author: By Mr. justice Thorn’¡'on :

text:
    WOODCOCK versus CAMPBELL.
    ín order to charge the assignor of a bond, (on a contract of indorsement made prior to the passage of the act of 1832, subjecting bonds, payable in Bank, to the Law Merchant,) held, not necessary that demand should have been made at the Bank where the instrument was made payable.
    The acts of 1828 '2Í), requiring the indorsee of a paper to sue the maker thereof to the first Court after due, &c. do not embrace a case, where the fnaker removes beyond the jurisdiction of the Courts of this State, and so remains during the period when he might be legally sued.
    In such case, it is not necessary to charge the indorsor, that the party should go beyond the State to find the maker.
    Assumpsit by Campbell, in the Circuit Court of ■Lauderdale, on an instrument in writing, payable at the United States Branch Bank at Nashville, on the twenty third of April, 1832. The case came up on exceptions to the charge of the Court below.
    The defendant was first indorser of the paper sued on, which was drawn in his favor by one Boggs. It was attempted to he defended on the ground, that no demand had been made at the Bank, nor had suit .’been brought against Boggs, as required in the case of indorsers; for it was insisted, that this case came within the statutes of 1828 — ’9 : but the Court held, and so charged the jury, that if Boggs, the maker, had removed out of the State, before. the bond became due, and had so continued; the plaintiff was entitled to judgment, even though no demand had been made at the Bank for payment. And on this decision judgment went for the plaintiff, and the case was brought here for revision.
    Andekson, for Plaintiff in error,
    cited 11 Wheat.-175; 1 Stewart, 245; Aik. Dig. 330; 2 Mason’s R, 151, 167; 7 Bac. Ah. 189; 5 Fonh. 669.

      Hopkins, contra.

    5 East, 129; 6 Cranch, 221; 11 Johns. 142; 3 Mass. R. 79; 3 ibidem, 81 ; Aik. Dig. FS.ll.

   By Mr. justice Thorn’¡'on :

This was an action of assumpsit, brought by Campbell, the defendant in error, against Woodcock} as endorser of a writing obligatory, executed on the 23d of April, 1831, by one George Boggs, jr, whereby he promised to pay the amount therein named, to the said Woodcock, twelve months after date, at the Office of Discount and Deposit of the Bank United States at Nashville; who indorsed the same to one Donahoo, who endorsed to the plaintiff below. The bill of exceptions gives all the testimony, and shews that there was none of any law of Tennessee. The only questions raised by the assignment of errors then, in this Court, which we deem it necessary to consider, arise out of the charge which was given to the jury by the Court trying the case. That charge was, “ that if they believed, that Boggs had removed out of the State, before the bond became due, and continued out of the State tip to the present time, {July Term, 1833,) the jury might find for the plaintiff without proof that a demand of payment had been made at the Bank in Nashville at any time.” Before I proceed to consider the propriety of this charge, I will make some preliminary observations on the endorsement, the bond, and the acts of our Legislature touching the same, which will render more intelligible the views advanced on the main points. Every endorsement is a substantive contract; and every act of legislation, affecting the extent of the liability of assignors or endorsers, affects the very rights of parties, and is of the essence of such contract, bearing no resemblance to such acts of the Legislature, as only purpose to regulate the remedy, or mode of enforcing that liability. The laws then, in force in the country, where the endorsement is made, ascertain the liability of an endorser. That liability, differs-with us according to the instrument, which is endorsed Or assigned. If it be a bill of exchange, the law merchant governs, if not, but a bond for example,, then that liability is such as the statute law in force at the time of the endorsement,, imposes.. It is important then, to ascertain in every case, the true nature of the instrument endorsed, as the liability varies, with that character. As to the nature of the instrument endorsed in this case, we are constrained to consider it as a bond, whose endorsement imposed no other obligation, than is pointed out in the acts of 1828 and 1829. The act of 1832, passed in December of that year, which mates bonds payable in Bank, subject to the law merchant, can only affect contracts entered into after its passage. Hence I conclude, that this bond is not subject to the law merchant, and of course that the contract of endorsement made in this State, is such as it is constituted, by the acts of 1828 and 1829. In the light of this view of the contract declared on, I will proceed to consider the charge given by the Court as above set forth, which as I apprehend it, contains two legal propositions. 1st. That no demand was necessary to be made at Nashville of payment, by the plaintiff below, before he could assert the liability of the assignor to him. And 2nd, That the removal of the maker or obligor, Boggs, before the bond became due, and his continued absence out of the jurisdiction of the Courts of the State, dispensed with the necessity of suit at the first Court,- and a return of nulla bona to a fi fa -upon a judgment againt him in the county of his. residence, as required by the above mentioned acts of our Legislature.

In considering the first proposition above stated, •.care must be taken not to confound two things which it is the objeet of these acts of the Legislature to separate and distinguish; that is, the liability of the assignor of a bond, and the liability of the endorser of paper, subjected to the dominion of the lex mercato-ria. It may be true, that, if this instrument were considered as subject to the law merchant, the liability of the endorser could only be fixed, by proof of demand made at the Bank in Nashville; and yet it would by no means follow that such demand would, be necessary to charge- the present defendant, who is not the endorser of a mercantile paper. However it might be if this paper were mercantile, I feel confident that no demand was necessary in this case to charge the defendant below. The assignor was bound to do no more than the terms of the instrument assigned, required him to do, in order to- make the obli-gor liable to him, in an action, which the statutes required to be brought, before the liability of the defendant below, as assignor, would attach. If the terms of this bond, according to law, required a demand at the place specified, before any suit could be brought against Boggs, the obligor, then, I would hold, that such demand should have been made; for the acts of 1828 — ’9, requiring suit to be brought, first against the obligor, imply of course, that whatever is necessary to give such an action against him, should be done. If a demand were necessary to fix him, it would be obligatory upon the assignee to make it. .But the necessity of making demand at a particular place, and giving notice to the endorser of a mercantile paper payable at such particular place, proceeds on. a ground peculiarly applicable to that class of securities. A demand must be made, not with the sole purpose of making the acceptor, or maker of a note, or- bond, liable, where these latter instruments are made mercantile, for it is equally requisite, where he would be liable without it; but it must be done in order to make the endorser liable. Now the policy of the acts of 1828 — 9, was to relieve the assignees of bonds, and other instruments, not mercantile, from this diligence, as a means of fixing the liability of assignors; and place that liability upon the grounds of suit brought, &c., as therein prescribed. Still however, if such suit could only be brought against the maker, according to the terms of the assigned instrument, after a demand made, such demand it seems to me, would be requisite. The inquiry then arises, was such demand necessary in this case to fix the liability of the obligor. We hold the doctrine that it is not necessary, upon the authority of 11 Wheat. 175-17 John. 248 ; and of this Court, in the case of Irvine, admr. vs. Withers-1 Stew. 234.

