*■jPresent*— Chancellors Hutson, Mathews and Rutiedge.

#### Ann Fitzpatrick and Mary Gallagher *vs.*O’Brien Smith, administrator of John Fitzpatrick, and Kyrian Fitzpatrick.

CASE LXXXCVII.

,. The court will not ad-Aratparol eri-shewfliat an absolute bill *341of sale i<s merely conditional and a security. It might be anotlierquestion as to creditors. — ■ Award of arbitrators supported. Captain of ship not entitled to the freight of money. Sale of vessel fairly made is valid, though sold very low.

*340This was a hill filed by the mother and sister of Johft Fitzpatrick, deceased, for an account of his estate, and *341■•other purposes. The bill charged that the deceased left a considerable property in bonds, negroes, and a brig called the Mary. That O’Brien Smith administered, and took possession of the estate; and complainants have applied for an account and settlement without success. That O’Brien Smith had employed the negroes of the estate in planting his own lands, and refused to account for the proceeds of their labor, under pretence that the negroes and other property were conveyed or assigned to him, though it alleged that such assignment was a mere security for an inconsiderable debt. The bill charges that Kyrian Fitzpatrick received 5001. sterling for the charter age of •the brig Mary (of which he was merely captain) from Charleston to Amsterdam, and the freightage of said brig back to Charleston, which is unaccounted for. And that the administrator and Kyrian Fitzpatrick confederating together, the brig was put up to sale, and bought in by the latter at a very low price. The bill prays for an account and settlement, and a subpoena duces tecum, for the production of the books and papers of John Fitzpatrick’s estate. The answer of O’Brien Smith admitted that John Fitzpatrick died possessed of several bonds and notes for money due him, but he was more largely indebted to others. That defendant administered on the estate, out of which he has furnished complainants for their relief SO?, and sundry articles. Defendant denied that the complainants have any right to the negroes formerly belong, ing to the deceased John Fitzpatrick, because the latter had in his lifetime made an absolute hill of sale for them, in consideration of 420?. which he had advanced him. Defendant admits that John Fitzpatrick died possessed of a brig called Mary, and that defendant caused her to be sold; but he denies that he confederated with Kyrian Fitzpatrick to have her sold at a low price; on the contrary, the defendant bid against him, and thereby made him give a higher price than he would otherwise have done. Defendant is ignorant of the transactions between John and Kyrian Fitzpatrick, except as far as an account was rendered by the latter, by which it appears he was indebted to the deceased in 101?. 3s. *2d.*The defendant denies *342that he had refused to account, hut was always, and is now ready to account with the complainants. The defendant Kyrian Fitzpatrick states, that he knew nothing of the Property of John Fitzpatrick, except that he had purchased the brig Mary for 800Z. in bonds of small value. rjqia^ ]ie liimnelf purchased the brig fairly at public auction after the death of John Fitzpatrick for 140Z. and that she was very rotten and worthless, cost him great sums in repairing, and after one or two hazardous voyages, he sold her for 180Z. That after he purchased her, he left more than was due by him, on her account, in the hands of Thomas Martin, the agent of the administrator. The defendant has advanced some money to the complainants, and is ready to account and settle with the estate.

*341*JUNE,*1793.

*342Mr. Harper for the complainants

stated, that the principal questions were, whether the bill of sale from John Fitzpatrick to O’Brien Smith was not merely a security for payment of a debt; and whether the property was not really the estate’s, and O’Brien Smith a trustee for it. Whether the purchase of the brig made at the sale by Kyrian Fitzpatrick, was not made for the benefit of the estate of John, and Kyrian merely a trustee. And whether the cargo brought by captain Kyrian Fitzpatrick to Philadelphia, was not the property of John Fitzpatrick; and the cargo brought from Philadelphia to Charleston, purchased with the proceeds of the former, and therefore to he accounted for as the property of the estate of John Fitzpatrick. At the hearing, the following evidence was given:

Mr. O’Hara swore, that when captain Kyrian Fitzpatrick was going Ms last voyage, he told him the vessel owed him about 150Í. and on his return, he told witness the vessel owed him about *TOOL*hut that the cargo was worth 8 or 900Z.

Mr. Manson swore, that the tackle and apparel of the said vessel, were worth almost 250Z. Port money is usually allowed in foreign ports.

Graham stated that the sale was a fair one, though she brought only *1401,*

*343Captain Thompson stated, that the vessel might have been worth about 400Í. Port money is not usually allowed here. If a small sum of money is put on board, the captain usually has the freight of it; if a large sum, the owners have it.

Mr. Hazlehurst stated, that captain Kyrian Fitzpatrick was a respectable sea captain. He did all the business of the vessel. John Fitzpatrick was a necessitous man. Primage from Charleston to Amsterdam is 5 per cent, and more from there back. The captain receives his primage from the owner of the goods, not of the vessel. Port Money is allowed at Philadelphia. Captain not entitled to all the freight on large sums of money shipped; but he should have half, on account of his responsibility.

Mr. Stewai’t stated, that if the captain does the business of the vessel, and charges no brokerage, he is entitled to port money.

Mr. Williamson said, that from hence to Philadelphia, the captain always received the freight of money, be the sum what it may. This vessel was a very had one; he would not have accepted her as a gift.

