General Principles.

fraud; the injured partner may support a specific terrogatories being leading, or for irregularity, charge by his own affidavit, but not by one or where it has been discovered that a proper which specifies no amount under any particular release has not been given to make a witness item. Ibid. competent. Ibid.

185. On a bill by the fraudulent partner of an account, the master may charge him on any evidence which is competent or admissible as proof of the item; he cannot hold the injured partner to such degree of proof as would justify a charge, under ordinary circumstances, against a customer or partner; there must, however, be some proof. Ibid.

186. If an account is retained an unreasonable time without objection, it becomes, in law and equity, a stated or settled account, and a bar to au action or bill to account. Baker v. Biddle, 1 Bald. C. C. R. 418.

187. The staleness of a demand may be relied on at the hearing, though there is no plea or demurrer, or the answer does not exist; equity acts by analogy, or rather in obedience to the statute of limitation on stale demands. Ibid.

195. Semble: That new testimony may be taken, after publication, to facts and conversations occurring after the original cause is at issue, and publication has passed. Ibid.

196. The court may, in the exercise of a sound discretion, allow the introduction of newly discovered evidence of witnesses to facts in issue in the cause, after publication and knowledge of the former testimony, and even after the hearing. But it will not exercise this discretion to let in merely cumulative testimony. Ibid.

197. The same rule holds in cases of bills of review, and supplementary bills in the nature of bills of review. Ibid.

198. Semble: That the rule ought to be confined to cases of the discovery of new evidence of a documentary nature, and the testimony of witnesses, necessary to substantiate this. Ibid.

188. Courts of equity, like courts of law, con- 199. Matters may be inquired into under a sider judicial sales as made without warranty. bill in equity, notwithstanding they are open at In all judicial sales the rule "caveat emptor" law, where the bill is brought for other purposes, must necessarily apply, from the nature of the as for a discovery, an injunction to stay proceedtransaction. The Monte Allegre, 9 Wheat. 616;ings at law, and for other general relief upon 5 Cond. Rep. 709.

189. The true and safe course in a court of equity, as to the effect of time on a transaction, is to abide by the rule of law; which, after a lapse of time, will presume payment of a debt, and extinguishment of a trust, where circumstances may reasonably justify it. Prevost v. Gratz, 6 Wheat. 481; 5 Cond. Rep. 154.

the merits, which a court of law is incompetent to administer. Gass v. Stinson, 2 Sumner's C. C. R. 454.

200. On or about June 13th, 1823, Samuel Fryer, as guardian of his minor children, under a license of court, conveyed certain premises in Lowell, called the Paddy Camp Lands, to Luther Richardson, in fee. On the 14th of May, 1825, 190. The general rule of equity proceedings Luther Richardson conveyed these premises, beis, that after publication of the testimony, no ing already subject to encumbrances, to his bronew witnesses can be examined, and no new ther, Prentiss Richardson, by a deed of quit-claim, evidence can be taken, unless, where the judge and upon a secret parol trust for the benefit of himself, upon or after the hearing, entertains a Luther. On the 6th of May, 1826, Luther Richdoubt; or where some additional fact or inquiry ardson and his wife, and Prentiss Richardson, is indispensable to enable him to make a satis-executed a deed of quit-claim of the premises factory decree. Wood v. Mann, 2 Sumner's C. C. R. 316.