As to the 2d proposition above stated, as contained in the charge excepted to, it is one which has never been submitted, heretofore, to this Court. The correctness of the charge of the Court which affirmed this proposition, depends on the proper construction of the acts 'of 1828 — 9, which we- have already declared to regulate the contract of assignment now before us. These acts declare substantially, that if the assignee fail to sue the maker or obligor to the first Court- of the' County, where he resides, the assignor shall be discharged from liability, unless suit be delayed by his consent &c. That when judgment shall be recovered against the maker or obligor, and a writ of fi. fa. shall be returned no property found, the assignee may commence his action against the assignor, or endorser, on the assignment or indorsement, and the said return shall bo sufficient evidence of the insolvency of the-maker or obligor to authorise a recovery against him on hio assignment, or endorsement. The whole course of our legislation on this subject, shews conclusively, that the liability of an assignor or indorser on his engagement as such, has ever been considered as founded on such considerations of legal and moral right, and so sanctioned by Common Law principles, as to be worthy of being put beyond the controversy, which has assailed it in other States of the Union. The first statute which authorised the assignment of bonds, and other instruments not assignable at Common Law, at the same time that it did so, attached to such endorsement, all the liability of the lex mercatoria. This continued to be the measure of responsibility, down to the year 1828, when, by an act, whose preamble is in the following words: “ Whereas much injury has been done to the citizens of this state, by means of the uncertainty of the decisions of the Courts of this state, in relation to the proper time at which endorsers of bills, notes, bonds, &c., made negotiable by endorsement, by law, shall make demand of payment of the payers of such instruments, for remedy whereof’’ — this matter was regulated, ’ according to the terms which I have already mentioned ; the act of the following year being explanatory only. The effect of those acts was, it must be apparent, a very material change in the liability of endorsers and assignors of the instruments embraced in their provisions. But it cannot be admitted, that the intention of the legislature was to do more, than to provide against that mischief which, it asserted to exist, under the former law, and to remedy which, is declared to he the purpose of its new provisions. In lieu of demand and notice, which was the supposed source of that mischief of uncertainty, was substituted suit to the first Court against the maker or obligor, and the return of nulla Iona, as. evidence of his insolvency. But it would not be a fair construction to say, that the intention was,. by this substitution, to require the new mode of fixing the liability, to be.pursued in every case where the demand and notice, for which it was substituted, must before have been observed. The sensible effect of this latter legislation is, that instead of the demand and-notice as heretofore, to charge an endorser, insolvency of the maker shall be established, by return of nulla Iona, in a suit instituted -to the first Court of the County where the maker resides. The very language of the enactment would imply, that this requirement of suit has reference to our own internal, judicial and geographical economy, and did not contemplate the intervention of foreign tribunals, where the maker'has removed beyond our-jurisdiction, before any suit could be brought, and continues abroad beyond the time, within which he is required to be sued. To put any other construction on the law, would be to infer, that the Legislature intended that a ground of claim, which is recognised as one of high moral, and legal obligation, should without any fault attributable to the owner of it, be jeopardised, or lost; for if suit be strictly required, removal even to unknown regions, would no more furnish an excuse, than into another State of the Union. By analogy to the decisions of those States, where suit is necessary to charge an indorser of this class of instruments, by rule of decision, as it is here, by express enactment, I would conclude, that the case of removal, so as to render insolvency impracticable to be established by suit, in the State, as forming an exception. So I would consider, that the ex parte, and extraordinary process of attachment, would not be necessary in such case. The act, interpreted as above, with reference to our own jurisdiction only, is in its terms exclusive of this process, for it requires a suit in the county where the obligor resides, which of course is impossible, in case of removal from the State.

The views above taken, embrace every point in the , assignment of errors.

Let the judgment be affirmed.


source: Caselaw Access Project

author: By Mr. Chief Justice Saffold :

