author: GOLDTHWAITE, J.

text:
    NETTLES, adm'r, vs. BARNETT.
    1. At common law, actions that arise from contracts, for the payment of money, or for the performance of duties where property is in question, survive to the executor or administrator —actions for injuries to the person, character or property of individuals, die with the person.

      2. The statutes modifying this rule, do not extend relief against the executor or administrator, for an injury to personal property, committed by the testator or intestate.
    3. The statute of eighteen hundred and twenty-six, provides that all actions of trespass quare clausum fregit, and actions to recover damages for injuries to personal property, may, if the ■ plaintiff dies, be revived by his executor or administrator, in the same manner as actions on contracts, but does not apply to defendants.

    4. Trover, where property has been converted, or an action for money had and received, on an implied contract, waiving the injury, may be maintained against an executor or administrator, where the property has been sold by a testator or intestate; and if the property be in specie, in the hands of the personal representative, he can be made personally amenable for it.
    5. But an action of trespass proper, does not survive against the representative of the wrong doer, where commenced in his life time; and in such case, the representatives cannot make themselves parties, to the suit.
    Error to the Circuit court of Wilcox.
    Trespass, tried before Harris, J.
    This was an action of trespass, brought by Barnett, as an acting constable, against the intestate. In the declaration,' the plaintiff alleged, that as constable, he had levied certain executions, on one hundred and fifty bushels of corn, the property of one John B. Barefoot, the defendant in the executions — which corn he took posses- , sion of; when the intestate, with force and arms, «fee. broke and entered the barn, where the corn was housed, and took and carried the same away, and converted, «fee. by means whereof the plaintiff lost, and was deprived of xthe profits and benefits which would have accrued, to him from the sale of the corn, and which had subjected him to loss and damages.
    At a succeeding term, the death of the intestate was suggested, and the plaintiff in error, the administrator, made' party to the suit'. Yerdict for plaintiff below; on which judgment was rendered de bonis inieslatis.

    The bill of exceptions disclosed proof of a levy on the corn: that the day before the levy, plaintiff had levied on two horses, which were of more value, than the amount called for by the executions levied: that the corn had been sold while growing, and before matured, (two months before the levy,) to the intestate, and that the defendant in execution had then received pay for the corn. The corn was placed in an old house without a door, on the land where raised, which was rented land. The witness (who was the defendant in the executions,) also proved that hé had rescued the horses from the plaintiff. There were about one hundred and fifty bushels of corn.
    Another witness proved the purchase of the corn, and that payment was made for it before the ievy, but that it was not carried'away until after the intestate said he had bought one hundred bushels from defendant in the execution, and paid for it, and' would have it, notwithstanding the levy.
    The defendant desired the court to charge the jury, that a levy of property, sufficient to satisfy the execution; discharged the debt, so far as to vest a good, title in ^‘purchaser for a valuable consideration, although the property was rescued, and that the officer was liable to the plaintiff in execution.
    But the court charged the jury, that the levy on the horses, must be totally disregarded, as it did not deprive the officer of the right to levy on other property, after the rescue by the defendant in execution. The court further charged, that the rule of law which requires a delivery of personal property to perfect a contract, at the time of the sale, was universal, to which defendant excepted.
    And here assigned for error:
    1. The charge ashed and not given, and the charges as given;
    2. That .the court erred in rendering judgment against defendants.
    Clarke, for the plaintiff in error.

      Porter, contra.

      Clarke, for plaintiff,
    contended—
    That an action of trespass de bonis asportatis,- commenced against the wrdng doer, could not be revived against his representatives in the event of his death — and referred to Aik. Dig. 260; Ch. PI. 60 and 82, marg.; Toller, 459; Hambly vs. Trot, 1 Cowp. 371; People vs. Gibbs, 8 Wend- 29; Nicholson vs. Elton, 13 S. & E. 415; Latimore, &c. vs. Simmons, ib. 183.
   GOLDTHWAITE, J.

— One of the assignments of error .presents a question, which is, in our opinion, decisive of this case, and renders it unnecessary to express any Judgment, on those arising from the bill of exceptions.

It is an ancient and uncontested maxim of the common law, that personal actions die with thé person. These actions have never been understood to be those which arise from contracts, for the payment of money, ■or for the performance of duties where property is in •question; but the maxim is confined in its government, to those actions for injuries to the person, character or property of individuals. It was early perceived in England, as personal property became more and more valuable, that it ought to be in some degree withdrawn from the rule, admitted to prevail. Accordingly, the statute of 4th Edward 3, ch. 7, was enacted, which gave an action to an executor, for an injury done to the personal property of his testator in his life time, which' was subsequently extended by other statutes, to the executor of an •executor, and to an administrator.

The construction which these statutes have received in the English courts, has extended the remedy of an administrator or executor to almost every species of action for injuries to the .personal property of the intestate or testator. But they have never been held to extend relief against the executor or administrator, for an injury of the ■same character committed by his testator or intestate — ■ (1 Saund. 216, n. 1.)

In this State, the statutes of Edward III have been adopted, and even extended, by the act of eighteen hun-' dred and twenty-six, (Aik. Dig. 260, s. 6 which provides that all actions of trespass quare clausum fregit, and actions of trespass to recover damages for injuries to personal property, may, if the plaintiff dies, be revived by his executor or administrator, in the same manner as actions on contracts. It will be seen, however, that none of the terms used by this act, will authorise an inference, that it was intended to apply to the case of defendants; and indeed it might well be questioned, 'whether there is not much reason why no right of survivorship should be given for such injuries against an individual; as the only use of the particular form of action would be to authorise the rendition of vindictive damages.. As the action of trover by statute survives for and against executors and administrators, this form of action will give ample relief, where the personal estate has been converted previous to the death. Or, if it has been sold, an action for money had and received on the implied contract, waiving the injury, can be maintained. If the property remains in specie, in the hands of the personal representative, he could be made personally answerable for it.

If this form of action is permitted to survive against a personal representative, it would be governed by the same rules as an original suit, and vindictive damages might be awarded after the death of the wrong doer. This is one of the evils which was restrained by the maxim of the common law, and none of the legislation on this subject authorises the inference, that a different rule was intended to be given. The construction given to similar statutes in other States, has been the same as now given by us.

In the case of Nicholson vs. Elton, (13 S. & R. 415,) the precise question now presented arose, and was determined in conformity with the views we have expressed. So, in the case of Stebbens vs. Palmer, (1 Pickering, 71,) an action for breach of promise of marriage was held not to survive, though in form, an action ex contractu. (See also Hinch vs. Metzer, 6 S. & R. 272; Lattimore vs. Simmons, 13 S. & R. 183; Hambly vs. Trott, Cowp. 376.)

The defendant to the action having died pending the suit, it thereby abated, and could not be revived. It was irregular, to permit his administrators to make themselves parties, and for this error, the judgment is reversed, and a judgment here rendered, abating said suit.


source: Caselaw Access Project

license: Public Domain

text:
    FRYER vs. M'RAE.
    1. A citizen does not lose the right to reclaim property taken from him in times of public emergence, when the necessity which induced its seizure has passed away.
    2. And until his consent to part with it is freely given, he is to be considere'd its rightful owner, until time shall have divested his right of property.
    3. Therefore, where a horse had been seized under pretence of necessity for the public service, and was refused to be delivered, on demand made, after the exigence which induced the seizure had passed — it was held that trover would lie for his recovery.
    On writ of error to Talladega Circuit court.
    Trover, tried before Shortridge, J.
    The plaintiff declared against the defendant, in an action of trover; for that plaintiff, on the first day of September, in the year one thousand eight hundred and thirty-six, was possessed of a certain dark bay horse, of the value of two hundred dollars, which he casually lost, and which afterwards came to the possession of • defendant by finding, who refused to deliver him to plaintiff, and disposed of him to his own use, &c.
    To this declaration, the defendant pleaded not guilty, and also justified the taking of the horse, under an order from Major General Irwin, then' commanding the State troops in service.
    On this state of the pleadings, issue was joined, and a verdict rendered fo.r the defendant.
    To the proceedings below, plaintiff filed his bill .of ex--ceptions, which stated, that on the trial of the cause, it appeared in evidence, that defendant, in May, eighteen hundred and thirty-six, was appointed by Major General Irwin, commanding the State troops then in service, to suppress the Creek insurrection, to carry necessary de-spatches, in relation to said service, from Irwinton, Barbour county, to the Governor, then at Montgomery, Alabama. That it was necessary to the public service, that the despatch should be conveyed, and that with the utmost celerity; and to that end, said General Irwin had caused to be given to said defendant, written authority to press fresh horses by the way, as often as his horse failed: — That on the way to Montgomery, conveying said despatch, defendant’s horse failed at plaintiff’s house, and the horse sued for was taken by defendant without plaintiff’s consent, under the authority, and for the purpose aforesaid. At the time of taking said horse, defendant left with plaintiff a receipt for said horse, certifying that the same was taken for said service, and was appraised at one hundred and seventy-five dollars. It was further in evidence, that defendant, a short time af-terwards, passed through plaintiff’s neighborhood, leading the same horse, and riding another: — that defendant took plaintiff’s horse with him: that some time after that, plaintiff met defendant, and asked what had become of his horse: that defendant made some evasive reply, but concluded by saying plaintiff should be paid for his horse: — It was further proved, that defendant traded said horse off, and never returned him.
    The court charged the jury, in case they believed the necessity of the times justified the authority under which defendant acted, then the taking, though only for the object stated, vested the right of property in the government, and complainant thereafter, could have no right of action against the agent taking, or any other person, in respect of the horse sued for: and that his only remedy was by application to the government, on the certificate for the appraised value: to all which, plaintiff excepted, &e.
    Plaintiff’s counsel contended, that although the necessity might have justified the government agent in seizing and using the horse for a specific and needful purpose, yet as soon as the end of the taking was answered, the right of the property and right of possession reverted to plaintiff, and -if it remained in specie, unconsumed by the service — defendant’s refusal to deliver on demand, or his applying the property to his own use after the object of the taking was answered, rendered him liable to account to plaintiff in this form of action.

