was for Martin’s benefit; that the assignment to Campbell was in trust for Martin ; that the first money realized from Hunt’s bond was to be paid to Martin, in reimbursement for the sum that he had advanced in the purchase; that the clear balance was to be equally divided between Martin and Campbell, and that Campbell was to contribute his professional services free of charge : it is represented in this answer, (Martin himself speaking,) that the $130,000 was a loan to Campbell, and Campbell a debtor to Martin for the same; that *the*assignment was to Campbell for his own benefit, and that Martin had no other interest in the assignment by Aiken, and the deposit of the same with Martin, except that it was to be considered as a pledge for payment of the $30,000 due by Campbell to him.

There is a discrepancy certainly, and an incompatibility between the statement in Martin’s answer, and the only possible construction of the terms of the contract as given in the instruments which have been recited. The conflict cannot be reconciled. It only remains for us to enquire, what was *213the contract, and whether in fact it was afterwards modified or changed.

In the first place, it would be difficult to assign a rational motive to Martin for vesting $30,000 of *his cash in hand*in this operation, with no other expectation than to get back his principal and interest — to get back that which he had in hand. To adopt the defendant’s version of the matter would be to make Martin advance his money to a large amount in the purchase of Hunt’s bonds, to incur the hazard and trouble of collecting them by a course of vexatious and protracted litigation, with a view only to Campbell’s benefit, and without the prospect of a contingent profit to himself to the amount of one cent. Martin may have done this, but it would be very different from what a man would be likely to do under like circumstances. When the purchase of the bonds was made, there was due on them, of principal and interest, $60,000, and upwards; and to be repaid his advances of money and the interest, and to realize that amount of profit, even if it was to be shared equally between them, was a tempting speculation to the capitalist, and one which we may readily suppose he would embrace.

But to go back to the answer of Martin, to the bill of Tucker vs. Hunt and others. This answer makes Martin admit, not only that the $30,000 paid to Aiken for the bonds was a loau by Martin to Campbell, but that Aiken’s assignment was deposited with Martin as only a security for the loan. Now, what are the undoubted facts as proved by documents under the signature of Campbell? When he receives the money from Martin, ($30,000,) he says: “received of Robert Martin, the sum of thirty thousand dollars,” (not as a loan, but) *“in trust,*to be paid this day to William Aiken,” &c. When he delivers the assignment to Martin on the 1st September, 1849, he takes no acknowledgment from Martin that the assignment is deposited with him to secure the payment of his debt to Martin, as he would have done if such had been the understanding between them, but he accompa*214nies the delivery of it with a formal and written declaration, that the assignment *“is in trust for Robert Martin, Esq., who furnished the sum of thirty thousand dollars, which I paid to Mr. Aiken as the consideration money for said assignment.”*The rest of this document, and the whole of the instrument which is entitled “Memorandum of an agreement,” &c., and bearing the same date, are full and explicit to the same effect. These contemporaneous documents conclusively show that, whatever may have been the motive or cause of the misrepresentation, the statement in Martin’s answer is not true. The facts are not what they are there represented to be. In the defendant’s version of the affair, there is one circumstance or feature that it is impossible to explain or reconcile. We are called on to believe that Martin, a man of experience and sagacity, and acquainted with all the forms of business, loaned to the defendant the sum of $30,000, without taking from him a bond, note, receipt, or any memorandum in writing, or evidence of any kind, to show the indebtedness, or the time and manner of its payment. This would be strange, and it would be equally strange that Campbell should borrow from Martin $30,000, and therewith purchase well secured bonds, then worth $60,000, and immediately execute and deliver to Martin instrument after instrument, acknowledging that the bonds were purchased with Martin’s money, and *in trust*for Martin, and for his benefit, and that he (Campbell) had no interest in the bonds, except ultimately to share with Martin, equally, the profits of the speculation.