license: Public Domain

text:
    HARKINS, et. al. versus COALTER, et. al.
    Adeed to a. feme covert, and the heirs of her body, implying the creation ofarr estate tail in personal properly, vests in her such absolute estate, as will be subject to the disposal of the husband, and liable for his debts.
    Equity will give effect to the terms of a deed, conveying property to a feme co. vert for her exclusive use, even where no trustee is nominated, and will regard the husband a trustee, so far as to enforce a compliance with the intentions of the donor. But the intention to create a trust estate for the wife must distinctly appear.
    Where a deed of personal property, fionveying the same to the wife, stipulated that the property was giyen fo r the joint use, tehoof and support of the hushamd and wife, and subject to (heir joint possession; the Court held the deed not .to create a separate and distinct estate for the wife, in exclusion of the husband’s marital rights; but subject to his debts.
    This was a bill in Chancery, filed in the Circuit Court of Lauderdale, by Coalter and wife, to enforce the terms of adeed.
    From the bill, answer, and exhibits, it appeared that Coalter having intermarried with Rachel, the daughter of one James Rhodes, and become embarrassed, the said Rhodes executed his deed of certain personal property to his daughter Rachel, which, as was contended in the bill, was intended for the sole use, benefit and behoof of the wife of complainant, and to secure her a livelihood free from, and uncontrolled by the debts and contracts of her husband ; that afterwards, certain of the creditors of the said Coalter, having obtained judgment against him, sued out execution thereon, under which certain slaves, part of the property conveyed in said deed, had been sold by the sheriff to Harkins, one of the defendants to the bill. The Chancellor below, on a final hearing, rendered a decree in favor of the complainants, for two of the slaves, (one having died pending suit) and for their hire.
    The question presented for the decision of the Court, on error, and on which was based the decree below, was the construction of the deed, and whether the estate thereby conveyed, vested such property in the wife as could not be subjected to the husband’s debts. The deed, as appeared from the record, was in the following words :
    “ Know all men by these Presents, that in consi- “ deration of the natural love and affection' I bear to “ my daughter Rachel Rhodes, since given in mar- “ riage to, and now the wife of James Coalter, I give “ to said Rachel, otherwise Coalter, and to the heirs of “ her body by the said James Coalter begotten, if “ if they should have any; if they should have no “ children during the lives of her the said Rachel and “ James, then to have and to hold said property, to- “ wit, one negro woman named Eady, supposed to “ be about twenty years of age, also a negro boy, her “ child, named Harris, aged about seventeen months; “ one bed, bedstead and furniture, twelve bed spreads “ and sheets, also five head of cattle, four head of u sheep, one bureau, one table and candle-stand, one “ large spinning wheel, and one flax wheel, and the “ increase thereof, to the only proper use and behoof “ of the said Rachel and James, during their lives, “ and to remain in their joint use and possession for “ the use and support of the said Rachel and James, “ and none others, and for the use and support of such “ such child or children as they may have by virtue “ of and during their marriage. In testimony where- “ of, I have hereunto set my hand and seal, this 16th u day of August, 1827.”
    “ JAMES RHODES, (Seal.)”
    A Signed, sealed, in the presence of us.”
    hi»
    “ Nekemiaii x Shake,”
    mark.
    his
    “ Joshua m Rhodes.”
    mark.
    P. Anderson, for Plaintiff in error.'
    The intention here, seems to have been to create an estate tail. The operative words for that purpose are used. Estates tail are abolished by our law ; and this conveyance, by our statute, as well as by the Common Law, as to personal property, conveys a fee-simple title, or the highest estate that can be given. The title to the property was, therefore, complete in the husband. 4 Cruise, 236, marg. — Forth. Eg. 338 — Allans Digest, S5.
    There could be no doubt on this subject, unless-produced by the subsequent part of the deed, .'There is a subsequent provision, in the habendum to the deed, that if there be no children, then there is to be a life estate to husband and wife; and then to add to the absurdity, this estate upon condition of no children, is attempted to be limited to the children. The estate attempted to be created in the habendum of the deed, is repugnant to that in the premises, and is therefore void. 4 Cruise 226, marg. 1 — Searg. & Rami. 374. This estate for life, is void for another reason : it wras on condition of there being no children, and there were children. On this void estate for life, there could of course bo no valid limitation. The words of the premises must therefore have their fall effect. And yet there can be no ground on which to set up a use in behalf of the wife, but as a limitation to this void estate.
    Courts will not easily admit a construction,' that destroys the estate of the husband. He is a purchaser, who assumes high responsibility: it is only when it clearly appears, that what is given was given for the separate use of the wife, and that otherwise it would not have been given, that such construction will be admitted. 5 Vesey 518 — 3 Vesey 166. There are no words in this deed, construe it as you will,, that creates a separate estate.
    The husband had ah interest in this property : by the words of the deed, it is for his benefit, as well as for the wife. He is in no way excluded. We are entitled to his interest. He ought to have been made a party. 1 Johns. C. R. 90. This omission ofitself would be sufficient to reverse the case.
    In regard to the husbands rights, see also Chaun-cy's Rights of married women 267, 269.
    The.parol testimony offered, ought to have been excluded. It went to explain the deed, and to attempt to throw light on certain dark parts of it. This -was inadmissible. 1 Johns. C. R. 231, 240 — 6 Vesey 396-—Fonh. Eg. 312 — 2 Vesey, sr. 194 — 2 Dess. 115.
    This deed, however, I contend was wholly inoperative. The property did not come to Coalter by the deed. The marriage took place in August. The deed was executed in September, and the negroes wore delivered on the 28th of the ensuing February. No delivery accompanied the deed, it was therefore void. A promise to convey is not a conveyance. The slaves passed by the delivery, and not by the deed. 2 Kent Com. 354 — 18 John. 145 — 2 Johns. 52.
    OigioND, contra.

    The delivery of the slaves, though subsequent to the date of the deed, was, I contend, sufficient. If the creditors of Rhodes had interposed between the date of the deed, and the delivery of the property, it might have been a different case. But in a case like this, 'the Court will infer that the delivery was in pursuance of the deed. If the locus pccnitentice did exist, (as the counsel insists,) it was not exercised.
    The bill says, that a man in whom confidence was placed, was called on to write the deed. Confidence was never more misplaced. The deed is badly drawn. The intention, however, is the grand criterion in the construction of deeds. And where there is a general and a particular intent, Courts will sacrifice the latter, to effectuate the former. Language is the instrument of thought, imperfect with all persons, but most imperfect with the ignorant: and where Courts sit upon the construction of a contract, the object of inquiry is, not what was the particular language, if it be doubtful, but what did the parties intend to do by the contract. Now Coaller was insolvent, as the Ml shows: these debts were pressing him at the time of the

      making of this deed. Was this property intended by the father of the wife to go to these creditors of the husband ? The answer must be in the negative; and this circumstance goes far to show, that this property was intended for the daughter. There was nothing immoral in the intention, nor in the transaction. The creditors of Coalter were not injured. The gift from Rhodes did not make their situation worse, and he was under no obligation to make it better.
    Why was the deed made at all? This question is sufficient to settle the general intent of the grantor ; it cannot be answered, but on the supposition of an intent to secure the property from the husband in his embarrassed circumstances. 4 Cruise's Dig. 205.
    Particular words and phrases repugnant to the general intent, will be rejected. — 3 Atkins 136 — 2 Cowp. 600.
    The question then arises, can a man make a provision for his daughter, where the husband is insolvent? Must she grovel in the dirt, despite the wish and ability of the parent. Our laws are not thus inhuman, 4 Dess. 447. See Chauna/s Rights of married rvomen page 262, where it is laid down that a separate property may be granted to a wdfe for her support, and that of her children, without the creation of trustees. It will be sufficient if the property be given ‘‘to her sole and separate use” or '‘for the livelihood of the wife.” The language of this deed, I conceive, goes as far as that; and there are other circumstances which establish the intent of the grantor.
    The deed is so inartificially drawn, that it will not admit of that species of legal criticism to which the counsel wish to subject it. They speak of the premises, the habendum and the tenendum. Why,, these terms have no meaning when applied to such a deed as this. What the counsel calls the premises is mere recital, and no grant at all.
    It is said, that the words “heirs of her body” convey an estate tail. It is true, they had in general that effect at Common Law; but there is no such estate here; and it is clear that the words were used by an ignorant man, who had no knowledge of their import. The words ought therefore (as they have frequently been) to be made to give way to the intent.
   By Mr. Chief Justice Saffold :

According to the view we take of the case, the following enquiries embrace the entire merits, and are decisive of the controversy.

1. What is the true and proper construction of the deed.

2. The consequence of the non-delivery of the property at the time the deed was delivered, and the subsequent delivery, under the circumstances of the case.