      Porter, for the plaintiff in error.
   GOLDTHWAITE, J.

— The plaintiff not having requested any instructions to be given to. the jury at the trial, as to the lawfulness of the authority under which the defendant seems to have acted, it will be unnecessary for the court to examine, whether any person can be deprived of his property by the order or direction of a military commander, without having a remedy in the courts of justice. It seems to have been conceded, that such a right exists, from the necessity of, the case; and it is not for us to decide so grave and so important a question, before some individual shall complain that his rights have been invaded.

. The doctrine contained in the charge given by the court, cannot be sustained in law. If it is admitted that in times of war and danger, the property of the citizen, may be seized and used for the benefit of the community, it does not follow, that he looses the right to reclaim it, after the necessity which induced its seizure has passed away. I-Ie may have a rightful demand against the government, if his property has been lawfully taken or destroyed in the public service, but his title to it can alone pass from him by his own act and consent; and until such consent is freely given, he is to be considered for all purposes as its owner, until time shall have divested his right of property.

The facts of this case, as disclosed by the bill of exceptions, establish the conversion by the defendant beyond all question, if they are true; and his orders, admitting them to be legal, (as to which, it is unnecessary to express, at this time, any opinion,) afforded no justification or excuse for not returning the horse when demanded, still less for disposing of him for his own use.

Let the judgment be reversed, and the cause remanded.


author: COLLIER, C.' J.

text:
    GRAY vs. CROCHERON.
    1. The wrongful taking or detention of a personal chattel, or . other illegal assumption of ownership, or using or misusing of it, amount to a conversion.

      2. So, a temporary conversion will make a defendant liable; as, if one ride a horse,-or control the services of another’s slave, though he afterwards restore them to the true owner — the cause of action, which was once perfect, still remains, and the restoration will only go in mitigation of damages.
    3. If a slave be lost, during the time he is employed by a defendant, without the owner’s consent, defendant is liable in trover to the full value of the slave.
    4. But if the employment be at an end when the slave is lost, defendant will only be liable for the temporary conversion, and the measure of damages, instead of being the value of the slave, will be the injury resulting to the plaintiff, from the employment, which, under some circumstances, may possibly be increased.
    Error to the Circuit court of Autauga.
    Trover for a slave, tried before Harris, J.
    The plaintiff in error brought an action of trover in the Circuit court of Autauga, against the defendant, for the conversion of a slave. The defendant pleaded “ not guilty,” and the case was submitted to the jury. On the trial, a bill of exceptions was taken by the plaintiff, from which it appeared, to be probable that the slave alleged to have been converted, was sent across the Coosa river with a letter, by the defendant. The slave was the ferryman at that place, and was afterwards missing. His clothes were found about twenty yards' above the ferry landing, and the skiff and flat belonging to the ferry, were at their proper places. The plaintiff’s counsel requested the court to charge the jury, that if they believed that the slave was the property of the plaintiff, and that the defendant employed him without the assent of his master, such employment amounted to a conversion, and unless the slave had thereafter been restored or come to the possession of the plaintiff, that the plaintiff was entitled to recover, which charge the court refused to give, but charged the jury, that if they believed the slave was lost while in “the employment of the defendant, then the defendant was liable for the value of the negro; but if they believed the slave was not lost while in the employment of the defendant, but came to his death in another manner, that then, the defendant was not liable.” To all which, the plaintiff excepted, ■&c.
    Plaintiff in error assigned—
    1. That the court erred in refusing the charge prayed for;
    2. That the court erred in the charge given.

      Geo. Goltdkwaite, for the plaintiff in error.

      Thorington, contra.

      Goldthwaite, for the plaintiff in error,
    contended, that the employment of the slave without the assent of the ■owner, was a conversion for which trover could be maintained — (6 Bac. Ab, 679; 1 Stark. Rep. 173; 4 T. R. 364; 3 Stark. Ev. 1493; 2 J. J. Mar. 84; 2 Salk. 255.) That if the slave had been re-delivered, or returned by defendant, lie would still have been liable, and that the return would have gone only' in mitigation of damages —(1 Roll. Abr. 5; Bull. N. P. 46; 6 Bac. Ab, 679; 3 Camp. 396; 1 Chit. PL 155; 5 Mass. 104; 6 Mod. 312; 10 John. 172; 7 John. 254; 3 B. & A. 687; 2 Saund. Ev, 476.)
   COLLIER, C.' J.

— In St. John vs. O'Connel, use, &c. (7 Porter’s R. 466,) it was decided, that the wrongful taking or detention of a personal chattel, or other illegal assumption of ownership, or using or misusing of it, were all acts, amounting to a conversion. So, a temporary conversion will make a defendant liable; as, if a person ride the horse, or control the services of another’s' slave, though he afterwards restore them to the owner, the cause of action, which was once perfect,, still remains; and the restoration will only go in mitigation of damar ges.

Taking these rules for our guide,, we think it clear, that the judge of the Circuit court could not, with propriety, have refused the motion of the. plaintiff’s counsel for instructions to the jury. The first branch of the motion merely assumed it as law, that if the defendant employed the plaintiff’s slave, without the master’s assent, he was guilty of a conversion.

The second branch supposed, that if after the employment of the slave by the defendant, he came, or was. restored to the plaintiff’s possession, he could not recover. In this, the plaintiff’s counsel yielded more to the defendant than he could have claimed, for the return of the slave, after an unauthorised employment, would only have diminished the damages, without destroying the right of action*

The charge given was not a fair substitute for that Which was asked, and considering the facts disclosed by the bill of exceptions, cannot be maintained. The jury were informed-, that if the slave was lost while in the defendant’s employment, the defendant was liable in damages to the extent of his value, but if he was not thus lost then, the defendant was not liable. The first part of the charge is well enough, but the latter part, referring to the rules we have laid down, is clearly erroneous. Shall the illegal Use of the services of the slave, which was in itself a conversion, be placed out of view, if he happen to be lost after he has completed that service? We have already shown that the reverse is the law.

That the defendant is chargeable, if the slave was lost during the time he was employed by the defendant, Without the plaintiff’s consent, and that even to his full value, is indisputable; but if the employment was at an end when the slave was lost, though the defendant would be liable for the temporary conversion, yet the measure of damages, instead of being the value of the slave, would be the injury resulting to the plaintiff from such employment, Which, Under some circumstances, might possibly be increased.

The slave in controversy appears to have been the ferryman of the plaintiff, and might therefore be considered in his owner’s possession, On either side of the river; unless controlled by some one else. If, in crossing the river, to carry a letter for the defendant, he was lost, the defendant would be compelled to make good his value; but if after having reached the other side of the river, and discharged his errand, he was lost, while following the inclination of his own will, the defendant would be liable only for the temporary conversion. We have thought it proper thus to state the law-, which is applicable to this case, that it may be correctly determined upon at a future trial. It remains but to say, that the judgment of the Circuit court must be reversed, and the cause remanded.


author: PER CURIAM.

text:
    WRAGG vs. THE BRANCH BANK OF ALABAMA AT MOBILE.
    1. Where the place of holding court is. left blank in a writ, and the defect is in no way cured by appearance or otherwise— judgment cannot be rendered for plaintiff.
    Error to the Circuit court of Mobile.
    Assumpsit, tried before Pickens, J.
    In this case, the place of holding court was left blank in the writ: there was no appearance by defendant, and judgment was rendered for plaintiff — to reverse which, a writ of error was sued out.
    Plaintiff assigned for error—
    1. That the writ is not made returnable in any court, and that defendant in the court below had no notice of the suit;
    2. That judgment was given for the defendant in error, when it should have been given for plaintiff in error.

      Campbell, for the plaintiff in error.

      Thornton, contra.
   PER CURIAM.

