#### *Charles T. Brown & wife*vs. *W. S. Smith, Peter Cuttino and others. Benjamin F. Hunt, assignee,*vs. W. S. *Smith, Peter Cuttino and others. Same*vs. *Henry Cuttino and others.*W. *C. Smith and others*vs. *Benjamin F. Hunt and others. Benjamin F. Hunt*vs. *James Smith and others.*

Under peculiar circumstances, and after a lapse of sixteen years, an injunction, to stay proceedings at law, dissolved, irrespective of any consideration of the merits of the questions at issue between the parties.

A claim may be too stale for investigation in a Court of Equity, even where it may not be subject to the bar of the statute of limitations, or to those presumptions which arise from the lapse of twenty years: but a claim will not grow stale, under the action of the Court, and while it is the subject of hot litigation.

An assignee of one copartner’s share in the property and assets of the firm is liable, even without notice, to all the equities cf his assignor growing out of the copart-nership : but a decree against the assignee on account of such equities, is a decree *466*in rem,*— it operates upon the property assigned, and a *fi. fa.*cannot be issued upon it against the assignee.

Upon demands bearing interest at law, the Court of Equity is, it seems, bound to allow interest: but where the demand does not bear interest at law, interest will or will not be allowed according to the equity of the case.

Where there was great delay in prosecuting a claim not bearing interest at law, the Court refused to allow interest.

There are but two grounds upon which a petition for a re-hearing will be entertained, (1st.) for error of law apparent on the face of the decree: and any part of the record may be resorted to for the purpose of malting such error manifest: (2) for newly discovered testimony; and this testimony must be important, and must materially vary the case made; it must *not be*cumulative as *to*the evidence which was before the court upon the trial; and it must be such as the party petitioning for a re-hearing was not aware of before the trial, and could not by proper diligence and enquiry have discovered.

For alleged error of judgment, on the part of the Court, in deciding upon an issue of fact, a petition for a re-hearing will not lie.

The original proceeding out of which the above causes grew, was a bill filed in Georgetown, February, 1822, by O. F. Brown and wife, in right of the latter, sole heir and distributee of George Smith, surviving partner of George and Savage Smith, against W. S. Smith and Peter Cuttino, administrators of George Smith, and W. C. Smith and others, heirs and distributees of the other partner, Savage Smith, claiming an account of the partnership estate from the administrators of George Smith, the surviving partner — of the demands of the joint estate, and of the partners one against the other; and particularly setting up a demand on a debt, alleged to be due for advances made by Josiah Smith, said to have been intended by him as so much' advanced for his daughter, the wife of George Smith, ánd mother of Mrs. Brown., For this, it was stated, a bond was to have been given by the partners, but that it was never executed.— This bill also charged, that certain endorsements of G. Smith were on account of the firm; and alleged the joint estate to consist of two plantations on Pee Dee; a tan-yard in Georgetown; from three to four hundred negroes; two plantations on Goose Creek; a tract of land on Cat Island, and other estates of less value, besides the debts due the concern, &c. To which bill the administrators put in their answer, plea and demurrer — in*467sisting that all claim on account of the debt due Josiah Smith, was examinable at law — that they had no possession or interest in the premises, making them answerable for the tan-yard ; and answered, admitting the partnership; declaring that they were ready to account, but that there were large debts due by the concern; one of which, a debt due Bird, Savage & Bird, they had compromised very advantageously, and would acquiesce in a decision, if they could be relieved from their responsibility to creditors. They further denied, that the liability of George Smith, as endorser, was obligatory on the joint estate, and submitted to the order of the court.

In February, 1825, a consent decree was made in the premises by Chancellor DeSaussure, ascertaining the rights of the parties as far as its provisions extended, in the following terms.

DeSaussure, Ch. “ On hearing the report of the commissioner : — It is ordered and decreed that the plantations on Pee Dee, the land on Cat Island, and the lands on Goose Creek, and the negroes on the plantations on Pee Dee, and also the negroes now hired to Charles T. Brown, be adjudged the copartnership property of George and Savage Smith, and liable to the payment of the debts of the concern, to be distributed and partitioned, the one moiety to the heirs at law of Savage Smith, and the other moiety to the child of George Smith, who has married with Charles T. Brown. As the administrators of the estate are not entitled to the real estates of the deceased co-partners, it is but right that the same should be forthwith partitioned, except so much as may bo necessary to pay the debts; and as the negroes now on the Pee Dee plantations, are necessary to their cultivation — it is ordered that the said plantations and negroes be partitioned and divided between the complainants, and the heirs and distributees of Savage Smith, and they are respectively decreed to take each one moiety of the said plantations, together with the negroes, crop and stock, the same to be equally divided, so as to give to each, one entire plantation, including highland and marsh; and the negroes to be divided as nearly as posible into two gangs, and distributed in families. The plantations *468and negroes to be allotted by lot, one to the complainants, and one to the heirs of Savage Smith; the part or share of each to remain liable to the payment of any aliquot propertion of the debts, and to the final decree, upon the mutual demands of the complainants and defendants. It is further ordered, that the administrators do apply all the monies they have now on hand, toward the payment of the amount that may be agreed upon as a compromise for the claim of Bird, Savage *&*Bird; and to insure the payment of that claim, it is ordered and decreed that the commissioner shall apply to that purpose, the first monies that may be made from the debts due the estate, and the sales of property hereinafter appropriated to the payment of the debts of the estate. In relation to the remaining debts of the estate, the same shall be equally divided, as near as may be, between the complainants and the heirs of Savage Smith, and the property hereby ordered to be delivered to each, shall stand as a security for the payment of an equal portion of the debts. And to enable the respective parties to pay the same — it is ordered and decreed, that the commissioner shall sell the lands on Cat Island, for such proportion of cash, not exceeding one-third, as he may judge most conducive to the interest of the estate, and the remainder, upon such credit, not exceeding five years, as he in like manner may think prudent. Also, the lands of the estate on Goose Creek, and the remaining negroes of the estate. He shall also proceed to collect, without delay, all the debts due to the estate, and to this end shall use all legal process, for enforcing the paymeut thereof; and after first paying the compromise with Bird, Savage & Bird, as aforesaid, shall apply the funds so raised, in the liquidation in equal proportions of the debts adjudged to be paid by the complainants and the defendants, the heirs of Savage Smith. The surplus shall be retained, subject to the final order of the Court, in relation to the mutual claims of the parties. It is further ordered, that the commissioner do examine and report on the several accounts of the complainants and defendants with the estate. It is ordered and decreed, that *469any personal liabilities assumed by the administrators be discharged by the distributees.

*“*I have consented to this decretal order for the division of the estate before the payment of debts, and directing that each division shall bear its aliquot part of the debts, on the ground, that the estate is very large, and the property reserved for the payment of debts is very considerable, and greatly more than sufficient to pay the debts.”

In conformity with this decree, commissioners were appointed to divide and allot the plantations and negroes on Pee Dee, between the distributees of the two partners. The commissioners made their division and allotment; by which the plantation called Cnpps, with negroes, &c. fell to the heirs of Savage Smith; and that called .Richfield, with negroes, &c. fell to the heir of George Smith. They submitted their report accordingly, by which it further appeared, that there was an excess of value in the portion assigned to the heir of George Smith, amounting.to twenty-five or twenty-six hundred dollars, which was to be adjusted, to render the portion of each equal. This return and report w.as confirmed by a decretal order, in February, 1828, by which it was directed that the portion allotted to the parties, be held by them, respectively, in severalty, “ subject, nevertheless, to the specific liens contained in the former decre-tal order” — and that the report and documents, &c. be enrolled as part of the decree.

About this time, Brown and wife, by lease and release, dated 10th and 11th February, 1825, conveyed and assigned to Benjamin F. Hunt, all their interest in the plantation allotted to them; also all their claim and interest in the joint estate of George and Savage Smith, and their interest in the demand of Josiah Smith against the said firm; subject, however, to “ the debts due and owing by the said firm, and to the accounts between the parties interested therein, and the final adjustment of the co-partnership and acoünts.” The deed refers to and recites the decree of 1825, as part of the title, and provides 11 that he, the said Benja. min F. Hunt, shall henceforth stand and be in the place and *470stead of the said Charles T. Brown and Sarah E. his wife, in the adjustment and settlement of said co-partnership estate and effects, real axrd personal, the said Charles T. Brown and wife reserving to themselves the separate individual estate of the said George Smithand further, that the “ said Benjamin F. Hunt, henceforth standing and being in the place of the said Charles T. Brown and Sarah E. his wife, and of each of them, in the settlement and adjustment of the said co-partnership estate and effects; he, the said Benjamin F. Hunt, in the said settlement and adjustment of the said co-partnership estate and effects, real and personal, and in relation to the said assignment of the said Josiah Smith, being entitled to all the rights, privileges, demands and claims, and subject to all the duties, obligations and responsibilities of the said Charles T. Brown and Sarah E. his wife, and each of them, in the final settlement, adjustment ánd division of the said co-partnership estates and effects, real and personal.”

After this, the assignee of Brown, by the order of the commissioner, received from W. S. Smith the balance admitted to be in his hands as administrator, belonging to the partnership estate, ($5,476 79); also from the sheriff of Charleston, another sum belonging to the said estate ($403 56); and from Ravenel & Stevens, another sum ($344 21) then in their hands: and it was alleged that he received other sums due the said estate from other quarters. On the 26th February. 1826) at a sale made by the commissioner, of the negroes belonging to the joint estate, ordered to be sold by the Chancellor, the assignee, B. F. Hunt, purchased to the amount of $13,553, giving his receipt as assignee of Brown and wife for one moiety (9,500) of the whole net amount sales, and his bond to the commissioner, secured by mortgage, for the balance of his purchase (4,053). This bond the commissioner assigned to the representatives of Savage Smith’s estate, as cash, for so much of their share of the proceeds of the sale.

By a decretal order, April Term, 1826, the commissioner was directed to divide the other debts due by the partnership, he-*471tween the distributees of each partner ; and to provide for the compromise debt of Bird, Savage & Bird, by loan or otherwise, assigning the said debt and judgment as collateral security; and it was ordered that such judgment, when paid, should become the property of the joint concern, and be held for the use of the jtii'nt estate. On the 20th April, 1826, accordingly, the commissioner reported a division of the other debts as ordered, and the report was confirmed by the Chancellor.

By a decretal order of the 6th February, 1828, it was ordered that the commissioner take the accounts of the administrators, with the joint estate, and the estate of the survivor — that W. S. Smith have leave to pass his accounts before the Master in Charleston, and further, “ that the account and claims oí the representatives of George Smith and of Savage Smith, respectively, on each other, be, and hereby are, íeferred to the said commissioner, to examine and report thereon.” The debt of Bird, Savage & Bird remaining still unpaid, and execution being threatened on the same, a loan was effected (the bond of the assignee, Hunt, being assigned as collateral security,) and the balance of that debt paid off by the representatives and dis-tributees of Savage Smith’s estate. This loan was afterwards paid, and the bond returned to them. By a decretal order, dated February, 1832, entitled, Hunt, assignee of Brown, vs. Administrators of George and Savage Smith and the heirs of Savage Smith, it was ordered, that no claim not previously rendered against the estate be deemed valid, as the time allowed had long since expired — that the sheriff pay over the surplus in his hands, from the sale of the Goose Creek lands, to the commissioner, to be applied according to the former orders of the Court, and that “ creditors be compelled to make any demands they may have, in this Court.”

In February, 1833, the assignee of C. T. Brown and wife, filed his bill of supplement and revivor, and purporting to be in substitution of that which had been filed by Brown and wife, in 1822. This bill recited the previous bill filed by Brown and wife, against the surviving partner, George, and the distributees *472and heirs of the deceased partner, Savage Smith — and the charges in said bill — the partnership of George and Savage Smith — that large advances had been made to the firm through George by Josiah Smith, intended for the benefit of his daughter, the wife of George — that it had been purposed to give a bond of the firm, hue that this had never been executed — that on the death of his said daughter, leaving an only child, Sarah, married to Brown, the said Josiah Smith had assigned the said demand to the said Sarah, his grand-daughter; and Brown and wife had assigned it to the present complainant — the partnership and residence of George and Savage — and their property— that endorsements had been made by George in his own name, for the benefit of the firm. That complainants had prayed a full settlement of the affairs of the concern, and particularly of their demand in right of Josiah Smith. This bill further recited the defence made by the administrators as before stated, resisting the claim of Josiah Smith, denying all interest and control in the tan-yard — admitting the partnership, but denying that the partnership property was liable for the individual endorsement of George Smith, and declaring themselves ready to account, &e.

This supplemental bill further charged, that the plea and demurrer of the administrators were never decided, but that a decree was made in the case hy consent, (as above set forth,) and the lands and negroes on Pee Dee divided by commissioners accordingly, an account directed between the parties, and a sale of the residue of the partnership estate ; that by the allotment, the plantation called Gripps, with the negroes, was set apart to the distributees of Savage Smith ; and Richfield, with the negroes, to G. T. Brown and wife, who entered upon the said plantation, and were seized of it in severalty ; and refers to the records, reports and proceedings of the Court.

The bill further charges, by way of supplement, that in this situation, Brown and wife conveyed and assigned to the complainant, (B. F. Hunt,) not only the said plantation and negroes, hut all their interest and claims on the co-partnership estate, as *473well in their own right, as what they had by assignment; and claimed that the said assignee was *“*substituted completely in the place and stead of the said complainants in the said bill of complaint.” The bill further sets forth, the sale by the commissioner of the partnership negroes, the purchase by the complainant, his receipt given for one half of the purchase money and bond for the residue; that his object in doing so, was merely to enable the commissioner to close his sales, in the confidence that what was due to him, as assignee of Josiah Smith, and of the share of Brown in the estate, would be a good discount to the said bond. That he had filed a statement of his demand with the commissioner, and endeavoured to procure a report on that claim and the accounts generally, but had not succeeded. The bill again states the assignment of Josiah Smith’s claim to the complainant; that a balance will be found due on a settlement of accounts, for advances made by the partnership to support the family of Savage Smith ; and claims the benefit of the amount due on Josiah Smith’s claim, as a sett off to his bond ; bill further charges, that this bond has been sued at law, by Peter Cuttino, administrator of Savage Smith. That complainant has complied with the decretal order of the Chancellor, by assuming a moiety of the partnership debts ; claims the benefit of the decree of 1825, “ by which the shares of complainants and defendants, were declared to be mutually liable for the balance that may be found due on a general account of the partnership estate.” .

Prays a revival of the original suit: — That the administrators, Cuttino and Smith, and the distributees of Smith, may answer and come to an account of the partnership estate, including a house and lot, and tan-yard, in Georgetown. That the balance found due complainant may be paid him, and that Cuttino may be enjoined from proceeding at law in the meantime.

After this bill was filed, and before any answer was put in, Peter Cuttino died, leaving Henry Cuttino his executor; and in January, 1834, the assignee, B. F. Hunt, filed a bill against Henry Cuttino, as administrator of Peter, and the Bank of the *474United States, to whom the bond given to the commissioner had been transferred, by Peter Cuttino, as collateral security for a loan to pay off the compromise debt. This bill referred to the previous proceedings and claims of complainant — stated that Peter Cuttino had been enjoined from putting the bond in suit— but that he was dead, and it was now put in suit by the United States Bank. Prayed a revival of the preceding causes against Henry Cuttino, to make the estate of his intestate liable to the accounts which had been prayed against him in his lifetime ; an account against his intestate, and an injunction to restrain the Bank from suing on the bond of complainant.

On the death of Peter Cuttino, former administrator of Savage Smith, Wm. C. Smith had administered on his, Savage Smith’s, estate.