3. The legal effect of the conveyance in exempting the property from liability to Coalter’s debts.

The deed is doubtless one of the most obscure and incongruous instruments, that could have passed from the hands of the merest tyro, in the scrivener’s art. It is scarcely possible to analize it, and if done, the parts are incompatible. But if the intention of the grant, can be satisfactorily ascertained, from the language employed, however vaguely, or inartificially expressed; it is the duty of the Court to construe and enforce it accordingly, if it be not in violation of any rule of law.

It is unnecessary to investigate minutely, the technical rules relative to the office of the premises, the habendum, &c. noticed in argument; for these distinctions do not appear to have entered into the imagination of the grantor. Could we satisfactorily explore and extract the intention, this formality might be disregarded. The language of the deed is as follows :

“ Know all men by these presents, that in consideration of the natural love and affection I bear to my daughter Rachel Rhodes, since given in marriage to, and now the wife of James Coalter, I give to the said Rachel, otherwise Coalter, and to the heirs of her body by the said James Coalter begotten, if they should have any ; if they should have no children during the lives of the said Rachel and James, then to have and to hold the said property, to-wit, (here the negro woman and child, &c. are mentioned and described) to the only proper use and behoof of the said Rachel and James during their lives, and to remain in their joint use and possession,for the use and support of the said Rachel and James, and none others, and for the use and support of such child and children as they may have by virtue of, and during their marriage.” In testimony, &c.

Were I to attempt to extract the intention of the deed, from its language, by adding a few words which appear to have been omitted, expunging repetition, and by a slight transposition, I wotdd read it thus : In consideration of the natural love, &c. to my daughter Rachel Rhodes, I give to her and to the heirs of her body, if any, by her present husband J. Coalter, a certain negro woman and child, &c. to have and to hold said property to the only proper use and be-hoof óf the said Rachel and James, and any such issue, and for their joint use and support, during the lives of said Rachel and James. But if they should have no such child or children, then said property to remain in the joint use and possession of t.ho said Rachel and James, for the support of them-selvoo, and none others.

Regarding this as a fair and just interpretation of the deed, the intention must have been, (in the event of a child or children, by the marriage, which has happened) to. create an enlate tail for the permanent benefit of the issue, unless it be otherwise explained and controlled by the latter provisions of the deed. It is contení led, however, that such is the case ; that the habendum limits and qualifies the premisss, so as to point out the wife, during her life at least, as the exclusive object of her father’s bounty; and that the attendant circumstances, such as the known insolvency of the husband at the timo, and the execution of a deed, instead of a mere delivery of the property, do (as was supposed by the Chancellor below,) greatly strengthen this conclusion.

But this argument is in opposition to the well founded objection, that such is not the office of the haben-dum, and in this case, can not be its effect; also, that J. Coalter, the husband, from the language of the deed, was no less the object of the grantor’s bounty, than his wife; and that extrinsic circumstances can never be allowed to contradict the expressions of the deed. In construing the habendum, or latter directions of the deed, we should surely be doing violence to the expressions, to deny to the husband an interest in the property, equal to that of his wife. The least equivocal language used, is that which directs it “ to the only proper use and behoof of the said Rachel and .-James during their lives, and to remain in their joint use and possession, for the joint use and support of said Rachel and James, and none others.” It is true that this is so declared on the contingency of no children, but if it be resorted to in aid 'of, or to explain the preceding direction, it can have- no other effect than to evince the donor’s-intention to place the husband and wife on a perfect equality. This I take to be the only legal and reasonable construction.

2. Respecting the time and manner of delivering the property, but little need be said. Admitting, as I am prepared to do, that to constitute a valid donation inter vivos, an actual delivery of the property, or some tantamount act, even where a deed has been executed, is necessary to bind the donor, and afford validity to the gift: yet, under the circumstances of this cáse, the objection of non-delivery does not appear sustainable. The fact, that the donor did not claim, or exercise the locus posnitentice ; on the contrary, that the- property was delivered on the- expiration of the1 hire of the one slave only, that could have been of any use; and this, without any objection to the terms of the deed, by the donees — these are circumstances implying a consumation of the gift, according to the terms of the deed. It may also be remarked, that as the rights of the donors, creditors are not involved, and there is no objection to the conveyance for the want of registration, the necessity for a delivery of the property simultaneously with the deed, was not the same that it would otherwise have been, I therefore conclude, that this objection alone could not prevail against any limitation or restriction of the title or interest in the property, which may have been sufficiently prescribed by the terms of the deed.

3. The -remaining branch of the case, relating to the legal effect of the conveyance as drawn, involves a.highly interesting enquiry, and has been argued on. both sides, with '¿eai and ability commensurate to its importance. It is, however, necessarily conceded by the counsel, that so far as the deed discloses an intention to create, in the wife, and the heirs of her body, an estate in fee tail, the intention was in violation of tho rules of law, and can not be sustained; that, even by the Common Law, such restrictions, or limitations were void in reference to -personal property, such as this; and that by a statute, passed as early as 1812, it was declared, that every estate in lands or slaves, which had been or might be created an estate in fee tail, should he an estate in fee simple, and be discharged of the conditions annexed by the Common Law, restraining alienation before the donee should have issue; so that the donee or person in whom the conditional fee vested, should have the same power over the és-tates, as if they were pure and absolute fees — with a proviso relating to lauds only. Therefore, without farther enquiry on this point, the proposition may he adopted, that so far as the deed expresses an intention to create- an estate tail in Rachel Coalter, and the heirs of her body, the legal effect was to vest in her an unqualified and absolute estate; and, she-being úfeme covert, the law, of course, immediately vested the same in her husband, subject to his disposal, and to all liability for bis debts. The fact that the deed was executed in Tennessee, connected with the principle of law respecting the lex loci contractu, is not understood to be relied on in support of the entailment; for without enquiring into the law of that State, the circumstance of the donation not having been consu-mated there, or otherwise than by the subsequent delivery of the property, which took place in this State, is sufficient to subject it to our law. Whether the mere introduction of it into this State after a per-feet gift would produce the samo effect, I need not now decide.

Then, unless the attendant circumstances, or the latter clauses of the deed, be sufficient to vary and control the preceding, and to constitute a separate property in the wife alone, or in the wife and child) there is nothing to exclude the husband’s marital rights, and the slaves must stand subject to-his disposal, and of course subject to his debts.