Mr. Peppin states, that it is the general custom to allow the captain the freight of money. The primage to London is 5 per cent.

Mr. Geoghegan states, that he was at the sale of the vessel. It was a very fair one. Mr. Smith bid repeatedly on captain Kyrian Fitzpatrick, who was offended at it. He hoard Pritchard the ship carpenter toll captain Fitzpatrick not to give more than 150Í. for her.

Mr. Mey stated, that the primage from Holland is 10 per cent, to America. He sold the vessel to John Fitzpatrick. He parted with her because he thought her a bad vessel. He got 800Z. in old bonds.

Mr. Martin stated, that after captain Fitzpatrick had bought the vessel and repaired her, he heard a report that he had bought her for the estate; whereupon, he offered to deliver her up for the price of the cost of repairs, but *a*was refused.

*344Decree.

Mi*. Corbett stated, that Mr. Smith told him in the ht - ginning of 1791, that he would send Fitzpatrick’s rice to town.

Mr. Harper for complainants

contended, that the vessel had been sold greatly below her value, and ought to be accounted for at her value. That the primage on the passengers ought to he struck out of the account, as it was improperly made a charge against the vessel. That Mr. Smith’s declaration to Corhett, that he would send Fitzpatrick’s rice to town, shews that lie did not look upon the sale of the negroes as absolute. It was a mere security to cover a small debt; otherwise the rice made by these-slaves could not have been called Fitzpatrick’s. After the date of the bill of sale, it appears that John Fitzpatrick bought cloth for the negroes, and left it to be made up for them. His estate ought to have the benefit of them, after paying the money advanced by Smith.

Mr. Dorn: A. Hall, and general Pinckney for defendants, argued, that the complainants claiming as the representatives of John Fitzpatrick, can be entitled to no more equity than he would have been; and he would not have been permitted to deny his own deed, and say it did not mean what it expresses on its face. The rice mentioned by Smith to Corbett to be Fitzpatrick’s, was the rice that had been planted by Fitzpatrick’s negroes before he sold them to Smith. The creditors of John Fitzpatrick are not before the court; so that this deed, if it were really voluntary, cannot be shaken in this cause; for though by the statute of 13 Elizabeth, gifts to protect property from creditors are void as to them, they are good between the parties.

Chancellor Hutledge

delivered the judgment of the court. There are five points for determination in this case. 1st. Whether the bill of sale made by John Fitzpatrick to O’Brien Smith was bona fide, and for valuable consideration, and absolute; or only a security for an un-liquidated debt due by John Fitzpatrick to O’Brien Smith? 2d. Whether an award made between the parties by arbitrators, should be set aside. 3d. Whether the caigo is the property of Kyrian Fitzpatrick ov John Fitzpatrick? *3454 th. Whether Kyrian Fitzpatrick should be allowed to retain freight for money carried? 5th. Whether the sale of the brig was fair and open? As to the first, the defeii-dant O'Brien Smith swears, that the bill of sale was for valuable consideration, for a debt of 4201. justly due him, and without condition; and in order to avoid the imputation of fraud, he also files an account, the items of which make up the amount. He needed not have done this. — • The complainant now insists that he should go into proofs of the account. But as the greatest part is for money lent, it is presumable when John Fitzpatrick gave the bill of sale, the vouchers were given up. It would be unreasonable to order the account to be unravelled now. There might be a difference if the creditors of John Fitzpatrick were complainants. Parol evidence was offered to shew the bill of sale was a mere security, and the conversations of defendant Smith with two of the witnesses, were adduced to shew the nature and effect of the bill of sale. The court has frequently decided not to admit parol evidence to contradict or explain a deed, contrary to what appears on its face, unless there is a charge of fraud in obtaining it. But here the deed itself is confirmed by the positive oath of defendant Smith, which stands wholly unimpeached, except as to the loose conversations stated to have taken place several years ago. The court is of opinion thatthe bill of sale must be considered absolute, and not conditional, or merely as a security. ’ The" account cannot now be investigated. 2d. The award was made by persons chosen by the parties, and made up with great cai'e and labor, and there is no charge of fraud or partiality on the part of the arbitrators; the award therefore is conclusive: let it be confirmed. 3d. The cargo from the evidence, appears clearly to be the property of Kyrian Fitzpatrick, and not of his owner. 4th. As to the freight for the money from Amsterdam to Philadelphia, there appears to be no fixed custom thatthe captain of the vessel should have it. There is a difference of opinion among the witnesses. It seems to be the custom between this port and Philadelphia; but it is not established by testimony as to other trades. The defendant Kyrian *346Fitzpatrick, the captain, must account for this freight, to his owner. 5th. The evidence shews clearly, that the sale of the brig was fair and open, without fraud or collusion, and the defendant Kyrian Fitzpatrick, was the highest bidder, and really gave the full value. The court there-#>re decreed that Kyrian Fitzpatrick should pay to the administrators of John Fitzpatrick, the sum (1231.) awarded by the arbitrators, to be due by' him to the estate of John Fitzpatrick; and also the freight of the money from Amsterdam to Philadelphia, deducting primage; and that he do pay all the costs of this suit, except those of defendant Smith, which must be paid by the complainants.