— There ,is nothing in the writ, which is the foundation of these proceedings, which could in any manner advise or notify the defendant to the action, that he was required to appear at the Circuit court of Mobile county, to answer the plaintiff. The omission to insert the word Mobile, in the blank space in the writ, leaves it without sense or meaning, and it would be carrying the doctrine of intendment too far, to insist that the defendant was bound to know from the service of this writ on him, that he was thereby required to attend at the court which rendered judgment against him. The defect has in no way been cured, by appearance or otherwise.

Let the judgment be reversed.


author: COLLIER, C. J.

text:
    HEIRS OF CAPAL vs. M'MILLAN, adm'r.
    1. In adjusting the meaning of any of the provisions of a will, the testator’s intention is allowed to exert a controlling influence — if that be clear, and not 'contrary to law, it must prevail, although in giving effect to it, some words should be rejected, - or so restrained in their application, as to change their literal meaning. i
    2. Where the testator's intention would be advanced, courts have sometimes taken license not only to reject, but even to supply words.
    3. If a will be ambiguous in any particular part, the whole will maybe considered, for the purpose of ascertaining the testator’s intent in that part.
    4. As the property devised or bequeathed to infant devisees— legatees, most usually goes into the possession of their guardians, after the executor shall have collected the estate of the testator, and paid his debts; in order to allow it to remain with the executor, or to receive any other than its accustomed destination, the intention of the testator should appear "from plain language, or clear implication.
    5. In the construction of powers as well as wills, the intention of the parties, if compatible with law, governs the court.
    6. In general, the intention is to be collected from the instrument creating the power; though a reference is sometimes allowable to the circumstances under which the power was given.

      7. But where two intentions appear, a general and a particular one, such a construction' shall be given to the power, that the general-intention shall take effect, even if the particular intent be defeated.
    8. Where a studied regard to accuracy and precision of language in a will, is not discovered — the sense in which the testator employed terms, and the meaning he affixed to them, must be . ascertained in determining his intention.

      9. A mother has the second title to the guardianship by nature, which becomes paramount by the death of the father, — yet the guardian by nature is not entitled to possession of the child’s estate.
    10. The words óf a testator are to be taken in their ordinary . meaning, and not in their technical sense.
    1L. Where property is left by a testator to his minor children, to be given them when they respectively arrive at the age of twenty-one years, or marry, and to be managed by his widow during her widowhood — the control of the property by the widow ceases upon her marriage: and the right to the possesssion and control of the property, vests in the guardian of the minors.
    Error to the Circuit court of Wilcox county, exercising chancery jurisdiction.
    Tried before Judge Crenshaw.

    The bill, in this case, stated that the father of complainants, before his death, (which took place in eighteen and thirty,) made his will — which contained the following clauses:
    “Secondly. — I will and bequeath unto my son William, and my soii-in-law, Young W. Grayson, the following negroes, to wit, a negro man named Allen, and his wife Aggey, and their three children, Ceesar, Alta-more and Amey, with their future increase.
    “Thirdly. — I will and bequeath unto my son-in-law, Young W. Grayson, one yellow horse, named Dungan-non, and a good bed and furniture, as his full part and portion of my estate.
    “Fourthly. — I will and bequeath unto my son, William M. Capel, a certain negro boy named Albert, to be considered as payment of what I am, or would be due to him, for property of his that came into my hands. I also will and bequeath unto my sod William Capel, one grey colt, a good bed and furniture, and my silver watch,—the watch to be given him when he arrives at twenty-one years of age — as his full part and portion of my estate.
    “Fifthly. — I will and bequeath unto my beloved wife? Sally Capel, one negro man named Nelson, and his wife Esther and child Amelia, for and during her natural life, and at her death, the negroes so bequeathed? with their future increase, to be equally divided amongst my heirs? not alréady provided for. It is also my will, that my wife, Sally, shall have the use of the other negroes, du--ring her widowhood, to wit, Amey, Sukey and London? and to be kept by her during the time aforesaid, for the purpose of assistance in supporting her and the children/ I also will and bequeath unto my beloved wife, one bay mare? and one grey mare, and one Indian horse, during her widowhood, and at her marriage? to be divided amongst the rest of my heirs, not provided for.
    - “Sixthly. — It is my will and desire, that my negroeS? not bequeathed, be hired out yearly, and my plantation-rented by my executrix- and executor, hereinafter' appoint-ed ? and that my wife. Sally, should be entitled to receive out of the proceeds- thereof, the sum of two hundred dollars, in each and every'year, for the support and educa--, tion of the children, during her widowhood, or until my son, Alexander, shall arrive at the age of twenty-one years.
    “Seventhly. — It is my will and desire, that all my stock ©f cattle and hogs, should remain unsold, for the use, support and maintenance of my family. It is also my wilLthat all my household and kitchen furniture, should remain, unsold, for the use of my wife, Sally, and the children.
    “ Eighthly. — It is my will, that all my negro property, land, stock of every description, and all my estate, both real and personal, except ttyat specially bequeathed to my son-in-law, Young W. Grayson, and my son, William M. Capel, shall he divided among my younger children, (meaning the complainants,) equally, and that they shall ■be entitled to receive the same, when they arrive at the ■age of twenty-one years, or marry, except the property already bequeathed to my wife.
    ■“Ninthly. — I appoint my wife, Sally, executrix, and Irwin R. Capel, executor, of this, my last will’and testament.”
    That shortly after the death of the testator, the executor, Irwin R. Capel, also departed this life: and that Sally Capel, took upon herself the execution of the will, and -in November, eighteen hundred and thirty-one, intermarried with John Nugent, the present guardian of complainants: That said Sally was thereupon displaced from the office of executrix, by the Orphan’s court of Wilcox, and Alexander Gordon, appointed administrator, • — who settled the estate, and resigned the' administration.
    David McMillan, the defendant, by virtue of his office of coroner nf the county, was then appointed, administrator de bonis non, with the will annexed, who possessed himself of the estate: That complainants were the younger children, and that William M. Capel, Young W. Gray-son, and Sally, have received their bequests as mentioned in the will, and that the residue of the estate is in the, hands of defendant, who had annually hired out the same, and that it had considerably increased.
    Complainants, in eighteen hundred and thirty-four, removed to Mobile, where their father-in law, John Nu-gent, was appointed their guardian: That the negroes could be hired out in Mobile to better advantage than in Wilcox, and that it would be greatly to the injury of complainants, to permit defendant to manage the property, until they arrived at mature years, and that some competent person in Mobile ought tó be appointed to manage the property. Complainants, from their youth, were unable to do any thing for their own support, and were maintained by their father-in-law, the amount allowed them by defendant being inadequate for their maintenance; and that their guardian had applied to the defendant for the property, and • for a settlement, which had been refused. Complainants prayed for an account, and that the property might be transferred to their guardian..
    The answer admitted the statement contained in the bill, and furnished an account and schedule of the estate in the hands of defendant — had no objection to surrendering the estate, which consisted of twenty negroes, sundry notes, lands, &c. if the court should so order — thought the negroes would be exposed to injury in health and morals, by removing them to Mobile, and doubted the competency of the guardian to manage the estate.
    The chancellor was of opinion, that the will required that the estate should remain in the hands of the executors, until the children arrived at the age df twenty-one years, or married, and that the court had no; right to remove an executor without cause: That a guardian is not entitled to the possession of the ward’s property, unless the right of possession vests in the ward. The court thought the negroes would he liable to receive injury by a removal to Mobile, and would have been inclined to dismiss the bill, but for the suggestion, that the amount allowed the minors’ by the administrator, was insufficient for their maintenance. It was therefore referred to the master, to ascertain what would be a reasonable allowance for the maintenance and education of the minors.
    - The master, at a subsequent term, reported a definite sum, and his report was confirmed by the court.
    ' Assignment — -That the chancellor erred in decreeing that the property of the wards should be retained and held by the administrator, and in not decreeing the same, to be, by the said administrator, the defendant in error, surrendered to the plaintiffs.

      Porter, for plaintiffs in error.

      J B. Clarke, contra.
   COLLIER, C. J.

— The only question arising in this case is, whether the defendant, as administrator cum, tes-tamento annexo, is entitled to the possession of the property devised and bequeathed by his testator to the plaintiffs, or does its possession and control properly belong to their guardian ? Assuming the defendant to stand in -the attitude of an executor, the solution of this question .will depend upon the exposition of the sixth and eighth clauses of the testator’s will; which are as follow:

“Sixthly, — It is my will and desire, that my negroes not bequeathed, be hired out yearly, and my plantation rented by my executrix and executor, hereinafter appointed; and that my wife, Sally, should be entitled to receive, out of the proceeds thereof, the sum of two hundred dollars, in each and every year, for the support and education of the children, during her widowhood, or until my son, Alexander, shall arrive at the age of twenty-one years.
“Eighthly. — It is my will, that all my negro property, negroes, land, stock of every description, and all my esT tate, both real and personal, except that specially bequeathed to my son-in-law, Young W. Grayson, and my son, William M. Capel, shall be divided among my younger children equally, and that they be entitled to receive the same, when they arrive at the age of twenty-one years, or marry, except the property already bequeathed to my wife.”