That any owner of property is competent, so to convey it, as to create' a separate estate in & feme covert, for her exclusive use, is a well settled principle. And “ when that intention is once ascertained to be, that the use is for the wife alone,’ and not for her husband, equity will give effect to it,, without any regard to the legal maxim, that the husband is the head of the wife, and,, therefore, all that she has belongs to him.” It is also at the present day unimportant, whether, in a devise of real or personal property, to the separate use of a married woman, the limitation be to herself only, or to trustees for her; “ as it is now settled, that if the limitation be to her only, for her own separate use, without the nomination of a trustee, although the Common Law vests her personal property in the husband, and the rents of her real property, in him, during her life, still equity will consider him as' a trustee for his wife, and enforce a compliance with the intention of the donor.” The trust estate must be very distinctly expressed, before- the Court will establish it against the rights of the husband. “It seems, however, to be immaterial in what form of phrase a trust of that nature is described; technical language is not necessary, as all that is required is, that the intention of the gift should appear manifestly to be for the wife’s separate enjoy ment.” But it is farther declared, that “Such a claim on the part of a married woman, being against common right, the instrument under which it is made, must clearly speak the donor’s intention to bar the husband, else it can not be allowed.” Also, “ that the strongest evidence of intended generosity, and of bounty towards the wife, will not be sufficient to give her a separate estate, unless, in addition, language be used by the donor clearly expressing the exclusion of the husband; or else directions be given with respect to the enjoyment of the gift, wholly incompatible with any dominion of the husband.” I consider this brief exposition of the principle, quite sufficient to shew, that neither the fact of the husband’s insolvency at the time; of the gift having proceeded from the wife’s father; nor the resort to a written conveyance, or all of them together, nor any other attendant circumstances, can have the effect to constitute an estate which is palpably irreconcileable with the express directions of the deed.

In this case it has been shewn, that the premises,- or early clause of the deed, imported an estate tail, which in law, or equity can have no other effect than to create an absolute estate in the husband; also that the latter provisions constitute the husband no less an object of the donor’s bounty or generosity, than the wife. The property is declared to be for their joint me, and behoof, and support, and subject to their joint possession. Was any case cited in argument, where, by construction, so much violence was done to the language of the deed, as to maintain, that a clause expressly creating an estate for the joint use and support of two, was intended to create-a separate property for the sole use of one ?

The case which appeared to extend the principle farther than any other, was that of Darby vs. Darby. There it was held by Lord Hardwick, that if an estate be given to a husband for the “ livelihood” of his wife, this ought to be considered a trust for the use of the wife; for that the word livelihood, showed an in. tention in the giver that it should be to her sole and separate use. The authority of that case has since been denied. But admitting its authority, the claim of the wife was there better founded than here; that gift was expressed to be for the livelihood of the wife, no other use being expressed; this is equally expressed to be for the joint use and support (tantamount to livelihood) of the husband and wife. The case of Kirk vs. Paulin, where a bequest to a married woman, of property “to be at her disposal,” was held to give her a separate estate, can not be viewed as a parallel with this. The separate control, use and benefit of the wife, was there clearly indicated; here it was expressly negatived. The same may be said of the case of Woodman vs. Horsley, and Lee vs. Prieaux, where it was held, in one case, that the words, the wife's receipt shall be a sufficient discharge, notwithstanding her covertureand in the other, the same without the addition of the words “ notwithstanding her coverture,” were held to' be equivalent to saying, “ to her sole and separate use.”

But other cases, differing very slightly from the foregoing, shew, that very nice distinctions are to be observed in determining the character and effect of such gifts. In Johnes vs. Lockart, cited in Lee vs. Prieaux, it seems to have been held, that a legacy to <ifeme covert, “to her own use and benefit,” was not to her separate use. Also it has been held, where the direc- tion'in a will was, that a sum of money should be paid to an unmarried woman, on her arriving at age of 21 years, or her clay of marriage, “ to and for her -use,” during her life, without the words, “ sole and separate,” .that there, her husband was entitled to it. Jacob and Wife vs. Amyatt. Also in the case cited of Kirk vs. Paulin, where it was held, that the direction that the property should be at the wife's disposal, gave her a separate property; it was at the same time ruled, that a bequest, “for her use and benefit, did not create in her a separate estate. . A construction similar to the latter has been put on -the words “ for her own use and benefit,” where the testator has used with respect to other parts of the property given at the same time, the technical language, fit to confer a separate estate. (Willis vs. Sayers.) No doubt, however, in the case last referred to, the separate interest would have been sustained, but for the circumstance of the donor having, in the same instrument, bequeathed a different interest to the same person “ for her sole and separate use,” and thereby discovered his knowledge of the technical form of excluding the right of the husband — indeed the Vice Chancellor, so expressed himself.

In the case of Roberts vs. Spicer, the testator had bequeathed money and rent to trustees, and directed them to stand possessed thereof, for the benefit of a married woman, and her children; and that the.same should not be subject to the debts, engagements, or be in any manner under the control of her husband; and also bequeathed to the same woman £200, “ to and for her own use and benefit;” it was decided, that these latter words did not convey a separate estate. I understand the principle of this latter decision to be, that the language employed in bequeathing the £200, did not clearly indicate an intention to create a separate property in the wife, excluding the marital rights of the husband, as was done by the same will in relation to the other money and rent therein bequeathed; that the words “ to and for her own use and benefit,” were not necessarily of a different import from the words, to her own proper use and be-hoof, which is a common form of expression in conveyances where no limitation or restriction of the use» blit an absolute estate is intended. Another case which, appears to have carried the rights of the wife mins a. to their utmost boundary, is that of Dixon vs. Olmins. There the testator had bequeathed to Lady Waltham, two bonds of her husband, Lord Waltham, and also a mortgage of Lady Waltham’s estate, and all interest due thereon; and had directed, that the bonds and mortgage, “be delivered up to- my said niece, Lady Waltham, whenever she shall demand or require the same.” The question was, after Lord Waltham’s death, whether the bonds and mortgage were to be considered as given to Lady Waltham for her separate use, and as outstanding debts against the assets of her deceased husband. It was objected in behalf of his creditors that no such intention had been sufficiently expressed ; that the control of the ■ husband over the subject had not been excluded., But Lord Loughborough ruled, that as these securities were to be given to the wife on her demand, her' husband could not have obtained them from the executors, without a demand made by her, which gave-her a dominion over them; and they must therefore: be considered as given to her separate use.