In September, W. S. Smith, surviving administrator of George •Smith, and the distributees of Savage Smith, putin their answer to the bill of the assignee Hunt. The former admitted the first bill of Brown and wife, as slated in the assignee’s bill; the de-fence and proceeding under it as there stated — a sale by Brown and wife to complainant, of all their interest in the partnership estate, subject to the debts, &c.; the division of the property" on Pee Dee; refers to the decree of 1825 ; states that he had effected an advantageous compromise of the debt of Bird, Savage and Bird ; and insists that, by the-decree of 1825, the affairs} the estate were wholly taken out of the hands of the administrators, and placed under the direction and control of the Court ; relies on the clause, ordering the distributees to discharge any personal responsibilities assumed by the administrators. States that ever since the commissioner has acted as receiver, and no part of the estate has been received by the defendant. That the balance which remained in defendant’s hands, ($5,476 79 ) was, on 26th November, 1825, paid to the complainant, by order of the commissioner; that defendant then exhibited his account with the estate, to complainant, and has never since intermed-dled with the affairs of the estate ; and files a copy of his las^ act, and receipt of the balance appearing thereby from complain*475ant, with his answer. Further states, that since their assignment by Brown and wife to complainant, the latter has had the chief management and control of the estate of the partnership, defendant never intermeddling therewith, but considering himself discharged from all further liability as administrator; that since the original bill, his co-administrator Peter, has departed this life, &c.

The other defendants, children and distributees of Savage Smith, admit the partnership and the death of their uncle and father; without division or settlement; that they have heard of the pretended assignment made by Jofiah Smith to his granddaughter, wife of G. T. Brown ; but deny that said Josiah had any claim against the joint estate of George and Savage Smith, and deny the benefit pretended to be drawn from said assignment ; that on the contrary, George expended considerable sums belonging to the partnership estate, in supporting the establishment of Josiah Smith ; insist that if Josiah Smith did advance any sums to George, it constituted a personal demand against himself, and not against the partnership, and deny all liability of the partnership to Josiah Smith or his assignee, the complainant ; and for themselves and their infant co defendants, rely upon the statute of limitations as if pleaded. Admit the assignment of Brown and wife to complainant, of their claims and interests in the partnership estate, but subject to the debts and mutual demands of the parties, &c., *“*meaning the final settlement between the representatives of the said George, and the representatives of the said Savage Smith.” That thereby, the complainant was put precisely in the place of the said O, T. Brown and wife, and bound to make good all claims, which those representing the estate of Savage Smith might have against those representing the estate of George Smith, by reason of the partnership property, &c. That from the time of the assignment, complainant has had the chief management of the affairs of the estate, &c. Admit the division of the estate in 1825, under the decree, providing that each share shall remain liable to the debts, and final decree upon mutual demands ; and insist *476that they would not have consented to a division upon any other terms, as Brown and wife had previously received large sums of money from the partnership estate, for which he was bound to account on a final division, and for which complainant, as his assignee, is bound to account; that said sums were so charged, in the administrator’s account submitted to complainant.

Admit the sale by the commissioner, of the reserved negroes, &c., but state that the proceeds, instead of being applied to the debt of Bird, Savage & Bird, went in great part into the hands of the complainant. State that while it was supposed the compromised debt would be paid, the remaining debts were apportioned, and believe the same have since been paid or arranged. Further state, that on account of the delay in paying the compromised debt of Bird, Savage & Bird, their agents and attorney threatened to issue execution for the whole amount; and defendants were obliged to borrow money to pay oif this debt, which they did in 1826, to the amount of $13,820 26; and state in addition, that the compromise debt was on an individual debt of George Smith, being on a bond which only bound him, and his separate share of the estate ; defendants further charge liability on the complainant, assignee of Brown, for large sums of money received by him, complainant, belonging to the partnership estate — particularly an amount due the partnership, by R. F. Withers ;■ also for a tract of land called Michau’s Point, which complainant agreed to take at $10,000 ; a tract of land on Cat Island purchased by him ; for some negroes belonging to the partnership reserved for sale, retained by complainant, for which he is bound to pay ; the sum of $5,476 79, received by complainant, from W. S. Smith, administrator; the sum of $1,142 in the hands of the factors, Ravenel & Stevens, belonging to the estate, which, as these defendants believe, complainant also received. Defendants refer to accounts filed with their answer, for a statement of the amounts received by Brown and wife, and by complainant as assignee, for which he, and the share of the partnership in his hands, is liable.

Defendants further allege, that on a final settlement between *477the representatives, respectively, of George and Savage Smith, the complainant, as representing the former, will be largely indebted to the defendants in right of the latter.

Further state, that the bond secured by mortgage, given by complainant for his purchase at commissioner’s sale, was assigned by commissioner to the estate of Savage Smith, as part of their moiety arising from said sale ; that said bond was pledged to the U. S. Bank to raise money to pay the compromise debt, and this loan having since been paid the Bank, the bond was returned to Wm. G. Smith, representing the estate of Savage Smith ; defendants insist that complainant is bound to pay this bond, and as it was taken for cash, defendants ought not to be compelled to await a final settlement. They insist, that on such settlement, a large balance will be found due to them — that they have always been anxious for such settlement. Two of the defendants, Thomas P. S. and David H. S., say they are infants, and submit their rights to the protection of the Court.

In January, ’35, Henry Cuttino filed his answer to the bill above set forth, of the assignee, B. F. Hunt. He admitted the administration of his testator, and the former proceedings under the decree, &c., but relied on the decree of 1825, as discharging his testator from all further accountability, — stating that since that time, he had never interfered with any portion of the estate, except what was assigned to the distributees of Savage Smith, acting as their agent, and Avas only accountable to them,— stating that the assignee had the chief control of the estate, &c.

After this, some references Avere held in Georgetown before the commissioner, Avhether under the previous orders already noticed, or a subsequent one, did not appear. At these references, or some of them, the solicitor of the distributees of Savage Smith, and the assignee in person, attended — demands were specified — voixchers offered and witnesses examined, but it did not appear that the references were ever closed — and no report was ever made by the Georgetown commissioner.

In August, 1838, W. S. Smith died, leaving the estate of G. Smith unrepresented — and his own estate also unrepresented.

*478In November, ’38, W. 0. Smith, and the other children of Savage, his distributees, defendants in the former cause, filed their cross bill against B. F. Hunt, assignee, complainant in the former bill. In this bill, admitting and setting forth the previous proceedings, they relied upon the charges set up in their answer to the former bill, and called for an execution of the decree of 1825, claiming an account from the assignee, for all the sums which Brown would have been accountable for under that decree, and all that the ass'gnee had become accountable for since that decree, on account of his dealings with the partnership property, and debts of the partnership estate paid by complainants. They relied for the most part on the claims before specified in their answer, and some additional items in the same right, &c. They persisted in their former denials, and called for a direct account (without regard to the a'dminislration accounts.) as being each directly and adversely interested under the decree in the share received by the assignee.

To this bill, the defendant, B. F. Hunt, put in his answer, relying on his former claims, in right of Josiah Smith and C. T. Brown and wife, as a discount to all claims against him— reiterating those claims — denying all privity with complainants, and that he had ever impleaded them as to the personal estate ; insisting on his uninterrupted possession of the property, and the statutes of limitations, to all the claims urged against him, and setting up claims against the administrators for professional services, as giving him a right to retain some of the property in his possession — urging various other claims and objections. He also objected to the whole bill as not showing any right to im-plead him in this Court, and prayed the same benefit as if he had demurred.

Un to this time, all the proceedings had been in Georgetown, but on 28th June, 1840, it was ordered, that all the causes, pleadings and proceedings should be transferred to Charleston, with the provision, that the transfer was not to affect any of the questions made by the parties. On the 11th July, 1840, an order was taken out by the solicitor of William C. Smith, and others *479his co-distributees, that the case, together with the original bill and cross bill of the defendants, be referred to the commissioner, to take and report the accounts between the parties. Under this order, references were held before Mr. Gray, one of the Masters, twenty-one or more in number, commencing on the 14th Oct., 1840, and ending on the 7th June, 1843. To all of these, the assignee, Benjamin F. Hunt, was summoned, and at most of them attended in person, sometimes objecting to the proceedings, and sometimes objecting to the vouchers offered, and offering in discount, the claim as assignee of Josiah Smith and George Smith’s individual estate as unaccounted for.

On the 28th of June, 1843, the Master filed his report. In this, he reported that it had been satisfactorily proved before him, by vouchers and witnesses, that the sums received by Brown, from the administrator of the estate of George and Savage Smith, sums paid by said administrator on account of the individual estate of George Smith, and monies and property received by Mr. Hunt, belonging to the partnership estate, amounted in the whole, to $122,993 00, for the one-half of which, the assignee of Brown would have to account, if the case stopped 'there, but that it was insisted on the part of Benjamin F. Hunt, that no account could be adjusted between the parties until the administrator’s accounts of George and Savage Smith had been fully audited and established, and it was ascertained that Brown and wife, &c. had received more than their share. The Master further reported, that the estates of Geo.ge Smith and of William S. Smith were not represented. That no accounts of the administration of George and Savage Smith had been rendered to him, and that he could not make up a correct account without such accounts, and filed the testimony. The causes were called on the docket at February Term, 1844, for hearing, and objections were made to their being heard, on the ground, that the two first had abated by the death of W. S. Smith, and the third could not be heard on the report. The question was argued before his Honor, Chancellor Johnston, who made a decree, recalling the order of reference of July, 1840, and staying proceedings until *480other parties were made to the cross bill. The conclusion of his Honor’s decree is as follows :

*“*It is ordered, that this cross suit be stayed until the plaintiifs make parties of Brown, or his representative; of Cuttino’s representative ; of the representative of Wm. S. Smith; of the representatives of Josiah Smith, and of the representatives, *de bonis non,*of George Smith and Savage Smith, respectively; and that the order of reference of the 11th of July, 1840, be recalled.

“A proper order of reference, extending to the whole of the accounts, c in only be made when the pleadings are completed. I would suggest such an amendment of the pleadings, as should distinctly call for an account and settlement of the respective estates of George Smith and Savage Smith, so as to close for ever this tedious litigation.”

From this decree an appeal was taken, which, at March Term, 1845, was dismissed.

After the appeal was dismissed, the proper parties were brought before the Court; and at March sittings, 1846, it was ordered, that the references be resumed without prejudice to any of the parties, and reserving all the equities, &c.

At the same sittings, (March, 1846,) his Honor, Chancellor" Johnson, on behalf of Col. Hunt, made the following order :

“ Ordered that an injunction do issue to restrain the defendant, W. C. Smith, and others, from pursuing their judgment at law, and levying execution at law, in the case of Coachman, commissioner in Equity, against B. F. Hunt, upon the complainant, B. F. Hunt, entering into bond with security to be approved by the Master, for the payment of the amount due upon the said judgment, with legal interest thereon from its date, whenever the said injunction shall be dissolved, or until the further order of the Court.”

During the summer sittings of 1846 and 1847, applications were made to dissolve the injunction issued under the above order. The applications were refused, and the motion was taken to the Appeal Court, where, in February Term, 1848, the following opinion was delivered by

*481Dargan, Ch. There is much complexity in the facts of this case. The rights of the parties have been further complicated, by a course of litigation protracted far beyond the usual period, by the involved state of the pleadings, the numerous parties thereto, and the various orders which have been heretofore made. As the Court will express, and has, in fact, formed no opinion as to the merits of the questions between the parties, I will here advert only to such of the facts as constitute the basis on which the decree of the Court on this application will be rendered.

On the 26th of March, 1846, Chancellor Johnson made the following order in this ease: *“*Ordered that an injunction do issue to restrain the defendant, *W.*C. Smith, and others, from pursuing their judgment at law, and levying execution at law, in the case of Coachman, commissioner in Equity, vs. B. F. Hunt, upon the complainant, B. F. Hunt, entering into bond with security, to be approved by the Master, for the payment of the amount due upon the said judgment, with legal interest thereon from its date, whenever the said injunction shall be dissolved, or until the further order of the Court.”

At the succeeding term of the Court of Equity for Charleston, it was moved before the presiding Chancellor, that the injunction be dissolved, when the following order was made: — “This case comes up on a motion of the solicitors for the administrator and heirs of Savage Smith, to dissolve the injunction granted by Chancellor Johnson. The Court is of opinion that, in this stage of the proceedings, there is nothing which can warrant its interference with the order of the Chancellor. The same equities subsist upon the allegations of the parties, and the report has not yet ascertained how the account stands. An interlocutory order dissolving the injunction would manifestly then be a re-hearing of the same case already considered by the Chancellor who granted the injunction. It is, therefore, ordered that the motion to dissolve the injunction be dismissed.”

The motion to dissolve the injunction was again renewed at the Summer sittings for Charleston, and was again refused. And the application is now made by way of appeal (on the *482grounds stated in the brief) from the decision of the two Chancellors, who rejected the motion to dissolve the injunction as aforesaid.

The answer of the defendants has been put in, in which all the equities of the complainant’s bill have been positively denied. And on the 8th of June last, the report of the Master was filed, stating the accounts between the parties, and in which a large balance has been struck against the complainant. In addition to these facts, it may be remarked, that the proceedings in this case at law, were first arrested by an order of this Court, in the case of *B. F. Hunt*vs. *The representatives and heirs at law of Savage Smith,*made by Chancellor DeSaussure, in the year 1832. This bill having abated by the death of some of the defendants ; on the revival of the same, an application was made to Chancellor Johnston, that a writ of injunction formerly granted, would be re-signed and directed to the present representatives of Savage Smith ; and an order was made to that effect. It was then moved that the order should be so amended as to require security, which was refused. On appeal, it was held that a complainant applying to the Court of Equity for a writ of injunction to restrain proceedings upon a judgment at law, was bound to give security (a). On a subsequent application before Chancellor Johnson, the order first recited in this statement was granted. It thus appears that the proceedings in this action at law have been suspended by the interposition of this Court for sixteen years. The simple question now submitted is, whelher, under these circumstances, the injunction should be dissolved, irrespectively of any consideration of the merits of the questions at issue between the parties. It is certainly true that an application for an injunction to stay proceedings at law, is one addressed to the sound discretion of this Court, [t is also true, that after the answer has been put in, the continuance or dissolution of the injunction is equally within the discretion of the Court. While the equities sworn to in the bill are unde-nied, there is reason that the injunction should continue m force. *483The same reason applies, when the answer admits the complainant’s equities. But when the answer positively denies all the complainant’s equities set forth in his bill,- if the latter be not corroborated by other proofs, the presumption, on which the interposition of the Court was originally based, in a great measure ceases to exist. At this stage of the case, if the complainant has further proofs by which he may support the allegation of his bill, he should present them in the form of affidavits. If he has none such, it is obvious that the further intervention of Equity, in arresting the proceedings at law, is unnecessary, and may be mischievous, as on a trial upon bill and answer, the dismissal of the bill must follow as a necessary consequence.

By the 5th section of the Act of 1721, it is provided, *“*that no injunction shall continue of force longer than the next term after the defendant has put in his answer, unless the Court shall see fit to extend it.” The plain meaning of this provision is conceived to be, that after the answer is put in, the Court may extend or dissolve the injunction, in the exercise of its own sound discretion. There is no impediment, therefore, in entertaining the motion, notwithstanding the order that has already been made. Indeed, it seems to be but a provisional order, and by its own terms, to contemplate a possible further modification before the hearing of the cause.

Since that order was made, another important stage in this protracted litigation has been attained, and another aspect given to the case, which did not then exist, and which has a strong bearing on the question now submitted to the Court. The Master has filed his report on the accounts between the parties, and has found a large balance against the complainant. The judgment at law (the subject matter of the injunction) is not included in that balance. It is true, that many exceptions are taken to this report, and it may be, when the exceptions are heard, the report may be set aside in the whole or part. Doubtless, the merits of the controversies between the parties are, in a great degree, involved in that report, and the exceptions thereto. But *484this application is decided (as has been already stated) without any reference to those questions.

The Master’s report thus finding a large balance against the complainant, and thus making a case of *prima facie*indebtedness by him instead of the defendant, when superadded to the denial of the complainant’s equities by the answers, constitutes an insuperable objection to the further interference by this Court with the progress of the suit at law.

This Court has now stayed the proceedings of a Court of law, on a purely legal demand, for sixteen years. And it has been twenty-six years since this litigation commenced in the Court of Equity. Doubtless, the progress of the cause has been obstructed by many unavoidable accidents and delays. It is difficult to avoid the conclusion, that there has been *laches.*This Court has no means of knowing by whose default this extraordinary delay has occurred. The rules of Chancery practice, on the subject of injunctions, require that the complainant should use a high degree of diligence, and in any uncertainty as to whose default has occasioned the delay, he, as the actor, must share a large proportion of the responsibility, or, at all events, make a showing that he has used a reasonable degree of diligence in prepa'.ing his case for trial.