There is another fact, entirely subversive of the defendant’s version. It was his own act, and shows that he then had impressions entirely different from those he advances at the present time. The plaintiff charges in her bill, “that the said James B. Campbell, on the 13th June, 1851, had a settlement with the said Robert Martin, under the agreement hereinbefore recited, and that on a calculation of what had been paid by the said Robert Martin, on the said several *215matters, and what was due on the Aiken bonds, and supposing them to be likely to be paid in full, at the request of the said James B. Campbell, the said Robert Martin agreed to advance to him what he would then have been entitled to receive, if the Aiken bonds had then been paid in full in cash, and thereupon paid to the said James B. Campbell the sum of seventeen thousand four hundred and thirty-five dollars, or thereabouts, being the sum agreed upon in their account stated, in full of all further claims, interest or demands on the part of the said James B. Campbell; and the said James B. Campbell gave to the said Robert Martin a receipt for the said sum, expressed to be in full for all his claims, in respect to the said agreement, which said receipt, and the statement accompanying it, the said James B. Campbell subsequently obtained from the agent of your oratrix, alleging that it was necessary to enable him, the said James B. Campbell, to make up a statement of the claim for the Master; and which receipt and statement he has never returned, although'repeatedly requested so to do.”

Jos. D. Aiken, a witness who was and is the agent of the plaintiff, and who was examined on the part of the plaintiff, deposed that the receipt and statement here spoken of went into the possession of Campbell in the manner charged in the bill, and that he has never returned them, though often applied to for that purpose. Campbell, in his answer, indignantly denies the possession or suppression of the receipt, or that he ever had possession thereof since it was executed and delivered to Mr. Martin. But he says, *“*he has never, at any time, denied making and giving such a receipt, or the receipt of the money it called for, or the original bargain and agreement under which the money was received,” but on the contrary has expressly admitted the same, as it is charged in this bill, and his said admissions were placed on the file, and are of record in this Court since the-day of February, 1857. In another part of his answer, speaking of this lost receipt, he says, “ whether it is in existence, and where it is, is un*216known to this defendant, and is of no consequence whatever, because he readily admits, and has always admitted its full purport and original intention as charged in the bill,” *but he denies that it is of force except as an acJcnowledgment for the amount of money received by him.*

I am unable to perceive why this receipt, and the statement accompanying it, should not be considered “of force” for what they purport. I have read with care and attention the defendant’s statement of this transaction, as set forth on the fifth page of the printed copy of his answer, and see nothing there that should have the effect of invalidating them; on the contrary, I feel surprised that, admitting these facts, the defendant should imagine that he could successfully resist the plaintiff’s version of the transaction. Here, as late as the 13th June, 1851, we have the parties making a computation and statement, in exact conformity with the terms of the contract, as set forth in the instrument bearing date September 1st, 1849; and assuming that the Aiken bonds were fully secured and would eventually be paid in full, they make a calculation of the amount that would be coming to Campbell, according to the terms of the contract; and finding that it would be $17,435, or thereabouts, Martin paid that sum to Campbell, and became the purchaser of all Campbell’s share and interest, and took a receipt for that sum from.Campbell, “expressed to be in full'of all his claims in respect of the said agreement.” Though on this occasion Campbell was content to take one-half of the profits of the speculation, according to the express terms of the agreement, yet in his answer to this bill, he contends that the written statement of the contract prepared by himself does not contain the (rue stipulations between them, and that he (Campbell) was the borrower of the $30,000, and the true owner of the bonds, and that the assignment was deposited with Martin only as a pledge for the debt due.to him by Campbell.

But it is said that this settlement, as well as the terms of the contract, were repudiated by Martin. It is to be remark*217ed, that this idea of repudiation is inconsistent with the other ground assumed, that Campbell was the owner of the bonds, and Martin only the lender of the purchase money. But where is the evidence that Martin repudiated anything; either the terms of the contract, or the settlement? It is said, he held on to Bennett’s guaranty. But that was given as a security to Martin for his endorsement of Campbell’s note in bank. But he still held possession of it, after the note in bank was paid. Still, where is the evidence that Martin ever refused to deliver it up ? What witness has said that Martin’s continued possession of it was anything more than an accidental aud involuntary detention ? But suppose it was otherwise ; I cannot conceive what bearing it has on this question.