It will be observed, that the will does not, in terms, prescribe any period during which the executrix and executor shall continue to hire out the negroes and rent the land. To be informed upon this point, then, we must look to the will itself, to ascertain the testator’s intention, in thus diverting the property from the control of the guardian of the legatees, and vesting his legal representatives with the unusual authority, to retain its possession and management. As wills are often made in extremis, and drawn by persons unskilled in the law, without the aid of professional advice, great liberality is indulged in their interpretation. In adjusting the meaning of any of the provisions of a will, the testator’s intention is allowed to exert a controlling influence; — if that be clear, and not contrary to law, it must prevail, although, in giving effect to it, some words should be rejected, or so restrained in their application, as to change their literal meaning— (Finlay et al. vs. King’s Lessee, 3 Pet. R. 377; Bell and wife vs. Hogan, 1 Stew. R. 536; Drury & Bennett vs. negro Grace, 2 Har. & J. R. 356; Smith vs. Bell, 6 Pet. R. 68.) And where the testator’s intention would .be advanced, courts have sometimes taken license not only to reject, but even to supply words. —(Doe vs. Roe, 1 Wend. Rep. 541; Jackson, ex dem. of Gatfield vs. Strang, 1 Hall’s Rep. 1.) So, if a will be ambiguous in any particular part, the whole will may be considered, for the purpose of ascertaining the testator’s intent in that part—(Jackson ex dem. Van Techten vs. Sill, 11 Johns. R. 201; Dashiel et al. vs. Dashiel, 2 Har. & Gill's R. 127; Land et al. vs. Otley, 4 Rand. R. 213; Moore vs. Dudley and wife, 2 Stew. R. 170.)

As the property devised or bequeathed to infant devi-sees or legatees, most usually goes into the possession of their guardians, after the executor shall have collected the estate of the testator and paid his debts, in. order to allow it to remain with the executor, or to receive any other than its accustomed destination, the intention of the testator should appear from plain language or clear implication— (Roosevelt vs. Fulton's heirs, 7 Cow. R. 71; Jackson ex dem. Bogert vs. Schauber, 7 Cow. R. 187.)

As the authority given to the executrix and executor, by the sixth clause of the will, is a power in nature of a trust, it may be well to lay down some rules, in regard to the interpretation of powers :■ In the construction of powers as well as wills, the intention of the parties, if compatible with law, governs the court— (Pomery vs. Partington, 3 T. R. 665; Smith vs. Doe ex dem. Jersey, (Earl) 3 Bligh’s R. 290; 7 Price’s R. 281; 3 Moore’s R. 339; 2 B. & B.'s R. 474; Tankerville vs. Coke, Mosely’s R. 175, (a); Liefe vs. Saltingstone, 1 Mod. R. 189; Talbot vs. Tipper, Skinner’s R. 427; Bristow vs. Ward, 2 Ves. jr. 547; Wilson vs. Troup, 2 Cow. R. 195; Jackson vs. Vreeder, 11 Johns. R. 169; Mitchell vs. Maupin, 3 Monroe’s R. 185.) In general, the intention is to be collected from the instrument creating the power, though a reference is sometimes allowable to the circumstances under which the power was given—(Griffith vs. Hanson, 4 T. R. 748; Doe vs. Rendle 3 M. & S. R. 99.) But where two intentions appear, a general and a particular one, such a construction shall be given to the power, that the general intention shall take effect, even if the particular intent be defeated —(Robinson vs. Hardcassle, 2 T. R. 241; Jackson vs. Vreeder, 11 Johns. R. 169; Smith vs. Bell, 6 Peters’ R. 68.)

Having stated these acknowledged rules, as guides for the judgment we are to pronounce, we proceed to con-, sider the two clauses of the will, out of which this controversy has arisen. It will be premised, that the will does not discover any studied regard to accuracy and precision in the use of language; we must, therefore, in determining the testator’s intent, endeavor to ascertain the sense in which he employed terms, and affix to them the same meaning.

That the mother has the second title to' the guardianship by nature, which title becomes paramount upon the death of the father, is a clear principle; yet, the guardian by nature is not entitled to the possession of the child’s estate—(Miles vs. Boyden, 3 Pick. R. 213; 5 Porter’s R. 392; Isaacs, by next friend, vs. Boyd et al.)

The testator manifests a confidence in the judgment and discretion of the wife, so long as she continues unmarried ; and is desirous that during that period, she shall direct the education of their children; and to effect this object, and enable her to receive the means for that purpose, he directs that the negroes not previously bequeathed, shall be hired out, and his plantation rented by his executrix (wife) and- executor, and his executrix to receive out of the proceeds thereof, two hundred dollars, at the end of every year.

The will does not leave it to be determined by com struction, for what particular time this sum is to be received and appropriated by the executrix: its terms are explicit, and provides a limitatiqn, viz. “during her (wife’s) widowhood, or until my (testator) son, Alexander, shall arrive at the age of twenty-one years.” The events which are to determine the right of the executrix to receive money for the support and education of the children, need not both happen; — they are expressed dis-junctively, so that the one which shall first occur, puts an end to the right. The moving cause for the insertion of the power to hire out the negroes, and- rent the plantation, was to enable the wife to receive a part of the proceeds arising from these sources, to defray the expen-ces, consequent upon the support and education of the children, without executing a bond, as their guardian, ■or giving other security than that required for the faithful performance of her duties, as an executrix of the will. The inducement which prompted the testator to confer this power, ceased to exist immediately upon the marriage of the executrix, for her widowhood no longer continuing, her right to receive the two hundred dollars Was at an end.

This view derives aid from the fifth clause of the wilL In the first part of this clause, the testator makes a provision for his wife for her life. In the latter part, he says; “It is also my will, that my wife, Sally, shall have the use'of the other negroes during her widowhood, to wit, Amey, Sulcey and London, and to he kept by her during the time aforesaid, for the purpose of assistance in supporting her and the children."

I also will and bequeath unto my beloved wife, one bay mare, and one grey mare, and one Indian horse, during her widowhood, and at her marriage, to be divided amongst the rest of my heirs, not provided for.” The wife’s right to the property bequeathed by this clause, did not continue beyond the period of her marriage: upon the happening of that event, the guardian of the heirs intended, became entitled to its actual possession. The children provided for by the sixth, are doubtless the heirs contemplated by the fifth clause, and it is difficult to conceive of a motive to-a change of the possession" of the property in the one case, which would not have influenced the testator in the other.

The testator certainly desired that the maintenance of his children should be transferred to some-one else, as soon as his wife should again marry, or, at least, he did not wish the proceeds of their estate to be received and disbursed by her for that purpose, in the character of an executrix. He was willing to confide to her this important duty, so long as she continued in a situation to exercise hér own judgment and discretion uncontrolled by a husband, but as he could not anticipate who was to succeed him in her affections, he was unwilling that the possession of the property, and the disposition of the fund provided by the will, should be entrusted to his wife, beyond the period of a second marriage. And if the wife made a prudent selection of a second husband, neither the children or mother would be prejudiced by thus interpreting the testator’s intent, for the husband would doubtless be appointed by the court, guardian of the children under fourteen years, and if chosen by those older, he would certainly be approved — but if the wife’s choice was unfortunate, it would not be desirable that the guardianship should be committed to the husband.

Perhaps it may be said that it may have been the confidence reposed in the executor named in the will, that influenced the testator in framing, as he did, the sixth clause. The will no where discovers that such a consideration prompted him. A confidence in the wife, so long as she continued sole, we think has been shewn to have been the moving cause. The executor was most probably named for the purpose of aiding the wife in the performance of dfities, which, to her, must have been onerous, viz. to hire out the negroes, and rent the plantation.

Nor do we consider that there is any thing in the eighth clause, repugnant to the view we have taken. The direction, there, that the younger children shall be entitled to receive the property given them by the will, when they arrive at the' age of twenty-one years, or marry, does not inhibit a guardian of the children from taking possession of it previously. The testator did not employ words in their technical sense, but in their ordinary acceptation, and so we must understand them —(Land et al. vs. Otley, 4 Rand. R. 213.) Now, though the possession of the guardian would, by construction of law, be the possession of the ward, yet, as the testator evidently intended an aHttal possession, with the right to control the property, (this being the popular meaning of the words employed,) in furtherance of his intention, he must be so understood. The words,1 “ except the property already bequeathed to my wife,” clearly relate to property bequeathed to tire wife during her life, and which, after her death,is directed “to be equally divided amongst my (testator’s) heirs, not already provided for,” and does not embrace that given during widowhood, to aid the wife in the support and education of the children.

There is no conflict between the general and particular intent of the testator, in framing the sixth clause of his will. His intention was to provide for his children, not specially provided for, a patrimony, and. also the means of support and education during their minority. The expenditures for the support and education of the children, were to be regulated by the wife during her widowhood: after her marriage she was not authorised to receive the proceeds of their estate, to defray the charges of their maintenance. This, we think, indicates the testator’s intent to have been, that as the executrix was to receive a portion of the proceeds of the children’s estate, in order to their support and education, the possession of the estate itself is vested in her and her co-executor, that she might perforin this duty with the more ease and convenience to herself. Besides, the testator probably believed, that so long as he remained single, the interest of her children would be paramount to that of all other persons, and consequently, their estate would be most profitably managed by her, but as the interest of a husband might conflict, or his will would predominate, whenever she changed her situation, he intended the power given by the sixth clause to cease, and the property to go into the possession of such person or persons as might be regularly approved and appointed to the guardianship of the infant plaintiffs.