to Walker and Fisher, for the consideration of two thousand dollars, (as stated in the deed,) and 191. A witness may be examined to the mere on the same day, Walker and Fisher executed credit of the other witnesses, whose depositions a bond for ten thousand dollars to Luther Richhave been already taken and published in the ardson alone, which recites, that "the abovecause; but he will not be allowed to be ex-named Luther Richardson has, by a deed of quit amined, to prove or disprove any fact material claim, bearing even date herewith, conveyed to to the merits of the case. Ibid. the above bounden Walker and Fisher, all hiz 192. The time for publication will be enlarged, right and title," &c., and then provides, that the or more properly, the time for taking the testi-obligees shall reconvey the premises to Luther mony will be enlarged, after publication has Richardson, whenever, within five years from passed, though not in fact made according to date, he shall repay them such sums of money the rules of the court, provided some good cause as they shall expend in discharging encumtherefor is shown upon affidavit, as surprise, brances, and making improvements on the land. accident, or other circumstances, which repels At the same time, Walker and Fisher executed any imputation of laches. The affidavit is in- to Luther Richardson a lease of a part of the dispensable, except in a case of fraud practised premises for five years, upon the annual rent of by the other party. Ibid. one cent during the term, unless the premises should be previously redeemed, according to the provisions of the bond. On or before the 13th of May, 1831, a claim was set up to these pre mises by the heirs of Samuel Fryer, grounded on a supposed invalidity of the guardianship sale thereof at a former period. Shortly after, a parol agreement was entered into between the plaintiff, Flagg, and the defendant, Mann, to

193. Exhibits in the cause may be proved after publication, and often viva voce at the hearing, when there has been an omission of the proof in due season, and they are applicable to the merits. Ibid.

194. Fresh interrogatories and a re-examination have been permitted after publication, where depositions have been suppressed from the in

General Principles.

purchase, at their mutual expense and benefit, |ing that all which they took under the deed of the title of Luther Richardson, and to extinguish Luther and his wife, and Prentiss, was the right the claims of Walker and Fisher, and of the and title of Luther alone. That the deed to Fryer heirs in the premises, on their equal and Walker and Fisher, and the bond by them to joint account. This agreement was never aban- Luther Richardson, are to be treated as part of doned by the parties thereto. And, on the 13th one and the same transactions, and to have the of May, 1831, Flagg and Mann, in pursuance same effect as if im bodied in one instrument; thereof, received a conveyance of the premises, and that this deed and bond, being merely an by deed of quit-claim, from Luther Richardson, attempt to evade the strict rules of law with and also an assignment of the bond of Walker regard to mortgages, constitute an equitable and Fisher. On the 27th of July, 1831, Walker mortgage to Walker and Fisher for their adand Fisher conveyed their title in the premises vances, and not a conditional purchase by them to Mann alone, by a quit-claim deed. Subse- of the premises. That Luther Richardson had a quently, the Fryer heirs, by deeds of quit-claim, clear equity of redemption in the premises, at conveyed all their title in the premises to the the time of his conveyance to Flagg and Mann, defendant, Adams. On the 6th of August, 1831, sufficient, at least, in the view of a court of the defendants, Mann and Adams, severally con- equity, to make them tenants in common, and veyed to each other, by quit-claim deeds, one to create between them a privity of title and moiety of the premises, and of their respective estate. That the parol agreement between Flagg interests therein. On the 8th of August, 1831, and Mann, for the purchase on joint account, Mann conveyed, by quit-claim deed, his moiety of the premises in question, as above recited, of the premises to the defendant, Fuller, for forty coupled with the deed of Richardson to Flagg thousand dollars; and Fuller, on the same day, and Mann, and the assignment to them of executed a mortgage deed of the same moiety Walker and Fisher's bond, created a fiduciary to Mann, as security for the payment of four relation between these parties, grounded on prinotes, each for ten thousand dollars, given for vity of title and estate, under which a purchase the purchase-money. A bill of equity was now of an outstanding encumbrance or adverse title, brought by Flagg, to set aside the deeds of by one, would be a trust for the benefit of both; Mann to Adams, and of Adams to Fuller, as and on this account the agreement, though by made in fraud of the rights of the plaintiff, and parol, is extracted from the statute of frauds for a reconveyance of one moiety of the pre- of Massachusetts. Flagg v. Mann, 2 Sumner's mises to the plaintiff, upon payment by him of C. C. R. 487. a moiety of the moneys paid, in perfecting the title, and for other relief. Held, that Luther Richardson has no interest in this suit, to render him an incompetent witness. That the defect in Luther Richardson's original title, on account of the alleged invalidity of the guardianship sale, if such really existed, can be taken advantage of only by the Fryer heirs, and others deriving title under them; and that, until the avoidance thereof by them, Luther Richardson must be deemed the lawful owner of the premises. That the defendant, Mann, deriving his title, together with Flagg, from the purchase of Richardson, cannot set up the outstanding adverse title of the Fryer heirs, to defeat the equitable rights of Flagg, under the purchase on joint account, if Richardson at the time had any title in the premises. That the agreement between Flagg and Mann, being made for the purpose of protecting themselves against the claim of the Fryer heirs, a court of equity will not allow Mann to violate that agreement, by interposing the Fryer claim, to defeat the rights of Flagg, although the relation would not cause an estoppel at law. That the execution of the deed to Walker and Fisher, and the giving of the bond by them to Luther alone, with assent of Prentiss, amounted to an execution of the secret trust between Luther and Prentiss, and is the same in effect, as if Prentiss had first conveyed the premises to Luther, and the latter had then conveyed to Walker and Fisher, taking from them the bond. That Walker and Fisher, and all persons claiming under them, are estopped, at least in equity, by the terms of the bond of Walker and Fisher, to Luther Richardson, as above recited, from deny