In this latter case, I think another reason might also have been urged in support of the decision. The intention was manifest to make the same disposition of the bonds and the mortgage ; an ordinary gift of the bonds to the wife, or any bequest which would ham subjected them to the marital rights of the husband, must have operated as an extinguishment of them, no less than to have remitted the debts in any other way. Had this been the testator’s intention, his course would have been plain and obvious. But the circumstance of his having bequeathed them to the wife, who was his niece, and of his having directed his executors to deliver them to her, whenever she should demand or require them, clearly evinced an intention not to extinguish the debts, but to retain them for the benefit of the wife, free from the control or dominion of the husband.

In cases where estates have been created for the joint benefit, joint livelihood, or “joint use and support,” of husband and wife, or husband, wife and children, no authority has been cited, and it is presumed none can be found, for a partition of the property to the prejudice of the husband’s creditors, or of subsequent bona fide purchasers under him. Clancy, (269) after a very-learned investigation of the whole subject, and a review of the cases I have referred to, and several others, says, “ All these cases clearly prove, that there must be a manifest intention evinced by the language of the donor, that the wife shall have the exclusive properly in the gift, without which, Courts of equity will not suffer the legal rights of the husband to be superseded.” And that if other circumstances exist, strongly warranting the inference that the testator intended the bequest for the sole benefit of the wife, such as her separation from her husband, and very limited means of support, and these known to the testator; yet if such intention be not expressed in the bequest, even Chancery must disregard them, and leave the estate to the operation of the law,— (Vide also Palmer vs. Trevor. )

This I consider a sufficient illustration of the doctrine, to shew' clearly, that this gift can not intire to the seperate use of the wife and child, or either ; that the marital rights of the husband have not been excluded.

This being the opinion of tile Court, an examination of any other points, made in argument, is rendered unnecessary.

Let the decree of the Circuit Court be reversed, and the bill be dismissed ; and charge the complainants with the costs of this Court, and of the Court below.

       2 Kent’s C. 354-2 Johns. R. 53-18 id. 145.

       Aik. Dig. 95.

       Clancy's Rights of married women, 251. bk. 3 ch.1

      . Id. 257.

       Clancy, book 2,262.

       3 Atk. 399

       Clancy, 263 264

       Id. 263, noted

       7 Vin. Ab. 95

       3Br. Ct. C.383 and 381

       Clancy, 266, che 2.

       3 Br. C.C. 383

       Mad. 376 in the notes.

       4 Mad. 409-Clancy.268.

       5 Mad. 491.

       Clancy 268.

       2 Cox' R.414

       Clancy, 265

       1 Vern. 261.


author: By Mr. Justice Hitchcock :

text:
    AVENT versus READ.
    The general iule. that a defendant in ejectment ra&y be' permitted to set tip art outstanding title in another, and that the landlord may defend the action by1 being made a co-defendant — docs not apply ip an- action by a purchaser at a sheriff’s sale, to recover possession.
    In an action of trespass, to try title, brought by the purchaser of land at a’ sheriff’s sale, against the defendant in execution, to recover possession, Ihclat-tcr can not shew title in another.
    In the action of trespass to try title, damages for the detention of the premises, as well as possession, arc recoverable.
    Read having purchased a tract of land, at a sheriff’s sale, as the property of Avent, brought his action of trespass, to try title, against the latter, in the Circuit Court of Madison, to recover possession. On the trial, in the Court below, one Gaston, who claimed the land, offered to defend the action, which the presiding Judge would not permit. Avent then offered to shew a title in Gaston to the land. The Court rejected this defence, and charged the jury that damages for the detention of the land were recoverable, in this form of action. There was a judgment for the plaintiff below, and the defendant took his writ of error to this Court.
    Parsons, for Plaintiff in error.
    The Court erred in refusing to permit the landlord to defend. The landlord was permitted to defend by the practice of the Courts in England, before the statute, confirming the practice. It was, I contend, a Common Law right, and is therefore law in this country, without a statute. The Court also erred, in not permitting the tenant to defend on the landlord’s title. The application, to permit the landlord to defend, was at the trial term ; but this was in sufficient time. It may be said in this case, that the tenant’s interest, whether more or less, was sold, and therefore he can not .make defence. Be it so : say that he has no interest of his own ; the plaintiff ought not, for that reason, to recover. The plaintiff must recover on the strength of his own title. In this case, indeed, the tenant was tenant by will, or by sufferance, and had not, therefore, such an interest as could be sold. — See 11 Johns. 437.
    Hopkins, mitra, cited in argument, the following authorities.
    3 Littell, 16 ; 10 Johns. 396 ; 2 Mur. 367; 8 Johns. 361; 13 Johns. 97; 1 Johns. Cases, 155; 1 Marsh. 218; 1 Nott § McCord, 11; 3 Caines1 188; 1 Johns. Cas. 155; 10 Johns. R. 232; Roberts on Conveyances, 488, 489 ; Ala. Rep. 331.
   By Mr. Justice Hitchcock :

This was an action of trespass to try. titles, and to recover damages, brought tinder the statute, in lieu of the action of ejectment.

There are several assignments, only two of which were argued by the counsel for the plaintiff in error. The others, though not abandoned, were not particularly noticed, and as the Court, on inspection of the record, does not discover any error in them, they wilt not be noticed in this opinion.

The errors that have been argued, arise upon the' following state of facts.

Read purchased at sheriff’s sale, a quarter section •of land, under a judgment against Avent, and brought this action, to recover possession. One Gaston, ap•plied to the Court, to be permitted to defend the suit, as the landlord of Avent, alleging, that he had pur■chased the land of Avent, before the judgment was •rendered, under which the land was sold. The Court refused to permit him to defend, and also refused to permit Avent to set up an adverse title in Gaston. The Court also instructed the jury, that in this action, the plaintiff might recover damages for the detention-of the premises, down to the day of the trial of the cause.