The evidence, then, in support of the defendant’s views, has narrowed down to Martin’s statement in his answer to Tucker’s bill. But why should Martin be unwilling to occupy so favorable a position as that which he held as the true owner of the Aiken bonds, and take the position of the lender of money on the security of these bonds; and that too just at the time when he was about to realize the fruition of his speculation ? The answer to Tucker’s bill was posterior to the settlement of June 13, 1851. It was then reduced to a certainty, that these bonds of Hunt would be paid, and if so, Martin would realize a very handsome speculation. What Campbell has said in his answer to the plaintiff’s bill, in reference to this transaction, must be born in mind. “ In June, 1851, he (Martin) was endorser of this defendant to a considerable amount, which had been discounted in bank. On or about the 13th day of that month, as stated in the bill, this defendant being about to leave the city for the North, and desiring to cancel said letter of credit (that of Bennett) by discharging Mr. Martin from his said indorsements; and *the claim*against Col. Hunt having been finally adjusted so that there appeared no reason to expect litigation or difficulty in receiving payment from Col. Hunt’s property; in due course of time, he suggested to Mr. Martin to become the purchaser of *218his whole interest in said bonds and securities.” *Jit this time,*when the profits of what had heretofore been a rather hazardous speculation were in his grasp — his claim being based upon the most palpable basis of a written contract, with no uncertainty about it — we find him repudiating all this, and taking the position of a creditor who has loaned out his money at interest. Mis statement of his relations with Campbell, in that answer, in my judgment, was incidental, without deliberation and attention. It was not the direct question at issue *there.*He was answering what he and Campbell both seemed to consider the pragmatical interference of Tucker. His attention was directed not to the question, what were his relations with Campbell ? but to what were his relations with Tucker ? His answer was prepared for him by one in whom he reposed the most implicit confidence. There is no evidence (and Campbell himself does not say) that Martin gave instructions for the preparation of his answer. Nobody but Campbell says that it was read to him, and Campbell is not a competent witness on this point. There is pretty strong negative evidence that it was not read to him. Under these circumstances, and without considering the imbecile state of Martin’s body and mind at the time the answer was sworn to, (to which I will presently advert,) I would say that the statement in the answer would not be sufficient to invalidate or destroy the evidence of a contract otherwise so clearly proved.

But Martin was, at the time of his signing the answer, ill in body and mind. Campbell himself says he was in feeble health. Dr. Geddings and Dr. Bellinger, his physicians, were examined in reference to the state of his mind. His disease was ramoullissement, or softening of the brain. The effect of the disease is gradually to undermine the understanding. His, eventually, became totally prostrate. But at the date in question his mental faculties, though not entirely in ruin, were very much impaired. He would certainly not be able to comprehend any complex matter of business. He could *219have been imposed on. He would not have been able to give strong attention to any transaction.

My opinion is, that Martin’s mind, at the time he signed his answer to Tucker’s bill, was impaired to such an extent, that he did not comprehend the full import of the language of the answer, if it was read to him. If this be a correct conclusion, it removes every seeming difficulty in the way of granting the plaintiff the relief which she seeks.

The judgment of the Court is, that the contract between the defendant and the plaintiff’s testator was, and is, that which is embodied and expressed in the receipt of the defendant to the plaintiff’s testator, bearing date the first day of September, 1S49, and the memorandum of the agreement, bearing the same date; that is to say, the assignment of Aiken of the two bonds of.B. F. Hunt was in trust for Robert Martin, and that Campbell became invested with the legal estate in the said bonds as trustee of Martin, and for his benefit; that by the terms of the agreement, Martin was to be reimbursed for his money advanced, with interest thereon from the 28th August, 1849, that the balance of money which should be collected on said bonds after all expenses were paid, in other words, the net profits, were to be equally divided between Martin and Campbell. And it is further adjudged that there is no sufficient reason to believe that this contract was ever cancelled or modified; that it is still binding upon the parties, and that the account between them is to be taken accordingly. It is ordered and decreed, that an account be taken before one of the masters, for the monies that have come into the hands of both Martin and Campbell from the Richfield plantation, before the same was sold, according to the agreement between B. F. Hunt and James B. Campbell, dated 1st October, 1849.

