#### *Joseph Reid*vs. *W. T. Clark and wife.*

1. Bill filed by defendants against J. R, an executor, and others, for an account. At the time of filing the bill, J. R. was resident in another State, but upon being informed of the fact, returned, for the purpose of making a final settlement of the estate of his testator. At his request, the guardian of testator’s minor children, who also acted as the agent of their mother, together with defendant, C. and another, who had intermarried with testator’s daughter, and who constituted the parties interested in the settlement, met; and, upon a statement of the accounts of J. R, with vouchers produced by him, the result was, that together with the property received and purchased by'the testator’s widow, which belonged to the estate, and monies advanced her by J. R, as guardian of her children, she having been the former guardian, and having relinquished it on another marriage, he was in advance to her, over and above all the funds of the estate which came into his hands. The widow, before her last marriage, had conveyed to her successor in the guardianship, all the property of which she was possessed, in trust, for the payment of her debts, and particularly her liability to her children. The account stated by J. R, was filed in the' Ordinary’s office, as a return of his transactions with the estate, which he regarding as satisfactory to all parties, and supposing no further proceedings would be had in the cause, left the State. Afterwards, a decree was obtained against him alone, upon which he was sued, in the State where he resided, and on his return to this State, arrested on a *ca. sa.*

2. The fact that the mother, as the guardian of her children, had received upwards of $5000, ascertained by the settlement, and known to defendant, C, for which no credit was allowed in the report of the Commissioner, would not, of itself, entitle complainant to relief, had he neglected to make the necessary defence, when he might have done so; but as it was apparent from the testimony, that complainant had reason to believe that defendant assented to the settlement, and intended to abide by it, the court were of opinion, that the decree obtained by defendant, was not a bar to a bill fo? relief on the part of complainant.

3. It is not essential in an original bill, in the nature of a bill of review, containing a general allegation of fraud, that the facts stated, should be par-, tieularly characterized as fraudulent. Fraud is a deduction from facts, and however they might be characterized, the conclusion must be the same. Facts, fair and honest in themselves, could not be converted into a fraud, by the mere allegation; nor could facts, fraudulent in themselves, be transformed into fair dealing by so characterizing them. Fraud is the general foundation pf an original, bill, in the nature pf a bill of review ; but such bill *344may be maintained, although there is no actual fraud. *Coker*vs. *Bevis,*1 Ch. Ca. 61.

4. The mode of proceeding by bill of review, applies only in two cases. 1st. When there is error apparent in the record; and 2d. when new matter which would affect the rights of the parties has been discovered subsequently to the hearing. Story’s Eq. PI. 326 — 7. Neither of which entered into this case.

*Before*Johnson, Ch. *at Union, Jane*Term, 1843.

Johnson, Ch. The late Jethro L. Reid appointed the complainant and Dr. L. B. Askew, the executors of his last will and testament, both of whom qualified. He died in 18--•, leaving a widow, Jemima, (who has since intermarried with Jesse Maybin) and three children; the defendant, Nancy, who has since intermarried with her co-defendant; Teresa, who has since intermarried with Maybin, and Jethro Reid. At the time of his death, the children were all infants, and Jemima, their mother, was appointed their guardian; and upon her marriage with Jesse Maybin, she relinquished the guardianship, and Robei’t Moorman, her son by a former marriage, was substituted in her place. Before her marriage, she had conveyed, by deed, to the said Robert Moorman, all the property of which she was possessed, consisting, amongst other things, of twenty-six negroes, in trust to pay her debts, and particularly her liability to her children, of whom there were two families. Those before named, and the said Robert Moorman, and a daughter, since intermarried with one Reuben Chick, by a former marriage with Thomas Moorman.

In April, 1840, the present defendants filed their bill in this court, against the complainant and Dr. Askew, as executors of the testator, and against *the*complainant, Jesse Maybin and his wife, as guardians, praying an account of the estate of the testator. Pending that suit, Dr. Askew died, and the bill was revived against his executors. The matters of account were referred to the Commissioner of the Court, and on the coming in of the report, at June Term, 1842, a decree was made against complainant *345alone, for $4013 32, as the distributive share of the surplus on the estate of the testator.