Against the dissolution of the injunction, it is urged, that it might occasion .the complainant irreparable mischief ; that the heirs of Savage Smith are utterly insolvent; that their share of the joint estate which was allotted to them in the division, has passed by sale into other hands; and that, if the complainant should establish his claims against the estate of Savage Smith, he would have no means of enforcing his demands, while the defendants possessing the security of the injunction bond can suffer no other inconvenience than delay. This argument might address itself strongly to the consideration of the Court, if it were not clear that the complainant possesses the most ample security for any amount that he may recover from the defendants, in the final adjustment of the accounts. The decree for partition of 1825 affords this protection. It expressly provides, “that each *485share shall remain subject to the final decree, which shall be made upon the mutual demands of the parties, plaintiffs and defend ants.’’ And the share of the heirs of Savage Smith purchased *pendente*lite, and, therefore, with notice, cannot by such sale be divested of the *lien*which that decree thus imposes upon it-.

For the foregoing reasons, it is the opinion of the Court, that the injunction should *be*dissolved, and it is accordingly so decreed.

Johnston, Dunkin and Caldwell, CC. concurred.

Under the order of reference of March, 1846, the Master, (Mr. Gray), on the 9th June, 1847, filed his report as follows.

“ *To the Honorable the Chancellors of the said State:*

“Since my report, filed 2Sth June, 1843, with the testimony to which it referred, Chancellor Johnston, on the 13th March, 1846, made the following order. — “ New parties having been made, in pursuance of the Appeal Decree; it is ordered that the references be resumed in these causes, without prejudice to any of the parties, and reserving all the equities in the same manner for the hearing as though the present order had not been entered. It is further ordered, that evidence be taken by any party to the cause or any matter involved in the pleadings, to be used in the causes as may be required; this order made with consent of the solicitor of B. F. Hunt.” I respectfully report, that in pursuance of the said order, many references have been had before me by the solicitors of the parties, up to the 25th May last, inclusive, the day fixed by me for closing all references in litigated causes, by a notice published in my office on the 1st day of the last April. I beg leave to file herewith my notes of these references, and all the testimony submitted to me from time to time by the several parties. The representatives of the several estates of George and Savage Smith, have each filed their claims, and I proceed to state the results at which I have arrived, after considering the testimony submitted to me:

“ First, as to the claim of B. F. Hunt, the assignee of G. *486T. Brown and wife, or the representatives of the estate of George Smith, viz: that

*“*First, an account of the co-partnership of George and Savage Smith, under its various names, should be taken, and the share of each brother ascertained; The testimony shows, that with the exception of a few house servants, and some other property of inconsiderable value, owned by George and Savage Smith in their individual rights, all the rest of their lands, negroes and assets were owned and employed by them joint-ljq in the various uses to which they were applied; so that after deducting whatever was strictly applicable to their joint liabilities, the remainder was to be equally divided between the brothers.

“ 2nd. That Josiah Smith made considerable advances to the firm of George and Savage Smith, on account of his daughter, the wife of George, which ought to be credited to the estate of George, and allowed Mr. Hunt, who is the assignee of the claim. I do not find any testimony in support of this claim, but that of Mr. Josiah Smith, the alleged creditor himself, supported by entries in the book called his Petty Ledger in evidence; but there is no proof that Savage Smith ever recognized the claim, and it seems from the testimony of Henry Cuttino, that George Smith himself stated to him, that he was not aware how Mr. Josiah Smith had made such advances.

3d. The excess of the private expenditures of Savage over George, from 1783 to 1817, which it is alleged would leave $45,-000 to equalize the partnership expenses ; it is in evidence, that George Smith during that time resided in the family of Josiah Smith, and that his private expenses were small, having only a wife and one child ; while Savage Smith had a large family of children, and lived in Georgetown handsomely at an expense of from $2,000 to $2,500 per annum. But it is also in evidence, that during this long series of years, the brothers never came to an account with each other, or had any settlements of transactions, but appeared to treat their interests as identical, and to use their estates as if it were the property of each, and employed *487for their mutual advantage; so that it would be impossible to adjust their accounts after such a lapse of time. This answer applies also to all the other incidental claims under this head, such as the title to “Crips ” Plantation, having been taken in the name of George Smith, while that of “ Richfield ” was taken in the name of George and Savage. The payments made by George Smith for negroes, as per bills of sale, &c.

“ 4th. The next claim is, that the administrators should account for the estate. I find that the accounts of W. S. Smith, one of the administrators, from 1818 to 1825, have been vouched before me, and the balance appearing in his last account paid to the order of Mr. Heriot, commissioner in Equity for Georgetown district. Mr. Hunt has submitted his objections to these accounts, and filed a statement, which I have marked X., which he claims as a proper account, shewing a balance of $10,799 12 in his hands in 1825, instead of $5,576 79, the balance paid by him. In this connexion, Mr. Mitchell, for the representatives of Savage Smith, has submitted a statement, marked Z, by which it appears, that comparing the sums received and disbursed by Messrs. Ravenel & Stevens, the factors of the estate, with those actually received and disbursed by the said administrator, there results a sum of $1,637 69, overcharged for commissions, which added to the balance stated by Mr. Smith, would amount to $7,114 48, the correct balance due in 1825 ; and it appears to me that this is the correct view of the matter.

“ 5th. The next is a claim of the estate as per the inventory.

• “ It appears to me, that the property contained in the partition, and allotted in 1825, together with the sales made by commissioner Heriot, satisfactorily account for the property.

“ 6th. The debts due the firm in 1818, when George Smith died; which ought to have been collected, unless the insolvency of the debtors can be shown.

*“*The responsibility for these debts seems to be shared between the administrators, and commissioner Heriot, viz: .from 1818 to 1825 by the administrators, and afterwards by the commissioner in Equity, who was then authorized to collect them, and then *488received for collection from Mr. Cuttino, the administrator/such as had not been realized under the decree.

“ The testimony of Mr. Huggins specifies such of them as he thought might, from the circumstances of the debtors, have been collected; and he adds, that many of them were solvent in 1825, and it appears to me, that there must have been a want of proper diligence in making the collections ; but the representatives of both estates have suffered equally from the acts of their agents, and ought to share the losses, if any have occurred; this embraces the cases of W. R. Theus and of.Richard F. Withers, the debtors referred to, the particulars of which are detailed in the testimony of Mr. J. N. Davis and Mr. Huggins.

“ 7th. The next claim is, that the lot in Hampstead is part of the joint estate. And I find that it is so, as appears by the tax returns of W. S. Smith, the administrator, as late as 1816 ; and this, therefore, ought to be brought into division between the parties.

“ 8th. That the land on which the tan-yard was in Georgetown, and the other real estate in that town, was joint estate. I find that the tan-yard lot was a part of the joint estate, and was sold by Henry Cuttino in 1835, for $110; that after the death of Savage Smith, George Smith transferred his interest in it to his nephew, George S. Smith. And I find that the house and lot of Savage Smith, where he resided, was not the property of the estate, but of Mrs. Savage Smith, derived from her father, Wm. Cuttino.

*“*9th. Is a claim for a negro, Isaac, and others attached to the tan-yard. I find from the testimony of Mr. Henry Cuttino, that Isaac was the property of Savage Smith : that at the death of Savage Smith, the business of the tan-yard was very inconsiderable ; that of the 16 negroes then attached to it, all died except five, which were sold in 1835, and brought $397 56 altogether.

“ 10th. Claims that the accounts of Peter Cuttino should be vouched; I find that these accounts were vouched before the ordinary; but the vouchers have not been submitted to me ; and that for all the items of said accounts, except for monies *489admitted to have been received by either of the representatives of the two estates, the parties are entitled to have a decree against the said administrator.

“ I proceed now to the claims of the representatives of Savage Smith, submitted by Mr. Mitchell, which are to be reimbursed by Mr. Hunt, the assignee of C. T. Brown and wife, in .conformity to the decree of 1825, for all sums received by him, or expended for him, out of the joint estates, over his equal share.

“ 1st. Is contained in Schedule A, filed with said claim, which contains the items of portions of the joint estate applied to the private debts of George Smith, greater than were applied to the private debts of Savage Smith. I find the items of this claim to be correctly established by the testimony, with the exception of the sum of $>13,820 26, paid on the compromise debt of Bird, Savage & Bird, which I consider to be a good charge on the joint estate. The debt originally seems to have been one of George Smith, sen’r. (the father of George and Savage Smith,) and of Josiah Smith, and the judgments upon it in the Federal Circuit Court are entered against Josiah Smith individually, George Smith as executoi of George Smith, and Josiah Smith as executor of George Smith; the particulars of which judgments are stated in my notes of the references of the 9 th of February last. The name of Savage Smith does not appear in the proceedings: but that of his brother, George, appears only as executor of his father, and as they held and enjoyed jointly their father’s estate, there is every reason to infer that this was regarded as a joint debt by George and Savage Smith. Besides, the debt was compromised at the instance of the representatives of both estates, and the decree directed it to be paid out of the funds of the joint estate, and the above payment was accordingly so made. The result of this Schedule shews, after striking out this item, that the amount paid for the estate of George Smith, exceeds that paid foi; the estate of Savage Smith, after allowing interest to the present time, by $21,686 32, which ought to be paid by the assignee of C. T. Brown and wife.

2d. This claim, contained in Schedule B, Nos. *1*and 2, is for *490the excess of payments made out of the joint estate to C. T. Brown and wife, over those made to the distributees of Savage Smith. Exception was taken to the character of many of the receipts given by Mr. Brown to W. S. Smith, as indicating receipts of money from Mr. Smith individually, and not as administrator, from which it was inferred, that they related to private transactions not connected with the estates ; but the testimony of Thomas Lehre convinces me that the money came from the joint estates. And I find that there is due by the assignee of C. T. Brown and wife, to the distributees of Savage Smith, on this account, $11,521 56, including interest to the present time.

“ 3d. Schedule C contains the claim for the amount due from O. T. Brown, for *thé*hire of the negroes of the estate, from January, 1820, to January, 1825. I find this claim to be established by the letter of C. T. Brown to the administrator, of the 1st August, 1819, and also by the examination of C. T. Brorvn before me, annexed to my former report, and I find that there is due by the assignee on this account, $13,542 50, including interest to the present time.

“ 4th. Schedule D is the claim of the amount due to the heirs of Savage Smith, for equality of partition on the division of the .estate in 1825. This claim is established by the return of the commissioners in partition in 1825, and the report of commissioner Heriot, February 3, 1827, and I find the amount due by Mr. Hunt to be $3,262, including interest to the present time.

“ 5th. Schedule E is a claim for the amount paid by the. administrator and heirs of Savage Smith, in full of the balance due on the compromise debt of Bird, Savage and Bird. This claim is fully established by the testimony, especially that given by Mitchell King, Esq., and I find the amount due by Mr. *Hunt*to the heirs of Savage Smith, to be $14,768 16, including interest to the present time.

“6th. Schedule F is a claim for certain funds and property, alleged to have been received by Mr. Hunt, after the decree of 1825, for which the heirs of Savage Smith did not receive an equivalent, or which were not applied to the partnership debts; *491of the items of this claim, I find that the item of $344 20, received from Ravenel & Stevens, and the item of $403 56, received from sheriff Steedman, were accounted for by Mr. Hunt to commissioner Heriot, whose agent he was in the receipt of them. And they are disallowed. Another item in this Schedule, viz: the amount due for the purchase by Mr. Hunt of Mi-chau’s or Clegg’s Point, $10,000, appears to me not to be sustained by the testimony. The property was bid off by Mr. Hunt, at $8,000, and he paid $776 50 of the purchase money; but he never received titles for the property, and it was afterwards sold under the decree obtained by S. Pedrieau and wife, (reported in Riley’s Chancery Cases, page 88,) and was lost to Mr. Hunt, the former purchaser. This item is therefore disallowed. And I find the amount due by Mr. Hunt to the heirs of Savage Smith, on the remaining items of this Schedule, to be $1,468 00, including interest to the present time.

“ In addition to the foregoing claims, there is one for the bond given by Mr. Hunt to commissioner Heriot, for $4,053 00, with interest, for the purchase of negroes of the joint estate, on which a judgment has been obtained at law, but which has been enjoined by this Court, to abide the decree in this case.

“ The Schedule G annexed, will exhibit a summary of the several balances found as above to be due by Mr. Hunt to the representatives of Savage Smith.”

The cases were heard, on exceptions to the above report, at February sittings, 1848, before his Honor, Chancellor Johnston-,. who pronounced the following decree :

Johnston, Ch. I had, at the close of the argument, pretty-satisfactory impressions of the general principles upon which this litigation must turn ; and though they have been in some-decree obscured, they have not been materially altered by the-immense and heterogeneous mass of documents, which I have been required to read and examine.

In deciding the case, I will introduce what I have to say, by remarking, that the principal litigation has palpably arisen in consequence of Mr. Hunt’s having substituted his bond, in place-*492of the money, for part of his purchases from Mr. Commissioner Heriot. By the report of the 3d February, 1827, it appears that the commissioner has sold, of property belonging to the copart-nership estate, and of property mortgaged to it, to the amount of $21,598, (of which there was purchased by Col. Hunt to the value of $13,553.) Part of this sum, to wit: $19,069 42, was divided between the distributees of the respective parties, in the proportion of $9,500 00 to Col. Hunt, and $9,569 42 to the dis-tributees of Savage Smith; and upon the principles of that report, it is pretty clear, that if Col. Hunt had paid the whole amount of his purchases, instead of giving his bond for $4,053, a part of them, an equal division would have been made of the whole of this fund, (the $21,598.) That is, the amount covered by Hunt’s bond, ($4,053,) if it had been paid in, and had existed in cash, in the commissioner’s hands, would have been apportioned by allotting to Hunt $2,061 21, and to the distributees of Savage Smith $1,991 79, of that portion of the fund, which would have equalized the difference of $69 42 between the drafts upon the whole $21,598.

The early contest was in relation to this *fund,*and has been enlarged, by the one party looking up claims to sustain him in the right to retain it, and the other seeking for counter claims *to*meet these and compel him to give it up; and I am persuaded, from the facts to which I have alluded, coupled with the preceding and succeeding laches of the parties in relation to these extrinsic claims, that they are more plausible than real, and that the marrow of this litigation is the bond of Hunt. Nothing beyond this was claimed by him, until his bill in 1833, nor by the other parties, until their cross bill in 1838, for although they did fish up some few things in their answer to his bill, they ■never earnestly proceeded to urge any claim beyond the bond, until they filed their cross bill, as I have stated.

My persuasion is, therefore, that (with the exception of matters in the report not excepted to, which must of course stand, if there be any such,) the decree must be confined to the sum for which Hunt’s bond was given, with interest, and that it should *493be divided as I have stated; the judgment obtained on it to stand as a security for the amount to be decreed, and to be enjoined for all beyond that amount. My opinion is, also, that all the other claims are too stale or obscure to be made the subject of a decree.

If we were to go beyond the point I have intimated, and enter into the consideration of the other claims set up by the different parties, we must be governed, throughout the investigation of them, by one leading principle. There is no privity between these parties, but through the decree of 1825. No claim can be recognized that does not come within the purview of that decree. Every claim anterior to it, and not embraced in it, is lost. Every claim that falls within it, must be governed by its provisions. And every claim arising under it must be regarded with special reference to the rights of the parties, as established by the decree itself.

This decree of 1825 must be construed with reference to the pleadings. Besides the two matters of Josiah Smith’s claim, and the endorsement for Waring, which are specially mentioned in the pleadings, there is no other claim set up, but the demand of a general account of the partnership. The latter would necessarily be subject to reciprocal claims, incidentally arising from the account. By the phrases in the decree, “ mutual demands of the complainants and defendants,” “ mutual claims of the parties,” and *“*the several accounts of the complainants and defendants with the estate,” the Court must be intended to allude to the “ demands,” *“*claims ” and “ accounts ” embraced by the record; and these are such as I have stated.

Let us assume, therefore, that these are embraced in the decree of 1825. No other claims are embraced in it.

That decree, according to the view I have taken, entitled the parties to an inquiry into Josiah Smith’s claim, and into the in-dorsement for Waring. Besides this, the plaintiff, Brown, was entitled to a general account of the partnership from the administrators, under which all matters proper to be urged by the dif*494ferent parties, as incidental to the accounting, might be brought up and considered.