That the intent of the testator may be effectuated, the decree of the Circuit court is reversed, and the cause remanded. And it is frrther adjudged and decreed, that such proceedings be taken in the Circuit court, as may lead to a settlement of the administration accounts of the defendant, upon such principles as may be just and proper. It is further ordered and adjudged, that upon the execution of a bond or bonds by John Nugent, as guardian, &c. in a sufficient penalty, and with adequate security, before the judge of the County court of Mobile or Wilcox county; conditioned as the bonds of guardians are by law directed to be, to be approved by the judge of the Circuit court of Wilcox; that then the defendant be directed to pay over to the guardian all monies, and deliver to' him all bonds, notes and slaves, and relinquish to him the possession of the lands belonging to the infant complainants, and the costs of this cause, are to be paid by the defendant, out of the estate of the testator in hi5' bands unadministered.


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    MAURY'S adm'r vs. MASON'S adm'r.
    1.It is a well settled rule of chancery, not to decree on a case supported by proof, and not sustained by the allegations of the pleadings. The allegation and proof must correspond.
    2.There is a broad and clearly defined distinction between trusts of property, whicli are specific in their nature, and trusts of money, which have no earmarks by whicii tiiey can be identified.
    3. But there is no difference between a trust created by the deposit of money in the first instance, aud cue where the money is raised by the sale or conversion of a chattel deposited with a trustee, to convert into money.
    4. Whenever the subject matter of a trust cau bo sued for at law, the statute of limitations may be insisted on as a bar, although the remedy is pursued in a court of equity.
    5. The only trusts not within the operation of the statute, are those which are peculiarly aud excursively, the subjects of equity jurisdiction.
    6. A subsisting recognised and acknowledged trust, as between the trustee and the ceslui que trust, is not barred by the statute of limitation.
    7. If specific property is placed in the possession of any one, in trust for a specific purpose, as long as it remains in specie, and capable of identification, it is considered as he'd subject to the trust, until such time as the trustee shall do some act evincing his intention to convert it to bis own me, or to renounce or abandon the trust confided to him; aud in all such cases, between the trustee and cestui que trust, such intention must be known or communicated to tne trustee, otherwise, the property will be considered as remaining subject to the trust.
    8. But this rule has never been applied to mere money trusts, when the fund has not been kept distinct and separate from other funds belonging to the trustee.

      9. The fact, that action can be maintained for money received on one of numerous demands, does not revive all previous causes of action, and the payment oí one claim cannot be construe 1 as an admission of another.
    10. If, at the time-of a testator’s death, there is any specific personal property, in his hands belonging to others, which he holds in trust, or otherwise, raid it can be dearly traced and distinguished from the testator’s own, such property, is not assets to be applied to the payment of iris debts, or to be distributed among his heirs, but it is to bo ho id as the testator himself held it.
    11. But if the testator has money, or other property, in his hands belonging to others, which is in trust or otherwise, and it has no ear marks, and is not distinguishable from the mass of his own property, the party must come in as a general creditor.
    12. And the rule above stated, as governing cases where the trustee is dead, extends with all its force, to money trusts where the testator is living.
    13. As long as the trustee holds it capable of being distinguished as a separate fund distinct from his own money, the trust will be presumed to exist,’from the circumstance that it is thus kept distinct, for this- could alone be the case where the trust was recognised and admitted.
    14. But if the trustee receives money on account of the subject matter of the trust, and docs not separate it and keep it so that it can be identified, a continual conversion is constantly taking place, and if the cestui que trust lies by for more than six years, or such other time as will create a statutory bar, the presumption of payment will arise as in any other case of a mere money demand, and the onus is thrown on the party, claiming the money, to repel the presumption as in other cases.
    15. It is now well settled, that if a defendant, by plea or answer, relies on the statute of limitations, as a defence — the plaintiff, if he wishes to bring his case within any of its exceptions, must amend his bill or file a special replication, so that the new matter introduced by him may be controverted or avoided by the opposing party.
    16. And the act of eighteen hundred and twenty-three, dispenses only with the merely formal replication, before necessary, and does not authorise tíre introduction of evidence, not applicable, to any previously made allegation.
    17. The same strictness in an answer to a bill in equity, where the statute of limitations is relied on as a defence, is not requisite, as in a plea.
    18. Cases of bailment and unwritten contracts, when the contract is expressed, and the duties defined, are not open contracts in the view of the statute of limitations, and therefore, actions founded on them are not barred in three years.
    19. Where a defendant in equity wishes to bring the case charged in complainant’s bill, by evidence, to be one oí open aceount, he must malee the necessary allegations of facts, by his plea and answer.
    20. The mere statement of ail account before auditors, for the purpose of facilitating the examination .of matters before them, is not a revival of a demand barred by statute.
    21. Nor is the correction of an improper judgment, or a payment made on it at the instance of á representative, an admission of other demands, as claims existing, due and unpaid, by a defendant.
    22. The interest of one of several co-distributees is several, and does not, at his death, pass to his co-distributees. A distribu-tee may, in his turn, become the foundation of a new stock, who may be persons other than those entitled with him to distribution.
    23. A transfer of the interest of one of several distributees, parties to a particular suit, does not remove his disqualification, when offered as a witness in the cause.
    24. And a bill will not be dismissed, without prejudice, to enable such a witness, in a future suit, to tender a suitable release to restore his competency.
    Error to the Circuit court of Lawrence county, exercising chancery jurisdiction.

      Bill for discovery and relief, tried by Coleman, J.
    The bill was filed by the sheriii' of Lawrence county, who, ex virtvte q/JlcU, had been appointed administrator of the estate of Maury. The intestate had placed in the hands of Mason, in October, eighteen hundred and twenty-one, a large number of notes, bonds and accounts, amounting to more than nine thousand dollars, — who undertook and promised to collect them. Collections were made in specie, or in par or premium bank .notes, or in depreciated currency, at the usual rates of discount, varying from twenty to thirty per cent. Mason made some payments on them to Maury, some of them in depreciated paper, the discount on which was a loss to Maury and a gain to Mason; but a large sum, (say three thousand dollars,) remained in his bands unaccounted for. The bill prayed for a discovery and account.
    The answer admitted, that defendant’s intestate had received the notes, bonds and accounts to collect. The notes, &c. were payable to one Daniel W. Maury, who was a son of complainant’s intestate, and who had formerly kept a store in Lawrence county, where he received the notes, <fcc. and had transferred them to his father, who deposited them with Mason for collection. Mason undertook the collection, more to save an old friend from injury, than from any motive of interest; and the answer alleged that be liad fully paid over the amount he collected — some of the demands not having been collected. As Maury and Mason were intimate friends in their life time, defendant had no doubt they had fully settled with each other, and as the whole claim made by the bill was a stale demand, and in the opinion of defendant, without equity — defendant insisted it was wholly barred by tire statute limiting the time in which suits should be instituted, and insisted upon the statute by way of plea. The answer was accompanied with an exhibit of such receipts and memoranda, as defendant was able to coliect from the papers which had come to his hands.
    The case was committed to certain auditors appointed by the court, to examine and report upon the state of the accounts. Daniel \Y. Maury, a distributee of the estate of Maury, executed a release of his interest, and was a principal witness in the case. The report found a balance due complainant, of eight hundred and eighty-seven dollars and two cents.
    Upon the hearing of the case, it seemed to the chancellor that the statute of limitations applying to the case was that of three years, and as there was no circumstance to operate against its being a bar, the opinion of the court was, that the plea of the statute should be sustained. The bill was therefore dismissed.
    Assignments of error:
    1. The chancellor erred in dismissing the bill and decreeing against the complainant, and for the defendant.
    2. The chancellor erred in sustaining the plea of the statute of limitations.
    3. The chancellor erred in not rendering a decree in favor of the complainant, for the balance of the account allowed him by the report of the auditors,- and also the exchange and interest thereon, which he claimed.
    Hopkins, for the plaintiffs in error.
   GOLDTHWAITE, J.

— The decree of the Circuit court, dismissing the bill, is predicated on the supposition, that the statute of limitations presents a complete defence, and the plaintiff in error has assumed several positions to convince us that this decree cannot be supported. These positions will be severally noticed.