201. Semble: That the agreement, though by parol, was executed by the passing of the deed, and assignment of the bond, even if no actual title passed from Richardson, so as to establish a fiduciary relation between the parties, grounded merely on privity of contract, which was sufficient to make the subsequent purchases of outstanding encumbrances in trust for the joint account, and to extract the case from the statute of frauds. Held, that Mann was entitled to one moiety of the premises, which moiety was duly conveyed to Adams, without notice of the title to Flagg. That it was not of itself a wrongful act in Mann to take the title from Walker and Fisher, and from the Fryer heirs in his own name, as it was his only security to compel Flagg either to abandon those purchases, or, if he insisted on his share, to repay the advances made. That the charges of notice of the plaintiff's title in the bill against Fuller are loose and indeterminate, amounting to a mere intimation, or suspicion, or belief; whereas, there should have been an allegation of full notice of the very title and claim of the plaintiff asserted in the bill. That Fuller, at the time of his purchase of Mann, had no notice, actual or constructive, of the title of Flagg. That the deed from Mann to Fuller, although a mere quit-claim or release, must be treated as a bargain and sale, or other lawful conveyance, effectual to pass the whole estate, and entitling Fuller to protection, as a bona fide purchaser, without notice, to the extent of the purchase-money already paid, before notice of the plaintiff's title. That Flagg is entitled to one moiety of the premises purchased of Richardson, Walker, and Fisher, and the

General Principles.

Fryer heirs; and, in default of this, on account credit between A. Lewis and John Gordon, or of the conveyance to Fuller, to a moiety of the express or implied agreement of set-off. Held, purchase-money, as a substituted fund, deduct- that the proceedings have passed that stage ing therefrom the sums paid by Mann to Walker where the claim of set-off could be entertained; and Fisher, and to the Fryer heirs, and other that the question, whether Jesse Gordon was a expenses incurred in the premises. That for the nominal party or not, cannot be investigated in payment of his moiety of the purchase-money, a collateral proceeding like the present; that the the plaintiff has a lien on the land conveyed to proper course would have been to file a cross bill Fuller, to the extent of the purchase-money at an earlier stage, or now to institute an original which remained unpaid at the time of notice to bill in some competent court; and that the insolFuller of the plaintiff's title. Ibid. vency of John Gordon does not, per se, constitute a sufficient equity to induce a court of equity to sustain the set-off. Gordon v. Lewis, 2 Sumner's C. C. R. 143.

202. A court of equity will not yield to technical rules of law, by which the intention of parties may be defeated. Ibid.

203. Where a witness has been cross-examined by a party, with a full knowledge of an objection to his competency, a court of equity will not allow the party to raise the objection at the hearing. Ibid.