Now, from the date of that decree, until.very recently, the parties have not availed themselves of the rights thus given them, nor attempted to take the account; and at this late day, they come forward, not only with the demands which they might long ago have urged under this decree, but with others entirely foreign to it, all stamped with obscurity, and ask the Court to redress the consequences of their own neglect.

If it were proper to inquire into Josiah Smith’s claim, I entirely concur in the conclusion of the commissioner in relation to it. It is in no view sustainable. The bond was never executed. The demand remains a simple contract, and was barred before the bill was filed. For the monies advanced by Josiah Smith, he still remained the creditor; as much after his assignment as before ; for certainly the assignment of a blank carries nothing. He was not before the Court in 1822. Again, whose creditor was he ? Did he advance the money to George Smith or to the firm ? If to George, then he was *his*creditor ; and George, by contributing the money to the firm, was the real creditor of the firm. But *he,*according to Cuttino, made no such claim. But waive all these objections, and assume that Josiah Smith advanced directly to the firm, that the bond was executed, and the demand not barred ; still Mrs. Brown took nothing by the assignment, which vested the whole interest in her mother, who was neither a claimant nor represented in the suit.

The endorsement for Waring stands upon testimony entirely too obscure to ground any decree upon it.

We come now to the general account. But before we enter upon it, it may be useful to examine the general features of the decree. The decree looked to a speedy settlement. The impediments to the partition sought by Brown, (and possibly by the distributees of Savage Smith,) were the existence of outstanding partnership debts, (among which the demand of Bird, Savage & Bird was the largest and most pressing.) and the express engagements made by the administrators with the creditors. *495The administrators said, *“*Free us from the liabilities existing against us, in virtue of assets in our hands, enhanced in some instances, by our personal and positive contract with the creditors, and take the estate into your own hands ; but we cannot part from it until we are indemnified.” The decree meets these difficulties, (1) by requiring the distributees of the partners to discharge the liabilities assumed by the administrators ; (2,) by providing a fund for the payment of the partnership debts; and, (3,) by limiting the property to be partitioned to a certain portion only, and in allotting this to the distributees, imposing a condition, that *“*the share of each remain liable to the payment of an aliquot proportion of debts,” as well as “to the final decree upon the mutual demands of the complainants and defendants.”

The fund provided for the payment of debts was three-fold ; (1,) the monies in the hands of the administrators; (2,) the partnership choses, which the commissioner, (taking the place of the administrators,) was forthwith to collect by legal process ; and, (3,) the proceeds of Cat Island and other property, which the commissioner was directed to sell.

The administrators were directed to apply the monies in their hands to the demand of Bird, Savage & Bird ; and the commissioner was ordered to complete the payment of that debt out of his first collections. The remaining debts were thrown into two classes, corresponding to the two sets of distributees ; and the commissioner was to discharge these classes, *pari passu,*out of the residue of his collections, and retain whatever surplus might remain in his hands, “ subject to the final order of the Court in relation to the mutual claims of the parties.”

Then “ the several accounts of the complainants and defendants, with the estate,” were referred to the commissioner, — which I have interpreted to mean, the general account, (which is the only one spoken of in the record,) and those incidentally connected with it.

There is no doubt about the meaning of the general account. What claims are incidental to it *1*When a general account is *496decreed, I suppose the proceedings must be so far reciprocal, that the accounting party may shew payments or advances made to the party calling for the account, or set off debts due by him to the fund or to the trustee. Whether in relation to debts of the latter character, or where he insists upon a balance in his favor, the trustee must not support himself by pleading, it is not necessary, in the view I shall take, to consider. Again, I suppose, that when the account is, as in this case, of a partnership' — • where the object is to ascertain the dry balance to which the respective partners are entitled — it is strictly incidental to the proceedings, to enquire not only what debts are outstanding against the concern, whether held by strangers or by one of themselves — but what choses, constituting assets, are due to the firm, either by third persons, or by the individual partners. Whether in relation to debts due to "or owing by the partners, pleading is necessary, or whether, if pleading is required, there is no distinction as to the necessity of it, between the accounting party and the party demanding the account, are questions in my view of no importance here.

I think the right of the general account has been waived or lost by laches ; or that the account has been informally given to and accepted by the parties entitled to it by the decree. And as to the incidental claims, even if they did not fall with the general account, but stood upon independent ground, I am of opinion, that every one of them upon both sides has been forfeited by negligence; and that many of them are not, in themselves, entitled to consideration.

Let us look to the general account. Has there been no laches here *1*The decree shews that the administrators were to be speedily exonerated. The only condition of this exoneration was, that they pay out the monies in their hands ; deliver over the choses ; and come to the account; the performance of two of which conditions depended on themselves, the third depended upon the other party, unless in so far as the administrators might have counter claims to set up, as for instance, if they desired to *497make reclamations for excessive advancements to the distribu-tees, &c.

Now, did the administrators pay out all the monies in their hands to Bird, Savage & Bird ? If this was not done, or what ivas equivalent and equally satisfactory, why did not the dis-tributees — pressed as they were on all hands by that debt — take the account, at least so far as to shew the amount of money in the administrators’s hands, and by rule or attachment compel the performance of that part of the decree ?

Then the choses were to be delivered to the commissioner.— This officer was made the agent of the distributees. He was not the agent of the administrators, though he was interposed for their protection, and required to apply the assets to the demands for which they were responsible. The distributees took them with the tangible property, out of the hands of these trustees at their .own risk; and all that the administrators were bound for, so far as the heirs were concerned, was the delivery of them to the commissioner. Did they do it? If not, why did the distributees delay to compel them ?

Then, it is said, the complaint is not so much that they were not delivered, as that, when delivered, they were comparatively worthless; — rendered so by the laches of the administrators ; — and they should account for that. The commissioner, in his report, expresses an opinion that there was negligence somewhere; either in the administrators or in the commissioner, Heriot. Well, if it was in the administrators, was not that fact known when the assets were delivered ? — and was it not more capable of being investigated by proof and counter proof then than now ?■ — and why did not some one of these dis-tributees, importuned from day to day by the copartnership creditors, demand the account, and establish the fact ? The list of copartnership securities, now used for establishing the default of the administrators, was parcel of the record in Brown’s case, and was accessable to any party for the purpose of shewing whether there was a full delivery, or whether the negligence *498now imputed to the administrators really existed. What impediment, then, hindered the investigation *1*

Except the money and these securities, which have been disposed of, what remained to be accounted for but the income which the administrators may have received while in the custody of the estate *1*Whatever of this remained as money in their hands has been already considered. As to whatever portion of it was paid out in the course of administration, or to distribu-tees, if there was any dissatisfaction as to the disposition of it, why did not the discontented distributees or other party call for the account ?

I see no reason for the delay from 1825 to 1833. So far as the administrators are concerned, this account could have been as well taken in 1825 as at any time after, and far better. I have said nothing of the laches since 1833 ; of the demanding an account and not making proper parties; or, (if -all necessary parties were before the Court) not proceeding; nor of the procrastinations by which evidence that might have been produced, or explanations that might have been given, may have been lost; nor of the evidence actually existing on the commissioner’s notes, and in the record of transactions purporting to be an execution of the decree.

The same laches exists as to the incidental claims. The inequality in the partition; the inequality in the payment of debts; the reclamations and counter charges set up for hire of negroes and for monies paid to Brown; why were these so long neglected ? The subsistan ce account between the brothers from 1783 to 1817; is it not apparent from the circumstances referred to by the commissioner that these brothers never intended to raise such an account ? They knew their business, and may have supposed that the superintendance of the large plantations in his neighborhood entitled Savage to a greater provision from the joint property, if, in fact, he drew his provision from that property. But if it was otherwise ; still, why was not the demand pressed *1*The attempt to shew that the debt to Bird, Savage & Bird was properly chargeable to one of the partners instead of the *499firm, was in the teeth of the decree of 1825, and badly supported by evidence.

On the whole, I can attribute the protracted silence of these parties on all sides, and their long abstinence from taking effectual steps, to nothing but a consciousness that the claims were doubtful, or satisfied; and that substantial justice did not require them to proceed; unless I adopt the supposition that, suffering under injustice, they neglected to pioceed.

. It is dangerous, when claims have become stale, and the evidences of them obliterated or obscured by time, to take judicial cognizance of them ; and it is better they should remain where the negligence of the claimants has placed them, than to meddle with them at the risk of perpetrating error and injustice in their adjudication.

It is ordered that the report be re-committed, to be reformed agreeably to the foregoing opinion ; and that he report the sum for which the decree should go, including interest. Counsel will then propose a decree. Hunt to pay the costs.

A motion was made, that the bond and other securities taken by the commissioner, on issuing the injunction against the suit or judgment on Col. Hunt’s bond, be delivered out to be sued on by the plaintiff in that action. It is ordered that they be delivered accordingly.

Wm. C. Smith and others, heirs distributees and representatives of the estate of Savage Smith, deceased, appealed from so much of the above Decree as dismissed their claims against Benjamin F. Hunt, reported by the Master, and so much as enjoined the judgment at law and abridged their rights acquired under the same, on the following grounds:

1. Because his Honor has erred in deciding that the said claims are too stale and obscure to receive the aid of this Court, whereas it is submitted that they come fairly within the purview of the Decree of 1825, and the pleadings and proceedings had in these cases before and since that time ; were, fully supported by evidence in the Master’s office, and ought to have been enforced by a Decree of this Court.

*5002. Because his Honor has erred in deciding that these appellants had forfeited their right to enforce the said claims by laches, whereas it is submitted that there has been no such laches as would forfeit the right, and that the delays have been owing either to unavoidable causes, growing out of the course of proceedings in this Court, or the obstacles thrown in the way of a speedy adjustment by the Assignee.

3. Because his Honor has erred in deciding that the claims of these appellants were barred, by lapse of time, although some of them were infants at the time of the Decree in L825, and continued so for a long time afterwards; and it is submitted that this would prevent their rights being prejudiced by the lapse of time.

4. Because his Honor has erred in deciding that these appellants were not entitled to be reimbursed for the amount paid out of their funds or estate, or by their agents, in satisfaction of the debt of Bird, Savage *&,*Bird; whereas it is submitted that by the Decree of 1825, the compromise became a specific charge or lien on the whole joint estate, and they were entitled to be reimbursed for any amount beyond one moiety paid by them or out of their funds, in discharge of said debt; and that by the proceedings of the cause and the acts of. the parties, any persons advancing this money, or paying the debt, were entitled to the benefit of this lien, and to have it enforced in this Court.

5. Because his Honor has erred in deciding that these appellants should be enjoined from recovering more than one half of the judgment on bond; whereas it is submitted, that according to the very principles of the Decree, they were entitled to the whole of it, as the bond on which it was recovered was given for a part of the moiety to which they were entitled and which was assigned to them.

6. Because his Honor has erred in reinstating an injunction which had already been dissolved by the Decree of the Appeal Court.

7. Because his Honor’s Decree is in other respects erroneous and contrary to law and equity.

*501At January Term, 1850, the appeal was heard and the following opinion thereon delivered by

DaRgan, Ch. All these cases are substantially between the same parties, and relate to the same subject matter, and are but the different phases in the way of pleading which the controversy has assumed in the progress of the protracted litigation.— In a case like this, so complex and multiform in its points of controversy, it will be a most fortunate result if the judgment of the Court shall attain any near approximation to perfect justice between the parties; clouded and obscured as are the facts, by lapse of time, and by the death of the witnesses and the persons who were the actors in the transactions which are the subject of investigation. No earthly tribunal, guided solely by human sagacity and skill, can claim for itself infallibility of judgment, or entire exemption from error. And I will not undertake to say that the Court may not, at any stage of this case, have evinced something of the infirmity of all human institutions. — ■ But I think it very obvious, that a large proportion of the difficulties now to be encountered, and the consequent short coming of the Court in its present attempt to administer justice, are the result of the-unnecessary delays and defaults of the parties themselves, and of the persons by whom they have been represented. The original bill was filed in 1822, And now, 28 years after-wards, the case is for the first time brought before this Appeal Court, for a hearing upon its merits ; nor yet for a final hearing upon all the matters involved. For this extraordinary delay, unexampled, I hope, in the judicial annals of South Carolina, the parties on both sides are more or less responsible. And if, in consequence of these causes, the Court should fall short of the truth and the right, in the judgment which it is about to render, the reproach must in a large measure be shared by the parties themselves, and those who acted as their solicitors. It is difficult to conceive of impediments in this country, which, with proper diligence, could have baffled justice for so long a period. And when it is remembered that some of the matters of controversy were old at the commencement of the litigation, now 28 *502years ago, the nature of the difficulties which have been experienced by the Court may be appreciated.

There is a clear admitted misapprehension, on the part of the Chancellor who tried the cause, on one branch of the case. This mistake is carried into the decree, and is so apparent, that it was not seriously controverted from any quarter. I refer to the bond of Benjamin F. Hunt, to the commissioner in Equity, for $4,053. The Court, by its decree at February Term, 1825, had ordered the sale of certain lands and negroes, for the payment of the debts of the joint estate. The debts, (except that of Bird, Savage & Bird.) so far as then known, had been divided between the parties representing the two estates in equal shares. The decree contemplated that the proceeds of the sale ordered, should be applied to the payment of the debts thus assumed by each of the parties. And I think the decree, by a fair construction, also contemplated that the commissioner should pay over the nett proceeds of the sales ordered, in equal moieties to the two parties, to be by them applied to their share of the debts which they had respectively assumed. But whether the decree would bear that construction or not, the parties had undertaken to give it that interpretation, and with the consent of the commissioner, effected their object. By his report of the 3d February, 1829, he states, that out of the proceeds of the sale he had made, in pursuance of the previous order of the Court, he had paid the sum of $9500 to B. F. Hunt, and the sum of $9569 to Peter Cuttino, the agent of the defendants. But Col. Hunt had been, through his own bids and those of Charles T. Brown, the principal purchaser at the sale. The sale amounted in gross to $19,356, and he was the purchaser to the amount of $13,553. For the excess of his aggregate purchases over his moiety, he gave his bond to the commissioner with a mortgage of 16 ne-groes. And this bond was paid over to the agent of the heirs of Savage Smith, as so much cash, in part of their moiety, for which the commissioner took their receipt in full, having paid them the balance in cash. They are, and have been since Feb. 1827, the assignees of this bond. They received it as so much *503cash, on their share of the proceeds of those sales, while Col. Hunt then received, and has ever since had the enjoyment of his share. This bond has been the subject of various orders of injunction issuing out of chancery in this case. At February Term, 1848, on an appeal heard by this Court, it was ordered, that the injunction be dissolved, and that the assignees of the bond have leave to proceed at law upon it. An action was brought at law upon the bond, and judgment has been recovered thereon. But in the circuit decree, which is now the subject of appeal, it was ordered, that this judgment “ stand as security for the amount that shall be decreed, and to be enjoined for all beyond that amount,” the Chancellor deciding, from a misappresion of the facts as before stated, that in no event were the defendants entitled to more than half of the amount purporting to be due upon the bond.

Whatever heretofore may have been the grounds upon which the assignees have at various times been enjoined from proceeding at law upon this bond, now when the mists that enveloped and obscured the complicated facts of this case have been dissipated, by a searching investigation, it appears to be a plain legal demand, against which it does seem that there is at present no subsisting or outstanding equity. To say the least, there is no longer any ground for this Court further to interfere in the prosecution of their legal rights by the assignees, upon the judgment which they have recovered. It is therefore ordered, that the injunction ordered by the presiding Chancellor in his decree, be dissolved, and that the assignees of the bond, (who are plaintiffs in the judgment at law,) have leave to prosecute their legal rights under the same. It is also ordered, that the master of this Court, whose duty it was to take the injunction bond, do deliver over the injunction bond to the plaintiff in said judgment at law, together with all other securities he may have taken as collateral to said injunction bond, or in lieu thereof; to be used by the said plaintiff in the suit at law, in the manner they deem most expedient: provided, however, that the said parties shall not be obliged to receive from the master any securities collateral to or *504iñ lieu of the injunction bond, unless they think proper so to do.

