[Present, Chancellors Rtjteedge, James and Thompson.]

JUNE, 1808.

#### Henry Hattier, *vs.*Etienne Etinaud.

An absolute bill of sale, given merely as a security for a debt, and to indemnify complainant for endorsements on notes of hand, shall be *571considered as a mortgage, and the property included therein, sold to pay the debt, &c. Credit gi'-en on the sale.

An award set aside because it did not make a final settlement between the parties, and because it placed the complainant wholly in the power of the defendant; fixed no time for the payment of the debt, and left the mortgaged property in the hands of the mortgagor, to enjoy the profits indefinitely. Defendant referred to law, to recover ¡damages claimed by him.

THE object of the complainant’s bill was to obtain the sale of certain negro slaves, to pay a debt due to him, and to reimburse him a certain sum which complainant alleged he had paid for the defendant on notes, on which he had been endorser for defendant.

The defendant had conveyed the negroes in question to the complainant, by a deed, which on its face purported to be an absolute bill of sale, but which it was conceded was given merely to secure the debt due to complainant, and such sums as he might pay for defendant.

The defendant resisted the demands of the complainant, and the foreclosure ofthe mortgage and the sale of the negroes, on the ground that the principal inducement to his giving the bill of sale to the complainant, was that the complainant and defendant had entered into Various engagements and arrangements, *by*which complainant was to have advanced defendant further surns of money, to enable him to have established a coffee plantation on the Island of Cuba, on tbeir joint *account;*but that the complainant had wholly failed therein, to the great injury of the defendant, for which he insisted he was entitled to re* dress, and that the said bill of sale ought not to be enforced against him. The parties had referred their disputes to arbitration, and the arbitrators had made an award, but the complainant had protested against the award, and refused to abide by it; and had instituted this suit against the defendant,, and had him arrested under a writ of *ne exeat.*The defendant also filed a cross bill to establish his claims ; to which this complainant had filed! an answer.

*572The cause came to a hearing, and there was a great deal of contradictory evidence, which, the court laid out of ^ case^ int^e view which it took of the cause.

Chancellor Thompson

delivered the decree of the ■court.

The object contemplated by the complainant in this case js to foreclose the equity of redemption in seventeen ne- ’ , ,. , gro slaves, which were conveyed to him by defendant by a deed which was intended as a mortgage, (but in fact is an absolute bill of sale,) for the purpose of securing a certain sum of money in the bill mentioned, due to the complainant by the defendant, and also to indemnify the complainant against certain notes of hand of the defendant, endorsed by the complainant, which in consequence of the insolvency ofthe defendant, the complainant has been compelled to discharge. The defendant does not deny that the deed was intended to secure the complainant’s debt, and to indemnify him against the payment of the notes lie had endorsed; but states that the original motive for executing the deed was for certain purposes set forth in the answer ; which however it is admitted, were not carried into effect. Their differences were afterwards submitted to arbitration; and the complainant protested against the award, after it had been reduced to writing, but previous to its having been signed, for the reasons expressed in his bill. The award not having been so framed as to make a final settlement between the parties immediately (although the court believe it was made with the best intentions by the arbitrators) must be set aside, because the complainant is put altogether in the power of the defendant, with respect to the time of payment of his debt, no period being fixed by the award for so doing; and the defendant is in the mean time to enjoy the profits arising from the work and labor of the negroes.

It is considered unnecessary to remark on the evidence, it being very contradictory, and having no tendency to invalidate the complainant’s demand. With respect to the *573defendant’s attempt to set off in discount tbe damages he has sustained by not carrying their original contract into execution, as that is a mater of great uncertainty, and the defendant can have complete redress at law, this court will not interfere, but leave him to pursue his remedy there. The fact of a debt being due is admitted by the *defendant;*it is only therefore requisite that it should be liquidated. It must be referred to the master to settle and state the accounts, and report the amount with interest upon the sums paid on the notes endorsed by complainant, and that he do within two months, advertise and sell so many of the said negroes, as will be sufficient to pay and satisfy the complainant’s debt, and the costs of *suit;*and that he give a credit of nine months.

Mr. Pringle for complainant.

Mr. Ward for defendant.