It is further ordered and decreed, that from the receipts of money arising from the sale of produce from Richfield, and from the proceeds of the sale of Richfield and the negroes thereon, the said Robert Martin in the account to be taken, is *220entitled to be reimbursed for the money which he advanced and paid on the debt due to Mary Legare, and interest thereon till the time of such reimbursement; and in like manner the said Robert Martin in the account to be taken, is entitled to be reimbursed for the money advanced.and paid on the debt of Byrd, -Savage & Byrd, with interest on the same from the time of it,s being paid and advanced, till the time of its reimbursement.

It is further ordered and decreed, that the said Robert Martin, or his legal representative, from the proceeds of the sale of Richfield, and the mortgage of negroes thereon, is entitled to be refunded the sum of thirty thousand dollars, which he advanced in the purchase of the said bonds, with interest thereon from the 28th August, 1849, according to the agreement as hereinbefore adjudged.

It is further ordered and decreed, that the receipt of Campbell of the 13th June, 1851, is a bar to any claim on his part to his moiety or share of the profits, stipulated for by the said agreements, he having for valuable consideration sold and assigued to the said Robert Martin all his *claim, interest and share*in the said bonds, assigned by Aiken as aforesaid. It is ordered and decreed, that the sum of $17,435, paid by the said Martin to the said Campbell was in full, and intended to be in full of all his claim and share in the said bonds; so that the whole amount of said bonds became the property of the said Robert Martin, and so far as the same was not paid to him in his lifetime, it is now due and payable to his legal representative, the plaintiff in this suit.

If is further ordered and decreed, that in stating the accounts, all charges and fees, or compensation for services rendered by the said Campbell in and about the prosecution and collection of the said bonds, are disallowed; first, because such was the stipulation in the original agreement as expressed in the instrument bearing date the 1st September, 1849, and, secondly, because the payment and receipt of the 13th'June, 1S51, is a bar to any such account or claim.

It is further ordered and decreed, that James B. Campbell *221do account for all the money which has come into his hands on account of the assignment by William Aiken to him of said bonds, at any time from the date of said assignment to the present time, whether the same be from the proceeds of the sale of produce from Richfield under the agreement between himself and B. F. Hunt of the 1st October, 1849, or from the proceeds of the sale of Richfield and the negroes, and that so far as the same have come into his hands, he do on an account stated upon the principles of this decree, pay to the plaintiff the balance so found to be due to her, and that so far as there be any balance due to the plaintiff in the hands of the master arising from said bonds, upon an account stated according to the principles of this decree, the said master do pay the same to plaintiff.

It is further ordered and decreed, that the defendant pay the costs of this suit.

The defendant appealed upon the grounds:

1. The Chancellor has entirely misconceived the issue made by the pleadings, and upon this misconception the decree is predicated; the same will appear by comparison of the pleadings with the following extract from the decree:

“ The only controversy between the parties,” says the Chancellor, *“*is whether, in respect to the Aiken bonds, the plaintiff’s testator was the owner of said bonds, and Campbell the agent and trustee, with the right to one moiety of the balance realized after Martin was reimbursed for his advances and interest; or whether Campbell is the owner of the bonds, with only a pledge of the same to Martin, to secure him for the money he had advanced for .their purchase.

“ If we accept the defendant’s version of the .transaction, *he*is entitled to the whole of the clear profits of the speculation, amounting to $34,000 or $35,000, and Martin is only to bs reimbursed for his advances and interest. But, by the plaintiff’s statement, the defendant is only entitled to one-half the profits, and Martin to the other half.”

*222The defendant humbly submits that, by an inspection of the pleadings, the version of the transaction here above charged upon him will nowhere appear, but the contrary that he claims exactly that which the Chancellor erroneously puts down as the plaintiff’s statement of the case.

2. The defendant, so far from meaning or claiming, as the Chancellor supposes, that the contract of September 1st, 1849, was afterwards abandoned or modified, on the contrary, throughout the pleadings, insists that it is subsisting and binding, while the plaintiff claims that it has been abandoned, and that defendant has no longer any rights under it.