I come now to consider other branches of this case. And here I will observe, that there is nothing in the general reasoning of the circuit decree which is exceptionable. The general principles of equity jurisprudence, which the Chancellor asserts, are forcibly discussed and clearly expressed. They command my unqualified assent. This Court has adjudged the case on those principles, so far as they apply, If parties having dealings and transactions together, and intending to charge each other, will fail to keep accounts in the proper form, together with the necessary documents and evidence, by which these accounts are to be authenticated and supported ; if having rights, they will slumber over them, until time has thrown around them an impenetrable veil of obscurity and uncertainty; if they will not bring their claims to the judicial cognizance of Courts until some of the witnesses are dead, and the memory of the surviving has become dim and faded, it is clear that they have no right to embarrass those who administer justice, with their stale, obscure, and antiquated claims. In the adjudication of such claims, every step that is taken is one of doubt, and there can be no assurance, that any judgment that is rendered may not be founded in error, and fraught with injustice. The Court is not obliged to descend into the catacombs and charnel houses, and amidst the bones of the forgotten dead, and by the dim phosphorescent light which they emit, to adjudge matters of right, appertaining to this living and breathing world.

The doctrine that a claim may be too stale for investigation in this Court, even where it may not be subject to the bar of the statute, or to those presumptions which arise after the lapse of 20 years, is not disputed. And it will be applied in this case with rigour in those branches of the controversy to which it is applicable. But I will here remark, that in the opinion of the Court, a claim will not grow stale under the action of the Court, and while it is the subject of hot litigation.

I will now proceed to make some other preliminary observa*505tions.' The Chancellor in' his decree observes, “ that no claim can be recognized, that does not come within the perview of the decree of 1825. Every claim anterior to it, and not embraced within it, is lost. Every claim that falls within it, must be governed by its provisions.” “This decree of 1825,” he says, “'must be construed with reference to the pleadings.” The Chancellor, in his construction of the decree, includes nothing within it but the claim set up on account of the endorsement for Morton Waring, the Josiah Smith claim, and a general account of the partnership. Construing the decree by its own terms, and that too in reference to the pleadings, it does not forbid or exclude from investigation any branch of the case which has been the subject of discussion before this Court. . In reference to the properly ordered to be divided, it expressly declares, that “ the part or share of each is to remain liable to the payment of an aliquot portion of the debts, and to the final decree upon the mutual claims of the parties.” The mutual claims of the complainant and defendant, I apprehend, would be a moiety of the joint estate to each, after every just and existing claim upon it was satisfied, due either to the estates of the deceased copart-ners themselves, or to any third persons. After satisfying the individual claims of the partners, against the joint estate, and those of the creditors, the balance would be the joint estate to be divided, a moiety to each. And this and the other equities which arose between the parties, after the death of the partners, were *“*the mutual claims ” of the parties, complainant and defendants. Still, notwithstanding the decree does not close the door against the investigation of any of the claims which have been discussed, that will not prevent some of them from being obnoxious to the objection of being too old and stale to be recognized by the Court as valid and subsisting claims : as will be hereafter more particularly explained.

A great deal has been said about Col. Hunt’s position in this case, and his relationship, as the assignee of Charles T. Brown, to the heirs of Savage Smith. And the deed of Brown and wife to him, has been the subject of much comment and discus*506sion. I am of the opinion, that the deed warrants the construction which has been contended for on the part of the defendants', and that by the terms of the deed, Col. Hunt was to occupy the same position in relation to the parties interested in the joint estate, which Brown and wife had done. And I further think, that by his bill of supplement and revivor, filed by him in Feb., 1833, he did actually place himself as a party before the Court, in the relation to the defendants, which his stipulations with Brown required him to do. And that must have been the understanding of all the parties at that time, which some of them may have forgotten since.

But all this is entirely immaterial. If his deed from Brown contained no such stipulations — if he had filed no such bill as has been alluded to — still, as the simple assignee of Brown and wife, his position would be precisely the same as the stipulations of the deed obliged him to occupy, and which by his bill he proceeded to assume. His rights under a simple assignment would be the same with those of Brown, neither more or less. Brown could not convey more than he himself possessed. And his assignee would be subject to all the equities in relation to the interest assigned, that Brown himself would, even though there had been no notice of those equities. For it is a case where the assignee, at his own peril, is bound to take notice of the equities. Col. Hunt must be considered as occupying Brown’s position as to the joint estate, so far as the transactions of the latter extended, at the time of the assignment. There is but one conceivable difference which does not exist under the circumstances of this case. If Brown had received more than his share, I do not say that Hunt would be liable to the defendants for the excess, whatever his liability might be to Brown under the terms of their contract. The equities against Brown would attach only against the remainder of the share in the hands of his assignee; and if his assignee himself has received in excess, he is liable to refund, and that is a personal liability.

Having thus discussed and laid down the principles upon *507which the decree of the Court will be based, I will proceed to apply them to the different matters which are the subjects of investigation. In regard to the claims set up in behalf of the estate of Josiah Smith for moneys advanced by him to George and Savage Smith ; in regard to the claim set up by the heirs of Savage Smith against the joint estate, on account of the indorsement of George Smith for Morton Waring; and in regard to the claim for the excess of expenditures by Savage over George Smith, from 1783 to the dissolution of the partnership, by the death of Savage in 1817, the Court is of the opinion, that these various claims are too stale, obscure, and insufficiently proved. Some of the transactions attempted to be brought into review relate to the last century. And some of them, though of a much later date, are too antiquated and shadowy for this Court to form any satisfactory judgment about them. We are content with the disposition which the circuit decree has made of them, and this is the judgment of this Court. The Chancellor was also correct in the decree which he made in reference to the administration accounts of W. S. Smith and Peter Cuttino. The administration was taken from them in February, 1825, by an order of this Court. They had accounted regularly before the Ordinary, as by law required, and their accounts vouched. W. S. Smith had a settlement with Col. Hunt in 1825, as the agent of the Commissioner’, and was directed to receive the assets from him. The Commissioner, Gray, does report a balance against Peter Cuttino, but it is on the ground, that his accounts were not vouched before him. But Peter Cuttino’s house was burned, and his papers all consumed. He also reports a small balance on the account of W. S. Smith, in consequence of some supposed overcharge of commissions. I incline to think that the administrator was entitled to the commissions, the charge for which was overruled. The Court is of the opinion, that after this lapse of time the accounts of both administrators must be presumed to be correct, and that there has been no malversation or *devastavit*committed by them. They have both long since paid the great debt of nature ; but if they were now living, and *508parties before the Court, they would, after this lapse of time, be protected from liability to account. It is also the opinion of this Court, that the assets mentioned in the inventory must be presumed to have been properly disposed of. More than thirty years have elapsed since the inventory was taken. And it is too late now to go into a minute and strict investigation.

I approach now what I consider much the most important part of the case. I mean the question, whether the debt of Bird, Savage & Bird is a debt of the joint estate and chargeable thereon ; who has paid the balance due on the debt; and whether the party who has paid said balance has a right to charge the share of the other party, in the way of contribution. In the first place, are these questions open for discussion *1*are they concluded by the decree of 1825, or any decree heretofore made between the parties, or are they barred by the presumptions arising from the lapse of time ? While the Chancellor has decided that they are not concluded by this decree, he has held that the claim is too old and stale to be considered, and has placed it in the same category with those which I have just disposed of.

I am of the opinion that this claim is especially recognized and adjudged as a partnership debt of George and Savage Smith, by the decrees of 1825 and 1826. As to whether it is a partnership debt, the parties are concluded by those decrees. It is, as to them, *res judicata.*The decrees made special provision for it as a partnership debt. It is so treated by the parties in the pleadings, and admitted in substance by Col. Hunt in his letter of 18th July, 1826. It seems to me, that if it was possible to go behind the decrees before referred to, on the question whether the claim of Bird, Savage & Bird was a joint debt of George and Savage Smith, there is sufficient evidence before the Court to justify the conclusion that it was. In 1826 this claim amounted to the enormous figure of $70,000. It was agreed to be compromised for $20,000, provided payment should be made within a given period. It became an object of great moment that this condition should be complied with. Hence the decre-tal orders of Chancellor DeSaussure, looking to its immediate *509payment, and making provision for that object. The answer of the defendants to the original bill had stated this as an outstanding claim against the joint estate, and that it was proposed to be compromised by the payment of $20,000 within a specified time.’ And by the decree of 1825, *inter*alia, “ it is ordered, that the administrators do apply all the moneys they have in hand, towards the payment of the amount which has or may be agreed on, as a compromise of the claim of Bird, Savage & Bird ; and to insure the payment of that claim, it is ordered and directed, that the Commissioner shall apply to that purpose the first moneys that may be made from the debts due the estate, and the sales of property hereinafter appropriated to the payment of debts of the estate.” In a subsequent part of the same decree, making an appropriation of funds contemplated to be raised by sales of property, the decree provides as follows: “ After first paying the amount of the compromise with Bird, Savage & Bird, as aforesaid,” the Commissioner “ shall apply the funds so raised in liquidation in equal portions of the debts adjudged to be paid by the complainants and the defendants.”

The decree of 1826, in reference to this claim, provides as follows : “ Whereas, cash sufficient to pay the amount of the two compromises of the debt due to Bird, Savage and Bird, has not been received, and it is highly important to all parties, that the same shall be closed, it is therefore ordered and decreed, that the Commissioner may raise the money necessary to pay what remains due upon that compromise from any Bank or other source. And as the said judgment will, upon the payment of the said compromise, become the property of the joint estate of George and Savage Smith, the Commissioner shall take an assignment of it, to hold the same for the use of the said estate ; and to secure more perfectly any loan made for the purpose of paying said compromise, the Commissioner may, by way of collateral security, assign said judgment to the lender; and to provide for the sum so borrowed, shall moreover apply the first moneys received by him from debts due the estate of George and Savage Smith as heretofore ordered. And any mode devised by the *510parties respectively to raise the sum necessary, may be adopted, and the said judgment be assigned, and the repayment be secured by allowing the lender the benefit of the decretal order, made in this case to secure the creditors.” It seems to me that sophistry itself cannot distort these decretal provisions into any other construction than a'judicial recognition of the claim of Bird, Savage & Bird as a joint debt of George and Savage Smith. But it was asked, if such was the judgment of the Court, whence the provision that after its payment an assignment of it should be taken by the Commissioner for the benefit of the estate; an assignment, it was contended, that would be ineffectual, because the payment of the judgment would extinguish it. Such, it is conceded, would be the'effect at law, but not necessarily in equity. And the answer is obvious and two-fold. One of the means contemplated by the decree to raise the money necessary to pay the balance due on the debt of Bird, Savage & Bird, was to assign the judgment to any person who might advance his money to pay that balance, and to subrogate the lender to the lien of the plaintiff (in the judgment) upon the property of the estate. It was certainly within the competency of the Court to give such lien upon the property then under its control and management.

Another object which the Court may have contemplated by taking an assignment of the judgment, does not appear upon the face of the decree; but it is rendered quite probable from the facts that are in evidence. The debt of Bird, Savage & Bird, was originally a debt of Smith, Darrell & DeSaussure, of Charle-ton. To this firm belonged Josiah Smith, and George Smith, the father of George and Savage. After the death of George Smith, the elder, George Smith, the younger, his executor, gave his bond to Bird, Savage & Bird for the amount of the debt then due. The estate of George Smith, the elder, was divided among the heirs and distributed by private arrangement among themselves, and funds were doubtless provided for the payment of all outstanding liabilities. As early as 1807, we find George and Savage Smith recognizing the claim as a joint obligation upon themselves by payments to T. Parker, Esq., the attorney *511of Bird, Savage & Bird. Cotemporaneously with the execution of the bond of George Smith, the executor of George Smith, the elder, Josiah Smith, one of the firm of Smiths, BeSaussure & Darrell, executed his bond to Bird, Savage & Bird, for the same debt. He was then also liable, and if the other obligor paid the debt, Josiah Smith was *prima facie*liable for contribution.— And as it was known that he set up large claims against the joint estate of George and Savage Smith for moneys advanced to that firm, the assignment ordered by the Court to be taken for the joint estate may have contemplated a prosecution of a claim for contribution against Josiah Smith, or a set oif against the demand which was set up on his account. But whether the one or the other of these explanations be sufficient to account for the meaning of the Court, in ordering an assignment of the judgment for the benefit of the joint estate afier it should have been paid by the funds of the same, there is one thing too clear for doubt, and that is, that the Court has adjudged the claim of Bird, Savage & Bird to be a joint obligation of George and Savage Smith, and chargeable upon their joint estate. If it should appear that this debt has been paid by any of the parties out of their own funds, can there be any doubt of their equitable right to a contribution from the other party ? Though more than twenty years have elapsed since the payment, the party who has paid is not precluded from setting up his claim for contribution. The matter has been *sub judice*ever since. And as I have before said, a claim cannot grow stale while under the action of the Court.

The question of fact now arises, who has paid this debt *%*Col. Hunt paid a portion of it. But the payments made by him were of funds confessedly derived from a common source, namely, assets belonging to the joint estate. The balance remaining due (after the payment from the joint funds) was, on the 16th day of December, 1826, twelve thousand one hundred and forty-four dollars, fifty cents. The Master so reports. He also reports, that this balance was paid by funds borrowed from the Bank of ths United States, on the notes of Charles T. Brown and the distributees of the estate of Savage Smith, and *512that the notes in Bank were finally taken up by funds belonging to the estate of Savage Smith. Upon a careful examination of the evidence on this subject, the Court is entirely satisfied with the Master’s report in this respect. It therefore follows, that the defendants, the distributees of Savage Smith, are entitled to a contribution from Col. Hunt for one-half of the amount thus paid, with interest thereon, from the day of payment. So much of the Chancellor’s decree as disallows this claim is reversed, and the Master’s report, in relation to the same, is confirmed, and made the judgment of this Court. But there is another matter to be considered in connexion with this subject. The decree of 1825, which ordered a partition of certain lands and negroes, provided, expressly, that the part or share of each should remain liable to the payment of an aliquot portion of the debts, and to the final decree upon the mutual claims of the complainants and defendants. And the decree of 1826, before quoted, ordered the judgment of Bird, Savage and Bird, to be assigned to any person who might advance the funds to pay the balance due thereon, as collateral security, and to secure more perfectly any loan made for the purpose of paying the amount due on the compromise. And contemplating a failure to obtain the funds from any other source, and that the parties themselves (on account of the magnitude of their interests involved in the immediate payment of the amount due on the compromise) might be induced to raise the money for that important object, the decree proceeds to provide especially for their security in such an event. It declares that “ any mode devised by the parties, respectively, to raise the sum necessary, may be adopted, and the said judgment assigned, and the repayment secured, by allowing the lender the benefit of the decretal order, made in this case to secure the creditors.” On the force and effect of these orders, it is the opinion of this Court that the sum hereby adjudged to be due to the heirs of Savage Smith for the sum paid by them on the balance of the debt of Bird, Savage & Bird, as aforesaid, with interest on the same as aforesaid, is a charge, and has a lien, upon the share of the joint estate, real *513and personal, of George and Savage Smith, assigned and alloted in the partition thereof to the said Benjamin E- Hunt, and the share of the said Benjamin F. Hunt is especially liable to satisfy the debt hereby adjudged to be due to the heirs and distributees of Savage Smith, as the subrogated creditors of George and Savage Smith.