The complainant seeks in his bill, to have that decree opened, and to be let into an account of his transactions with the estate of the testator; and as grounds for relief, he states, that at the time the original bill was filed, he was, and still is, a resident of Mississippi; and hearing that the bill had been filed, he came to this State for the purpose of making a final settlement of the estate. That, at his request, Robert Moorman, the guardian of the minor children, who also acted as the agent of his mother, Jemima Maybin, the defendant, W. T. Clark, and Reuben Chick, met him at Union Court House for that purpose, in October, 1841. That calculations were made, and an account stated from vouchers produced, which in the result showed that, together with the property received and purchased by Mrs. Maybin, which belonged to the estate, and monies advanced by complainant to her, as guardian of her children, he was in advance to her $811 00, over and above all the funds of the estate which came into his hands; and that this account was filed in the Ordinary’s office, as a return of his transactions with the estate. That defendant, W. T. Clark, was present at the settlement, and complainant understood that all the parties, Clark amongst them, assented to it. And he states, as evidence that Clark participated in, and assented to, the settlement, that he had been obliged to dispose of some bonds wThich he had taken for the purchase money of the property, sold at a considerable discount, to raise money to pay pressing demands against the estate; and that he submitted to them, whether they would or would not consent, that he should be charged with no more than he had already received ; and that they all agreed, Clark amongst them, that he should not. That in the confident belief that the settlement so made, was satisfactory to all the parties, and that no further proceedings would be had against him, he returned to Mississippi; and was wholly ignorant of any further proceedings in the cause, until after the decree was obtained. That he has since been sued on the decree, in Mississippi; and on his return here, some time ago, he was arrested on a *ca. sa.,*issued out of this *346court, for the same cause. He prays for an injunction to restrain these proceedings, which has already been granted by the Commissioner of the court; and amongst other things, that the decree may be opened, and that he may be let into an account of his management of the estate of his testator.

The defendant, W. T. Clark, in his answer admits that he was present at the time of the settlement referred to in the bill, at the request of complainant, communicated through Robert Moorman, and understood that it was intended to make a settlement of the testator’s estate, and that Robert Moorman sat down to make a settlement of the assets of the testator; and before that settlement was completed, he left the place and returned home. He believes, however, that the settlement was returned to the Ordinary’s office; but he denies, positively, that he in any manner participated in, or consented to, any portion of the settlement made; neither had the said Robert Moorman any power or authority to enter into any settlement or statement with the complainant, touching his or his wife’s interest. In said statement some vouchers were exhibited by complainant, but to what extent he does not know; and some calculations were made, but defendant had nothing to do with them or the settlement; and uniformly said, when speaking of it, that if complainant wished to make any settlement with him, he must do it with his attorney; and he states, that he never regarded the settlement made as binding on him, and always intended to prosecute his claim to a final settlement and decree of the court, unless adjusted by complainant with his attorney. And that he never gave complainant the least cause to believe that the cause would be otherwise disposed of, directly or indirectly. He concedes, however, that the complainant is entitled, and he is now willing that he should now be credited with so much of the debts of the testator, paid by complainant, as was chargeable on his wife’s interest in the estate, which was not allowed him in the decree, amounting to 8 or $900; and states that he had instructed his attorney in Mississippi, wTho brought the suit there on the decree, to allow it to him. He insists that the decree is conclusive, and that it is a bar to this bill.

*347That the report of the Commissioner, on which the decree was predicated, was made in the absence of the complainant, and without any actual accounting, without even an answer, would, of itself, furnish a very strong presumption that injustice had been done to the complainant. The concession of the defendant that he was entitled to be credited with money paid on account of the debts of the estate, not included in the report of the Commissioner, is another evidence of it. And the proof is very satisfactory, that together with the property received by Mrs. Maybin, on a partial partition of the estate, the purchases made by her at the sales of the estate, and monies advanced by the complainant, she had received more than $5000, as the guardian of her children, of whom the defendant, Mrs. Clark, was one; and that fact, ascertained by the settlement, was known to the defendant, W. T. Clark, and yet no credit for it is allowed in the report of the Commissioner.

That, of itself, would not be sufficient to entitle the complainant to relief, for if he wilfully neglected to make the necessary defence, when he might have done so, he would be forever concluded; and the case turns on the question, whether the complainant had reason to believe that the defendant assented to, and intended to abide by, the settlement made in 1841.

The evidence is, that the parties concerned, met for the purpose of settling the accounts of the complainant with the estate of the testator. The calculations were made, and the account stated, by Robert Moorman, the guardian of two of the children, and the agent of Mrs. Maybin, his mother, he being a business man and accustomed to accounts. It commenced in the evening, and continued until the evening of the next day. The defendant did not, himself, sit down to state the account, or particularly examine the vouchers, but he was generally present, and might have done so ; and when he answered that he had no participation in it, he had, probably, forgotten that he consented that the complainant should not be charged with the loss sustained by the sale of the bonds. He consented, too, that the complainant should be credited with a medical account paid to Dr. Bobo, for which he had no vouch*348er. He remained there until late on the second day, and until after the account was fully stated; and although it was not finally closed until the next day, Robert Moorman testified that it was left open only for the purpose of examining some of the vouchers to be procured by complainant, which he did; and the only alteration made in it afterwards, was the addition of some charges against the complainant, which had been omitted; and the defendant, Clark, went away without expressing any dissent or disapprobation to any one item in the account, and there is not a tittle of evidence to show that he ever at any time, directly or indirectly, communicated to the complainant any dissatisfaction as to the statement of the account, or the result. That he knew what the result was, and the manner in which the account was made up, there cannot be a doubt. He was present at the settlement, as before stated. He knew that the account was filed in the Ordinary’s office, and it was from that origin, and out of the same file, he obtained evidence to charge the complainant on the reference before the Commissioner.