1. It is said the notes and other evidences of debt, deposited with Mason (the defendant’s intestate,) for collection, were assigned to him, to enable him to collect ¡the monies due thereon, and thus a direct trust’ was created, which it is contended cannot be barred by the statute of limitations. It may be remarked, in answer to this, that nothing is said in the bill of any assignment whatever, nor is the assertion supported by any evidence in the cause, unless the circumstance of Mason’s prosecuting a suit in his own name on one, or perhaps more than one of the notes deposited with him, is to be taken as proof of an assignment. Whatever may be the effect of the proof in showing this fact, it is the well settled rule of chancery, not to decree in a case supported by proof, and not sustained by the allegations of the pleadings. The allegation and proof must correspond— (Clink vs. Tatom, 11 Vesey, 240; Smith vs. Clark, 12 Vesey, 277; James vs. McKernon, 6 John. 543; Beach vs. the Fulton Bank, 3 Wend. 573; Pratt vs. Northam, 5 Mason, 113; Barn vs. Chiles, 10 Peters, 177; Morrison vs. Hart, 2 Bibb, 4; Lemaster vs. Burckhart, 2 Bibb, 25; Langon vs. Henderson, 1 Bland. 236; Inston vs. Child, 1 Bro. C. C. 94; Bogman vs. D’Vaughan, 3 Stew. 243.)

But if the notes and other evidences of debt had been . assigned to Mason, and this fact was alleged in th,e bill, this circumstance would net have the effect to change the character of the trust fund, when the money was collected. There is a broad and clearly defined distinction between trusts of property, which are specific in their nature, and trusts of money, which has no marks hy which it can be identified. This distinction will be hereafter adverted to and explained; but there is no difference between a trust created by the deposit of money in the first instance, and one where the money is raised hy the sale or conversion of a chattel deposited with the trustee to covert into money. To make a distinction in such a case, would savor more of refinement and ingenuity, than of practical utility, and its introduction as a rule of action, would unsellle some useful and well established principles.

We are not authorised to depart from the case which the complainant has thought proper to present by his bill, which alleges the de; osit with Mason, of a large amount in value, of notes and other claims, which were to be collected by him for the benefit of the complainant’s intestate, [t alleges further, that‘the money due on their claims has been collected, and never accounted for or paid over. I-Iere we find no allegation of a specific trust created, nor does the complainant seek to pursue a specific trust fund; - it is lire usual form of a bill for discovery of monies collected by an agent, seeking no other decree or relief, than for payment of whatever sum may be found to be due, and it might well be questioned whether such a bill is not alone cognisable in equity, on the matters of discovery and account.

Yery soon after the enactment of the statute of limitations, we find the English Court of Chancery holding it to apply to cases in equity, although such cases are not within the words of the act, but notwithstanding its application in general, cases of trust were never held within its operation. In the earlier cases, the rule is laid down very broadly, that all trusts whatsoever were excluded; and the case of Locky vs. Locky, (Prec. in Chan. 518,) is the first case in which a distinction as to the several kinds of trusts was attempted. The cases decided previous to Locky vs. Locky, certainly contain the rule, as contended for by the counsel for the plaintiff in error. These cases are four in number, and are not satisfactorily reported, as they furnish nothing more than the facts of the case, and the decision of the court— (Harrison vs. Lucas, 1 Chan. Rep. 67; Heath vs. Henley, 1 Ch. Cases, 20; Shelden vs. Wildman, 1 Ch. Cases, 26; Lord Hollis' case, 2 Vent. 345.)

It must have very early recurred to the chancellors, that by the withdrawing of all trusts from the operation of the statute, there would remain very few subjects for its action, as every bailment, every transaction by an agent or factor, and indeed every case in which the smallest trust or confidence was reposed, might thus be withdrawn, by the plaintiff’s seeking his relief in equity. The case of Locky vs. Locky, (Prec. in Chan. 518,) was, however, soon interposed, to arrest the growing evil of such a construction as had been previously given. Lord Macclesfield then decided: “ when one receives the profits of an infant’s estate, and six years after his coming of age, he brings a bill for an account, that the statute of limitations is a bar to such suit, as it would be to an action of account at common law: for the receipt of the profits of an infant’s estate is not such a trust, as being the creature of a court of equity, the statute shall be no bar to, — for he might have had his action of account against him at law, and therefore no necessity to come into this court for the account; but the reason why such bills are brought here, is from the nature of the dmand» that they might have the discovery of books, papers, and the party’s oath, for the more easy taking of the account» which they cannot so well do at law; but if the infant lies by for six years after he comes of age, as he is barred of his action of account at law, so shall he be of his remedy in this court, and there is no sort of difference in reason between the cases.”

This case draws the line with much precision and accuracy between those trusts which are, and those which are not barred by the statute. If it be the mere creature of a court of equity, the trust is not affected by the statute: all those for which there is a concurrent remedy at law, are within the statute, and it matters not in what forum relief is sought.. This case has ever been considered the_ leading one to show the distinction between the cases within and without the statute, and subsequent decisions have established its authority. A review of the cases would be an unnecessary consumption of time, the more especially, as it lias been done by Chancellor Kent in a most satisfactory manner, in a case which will be presently adverted to. A reference to the principal cases may, however, prove useful.—(Prince vs. Heylin, 1 Atk. 493; Brereton vs. Gamul, 2 Atk. 240; Sturt vs. Mellish, 2 Atk. 610; Pomfret vs. Windsor, 2 Vesey, sen. 472; Smith vs. Clay, 3 Bro. Ch. R. 639; Harmood vs. Oglander, 6 Vesey, 199, 8 Vesey, 106; Stackhouse vs. Barnston, 10 Vesey, 453; Bond vs. Hopkins, 1 Sch. & Lef. 413; Hovenden vs. Lord Annesley, 2 Sch. & Lef. 607; Beckford vs. Wade, 17 Vesey, 87; Medlicot vs. O'Donnel, 1 Ball. & Bently, 156.)

In the case of Decouche vs. Savetier, (3 Johns. Chan. 216;) Chancellor Kent held that no time would har a ditrust, as between the trustee and the cestui que trust, ong as the trust subsisted; and in the case of Coster vs. Murray, (5 John. Chan. 522.) he decided that the statute did not reach to matters of gratuitous bailment or trust. This latter case was affirmed by the Court of Er-rorsj, but on other grounds than those assumed by the chancellor. Murray vs. Coster, (20 John. 576,) Chief Justice Spencer, in his opinion, (which was that of a large majority of the court.) holds this language: ‘‘I have no hesitation in saying, that in a case where there is a concurrent jurisdiction in the courts of common law and of equity, the rule must be the same, and the statute may be pleaded with the same effect in the one court as in the other. In cases of trusts and frauds, peculiarly, appropriately, and exclusively the subject of equity jurisdiction, according to the established doctrine, the statute cannot be pleaded.”

The same question again came before Chancellor Kent in the case of Kane vs. Bloodgood, (7 John. Chan. 90,) and he then adverted to the cases decided by him previously, and admitted he was misled by the earlier English cases: he examines his former decisions, and conforms to the rule laid down by Chief Justice Spencer, in the case of Murray vs. Coster, which rule he strongly fortifies by a most able examination of most of the cases then reported.

In Trecothick vs. Austin, (4 Mason, 16,) Judge Story quotes the case of Murray vs. Coster with unqualified approbation, and the same rule has been recognised in most of the States —(Lingum vs. Henderson, 1 Bland, 236; Kinney’s ex’ors vs. McClure, 1 Rand. 284; Benzien vs. Lenoir, 1 Car. Law Rep. 508; Hamilton vs. Shepperd, 3 Murphey, 115; Van Rhyn vs. Vincent, 1 McCord Chan. R. 310; Brackenbridge vs. Churchill, 3 J. J. Marshall, 11; Heirs of Shelby vs. Shelby, Cooke, 179; Cook vs. McGinnis, 1 Martin & Yerger, 361; Hooper vs. Bryant, 3 Yerger, 1; Armstrong vs. Campbell, 3 Yerger, 211; Terrell vs. Murray, 4 Yerger, 104.)

The two cases of Godfrey vs. Saunders, (3 Wilson, 94,) and Stiles vs. Donaldson, (2 Dallas, 264,) which have been cited by the counsel for the plaintiff in error, seem not to have been decided on the principle of a trust, but they turned exclusively on the question, whether the accounts claimed in the one case, and set off in the other, were within the exception of the statute which relates to accounts between merchant and merchant. Therefore, it is not material to examine the correctness of these decisions, as they turned on a point not involved in this case.

From the cases referred to, these principles may be decided—

1. lYhenever the subject matter of a trust can be sued for at law, the statute of limitations may be insisted on as a bar, although the remedy is pursued in a court of equity,

2. The only trusts not within the operation of the statute, are those which are peculiarly and exclusively the subjects of equity jurisdiction. And

3. A subsisting recognised and acknowledged trust, as between the trustee and the cestui que trust, is no^ barred by the statute.

The case under consideration, is one for which the complainant could have sued at law, on the case made by his bill, and although the trust and confidence reposed, as well as the account required, may be sufficient to give jurisdiction to a court of equity, yet that jurisdiction is not exclusive. If the complainant sought a return of the evidence of such claims -as remained uncollected, or the transfer and assignment of any securities taken by Mason in satisfaction of any of those claims, being of such a nature that they could be traced and identified; such a case would present matters exclusively cognizable in a court of equity.