Schedule A. of the commissioner’s report, contains a statement of the private debts of George and Savage Smith, paid out of the funds of the joint estate. This Court is of the opinion, that such an enquiry is not improper, nor concluded by any decree heretofore made, nor hy presumptions, or any other impediment that would close the door against investigation. Though the property and interests of the brothers were blended to an almost unprecedented degree, yet it could scarcely be otherwise, than that they should owe some individual debts; and those contracted after the death of Savage by George, and the funeral expenses and physician’s bill, «fee. of each, were necessarily several and individual. These must be charged of course as individual debts, and accounted for accordingly. In reference to the debts due by either, previous to the dissolution of the copartnership by the death of Savage, and purporting to be individual, this Court will lay down one rule applicable to them all. From the great degree of intimacy and confidence between the brothers, and the perfect amalgamation of their property and interests, the *prima facie*presumption must be, that every debt contracted by either of them, whether in their joint or individual names, should be regarded as a joint debt, until the contrary be satisfactorily shewn; the burden of proof to rest upon the party who affirms the debt to be individual and personal. The establishment of this rule, by which the future investigations on this subject are to be directed, is as far as the Court will go at present on this part of the case. As this branch of the litigation has not been examined by the Circuit Court, (the Chancellor considering himself precluded from the investigation by the lapse of time, and the staleness of the claim,) it is deemed advisable that the transactions embraced in *514schedule A. of the commissioner’s report, be remanded back to the Circuit Court, for a hearing *there*upon the merits under the principle hereinbefore expressed. After the death of George and Savage Smith, Charles T. Brown, whose wife was the sole dis-tributee of George Smith, had some of the negroes of the joint estate on hire. The commissioner, in his report, has charged this amount on the share of the estate which has been assigned by Brown to B. F. Hunt. The administrators also paid to Charles T. Brown, before the assignment, various sums on account of the estate, as they also did to the heirs of Savage Smith. The commissioner, in schedule B. (No. 1 and 2 of his report) has set forth these various matters in a particular manner. This Court is of the opinion (as has before been expressed) that the assignee of Brown, as to the property assigned, is subject to the same equities that' would attach upon Brown’s share, if he was still the owner, and a party before the Court. And no reason is perceived why this account should not become the subject of investigation. But from the views which the presiding Chancellor took, this branch of the case has never been adjudged upon its merits by the Circuit Court; for this reason it is remanded to that Court for a hearing.

For the same reason, so much of the controversy as relates to the negroes which have been sold by Col Hunt, and so much thereof as relates to the accouirt of Col. Hunt for professional services, and likewise so much thereof as relates to the purchase by B. F. Hunt of Clegg’s Point, and his accountability for the same, are remanded to the Circuit Court for a hearing. And it is ordered that B. F. Hunt have leave to go before the Master and offer evidence in regard to his account for professional services. The question as to costs is reserved.

It is ordered and decreed that the decree of the Circuit Court be reformed in the particulars hereinbefore stated, so that it is made conformable to this appeal decree. In all other respects, it is ordered and decreed that the Circuit decree be affirmed, and the appeals be dismissed.

Dunkin and Caldwell, CC. concurred.

*515At June sittings of the Circuit Court for Charleston, the cases were heard, on the matters referred back to the Court, by his Honor Chancellor Dunkin, who made the following decree:

Dunkin, Ch. These causes were heard under the decree of the Appeal Court, pronounced in February last. It is important that the decree then made should be first read, presenting, as it does, not only a succinct history of the case, but the principles of adjudication, as well as the particular subjects thereby adjudicated and settled.

Preliminary to the consideration of the matters referred back to the Circuit Court, it is proper to state that the defendant proposed to open the inquiry in relation to the debt of Bird, Savage & Bird. ' I was of opinion that this was one of the points on which the judgment of the Appeal Court was clear, final and conclusive. But as it was strenuously and repeatedly urged, it is due, as well to the counsel as the Court, to advert to so much of the judgment of the appeal tribunal as seemed to me to consider and determine this question. At page 7 of the decree, the Chancellor, after premising that he *“*considered this as much the most important part of the case,’’ adjudicated it to be a partnership debt of George and Savage Smith. Then at page 9, “ If it should appear that this debt has been paid by any of the parties out of their own funds, can there be any doubt of their equitable right to a contribution from the other party? ” Thus far the principle had been announced. The Chancellor then proceeds: “ *The question of fact now*arises, who has paid *this debt?”*He adverts to the Master’s report as making the balance, (after deducting certain payments from the joint funds,) on the 16th December, 1826, twelve thousand one hundred and forty-four 50-100 dollars, ($12,144 50 cents.) “ The Master reports,” says the decree, “ that this balance was paid by funds borrowed from the Bank of the United States, on the notes of Charles T. Brown and the distributees of the estate of Savage Smith; and that the notes in Bank were finally taken up by funds belonging to the estate of Savage Smith. Upon a careful examination of the evidence upon this subject, the Court is entirely satisfied with the *516Master’s report in this respect. It therefore follows that the defendants, the distributees of Savage Smith, are entitled to a contribution from Col. Hunt for one half of the amount thus paid, with interest thereon from the day of payment. So much of the Chancellor’s decree as disallows this claim is reversed, and the Master’s report in relation to the same is confirmed, and made the judgment of this Court.” The question is then considered whether this sum constituted a lien, and after discussing the subject, the Chancellor announces, “ as the opinion of the Court, (p, 11,) that the sum hereby adjudged to be due to the heirs of Savage Smith, for the sum paid by them on the balance of the debt of Bird, Savage & Bird, as aforesaid, with interest on the same as aforesaid, is a charge, and has a lien, upon the share of the joint estate, &c., assigned and allotted to the said Benjamin F. . Hunt,” &c.

It is not too much to say, that no point of the case was so thoroughly investigated, so maturely considered, and none could be, as I thought, more distinctly and conclusively adjudicated.

It seemed to be conceived that some subsequent orders of the Chancellor on the Circuit might bring into question the conclusiveness of this judgment of the Appeal Court. I can perceive no ground for such impression, if it exists. Several other matters were remanded to the Circuit Court for consideration. That Court was held immediately after the adjournment of the Court of Appeals, and the cause was not ripe for hearing. It might be that, in the investigation of the matters reserved, Col. Hunt would obtain a decree; and the Chancellor, in the exercise of his discretion, thought proper to suspend proceedings under the *fi. fa.*of the distributees of Savage Smith, although he gave them leave to lodge it to bind. That such was the understanding of the Chancellor seems clear enough, from his remark in refusing an order previously proposed by Mr. Mitchell. “ It is refused,” says he, “ on the ground that it would be improper to grant it until the final accounting is had upon the matters of controversy reserved by the Appeal Decree.”

The first matter in controversy reserved by the Appeal Decree *517“ is Schedule A of the Master’s report.” This relates to the individual debts of the partners, said to have been paid by the administrators out of the joint estate. Savage Smith died in April, 1817. George Smith survived until September, 1818. On this subject, the Court of Appeals say, “ It could scarcely be otherwise than that they should owe some individual debts; and those contracted after the death of Savage, by George, and the funeral expenses and physician’s bill, <fcc., of each, were necessarily several and individual. These must be charged, of course, as individual debts, and accounted for accordingly.” In reference to those due previous to the death of Savage, and purporting to be individual, the Court declare that, from the peculiar manner in which their property was held, and their business conducted, *“*the *prima facie*presumption must be, that every debt contracted by either of them, whether in their joint or individual names, should be regarded as a joint debt, until the contrary be satisfactorily shown: the burthen of proof to rest upon the party who affirms the debt to be individual and personal.”

George Smith lived in Charleston and transacted all the business of the firm with the Banks here. The evidence left the impression on my mind that the notes of George Smith, paid by the administrators, December, 1818, were not original transactions, but renewal of debts contracted daring the existence of the copartnership. The decree of Ann Pursell, the judgment of Su-sannah Forester, and the acknowledgment to T. Smith, jun., for the State Bank Shares, (dated 1802,) all fall within the rule prescribed by the Court; so far as can be perceived, the cause of action or contract existed during the copartnership, and *prima facie*was a joint debt. On the other hand, the subscriptions to the Dorchester Church, and bond to the Free School, were evidently individual; so of the note of James C. Hourin, (called *H. Hourin*in the printed report.) On reference to the administrator’s accounts, this appears to have been a note of James C. Hourin, dated 1818, and endorsed by George Smith, which the administrators were obliged to pay, together with costs of protest. The whole amount of the debts properly payable by George *518Smith, amount to five hundred and sixty-one dollars; those payable by the representatives of Savage Smith, to one hundred and seven ty-eight dollars and seventy-five cents.

The next matter ordered by the Appeal Court to be considered was so much of the Master’s Report, and the exceptions thereto, as relates to the sums advanced by the administrators to C. T. Brown and wife, and to the heirs of Savage Smith, previous to the assignment, and also to the account of negro hire after the death of George Smith. These matters are embraced in the schedule (B) No. 1 and 2, and in schedule (C) of the Master’s Report.

On these subjects the language of the Appeal Court is, “ this Court is of the opinion (as has been before expressed) that the as-signee of Brown, as to the property assigned, is subject to the same equity that would attach upon Brown’s share, if he was still the owner and a party before the Court.” Some objection was made as to the form of some of the loose receipts given by C. T. Brown to the administrators, J. and S. Smith. The various payments made to C. T. Brown run through a series of years from 1818 to 1825 inclusive; these sums were regularly charged in the accounts kept.by the administrator, and annually passed by the Ordinary. These accounts, down to October, 1823, were filed as an Exhibit in W. S. Smith’s answer to the bills of Brown and wife, filed in 1822. The administration account was closed in 1825. and the administrator, William S. Smith, has been many years dead. It is not doubted that the money was paid to Brown, and it is quite too late now to suggest that the payments may have been made on account of other transactions; some sixty-seven negroes, belonging to the joint estate, went into the possession of Charles T. Brown some time after the death of his father-in-law, George Smith, for which he agreed to allow an annual hire of two thousand dollars. This agreement with the administrator is established by his letter making the proposal, as well as by his testimony at p. Ill of the Master’s report. He kept the negroes 1820, 21, 22, 23 and 1824; tho,y were then sent from his place to be sold by the Commissioner, in February, 1825 ;. *519they are referred to particularly in the order of that date as “ the negroes now hired to C. T. Brown.”

The matters embraced in schedules, A, B and C, were mutual claims existing between the complainants, C. T. Brown and v ife, and the defendants, heirs and distributees of Savage Smith, in reference to which the decree of “ 1825 ordered, in relation to the mutual claims of the parties, the Commissioner do examine and report upon the several accounts of the complainants and defendants with the estateand the share allotted to each was declared *“*to remain liable to the final decree upon the mutual claims of the complainants and the defendants.” When this decretal order was made, the greater number of Savage Smith’s heirs were minors. The Court of Appeals have settled the construction of the decree as far as was practicable. Admitting that only *then existing*mutual claims were to be included, the Court say “ the mutual claims of the complainants and defendants would be a moiety of the joint estate to each, after every claim due to the estates of the deceased partners, or to third persons, was satisfied; after satisfying creditors, and the individual claims of the partners against the joint estate, the balance would be the joint estate to be divided, a moiety to each; *and this, and the other equities, which arose between the parties after the death of the partners, were the mutual claims of the parties, complainants and*defendants.” What were the *“*other equities ” subsisting in 1825, and which had arisen between the parties after the death of the partners, which ought properly to have been adjusted before partition, and for the security of which this provision was made ? Brown had received payments from the administrators on account of his interest or share every year since the death of George Smith, the surviving partner. He had also hired sixty-seven negroes for five years of that period at a fixed rate. In the same manner, the heirs of Savage Smith had received sums from the administrators during the same time, on account of their share. These should have been settled before a partition was made. This being waived in consequence of the anxiety to have immediate partition, an order of reference was made, and a spe*520cific lien was declared in order to secure the satisfaction of the final decree on the Commissioner’s report. This was the only mode left of securing to each a moiety of the joint estate after payment of debts. Regularly each party should have accounted for what he had received, and taken only the balance of his moiety. It was thought well enough to let each take a moiety and be accountable for any surplus by a specific lien on the shares received. But an inquiry still remains, whether, in accounting for the sums thus received by them respectively, the parties are liable for interest. I considered the negro hire on the same footing as any other payment made to Brown. It was not understood that he was to pay the hire to the administrators, but was to account for it as so much received by him. Their omission to make any annual requisition, or even to take a note, evince the understanding of the parties. In matters of accounting, the allowance of interest is governed by no fixed or established rules — no rules *can*be made which should be applied arbitrarily in all cases.

Thus, on the bond given to Robert Heriot, in February, 1826, he was probably chargeable with interest by the concession of all parties. So in regard to the compromised debt of Bird, Savage & Bird, for which both were liable, but which was paid by the heirs of Savage Smith by a loan made from the United States Bank; in making the decree for contribution, the Court ordered the payment of interest on acknowledged principles of the Court. But the sums received by Brown and wife, and by the representatives of Savage Smith, from the administrators, were received by the parties as their own, and they were entitled to receive them. They were not expected to refund; they were in no default for not refunding. Even where a legatee has been erroneously paid, in recalling that payment the general rule is not to charge interest; *Giltins*vs. *Steele,*1 Swant. 199. But these were not erroneous payments. The parties were mutually entitled to an account of what had been paid. But in the allowance or disallowance of interest, all the circumstances are properly taken into consideration, and the character of the claims, *521as well as the vigilance or *laches*of the party insisting on the payment of interest, are always prominent features in directing the judgment of the Court. It is not proposed to attempt a narration of this litigation. It is not inappropriate, however, to remark, that one of the Chancellors, who heard the cause at the Circuit, refused any investigation of these matters in consequence of the staleness of the claims and the laches of the parties in prosecuting them. It is not to be denied, that great and almost unprecedented delay took place in prosecuting the litigation. In no inconsiderable measure this was attributable to the parties ; although the claims have been preserved, the demand of interest upon them seems obnoxious to many of the principles which influence the Court. After a careful consideration of all the circumstances, I think no interest should be charged on the sums thus received by the parties respectively; nor do I think it should be charged on the balance which may be found due in schedule (A.)

Schedule (F.,) page 109, and Mr. Hunt’s account for professional services, (p. 163,) may be considered together. The Report on this subject is at p. 96 ; the principal of the sums charged by the Master to the defendant, amounted to twelve hundred and seventy dollars. These were for the value of a negro retained by the defendant in February, 1825, and for sums received from the auctioneers, who sold two other negroes of the estate, and for an amount collected on Theus’s bond. These charges seem well sustained by the proof. Mr. Hunt’s account against the estate amounts to fourteen hundred and forty-nine 50-100 dollars. This was referred back by the Appeal Court in order that an opportunity might be afforded for vouching and investigating the same. Mr. Hunt was jointly interested with the heirs of Savage Smith ; and after the decree of 1825, any suit against the joint estate was defended by him. This is apparent, from the records produced, as well as from the oral testimony taken by the Master. The accounts filed is from 1825 to 1828, inclusive ; all the items, except those for professional services, strictly appear to have been sustained by proper vouchers. In reference *522to those for professional .services, the records were adduced, which showed the character of the cases. In the litigation which appears under various titles of Hugh Fraser, executors Josiah Smith, and executors Clegg, very important services were certainly rendered, and the joint estate was protected from the payment of a large demand, which was pressed through the several tribunals, with a reasonable prospect of success, but which was ultimately dismissed. At this distance of time, it is not to be expected that very positive testimony should be adduced as to the value of services rendered in each particular case. The accounts seem to me sufficiently well sustained; and that Col. Hunt is entitled to credit for that amount. Deducting the twelve hundred and seventy dollars with which he is chargeable, a balance remains of one hundred and eighty dollars, for one-half of which, the representatives of Savage Smith would be liable to him.

The demand in relation to Clegg’s Point, (strictly speaking, “ Miehau’s,” for it is below the *point,*though originally part of the same tract,) alone remains to be considered. Every fact concerning this matter is either of record or undisputed. The proceedings in *Perdriau and wife*vs. *B. F. Hunt et al.*(Biley’s Eq. Cases, 88,) were put in evidence. Among the debts due to the copartnership estate of George and Savage Smith, was a demand against Paul Michau, deceased. Clegg’s Point was the inheritance of Lydia Clegg, who had married Paul Michau, and had died, leaving her husband and five children surviving, one of whom afterwards died. In 1795, Michau mortgaged Clegg’s Point to George Butler, and in 1801, he mortgaged the same to George and Savage Smith. In 1820, a bill was filed by the creditors of Paul Michau, to foreclose these mortgages. In addition to his own share, Michau had purchased the interests of two of his children. A decree of foreclosure was made, and the land ordered to be sold, and by a decree of the Appeal Court in 1822, ten-fifteenths of the proceeds of sale were ordered to be paid to the creditors of Michau, three-fifteenths to Buford and wife, and two-fifteenths to Perdriau and wife. Under the decree, *523Clegg’s Point was sold by the Commissioner in Equity, in 1822, to Robert Francis Withers, for twenty-two thousand dollars. R. F. Withers paid off the debt of George Butler, which was the eldest lien on Michau’s share, and he bought up, and thereby extinguished the right of Buford and wife. He also made several other payments on account of his purchase to the Commissioner in Equity, who paid over the several amounts to those representing the claim of George and Savage Smith. But in April, 1827, R. F. Withers, having failed to comply with the terms of sale, Clegg’s Point was sold under an order of Court, at the risk of the former purchaser, and was bid off by B. F. Hunt, for the sum of eight thousand and ten dollars. The report of sales was made to the Court by the Commissioner, at the Winter Sittings, 1828, in which the order of sale is recited, prescribing, among other things, that the *“*purchase money” (not paid in cash,) “ should be secured by bonds so divided, as to be paid over to the parties in the proportions to which they are entitled, with good personal security if required, and a mortgage of the premises.”