3. The Chancellor entirely misconceives the purpose of the defendant, in supposing that Mr. Martin’s answer to the bill of John H. Tucker was introduced, or relied upon, to show that the original agreement of September 1st, 1849, had been modified, changed, or abrogated, or for any other purpose than to establish said agreement, and to show that Mr. Martin did not, at that time, consider himself, as is now claimed by the complainant, the *sole owner*of the Aiken bonds; and that Mr. Jos. D. Aiken, the son-in-law of Mr. Martin, who, as a magistrate, procured his *signature*and *oath*to the answer, and was Mr. Martin’s geueral and confidential agent, at that time, did not consider Mr. Martin as the sole owner. That if Mr. Martin had considered the inchoate agreement of the 13th June, 1S51, as existing at the time, he could not have answered as he did, nor could Mr. Jos. D. Aiken, as a magistrate, have taken his *signature*and *oath*to the answer, if he had then taken the same views, either of Mr. Martin’s imbecility, or of Mr. Campbell’s relations to the bonds, which he now testifies to.

4.The only controversy in issue between the parties, made by the pleadings and tried, was, whether the agreement of September 1st, 1849, between Mr. Martin and the defendant, is of force. The defendant claims that it is, and that at the proper time, when called upon, he ought to account accordingly.

The complainant denies this, and claims that the defend*223ant sold out on the 13th June, 1851, and from that date had no interest in the Aiken bonds. That the money then received by the defendant is to be considered as a payment in full, and not as a loan or advance.

5. If the complainant’s view is adopted, and the agreement of the 1st September, 1849, is to be considered extinguished, then the defendant is entitled to reasonable compensation for his services from June, 1851; and the defendant, also, appeals from that part of the decree which disallows such compensation,and also excludes him from participation in the profits derived from his services; he is entitled to one or the other.

McCrady, *Richardson,*for appellant.

*Simons,*contra.

a

 This is ail error m the decree : the bill was filed December 27th, 1851; Mr. Martin’s answer was filed February 16th, 1852. S. *&*D.

The opinion of the Court was delivered by

Johnston, Ch.

The issue between these parties was not, as the Chancellor seems to have conceived, whether the purchase of Aiken’s bonds was made by Campbell, for his own benefit, by means of money borrowed from Martin. It was never denied by Campbell, that though the purchase made in August, 1849, was in his name, and ostensibly to his use, it was made on the joint account of himself and Martin. This he took pains to put beyond doubt, in September, 1849, in an unequivocal declaration, that the speculation was in trust to reimburse Martin for his outlay, and then to divide the net profits between the two: Campbell’s services to be gratuitous.

Nor was it denied that in June, 1851, Campbell sold his share of the profits to Martin, at a-stipulated price; or that he gave a receipt for the sum paid.

This bargain is not denied by Campbell, though he does deny that he got at the receipt — a matter of very little consequence, since its loss or disappearance could not, under his fair admissions, occasion any material injury.

The real contest between the parties is, whether, after the *224bargain of June, 1851, was made, it was repudiated by Martin, as Campbell inferred from his conduct.

There is no proof of this repudiation. It would not do to say, had Campbell expressly avowed the fact, that it should be assumed without proof.

It is contended that the proof is to be found in Campbell’s answer to Mrs. Martin’s petition, which is said to have been given in evidence in the present cause. But supposing proof can be made in this collateral way, out of the defendant’s answer in another cause, such answer is only *prima*facie, and not conclusive, and is evidence according to the meaning to be obtained by a proper construction of it: and Mr. Campbell’s answer is not, substantially, in the nature of a positive averment of the fact of repudiation, but rather that from Martin’s equivocal conduct, Campbell understood him to intend to repudiate, and concluded, as it would not materially vary their relative interests, to make no opposition.

We are to conclude, then, that the contract of June, 1851, remained of force; and that being the case, we do not perceive that the results attained by the Chancellor are erroneous.

Mr. Aiken (Joseph D.) proves that in the receipt given by Campbell, he agreed to continue his services in winding up the business gratuitously. The same result, it appears to us, would have followed had that special provision been omitted in the receipt. The concern must be wound up : Campbell had an interest (being accountable for what he had received, and for his contracts with third persons) in winding it up; to say nothing of his claim of the Mathews’ bonds; and, therefore, was under a necessity to continue his attention to the business.

It is ordered that the appeal be dismissed, and the decree affirmed.

O’Neall, C. J., and Wardlaw, J., concurred.

*Appeal dismissed.*