The circumstances taken together, were, I think, well calculated to induce the complainant to believe that no further proceedings in that cause would be had against him. He had shown, on the settlement, that the whole of the estate had passed out of his hands, into the hands of Mrs. Maybin, the mother and guardian of Mrs. Clark; and he had left the vouchers to establish it, in the hands of her brother. And there is much i’eason to believe he availed himself of the absence of the complainant, and his ignorance that the suit was going on, to obtain an advantage over him. He agreed with the executors of Dr. Askew, that he would not ask a decree against them ; and in that, probably, there was nothing wrong, as it seems to be conceded, that nothing remained in his hands. But he asked no decree or account against Mrs. Maybin, the person more immediately responsible to him; having, as he must have had, the best reason to believe, that whatever there was of the estate to be distributed, was in her hands, and that she had conveyed to Robert Moorman a large estate, charged with the payment of it.

If the defendants have obtained an advantage over the *349complainant, it would, under the circumstances, be an abuse of the powers of the Court, to suffer them to retain it, and especially as no injury can result to them from a fair and full investigation of the accounts. It is, therefore, ordered and decreed, that the decree obtained by the defendant against the complainant, referred to in the proceedings, do stand as a security for any sum (if any) that may be found due to the defendant, on a final account, and the decree of this Court; and that the same be opened, and the complainant enter into an account of his administration of the estate of his testator *de*novo, and that the Commissioner of the Court do state and report the account accordingly.

The defendants appealed in this case, on the following grounds, viz:

1. Because the complainant is concluded by the decree, in the case of W. T. Clark and wife, against the present complainant and others, and the plea in bar of the record and proceedings in said case, is a bar to the present bill.

2. Because no injunction ought to be sustained against a final decree of this Court, upon the case made by the bill and answer.

3. Because, from the case made by the pleadings and evidence, the decree is erroneous, and ought to be revised.

4. Because the bill cannot be sustained upon any rules ■or principles of equity.

*jHerndon,*for the appellants. *Dawkins,*contra.

*Curia, per*Johnson, Ch.

In the argument in support of this appeal, the grounds principally relied on are,

1. That this is an original bill, and cannot, therefore, be sustained as a bill of review.

2. That it cannot be sustained as an original bill, in the nature of a bill of review, because fraud .is neither charged or sustained by the evidence.

It has not been attempted to sustain this proceeding as a bill of review. That mode of proceeding applies only in two cases.

1. Where there is error apparent in the record; and

2, When new matter which would affect the rights *350of the parties, has been discovered subsequently to the hearing. Story’s Eq. Pl. 326 — 7; neither of which enter into this cause.

The bill is in its form and substance, essentially an original bill, in the nature of a bill of review. It contains the general allegation of fraud, but does not particularly characterize the facts stated as fraudulent, nor is that essential to the form of the bill, Fraud is a deduction from facts, and however they might be characterized, the conclusion must be the same. Facts, fair and honest in themselves, could not be converted into a fraud by the mere allegation; nor could facts, fraudulent in themselves, be transformed into fair dealing, by so characterizing them. Fraud is the general foundation of an original bill, in nature of a bill of review; but such a bill may be maintained, although there is no actual fraud, as in *Coker*vs. *Bevis,*1 Ch. Ca. 61. Where the court decreed the foreclosure of a mortgage, unless the defendant should pay the money in a certain time, with which the defendant was unable to comply, from inevitable circumstances, and without any wilful default, Lord Redesdale granted relief, not so much on the ground of fraud, as on the special circumstances. See Story’s Eq. P. 342, note 1. So much for the pleadings.

The argument has not operated to change the views I entertained on the circuit, as to the conclusion, to be deduced from the facts proved, and if, in the decree, they are not characterized in strong and harsh terms, it was because it was thought no one could read them without coming to the conclusion, that the defendant had taken advantage of the absence of complainant, to obtain a most unconscientious decree in his favor.

Appeal dismissed.

Harper and Dunkin, Chancellors, concurred.

Johnston, Ch., absent from indisposition.