2. It is insisted, however, that the proof in this case shows the transaction to have been a recognised and subsisting trust, as lato as the latter part of the year eighteen hundred and twenty-six, because Mason then made the last collection. That his representatives so considered in eighteen hundred and thirty, when some money collected by reason of a judgment obtained by Mason, was paid over to the representative of the complainant’s intestate, and that the trust must always be considered as subsisting until closed, renounced, or expressly abandoned.

If specific property is placed in the possession of any one, in trust for a specific purpose, so long as it remains in specie and capable of identification, i't is considered as held subject to the trust, until such time as the trustee shall do some act evincing his intention to convert it to his own use, or to renounce or abandon the trust confided to him, and in all such cases between the trustee and cestui que trust, such intention must be known or communicated to the trustee, otherwise the property will be considered as remaining subject to the trust; but it is not understood that this rule has ever been applied to mere money trusts, when the fund has not been kept distinct and separate from other funds belonging to the trustee. It must be borne in mind, that the complainant is not seeking the payment or return of a specific fund separated from other funds of Mason, or which is capable of being traced; but the claim advanced differs in no essential particular from the ordinary claim for money had received to the use of the complainant or his intestate, and must be governed by the same principles which ought to govern such a case, unless peculiar circumstances shall be found to exist, which will authorise the application- of other rules.

The general rule is forcibly illustrated by Judge Story, in the case of Trecothick vs. Austin, (4 Mason, 16,) where he observes, “ executors are charged with no more in virtue of their office, than the administrator of the assets of their testator. If, at the time of his death, there is any specific personal property in his hands belonging to others, which he holds in trust or otherwise, and it can be clearly traced and distinguished from the testator's own, such property, whether it be goods, securities, stock or other things, is not assets to be applied to the payment of his debts, or to be distributed among his heirs, but it is to be held as the testator himself held it. But if the testator has money, or oilier property, in his hands belonging to others, which is in trust or otherwise, and it has no ear-marks, and is not distinguishable from'the mass of his own property, the party must come in as a general creditor. This is the settled law in relation to bankruptcy, and in the administration of assets.” And again he observes: “ If the trust is still subsisting in the hands of the executor, as executor, the lapse of five years does not bar a remedy against him. If it has become a mere money transaction, although originating in a trust, then it assumes the character of a debt, and the cestui que trust is a creditor barred by the lapse of five years” —(See also Kip vs. Bank of New York, 10 John. 63; Cooke vs. McGinnis, 1 Martin & Yerger, 361; Hooper vs. Bryant, 3 Yerger, 1.)

These authorities show that the complainant could have pursued the judgment obtained by Mason against Smith, Ladd & Smith, as it was a security for one of the claims deposited with him, and remained in the hands of his personal representatives, either unchanged, or so changed as to remain distinguishable from the remainder of his estate. When the money was collected on this judgment, it was not properly assets of Mason’s estate, but in equity belonged to whomsoever was, at the time, the personal representative of the complainant’s intestate. As the payment could be enforced either at law or in equity, the voluntary payment without suit can produce no effect, as an acknowledgment of a subsisting trust, which would not be produced by the recovery of a judgment. It is a mistake, to suppose that because an action can be maintained for the money received on one of many demands, that this circumstance will revive all previous causes of action. Payment of a part of a claim, distinct in its nature, is unquestionably an admission of the existence of the particular claim; but the payment of one claim cannot be construed as an admission of another; and it would be a most unreasonable assumption, to conclude, that an admission of the right of the complainant’s intestate to the money collected by Mr. Or-mond, in eighteen hundred and thirty, on the judgment, perfected, without the knowledge of Mason, or his representative, and at the instance of a representative of the complainant’s intestate, should conclude a defence as to the other items of claims which have no connexion with the one admitted and paid, other than that of having-been deposited for collection at the same time. The recognition of the trust, as subsisting, presumed from the collection of one of the claims by Mason, in eighteen hundred and twenty-six, is of the same nature with the one that has just been examined: it was a receipt of money to which the complainant’s intestate was entitled, but the mere fact of its then coming into Mason’s hands, affords no presumption whatever, of a recognition of the original trust. The rule which has been stated as governing those cases, where the trustee is dead, extends with all its force to money trusts, when the trustee is living. So long as the trustee holds it capable of being distinguished as a separate fund, distinct from his own proper money, the trust will be presumed to exist, from the circumstance that it is thus kept distinct, for this could alone be the case where the trust was recognised and admitted. But when the trustee receives money on account of the subject matter of the trust, and does not separate and keep it so that it can be identified, a continual conversion is constantly taking place; and if the cestui, que trust, lies by for more than six years, or such other time as will create a statutory bar, the presumption of payment will arise as in any other case of a mere money demand, and the onus is thrown on the party claiming the money, to repel the presumption as in other cases. The adoption of a different rule would, in effect, revive the authority of the earlier English cases on the subject of trusts, of every description, being without the statute of limitations, as every trust must at one period have subsisted and been acknowledged; and in few or none of these cases is there ever an express renunciation or disavowal.

The cases cited, (Leman vs. Pendleton, 3 Call, 538, and Johnston vs. Humphreys, 14 S. & R. 394,) do not appear to have any application to this distinction between trusts of property and trusts of money, and therefore need not be examined, as they have no bearing on the view Which we take of this case. It may, however, be remarked, that the case from Sergeant & Rawle, presented a distinct acknowledgment of the identical trust sought to be enforced within the period of the statutory bar.

3. It is insisted that the proceedings had in a former suit against a previous personal representative of Mason must withdraw this case from the operation of the statute, as the abatement of that suit was a consequence of the death of the party defendant, and as that suit could not be revived against the present defendant.

This question is certainly one of much difficulty, and might, under other circumstances, preclude the defence of the statute; but it cannot be examined, because it is not presented according to the established rules of chancery practice. It is now well settled, that if the defendant, by plea or answer, relies on the statute of limitations as a defence, the plaintiff, if he wishes to bring his case within any of its exceptions, must amend his bill, or file a special replication, so that the new matter introduced by him may be controverted or avoided by the opposing party—(Miller vs. McIntyre, 6 Peters’ R. 61; James vs. McKernon, 6 Johns. R. 543; Mitford on Plead. 18; Lewis vs. Bacon, 3 H. & M. 89; Starns vs. Starns, 1 Edwards R. 358.) Special replications have gone entirely out of use; and as they tend to introduce a most inconvenient and unnecessary prolixity in pleading, are not permitted to be filed without the leave of the court—(Starns vs. Starns, 1 Edwards’ R. 358.) The fifth section of the act of eighteen hundred and twenty-three, (Aik. Dig. 288, s. 17,) which directs that a special replication shall not be required, dispenses with the merely formal replication, which before was necessary to place the answer at issue. It does not authorise the introduction of evidence not applicable to any previously made allegation. To give it the construction to authorise proof of facts not alleged, could only produce surprise in most cases, and uncertainty and confusion in all.

4. It is objected, that the answer is not sufficiently precise in its terms, to raise the defence of the statute of limitations, because the term of time which creates the bar is not shewn.'

The answer is not precise or formal, and if any doubt can arise as to what statute is intended, the complainant is entitled to all the benefit he can derive from this want of precision. The words used by the answer are as follows: “The whole claim being a stale demand, and as the defendant believes, without the shadow of equity, he insists that it is wholly barred by the statute limiting the time in which suits shall be instituted, and insists on it byway of plea.”

No precedents giving the form of the answer, when this defence is insisted on in that manner, have fallen under our view; but the cases are numerous to shew that the same strictness is not requisite as in a plea—(Price vs. Price, 1 Vernon, 185; Anon. 3 Atk. 70; Hilyard vs. Cressy, 3 Atk. 303; Jones vs. Pengree, 6 Vesey, 580; Bailey vs. Adams, 6 Vesey, 586.) In most of these cases, pleas of the statute of limitations were overruled as insufficient, and were ordered to stand as answers, with leave to the complainant to except. These authorities are persuasive, at least, to show that no great strictness has ever prevailed as to the form of the answer, if the defence is sufficiently presented by it. There are, however, a class of cases in equity, as well as at law, which hold that a plea of the statute must be such as is properly applicable to the case — (Anon. 3 Atk. 70; Gould vs. Johnson, 2 Salk. 422; Blackman vs. Tidderly, 2 Lord Raymond, 1099.) In Hudson vs. Hudson, (6 Munf. 352,) it is said by the court to be important “ that the term prescribed by the statute should be particularly (though not formally) pleaded, or relied on, to let in the plaintiff to shew by his replication, that within the time an original had been sued out, if the fact was so.” The force of this reason is not perceived, unless two or more statutes could he applicable to the same state of facts. If the statutory bar is always the same on a given state of facts, no reason-is perceived why the defendant ought to be required to specify the term given by law in his answer, as it is as well known to the plaintiff as to him. But if the plaintiff is permitted to state his cause of action in such general terms, as to cover, alike, matters which are barred by the statute of three and six years, then a reason would arise why the defendant should, by his answer or plea, set out the circumstances from which he is authorised to claim the bar of the shorter period, or that a general answer or plea should be referred to the longest period — a construction which could be productive of no evil consequences to the plaintiff in any case. Further to illustrate our views, a reference may be had to the forms of declaring in assumpsit on the common counts. Under those common counts, or under many of them, a promissory note would be receivable in evidence, and so would the items of an open account, properly so called. It would seem from this fact, that a plea of the statute of limitations of three years would not be a good plea to such a declaration, unless it contained the averment, that the cause of action arose from an open account. In Kentucky, where a statute similar to our own, is in force, this'is the form used in pleas of this character —(Dyott vs. Letcher, 6 J. J. Marshall, 541.)