The title deed was not to be delivered, until all the instalments were fully paid. It is stated in the case in Riley, that B. F. Hunt paid $776 in cash, and gave his bond for the balance with interest on the whole amount, payable annually, and a mortgage of the property. Mr. Heriot, the Commissioner, in his reT port of 1828, just mentioned, states, among other things, that Samuel Perdrieau had made a “ claim on the fund, on account of the payments made by the former purchaser — that this was resisted, and he had been ordered to proceed by Bill and Answer.” He stated also, “that Benj. F. Hunt, the purchaser, claimed, as the assignee of a moiety of the estate of George and Savage Smith, an interest in one-half of eleven-fifteenths of the amount of sales.”

Perdrieau and wife did proceed by Bill and Answer. The amount due to them was fixed and established, “ and this Bill,” say the Court, (at p. 91 Riley,) was filed by “ the complainants, (Perdrieau and wife,) to enforce the payment of Mr, Hunt’s bond, *524or the foreclosure of the mortgage, and to obtain that share of the proceeds to which they are entitled. The Chancellor has decreed accordingly.”

The amount which had been found due Perdrieau and wife, including interest, was ($3,594 87,) three thousand five hundred and ninety-four 87-100 dollars.

The decree of the Chancellor was affirmed, and it was ordered, that unless the amount reported to be due Perdrieau and wife was paid on the first Monday in April next, (1837,) the land should be sold in pursuance of the decree, by which, after paying Perdrieau and wife, the proceeds were to be held subject to the further order of the Court. The defendant had taken possession of Clegg’s Point under his purchase in April, 1827, and had held and cultivated the same. Failing to comply with the decree in the case of Perdrieau and wife, the land was sold by the Commissioner, and purchased by a third person.

It is difficult to perceive upon what ground the defendant should be excused, or released, from the payment of this purchase. When the facts are understood, he is just as plainly responsible as for the bond given to the commissioner for $4,053, on the purchase of negroes, in 1825, which has already been the subject of adjudication. It is said as a reason, that “he did not receive titles for the property, and it was afterwards sold •under the decree of Perdrieau and wife, and was lost to Mr. Hunt, the former purchaser.” By the terms of sale the title deed was not to be delivered until the purchase money was fully paid. As to the rest, it is precisely as if one had purchased at the commissioner’s sale on a credit of ten years or more, and given bond and mortgage to secure the payment. He holds for ten years, pays a trifle or nothing on the debt, and at the expiration of the credit, the premises are sold for less than the amount due. The purchaser is to be exempted from the payment of the balance because the land was sold under a decree of foreclosure, and “ lost to the former purchaser.” That is this case. The defendant, *as a*purchaser, had nothing to do with the claim of Perdrieau and wife. He should have complied *525with the terms of sale. Suppose a third person had bid off the land, in April, 1827, under the terms of the sale prescribed, had paid $776 of the purchase money, and taken possession, what concern had he with the claim of Perdrieau and wife ? As Mr. Heriot states in his report of 1828, the claim of Perdrieau was “ *on the proceeds’’ of*the sale. It could be nothing else: and is so set forth in the proceedings afterwards instituted by him. His claim on the land was only under the lien created by the terms of sale, according to which the defendant purchased.

Why then should the third person so purchasing, be excused from paying his bid *1*And in what manner does the defendant’s situation constitute a difference ? The defendant insists, too, as will be shewn in the sequel, that the purchase was on account of himself alone, as his individual transaction, and for his own benefit. Although, as a purchaser, the defendant was not authorized to inquire about the claim of Perdrieau and wife, yet, as a litigant, as a person, in the language of Mr. Heriot’s report, claiming a moiety of so much of the proceeds as belonged to the estate of George and Savage Smith, he might contest the amount due Perdrieau and wife out of the proceeds of sales; whatever was not due to Perdrieau and wife, belonged to the estate of George and Savage Smith, and for a moiety of that he was entitled to an equitable discount on his bond to the commissioner. The other moiety belonged to the heirs of Savage Smith. The defendant contested the amount claimed by Perdrieau and wife. He alone filed an answer to the bill. The issue was against him. In April, 1827, when Clegg’s Point was purchased by the defendant, the amount due Perdrieau was less than three thousand dollars, (the exact amount is easily to be ascertained from the record in the case which was put in evidence). If a third person had purchased and paid the f 8010 on that day, the amount due to Perdrieau and wife being deducted, the surplus would have been divided between the defendant and the heirs of Savage Smith. And on the same principle it should now be adjusted. The defendant is responsible for his purchase, $8010, but he is equitably entitled to a credit for the sum due *526Perdrieau and wife at the time of the sale, and for the sum of $775 50 cts. paid to the commissioner. For one moiety of the balance, with interest from the 16th April, 1827, he is indebted to the complainants. But this is, I think, a personal debt and does not fall within the perview of the decree of 1825. The complainants, however, insist that, as between them and the defendant, he should be charged with the purchase of Clegg’s Point at ten thousand dollars, instead of eight thousand and ten dollars. It will be remembered, that five years previously, this plantation had been sold to Robert F. Withers, for twenty-two thousand dollars. The allegation is something of this kind, that when the defendant bid off Clegg’s Point at $8,010, it was understood between the defendant and Peter Cuttino, who represented the complainant’s interest, that the land should be re-sold for the benefit of the copartnership estate; that immediately after the sale to the defendant, an unexceptionable purchaser was found, at ten thousand dollars — and that “ it was finally agreed that the complainant, as between himself and the defendants, should hold the plantations on his own account, at ten thousand dollars.” The evidence on this subject is derived from the cotemporaneous correspondence between the defendant and Peter Cuttino.

It will be observed, that the object is to set up a new and distinct contract from that made between the defendant and the commissioner.

The defendant relies on that — insists that he purchased for his individual benefit, and that there was no privity or understanding between himself and any other person. A serious obstacle to the consideration of this claim, is the late period at which it was brought forward. The defendant purchased from the commissioner, on the 16th April, 1827. It constituted, therefore, no part of the matters originally referred for investigation. In accounting for the assets of George and Savage Smith, the debt.due by Paul Michau would be properly a subject of inquiry, and the proceedings in relation to it. But this alleged agreement is, for the first time, brought to the notice of the *527Court in an answer filed by the representatives of Savage Smith, on the 25th September, 1834, more than seven years after the purchase, and their cross bill was not preferred until November, 1838, nearly eleven years after the purchase from the commissioner, and the alleged new agreement between the parties ; neither in the answer of 1834, nor in the cross bill of 1838, is it alleged that there existed any written agreement between the parties; and the correspondence on which the complainants now rely, was not in any manner exhibited or put in evidence until the meeting before the Master, in August, 1842, (see page 116). I think the sequel of that correspondence was well calculated to put Mr. Cuttino on his guard, and to advise him that he and the defendant did not place the same understanding on what had passed between them. The inactivity of Mr. Cuttino for the several ensuing years, may, in some measure, be accounted for, in the relations which the defendant professionally occupied towards the joint estate. But when parties having a supposed right to establish a trust of this character, and thereby to vary che terms of a judicial sale, lie by for fifteen years with the evidence of the trust in their possession, they can have no cause to complain, if the Court regards them as having waived such a right, and restricts them to the benefit of the public sale, about which there exists neither doubt nor controversy. I am not at all satisfied that, in this matter, full justice has been done to the complainants; but in the language of the Court of Appeals, *“*if, in consequence of these extraordinary delays, the Court should fall short of the truth and the right in the judgment which it renders, the reproach must, in a large measure, be shared by the parties themselves, and those who acted for them.” I am of opinion that the measure of the defendant’s liability, is the price at which he bid off the land at the commissioner’s sales.

The report of the Master, and the account submitted therewith, must be reformed according to the principles of this decree. But it is manifest that, *“*upon the matters reserved by the appeal decree,” the defendant is largely indebted to the com*528plainants, and, as the proceedings under the *fieri facias*were only suspended with a view to that inquiry, and “ until the further order of the Court,” the complainants now have leave to enforce the execution issued under the appeal decree, and which they had leave to lodge to bind under the order of March last.

Wm. C. Smith et al. heirs and distributees of Savage Smith, deceased, appealed from so much of the above decree as decided that interest is not to be charged on the amounts received by Brown and wife, and debts due by them, in taking the accounts against the assignee, to ascertain what said complainants are entitled to receive from the assigned estate in his hands, as erroneous; and submited that they are well entitled to have the interest so charged, either from the time of the receipts, respectively, or from the division under the decree in 1825, on the balance which was then due to them.

Benjamin F. Hunt also appealed from the above decree, on the grounds,

*First.*The decree of the Court of Appeals establishes, that the defendant, Hunt, as assignee of Brown, is liable for one-half the joint note of C. T. Brown and Elizabeth Smith, discounted at the United States Bank, December 16, 1826, for $12,500, wherewith the debt to Bird, Savage & Bird was discharged, to the amount of $12,144 50, and that the representatives of Savage Smith are liable for the other half. And this being a final adjudication of a principle by the highest Court, is conclusive upon the parties, and no attempt or pretence is set up to re open the same. But the circuit decree adjudicated a matter of account, (and is warranted somewhat, it is conceded, by the words of the appeal decree,) and thereupon awards and adjudges that the distributees of Savage Smith have paid'the whole amount of said sum of $12,144 50, and are entitled to be repaid one-half thereof, with interest, at the rate of seven per cent, from the 16th December, 1826, and directs the payment to be levied and enforced out of the property of Col. Hunt, by execution of *fieri facias*— and there is error in this as follows.

*5291. Because there is no evidence whatever to show, or raise the presumption, that the heirs of Savage Smith ever did pay said joint note, more than the following sums in part payment thereof, to wit: — March 15, 1834, $3206. June 5, 1834, $5033. Bill of costs to Mr. Grimke, $88 91 cents. In all, $8,327 91; which sum, at that date, the interest being correctly calculated at six per cent, is less than one-half of said note, and, therefore, less than the share to be paid by the estate of Savage Smith; and this averment the appellant is ready to prove and maintain, and it will appear manifest upon inspection of the Master’s report, and the evidence therewith referred to by the appeal decree, and to all the other evidence in the cause and before the Court.

2. Because there is manifest' error in charging the appellant with interest, at the rate of seven per cent, from December 16th 1826, to June, 1834, the heirs of Savage Smith never having made any payment till the last date, and prior thereto, interest was charged at six per cent.

3. Because the execution allowed to be enforced by the circuit Court, is a general lien, and against all the property of Col. Hunt, wheieas, the appeal decree establishes the claim only against the specific property assigned by Brown and wife to Hunt, which was a part of the joint estate of George and Savage Smith.

*Second.*Because the decree is also erroneous, in charging against the share of George Smith, the claims mentioned in schedule A.

*Third.*Because there -can be no decree to refund the amounts paid by the administrator of George and Savage Smith, to Charles T. Brown the distributee, inasmuch as there was no proof of an original deficiency of assets, and until such proof, a legatee or distributee cannot be called upon to refund, and a large portion of the same may, from the character of the receipts and proof, be properly referred to and chargeable in the large and continuous private account between Brown and Wm. S. Smith.

*530*Fourth,*Because the decree is erroneous, in charging against Col. Hunt the amount due by Charles T. Brown, for negro hire, inasmuch as this claim must be regarded, either as a voluntary payment to Brown, and, therefore, subject to the same rule as is set forth in the last ground, or it must be regarded as included in and belonging to the private account between Brown and William S. Smith, and also subject to the objection made on the score of defective proof, and the presumption of payment from the lapse of time between the date of the hiring and the first evidence of claim.

. *Fifth.*Because the claim for Clegg’s Point should have been dismissed, inasmuch as it is for a subject matter entirely distinct from those for which the defendant is impleaded, and not properly embraced in the pleadings; and, furthermore, because it is neither sufficiently proved, nor *taken out of*the presumptions arising from delay of claim.

*Mr. Mitchell, Mr. Yeadou,*for W. C. Smith, and others.

*Mr. Menvniinger, Mr. Hunt,*for Col. Hunt.

(a)

*Hunt*vs. *Smith,*1 Rich. Eq. 277.

Dargan, Ch.

delivered the opinion of the Court.

It falls to my lot, for the third time, to announce the judgment of this Court upon questions growing out of the cases above stated. My present duties are greatly abridged by the labors and adjudications of this Court and of the circuit Court, at preceding stages of the cause.

It is supererogative to travel over ground that has been already extensively and thoroughly explored, or to remark upon questions that have been already, discussed and adjudged by the Court.

In reference to the claim of Bird, Savage & Bird, which is a branch of the cause which seems to have called forth the most serious efforts at the recent hearing on the part of the appellant, (Col. Hunt), it may not be inappropriate, although it may be unnecessary, to offer some comments. Alluding to this branch of the controversy, and the judgment of the Court of Appeals thereon, the Chancellor who presided at the last circuit trial. *531uses the following language. “ It is not too much to say, that no part of the case was more thoroughly investigated, so maturely considered, and none could be, as I thought, more conclusively and distinctly settled.” This is strong language; and to it I may add, that there was no part of the case, in reference to which the Court of appeals arrived at a conclusion more unanimously adopted, or more entirely satisfactory to itself.

I will not now pause to consider the question, .whether the claim of Bird, Savage & Bird was a debt due by the partnership estate of George and Savage Smith. That is made sufficiently manifest by the decree of 1825, in which provision was made for its payment out of the effects of the partnership estate; by the letter of Col. Hunt, of the 18th July, 1826, in which he explicitly admits the liability of the partnership estate for the debts, — and by other circumstances, not necessary to be particularly noticed.

That the balance of this debt, charged in schedule E, of the Master’s report, as having been paid by the heirs of Savage Smith, was so paid by them, or from funds belonging to them, is equally clear. The fact is susceptible of demonstration beyond any rational doubt. The circumstances on which this conclusion rests, are manifold, all tending to the same result.

The debt *has been paid ;*and must be supposed to have been paid by some of the parties interested in its extinction. Col. Hunt does not profess to have paid it. Nor is it pretended that Charles T. Brown paid it, except in the way of hypothetical suggestion. It is contended that Brown *may*have paid it, but there is not a tittle of proof that he did pay it, or any part of it. In fact, it does not appear that Brown had any direct interest in the payment of this debt after his assignment- of his share of the estate to Col. Hunt, by his indenture of the 11th February, 1825. Brown and wife, by this instrument, assigned their moiety of the estate to Col. Hunt, “ subject to the debts of the said firm, and the account between the parties interested in the same.” Again ; it was recited that Col. Hunt was to have all the rights, privileges and claims of the said Brown and wife in *532the partnership estate, and to be “ subject to all the duties, obligations and responsibilities of the said Charles T. Brown and Sarah E. his wife, or either of them, in the final settlement and adjustment and division of the said copartnership estate, real and personal.” And after this and other recitals, Charles T. Brown and wife proceed by the indenture to assign to Col. Hunt, all their lands, negroes, &c. in the partnership estate, (which had, about the date of the indenture, been assigned to them by proceedings in partition); also, all the interest of Brown and wife, in a claim set up by Josiah Smith against the partnership estate, and which had previously been assigned to Brown and wife; also, all the share of Brown and wife in the surplus of the undivided estate, if any there should be, after the payment of debts ; “ subject, nevertheless,” as the deed goes on to declare, “ to the payment and discharge of the judgments, executions, debts, claims and demands, now due, owing and payable by the aforesaid late firm of George and Savage Smith; and to the accounts between the parties interested in the said copartnership estates.” The claim of Bird, Savage & Bird was then an acknowledged liability of the copartnership estate, for the payment of which, then in judgment, a provision had been made by a previous decree of the Court. Can any one doubt that, by the obligations arising out of the deed of assignment of the 11th February, 1825, and as between Hunt and Brown, it was the duty of the former, and not of the latter, to pay the one-half of this debt ? Brown had no interest in the extinguishment of the debt; for if the execution in favor of Bird, Savage & Bird had been pressed, and a portion of the estate assigned by Brown and wife had been sold to satisfy it, I cannot perceive that, under the conditions of the assignment, Brown would have been in any way responsible to Hunt on that account. And this seems to have been Col. Hunt’s own views when he wrote his letter to Peter Cuttino of the date 18th July, 1826. Peter Cuttino represented the heirs of Savage Smith, and the letter was written with the view of urging upon him the necessity of immediately raising a sufficient sum of money to pay off the balance of the *533debt due to Bird, Savage & Bird. Brown, it must be remembered, was then in affluent circumstances and good credit. Yet Col. Hunt did not then say, that Brown was under any obligation to step forward for his relief in the payment of any part of the debt. But he proposes to unite with Mrs. Smith, the widow of Savage Smith, in borrowing the necessary amount; or, says he, *“*I will borrow one-half, if she will the other.” He again *says:*— “ I think it very likely, that the money can be procured, and without some such measure, the most disastrous consequences will follow. The amount of each share would be five or six thousand dollars. This would close the estate, as to its debts: — all then would be, to settle the accounts and adjust a final decree. Should we not be able to get the amount through the Bank, we may, perhaps, by giving a premium, get it' from some individual. I do not like to do so, but it would be much better than to have a debt of $70,000 hanging over us.” It seems to me, that this would have been a very proper occasion to have laid claim to Brown’s assistance, if Brown had been interested in the extinction of the debt. But no allusion of that kind is made.