1. Upon the first part of this case, it is to be remarked, that as a general rule, a defendant in ejectment may set up, against the plaintiff, an outstanding title in another; and the landlord may be permitted to defend, by being made a co-defendant. But this rule has exceptions, and this is one of them. It has been held,a that in ejectment, by a purchaser, under a sheriff’s sale, against the debtor, who refuses to give up possession, the defendant cannot shew title in another; for'the plaintiff comes into exactly such estate as the debtor had; and if it was a tenancy, the plaintiff will be tenant also, and will be estopped in a suit by the landlord from disputing his right, in the same manner as the original tenant, who becomes quasi- tenant at will to the purchaser. The same principle was recognised also in 1 Johns. Cases, 152 — 1 Johns. Rep. 44 — in 12 Johns. Rep. 182, and in the case of Scott vs. Hancock, in this Court. There was no error therefore, in this part of the casei

As to the 2d point in relation to the damages. The act abolishing fictitious proceedings in this action, declares, that the plaintiff shall endorse on his writ that the action is brought as well to try titles, as to recover damages, and that if he recover, he shall be entitled to an execution for possession, as well as costs and damages. This act received a constuction in the case of White vs. St. Guirons, which sustains the decision of the Court in this case. It was there decided, that the ■“ recovery of damages, to . the extent of the mesne profits, is an appropriate object of the action of trespass.” The Legislature, in giving this action, intended not only to abolish the legal fictions in the action of ejectment, but also, to enable the plaintiff in the same suit to recover full satisfaction for the detention of the premises, and thereby accomplish in one action, what before, could only be done by two; to do this, damages must be allowed from the commencement of the trespass, down to the time of trial.

Idle judgment must therefore be affirmed.

       Ala. R. 331.

      Caines’ Rep. 188-10Johns.223.


author: By Mr. Justice Thornton ;

text:
    BULLOCK versus THE GOVERNOR, for the use, &c.
    Where a commissioner, appointed by the Goyernor, to rent the University lands, • had collected rents which he had never reported, it was. held, that a bill for discovery, and account, was properly cognizable in equity, and that the suit was well brought in the name of the Governor — also, that there being an evident default in the non-payment of the money collected as rents, the Chancellor properly decreed interest on the account.
    This was a bill filed, in the name of the Governor against the plaintiff in error, in the Circuit Court of Franklin. The object of the bill, was the discovery of the amount of rents, alleged to have been received by the plaintiff in error, as agent of the University of Alabama. The answer admitted the agency, and the receipt of rents, but demurred to the bill, and made other objections as to the right of the plaintiff below to recover. The matter was referred to the Master, and on his report, a final decree was rendered against the defendant below. It was assigned, on error to this Court,
    First — that the demurrer to the bill should have been sustained.
    Second — that the suit could not be maintained in the name of the Governor.
    Third — that interest was improperly allowed by the master on the balance of the account.
    Peck, for Plaintiff in error,
    cited Aik. Dig. 428, 431, 434 ; 2 Johns. Ch. R. 238 ; Cooper's Equity PI. 185; Johns. Cases 435, note a; 3 Vesey, jr. 7, 347; 8 Vesey.2; 7 Vesey 237; Cooper's Eq. PI 61,124, 125, 134, 135.
    Ormond, contra.

    T. Dig. 543; Aik. Dig. 262; 10 Johns. Rep. 597 ; 7 Johns. Ch. R. 149.
   By Mr. Justice Thornton ;

This cause is brought up to reverse a decree of the Chancellor, rendered upon bill, answer, exhibits, and a report of the Clerk and Master. The bill was filed ■by the Governor, for the use of the State, and after-wards amended by leave of the Chancellor, by inserting in lieu of “ use of the State,” “ use of the Trustees of the University of Alabama,” The bill charges, that the defendant below, was appointed by the Governor commissioner for the purpose of letting to rent, certain lands, which had been granted by the Government of the United States, to this State, for the support of a seminary of learning; that the said defendant, by virtue of said appointment, did let to rent a large quantity of said lands, to persons unknown to the complainant; that he assumed and took upon himself the sole and exclusive agency in collecting and receiving the money due for the rent thereof; that by virtue of such agency, he has collected large sums of money, of which he has -failed to make any report, or return, whereby the amount can be ascertained :. that in violation of good faith, and contriving to defraud the complainant, he has failed and refused to disclose his actings in this behalf, and to account for his receipts. The bill prays for a discovery ; that an account may be taken; and that he be decreed to pay whatever balance may be found against him. The answer admits the appointment of the defendant, by commission from the Governor, •which he says was received by him in January 1820. The answer, by way of plea in bar to the recovery sought, alleges, that the title to the lands in the commission designated, was not vested in the State of Alabama, but remained in the Government of the United States, until the year 1824; and that the receipts, for which he is sought to be rendered accountable, were all prior to that time. That, subsequent to this investiture of title in the State, and prior to the filing of this bill, bj act of the Legislature the duty of collecting the funds, for the use of the University, was devolved upon a board of Trustees created by the said act, and made a body corporate. Hence he insists that if liable at all, for the money received by him, it is to the General Government; and furthermore, that, if liable to any one else, such liability should be enforced, not by the Governor for the use of &c., but by the said corporation. The answer also contains, as is authorised by our act of Assembly regulating chancery proceedings, a demurrer to the bill, for want of jurisdiction of the matter complained of. He then proceeds to admit, that in conjunction with ten other persons appointed to the same trust, he did, in .February 1820, by virtue of the authority ■thus derived, rent out a large quantity of lands, taking bonds from the lessees, to-the Governor. He submits as an exhibit, an account current, consisting of debits to a considerable amount of money collected by him from the lessees, upon the bonds so taken, and of credits of money paid by him; and charges for services in and about the collection of the money.

An order of reference was made by the Chancellor to the clerk or master, to take an account between ■the parties; which order authorises testimony oral, and by deposition, to be heard; and commands a report to the next term of the Court. At tho ensuing term the master reported accordingly, an account exhibiting against the defendant a balance of $1702 93. To this account of the master the defendant filed exceptions, specifying as grounds thereof. 1. That the master has allowed interest on the monies collected by the said defendant, from the time of collecting the same. 2. He should not have charged the respondent with the $240, mentioned in the answer, as being in the hands of Gray, the former sheriff. In addition to this report of a stated account by the master, he exhibits in the form of a supplemental report, several matters, which he declined bringing into the account, but submits to the Chancellor for his determination ; as for instance, several judgments upon bonds for rent, taken by the defendant, whose amounts, as far as the records shewed, were still in the hands of the sheriff, and never received by the defendant: as also a claim by the defendant of $69 as a credit, it being the difference between money and Huntsville Bank notes, which latter the defendant received to the amount of $469, from several renters. without suit, in discharge of their bonds. The Court adopted the reported account, and decreed its amount without increase, or diminution.