We will not undertake to determine, at this time, what is an open account Within the meaning of our statute. Perhaps it will at all times be found easier to determine the cases which are not such, than to define with accuracy and precision all those accounts which may be classed as such. The bill alleges, that the complainant’s intestate placed in the hands of the defendant’s intestate, a large amount of money due on bonds, notes and accounts, which he afterwards collected. How this differs from any other species of bailment, in principle, it is difficult to perceive, and yet it has never been thought that such cases were within the statute of three years. It may be assumed, that in all cases where the contract is expressed, and the duties of each are defined at the time, that it is not an open account. A contract may be made for the sale of goods, or to build a house, or to perform any other duty, and although it may never be reduced to writing, it will not for that omission become an open account. There is certainly nothing in the statute from which we can arrive at the conclusion that all accounts must be considered as open, which are not stated or reduced to writing. A contract is certainly neither the one or the other, if all its terms are fixed and certain.

Another criterion by which we readily ascertain that this is not an open account, within the terms of the statute is, that it was not so when the deposit was made, and if not so then, it must have become so by the act of the defendant’s intestate, in paying over the money at several times. This case is not conceived to differ materially from the case of an attorney to whom a note is confided for collection, with whom it can make no difference whether he pays a portion of the sum collected to his principal at different times — according to the argument, by such partial payments, he would change the character of his liability, or rather by his own act, reduce the limit of time which will create a statutory bar from six to three years.

We therefore consider it as clear, from the allegations of the bill, that the statute of three years limitation is no bar; and that if the defendant could bring the complainant’s case by evidence, to be one of open account, within the statute, it remained with him to do so by the necessary and proper allegations of facts by his plea or answer, and having omitted to do so, the answer insisting on the statute as a bar, must be referred to the case as stated in the bill, and no other than the six years statute being applicable, he will be allowed the benefit of that alone.

This conclusion renders it necessary to examine the case on the evidence adduced, to ascertain if the demand is barred by lapse of time, and if so, whether any admissions have been made which will withdraw the case from the operation of the statute. These matters are relied on to show a revival of the obligation on the part of the defendant’s account with the complainant, which will be severally noticed.

1. It is insisted that the statement of an account before the auditors appointed to examine the accounts in this case, has this effect.

To support this proposition, we must intend what it is certain was never understood by the parties themselves. It would be most unreasonable to suppose that this admission ought to conclude the defendant, and not give it the same effect against the plaintiff. But the answer to this position is, that the admission was not made as a sum due, or as a subsisting debt. It was an admission made for the purpose of facilitating the examination of the accounts, and to relieve the auditors from the trouble of investigating what the parties themselves had previously examined, and were willing to admit as established.

2. The correction which was made of an imperfect judgment, and the payment by Mr. Ormond, in eighteen hundred and thirty, of the amount collected thereon, is next insisted on. This has already been considered under another head, and it may be here remarked, that this payment was never in any manner connected with the representatives of Mason, by any evidence whatever. The money was collected and paid over at the instance of a former representative of the complainant’s intestate. If, however, the collection and payment had been made by the present representative of Mason, it could have produced no effect as an admission of the present claim as an existing demand, due and unpaid.

3. The only remaining part to be considered, is whether the case of the complainant is made out by the evidence of Maury, the witness examined, to prove an admission by Mason in his life-time, within six years previous to the institution of the suit.

This witness is admitted to be one of several co-dis-tributers, and an objection to his competency to give evidence, was taken in the court below and overruled. Before he was examined, he executed the following instrument of writing: “I do hereby release to my mother, Martha Maury, and my brothers, James P. Maury, Wil--liam H. Maury and Robinson M. P. Maury,- co-distributor’s of my father’s estate, all my right, title and interest, of every character whatsoever, in and to any sum or sums of money, or any thing else that may be recovered by the complainant in the above case.” This is signed and sealed by the witness, and appended to his examination. The objection which exists to the. admission of this witness, is his interest in the estate of his deceased father, whose administrator is the complainant in this» suit.

It does not admit of a question, that this suit is for the-benefit of the creditors and distributees of the deceased Maury, and it must be considered for the purpose of test-' ing the interest of a distributee, as if the suit was- instituted in the names- of those entitled to the fund to be raised or increased by a successful prosecution of the same. The interest which each distributee ha® in the estate to be divided,- is several in its character,- and it-does not at his death- pass to his co-distributees, but he its his turn becomes the foundation of a new stock, who may be persons other than those entitled with him to distribution.

Distributees-have not, therefore1, a joint right;- but the1 interests are perfectly distinct, each one from the other.This being the case, a release can have no other effect-than a transferor a-separate and distinct right, and there can be no difference in law between the assignment of this right to a co'-distributee, and'an entire stranger. Such ai transfer1 of his interest in the estate does not, in our opinion, removehis disqualification. The-ease of Bell vs. Smith,, (5 Barn. & Cress, 198,) seems to us decisive of the point, when this view is taken. The material facts of that case are as follows: “It was an action of assumpsit, brought in the name of Bell, on a policy of insurance. The declaration averred that Armet, Gibb, Robertson and Wimble, were, at the time of the loss, interested in the goods insured, to the full amount of the policy, and that it was made for their use and benefit. At the trial, Ar-!met was offered as a witness by the plaintiff. I-Ie was objected to as incompetent, and the plaintiff gave in evidence a release to him of all actions, claims, &c., which he might have against him by reason of the policy of insurance, or for any monies to be recovered by him of the underwriters. An assignment of all the interest of Armet, Gibb, Robinson and Wimble, to Lachlan & Robertson, authorising them to receive the amount to be received on account of the policy, for their own use and benefit, and Armet was indemnified against the costs of the suit. The court admitted the witness, but on a writ of error, the Court of King’s Bench determined that Ar-met was not a competent witness. Bailey, Justice, after stating that Armet was incompetent, because liable to the attorney for the costs of the suit, uses this language: “But I think Armet was incompetent on higher grounds. The action was brought at the instance of Armet, and three others: it was found they had not sufficient evidence to support it, and machinery was resorted to, calculated to introduce all the evils of champerty and main-tainance.

First, Armet, without consideration, released all his interest to the nominal plaintiff in the suit, and then in consideration of ten shillings, all the parties joined in an assignment to Lachlan & Robinson. It is difficult to put a stronger instance of champerty and maintainance. These are unlawful, because they tend to encourage and keep alive law suits. Now, that was the very object of the assignments In question; for each of the assured may be considered to have admitted by the deed which he has executed, that without Armet’s evidence, the action was not maintainable upon these grounds, I think he ought not to bear been admitted to give evidence.”

The facts of this case bear a striking analogy to the one we are now considering. Armet and Maury occupy the same situation as to interest: both of them are the parties actually interested in the fund, and yet in each case, a nominal plaintiff is interposed. This case unquestionably goes the length of deciding, that an individual,-placed by the law in the situation of Maury, cannot be a witness to increase the fund of which he is a distributee. It is not necessary for us to determine this question, as Maury has never in point of fact or law released his interest to any one — as the transfer can have no effect as a release, and as an assignment it is wholly void, for the reasons given in the case of Goodwin vs. Loyd, decided at this term.

Admitting it to be effectual as a release, however, there would yet remain in him an interest which is not attempted to be got rid of. The complainant, if successful in this suit, would hold the sum recovered as the assets of the estate of Maury, the intestate, and it would form a fund out of which the debts of the estate would be paid, thus releasing from a burthen, cither the lands descended (if there he any) to the witness, or relieving the remainder of the personal estate, (in which the witness has not released his interest) from the burthen of the debts due from the estate. Again, if judgment is rendered against the complainant for the costs of this suit, a fund is made chargeable then with it, of which the witness is entitled to distribution.

The case of the complainant, resting solely on the evidence of this witness, as he is shown to have been incompetent when examined, the bill was properly dismissed by the Circuit court, although for a wrong reason — • and the judgment is affirmed.

It has been suggested, that in case of an affirmance, the decree should be so modified as to dismiss the bill without prejudice to any subsequent suit, as the witness, Maury, may wish to remove his disability, by profering such a release as will restore his competency. If the case presented a defect in, or an omission to prove a writing, this course would be allowable, as in the case of Wilkins and Hall vs. Wilkins, (4 Porter, 245,) and Gayle vs. Singleton; but in such a case as this, the modification of a decree for such a purpose cannot be allowed, as the consequences which it might produce would be of mischievous tendency.