The proposal of Col. Hunt, in the letter above cited, seems not to have been adopted. And by the assistance of Mr. King, a negociation was effected with the United States Bank for the requisite amount, ($12,500) on the joint and several note of Mrs. Smith, the administratrix of Savage Smith, and Charles T. Brown, with a deposit, (as collateral security) of specialties to the amount of $ 19,667 98. The money thus raised, beyond all controversy, was applied to the satisfaction of the balance then due on the debt of Bird, Savage & Bird. Which of the parties paid this debt thus contracted with the United States Bank *1*Two witnesses were examined as to this point, namely: — Mr. M. King and Mr. Henry Cuttino. There is some confusion in the notes of this testimony. Mr. King is represented as having said, in reference to certain notes and securities there mentioned, that *“*he paid the balance due on the notes, from the funds of Savage Smith, and then such of the collateral securities, *534which had been assigned to the Bank, as were uncollected, together with the letter now produced in evidence, were returned to the witness, and witness delivered them up to the estate of Savage Smith.” The collateral securities lodged with the Bank to assure the payment of the note, were the assets of the estate of Savage Smith. Upwards of two thousand dollars were collected by the Bank on these securities, and applied as payments on the note of Mrs. Smith and Charles T. Brown. Again, this witness says, — “ the balance which witness paid the Bank, was for the *note, or renewals,*on which the loan for $12,500 had been made.”

The debt had been reduced by payments to $7,700; and Mrs. Smith having died, the note in Bank was renewed by a note of Charles T. Brown and George S. Smith, *payable*to, and endorsed by, Peter Cuttino, and this renewal note was confessedly satisfied by funds of the estate of Savage Smith.— When Mr. King speaks of having paid the balance of the note, or renewals, he was understood by the Master, before whom his testimony was taken, to have meant the balance of the note after the application of the money collected by the Bank upon the collateral securities. Mr. King further says, that he was the friend and counsel and confidential adviser of the heirs of Savage Smith, and was intimately acquainted with the transaction." And that, although he did not attend to putting the renewals in Bank, he was constantly consulted about them as they progressed. He was also the professional adviser of Charles T. Brown, after the sale to Col. Hunt, and was repeatedly consulted by him. And it is worthy of remark, that in the evidence of this witness, so cognizant, as he was, of the loan from the Bank, from its beginning to its extinction, there is not the slightest intimation that Charles T. Brown had made any payments. If Brown had made payments, is it not probable that he would have sought reclamation from Col. Plunt? Henry Cuttino testified, in so many words, that the debt contracted with the Bank was paid by the heirs of Savage Smith. In his cross-examination, he says, “ from his personal knowledge, he does not know *535that Charles T. Brown and some of the family of Savage Smith did, or did not, raise money, but, from papers he has seen, he has reason to believe that they did : the papers he has reference to, are an account current of Mr. Mitchell King and a note for money borrowed from the Bank in Georgetown, by Charles T. Brown and Elizabeth Smith : the money so borrowed, was applied to the payment of the debt of Bird, Savage & Bird,” (fee. Whether this witness intended, in his cross-examination, to qualify his statement to the effect, that he had derived the whole of his information on the subject from the papers that he had seen, does not very clearly appear. He may not have per- ■ sonally known of the negociation with the Bank, and the application of the money to the debt of Bird, Savage & Bird, and yet, being the brother of the administrator of the widow of Savage Smith, he may have personally known that the debt due to the Bank, (which was but a substitute for the balance of that which had been due to Bird, Savage & Bird,) had been paid by the assets of the estate of Savage Smith.

The Master has found, and so states distinctly in his report, that the whole amount of the debt contracted with the Bank has been paid by the heirs of Savage Smith. This report bears date 8th January, 1846. The decision of the Master on this point, was *then*promulged, together with the evidence on which it was based. He refers expressly to Mr. King’s evidence as supporting his judgment. If the Master had so widely misinterpreted Mr. King’s evidence, in the interval which has elapsed from January, 1846, to the trial of the cause, why were not steps taken for the re-examination of Mr. King *1*Col. Hunt knowing that the Master had reported the debt with the Bank to have been paid by the heirs of Savage Smith, in his exceptions to that report did not controvert the fact. He does not deny, (in his exceptions,) that the heirs of Savage Smith did pay the whole of the Bank debt, as found by the Master. He does not assert that Charles T. Brown paid any part thereof.

For the foregoing reasons, this Court, at the former hearing, (Charleston, January Term, 1850,) was satisfied that the report *536of the Master was right in this particular. And the appeal decree confirmed the report (as to this matter) in language unmis-lakeably clear and distinct. If the question were now *res inte-gra,*this Court would come to the same conclusion. And indeed, it is difficult to perceive how such a conclusion could be avoided upon the evidence before us.

I have, in deference to the zealous and apparently sincere argument offered in behalf of the appellant, travelled over the grounds which have led the Court to its judgment in reference to this branch of the case. And it is satisfactory, upon a reexamination of the facts, to perceive that there has been no error committed, as was broadly asserted at the bar. But the question is not open. It is conclusively and finally adjudged by the appeal decree. And though an error of judgment, as tó the facts, had been made manifest, the Court could not have corrected it. As to facts, a bill of review, or a petition for a rehearing, would not lie, except upon evidence, not cumulative, discovered subsequent to the trial.

In reference to the other questions, raised and discussed on behalf of Col. Hunt, it is deemed unnessary to add anything to that which has been stated in the Circuit Decree. This Court concurs with the Chancellor who heard the 'cause, except as to one matter which will be hereinafter considered.

The question, as to interest, made in the appeal which has been taken on behalf of the heirs of Savage Smith, is interesting from its not having been heretofore much discussed. Upon demands bearing interest at law, this Court, I conceive, would be *bound*to allow interest. But, as to non-bearing interest demands, the claim of interest will be allowed or disallowed in this Court, according to the equity of the case. It is a matter of discretion. It is rarely disallowed in the adjustment of accounts, for it is rarely otherwise than an equitable claim. Where parties from *laches,*or from other similar causes, fail for a long time to prosecute their claims to a final settlement, and suffer them to lie still until the interest account has swelled to an enormous magnitude, (as in this case,) the claim for interest does not pre*537sent itself, in this Court, in a favorable light. It would be a premium for delay. This Court concurs with the Chancellor on this point also.

This disposes of all the questions raised in the appeals which have been taken from the circuit decree of June Term, 1850.— But there are other matters yet to be considered.

On the seventh of March, 1850, the Solicitor of the heirs of Savage Smith sued out before the Register in Equity a *fieri facias*on the decree of the Court of Appeals, which had been rendered in the cause at the preceding term of the Court. A motion was submitted by Mr. Campbell, acting for Col Hunt, that the execution be recalled. This motion was refused. Mr. Campbell, acting on the behalf of Col. Hunt, submitted a motion, that proceedings, under the execution, be suspended until the further order of the Court; and that the complainants have leave to lodge the execution to bind.

The issuing of a *fi. fa.*could only be upon the ground that the decree had an operation *in personam*against Col. Hunt and upon his estate generally. The appeal decree of 1850 is a decree *in rem.*It operates only on the property of the partnership estate of George and Savage Smith, which was allotted in the division to Charles T. Brown and wife, and which has come into the possession of Col. Hunt by assignment from them. The appeal decree of 1850 creates no personal liability against Col. Hunt. It is expressly so declared. And so, the circuit decree of June Term, 1850, creates no personal liability against Col. Hunt, except as to the amount decreed against him on account of the purchase of Clegg’s Point. A writ of *fieri*facias, to operate on the property of Col. Hunt generally, would be improper. They?, fa., which has been issued, must be recalled, and so much of the circuit decree of June Term, 1850, as allows the complainants to proceed on said *fi.fa.,*(which had been suspended by a previous order of the Court,) must be reversed.— The complainants will, of course, have a right to proceed to enforce the payment of the debt decreed to be due on account of *538the purchase of Clegg’s Point, by any process^ which the practice of this Court allows.

It is ordered and decreed, that the *fieri facias*issued in this cause on the 7th day of March, 1850, be recalled and set aside, and so much of the circuit'decree of June Term, 1850, as allows the complainants to proceed under the said *fieri facias,*be reversed. In all other respects, the decree of this Court is, that the said circuit decree be affirmed, and the appeals therefrom be dismissed.

At the -February Term of the Circuit Court, the Solicitors of the heirs of Savage Smith moved the Court to grant an order *nisi*for the sale of so much of the estate of George and Savage Smith as had been allotted in partition to Charles T. Brown and wife, and by them assigned to Col. Hunt,-as should be necessary to satisfy the debt to which the said property was declared to be liable by the appeal decree of January Term, 1850. This order was refused by the presiding' Chancellor, on the ground that it would be improper to grant it until the final accounting was had upon the matters of controversy reserved by the appeal decree. From this decision of the Circuit Court an appeal has also been taken.

It is not perceived, that there was any error in' the decision under the circumstances that then existed. And the appeal is dismissed. The matters of controversy reserved by the appeal decree have since all been adjudged. And it is now proper that the complainants should have an order for the enforcement of the lien which has been declared by the decree of the Court.

It is therefore ordered and decreed, that unless the said Benjamin F. Hunt shall on or before the first day of November next pay to the heirs of Savage Smith, or their legal representatives, the sum adjudged and decreed against him by the appeal decree of February Term, 1850, being the sum of six thousand and seventy-two dollars and twenty-five cents, with interest thereon from the 16th day of December, 1826, to the time of payment, James W. Gray, one of the Masters of the Court of Equity in Charleston, shall, after two weeks’s notice in one of the news*539papers published in Charleston, and one of the newspapers published in Georgetown, proceed to sell for cash, before the Court House door in Georgetown, first the negroes, and then, if necessary, the lands, which, in the partition of the partnership estate of George and Savage Smith, were assigned to Chas. T. Brown and wife, and by them assigned to Benj. F. Hunt, for the purpose of satisfying the aforesaid sum of $6,072 25, and interest thereon, together with the costs and commissions on the sale.— And it is also ordered that the said Master do pay over the said monies, so collected and raised, to the parties entitled to receive the same.

It is also ordered that, in the event the said B. F. Hunt shall fail to pay the said sum on or before the first day of November next, as herein before ordered and directed, the said B. F. Hunt do deliver into the hands of the said James W. Gray the said property, or so much as may be necessary to raise the said sum of money, whenever, after the first day of November next, he shall be required to do so by the said James W. Gray.

Dunkin and Wae.di.aw, CC. concurred.

JohNstoN, Ch.

I am of opinion that the questions in relation to the demand of Bird, Savage & Bird, are concluded by the appeal decree of 1850: (and I am, now, pretty well satisfied, upon pretty clear evidence actual and presumptive).

I agree with the Court upon the subject of interest.

I am not dissatisfied with its judgment in relation to Clegg’s ■ Point.

In relation to the advances to Brown and the negro hire, though these were ruled by the Court of Appeals to fall within - the perview of the decree of 1825, yet I think the evidence on the subject is too obscure, and the transactions too antequated,.. to allow of a satisfactory adjudication : and that after the administrators have been discharged, the heirs of Savage Smith,. who had no direct right of reclamation, should not be allowed; to reclaim through the administrators, — at least without clean-proof that the administrators could reclaim. The only ground *540is the subsequent depreciation of assets, in the hands of the administrators, or of the *Court:*and neither administrators, or other heirs, have a right of reclamation from such a circumstance.

After the hearing in these causes at this Term, and before the above decision was pronounced, Benjamin F. Hunt presented a petition for a re-hearing, upon grounds which sufficiently appear in the following opinion of the Court, delivered by

Dargan, Ch.

This is a petition for a re-hearing. The first ground assumes that the petitioner, B. F. Hunt, has by the decree of this Court, been held jointly and personally liable for the debt of Bird, Savage & Bird. This is an erroneous inference. The decree of the Appeal Court of January Term, 1850, declares no personal liability against the petitioner, but establishes a lien upon the property, which, in the partition of the partnership of George and Savage Smith, had been allotted to Charles T. Brown and wife, and by them assigned to the petitioner. The decree adjudges that the balance of this debt had been paid by the heirs of Savage Smith, as reported by the Master; and gives a lien for one-half of that amount on the property in the possession of the petitioner, derived from the partnership estate of George and Savage Smith.

The petitioner also states, as a ground for a re-hearing, that the decree of June Term, 1850, allows the complainants, the heirs of Savage Smith, to proceed by a writ of *fieri facias*for the enforcement of their claim. This has been made a ground of appeal from that decree. It has been considered by the Court, and so much of the said decree, as is complained of in this particular, has been reversed by the decree of this Court, rendered during this Term.

In reference to the error alleged in the petition, as apparent on the face of the decree of the Court of Appeals, in respect to the amount paid by the heirs of Savage Smith, on the debt of Bird, Savage & Bird, it would, perhaps, be sufficient to refer to what has been said in the appeal decree which has been rendered during the present Term.

*541A bill of review and a motion for a re-hearing are entertained on similar grounds. There are but two grounds on which either of those proceedings will lie. First; they will be entertained on account of error of law apparent upon the face of the decree: and any part of the record may be resorted to for the purpose of making such error of law in the decree manifest. This petition sets forth no error of law in the decree, and this Court perceives none.

The other ground upon which a bill of review, or a motion for a re-hearing, will be entertained, is newly discovered testimony; that is to say, testimony discovered since the trial. This testimony must be important and *must*materially vary the case made: it must not be cumulative as to the evidence which was before the Court upon the trial; and it must be such as the party, petitioning for a re-hearing, was not aware of before the trial, and could not by proper diligence and en-quiry have discovered. To which it may be added, that many of the authorities declare that it must be written testimony. As to the grounds upon which a re-hearing will be ordered, see *Hinson*vs. *Pickett, 2*Hill Ch. 351.

The ground set down in this petition for a re hearing, is nothing more than alleged error of judgment on the part of the Court, in deciding upon an issue of fact. This is a very good ground of appeal, if well founded, where an appeal is taken from a lower to a higher tribunal, but I am not aware of any precedent for such cause being considered a ground for a re-hearing after a cause has been finally adjudicated. And more particularly is this assertion true, where the Court has had evidence before it, though that evidence might be doubtful. For it was held in *Johnson*vs. *Lewis,*(1 Rich. Eq. 390,) that a petition will not be allowed for supposed error in the conclusion of the Court drawn from doubtful or equivocal evidence. The rule was, in this case, unrelentingly applied, where the cause was decided by two Chancellors in opposition to the opinion of one of the Court and of the absent Chancellor who presided on the circuit.

*542But, as has been before intimated, the Court perceives no error. It is satisfied with its conclusions as to the matter complained of. The petition is dismissed.

Johnston, Dunkin and Wardlaw, CC. concurred.