' The first question presented by the assignment of errors, is'whether the Chancellor should have sustained the demurrer to the bill. I can see no reason why he should have done so. The jurisdiction of the court in this case, is sustainable on many grounds. As between principal, and agent or factor, a bill for an account, is a common ground of chancery jurisdiction. A fraudulent concealment by a trustee, of matters confided to his care and management, is alleged in the bill, which contains a prayer for a discovery; as well as for an account, and decree for the balance which may be found due. If the discovery sought, were the only matter which absolutely required the interposition of the Chancellor, yet I would think it competent and proper, in a case like this, being one of account, where the materials were accessible to the Court, to retain the cause and do justice between the parties, in order to prevent further litigation-

But admitting the matter to be cognisable by the Court, the defendant questions the right of the complainant to maintain the suit. This ground of objection is two-fold- 1. That the general government is the true owner of this fund, as it resulted from the rent of lands not then granted by her: and 2. If not so, yet the Legislature, before the suit brought, had vested the interest in the Trustees of the University, who as a corporate body could, and alone ought, to have pursued the claim. The first objection is evidently founded in bad faith, and cannot be available. The defendant admits that he received the funds, for which he is called to account, under a commission and authority, which he derived from the Governor, for the use of the State; and should no more be permitted to retain it, under the pretext of a better title in the United States, than would the tenants to whom he rented, be - allowed to resist a recovery of their bonds, by alleging want of title in their lessor.

The second branch of the objection is more worthy of consid eration; at least it is not like the other, the palpable offspring of bad faith; but it is equally unavailing as a defence. By an act of December 1819, the Governor was authorised to appoint commissioners in the different sections of the State, where this donated land was situated, whose duty it was, ■ to rent out the lands, and take bonds payable to the Governor, who was required to sue thereon, for .the use of the State. This act, did not require any bond to be executed by the commissioners thus .appointed; nor did their trust and authority extend beyond the mere letting of the land, and taking bonds for the rent. The Governor was the person designated to collect. It is apparent, however, that some intermediate agency was necessary in the conduct of this litigation. ■ It was not practicable for the Governor to attend to this matter in propria persona, and the agency was most naturally devolved npon the commissioners, who took the bonds, and who had them in their possession. The agency admitted to have been exercised in this case, we are authorised to consider, as derived, either expressly, or by tacit implication from the Governor. It must be viewed in this light, or else the defendant was an officious intermedler. His responsibility is at least as great, if he acted in the latter capacity; so that he cannot complain, if the most charitable construction is put upon his conduct. Then we will assume, that the relation of principal and agent, existed between the Governor and the defendant in relation to the funds collected; and as a necessary consequence, there results an accountability to him. It is no objection to this accountability, that the interest in the subject matter had been transferred by the State, to the University, before the institution of this suit. Admit that the Trustees of the University could sue for this cause of action, yet it is perfectly consistent with legal analogy, that the Governor could still sue in relation to a subject which had been committed to him, as this was. A bailee can sue at law, by virtue of his special property, for any thing improperly withheld from him, although the true owner of it, or principal, could also maintain an action. Nor do I think there was error in permitting the amendment, by which a specific designation of the true destiny of this fund was introduced into the record. Why refuse to permit it? Its only effect- could be to regulate the application, or ap^ propriation of the proceeds of the suit. All defences, competent to the defendant, still remained unimpaired. A recovery from him by the present suit would certainly bar any other complainant. So that there is no injury done him by the amendment.

The next assignment of errors, is the refusal of the chancellor to deduct from the balance reported by the master to be due, the sum of $69, mentioned above, as demanded on account of the receipt of depreciated currency in discharge of the bonds of several tenants. There does not appear to be any satisfactory reason for the surrender of those obligations upon payment of less than was due upon their face. If it had been made to appear that the obligors had been in failing circumstances, and that this negotiation was made to save something in a wreck, then, on the principle, that trustees acting in good faith, and with a view to avoid a probable loss, ought not to be held responsible for mere defect of judgment in the matter of the trust, he ought to have been allowed the discount; but in this case no facts appear which would warrant such an inference.

It only remains to consider the assignment which relates to the refusal of the Chancellor to sustain the two exceptions taken by the defendant, to the report of the master The first is for the charge of interest. The master, as the report shows, charged interest on each item of money, from the time of its actual receipt by the defendant. In the case of Colgin vs. Cummins, this Court held that interest on an open account is not recoverable as a matter of strict right, unless agreed to be paid. Chancellors, however always decree it against trustees, where there is evident default in the non-payment of the principal;’ or .where it has been turned to profit. Here the money was wrongfully detained at least, and we do not think it was against equity to charge the defendant with the interest.' The other exception taken to the report, and overruled by the Chancellor, was, “ the commissioner should not have charged the respondent with the $240 mentioned in the respondents answer as being in the hands of Gray, former sheriff of Franklin county.” Now with regard to this, in the first place upon an -examination of the reported account, it does not appear that the sum mentioned was charged against the. defendant, as there is no corresponding item to be found in it. But if it was expressly included, I cannot say that the Chancellor should have stricken it out; for although the answer alleges, that the particular sum remains in the handb of the sheriff; and although the answer in this particular, may be considered as responsive to the bill charging its actual reciept; yet it may have 'been abundantly established by testimony before the master that it was actually received by the defendant. The answer- of a defendant, responsive to a matter charged in the bill, is to be taken as true, when a cause is brought to a hearing on the bill and answer. But when the Chancellor, to procure accurate materials for his decree, refers a matter of account to auditors to hear evidence pro and con; and settle the balance; then, whatever he reports as due on one side, or the other, ought, upon a principle, of universal application to all competent tribunals, to be adopted, as just and proper, unless the contrary is made to appear. A report, conforming to the order of reference ; shewing upon its face the adoption of no erroneous principle as the basis of its calculations; and no error of fact, as to the items which compose it, ought surely to be considered, as furnishing a proper foundation for the decree of the Chancellor' who adopts it. If any item of an account, properly taken, and reported, is sustained by insufficient or incompetent testimony, the party aggrieved should have excepted, and have the .evidence spread out in the report; so, if any evidence offered is rejected by the master, he who offers it, should have it spread out with his exception; in this manner, reserving points for the determination of the Chancellor. If the master choose to do so, without any exception made by the parties, he may, though it is not imperatively his duty, report the evidence to the Chancellor, upon which any item has been rejected or admitted. But when it is not apparent on the face of any account, which has been fairly audited, that is, with proper opportunities afforded to the parties to contest it, that any items composing it, are improperly admitted, or rejected, if it may not be adopted as correct, the taking of an account would be a mere farce. In no way does it appear that this item was improperly charged, if charged at all, against the defendant. I think the report bears upon its face intrinsic evidence that no item was brought into the account, as a charge against the defendant, except such as he was proven to have received. We think there is no error in the decree. It must therefore be affirmed with costs.

       1 Porters' R. 1 ed. 156.