204. If a party would object to the competency or credibility of a witness in courts of equity, he must make a special application, by petition, to the court, for liberty to exhibit articles, stating the facts and objections to the witness, and praying leave to examine other witnesses, to establish the allegations in the articles, by suitable proofs: and upon this petition, leave is ordinarily granted by the court. v. Stinson, 2 Sumner's C. C. R. 605.

Gass

205. Semble: That the application may be made by motion, upon the foundation of ignorance, at the time of the examination. Ibid.

206. An objection to the competency of a witness cannot be made after publication, if the incompetency was known before the commission to take his deposition issued. Ibid.

207. An objection to the credibility of a witness may be ordinarily made after publication and before hearing; but the interrogatories must be so shaped as to prevent the party, under colour of an examination to credit, from procuring testimony to overcome that already taken and published in the cause. Ibid.

208. The confessions, conversations, and admissions of the defendant, need not be expressly charged in a bill in equity, in order to entitle the plaintiff to use them in proof of facts charged, and in an issue thereon. Smith v. Burnham, 2 Sumner's C. C. R. 612.

209. The practice of the English court of chancery, and not that of the court of exchequer, forms the basis of the equity practice in the courts of the United States. Ibid.

212. A court of equity will often pronounce that there is an equitable mortgage, in cases where a court of law would be compelled to say there was no mortgage. Ibid.

213. Courts of equity do not regard the forms of instruments, but look to the intent, and give to the acts of parties that construction which is consistent with the intent and with equity. Ibid.

214. An agreement and stipulation. "It is further agreed, that if Low and Fenner should redeem their one-half of the aforesaid contract, by the payment of the drafts drawn on them by R. Hazard & Co., on account thereof, to return half of the aforesaid five thousand dollars to said S. Almy, he relinquishing to said Low and Fenner all claim upon the aforesaid one-half of the said contract." Held, that Low and Fenner, in order to derive benefit under the preceding clause, should have proceeded forthwith, or within a reasonable time, to make the redemption specified. Kendall 'v. Almy, 2 Sumner's C. C. R. 278.

215. Courts of equity follow the law in matters of set-off, unless there is some equity attaching to the particular transactions between the parties. Gordon v. Lewis, 2 Sumner's C. C. R. 143.

216. Courts of equity follow the law in regard to matters of set-off, unless there is some intervening natural equity, going beyond the statute of set-off, as where there are mutual credits between the parties, or an existing debt on one side, which constitutes the ground of a credit on the other side. Howe v. Sheppard, 2 Sumner's

C. C. R. 409.

217. Semble: That a court of equity will not entertain a set-off of a separate debt of one partner, against a joint debt to the partnership, upon the ground of the insolvency of that partner. Ibid.

210. An interlocutory decree was made in equity, by which the executors of A. Lewis were chargeable with the sum of one thousand eight hundred and ninety-one dollars and five cents, on account of rents and profits due to the plaintiff, Jesse Gordon. A petition was now filed, 218. It is a well-settled rule in chancery, in praying that a certain sum, amounting to one the construction of wills as well as other instruthousand and seventy-one dollars and twenty-ments, that when land is directed to be sold and five cents, due from John Gordon to the execu- turned into money, or money is directed to be tors, might be set off against the foregoing sum; employed in the purchase of lands, courts of it being alleged, that Jesse Gordon, the plaintiff, was a mere nominal party, and that John Gordon was the real party in interest, and was insolvent. It did not appear that there was any mutual VOL. I.-26

equity, in dealing with the subject, will consider it that species of property into which it is directed to be converted. Peter v. Beverly, 10 Peters, 532.

General Principles.

226. The complainants in their bill allege, that a conveyance of her real estate was made by a daughter to her father for a nominal consideration. The answer denied the matter stated in the bill; and the defendants gave evidence of the transfer of stock, to the value of two | thousand dollars, on the day the conveyance was 232. Every court of equity possesses the made, claiming that this was also the considera-power to mould its rules in relation to the time tion in the deed. Held, that this evidence was admissible without an amendment of the answer. It rebutted the allegation in the bill, that the deed was made wholly without consideration. Jenkins et al. v. Pye, 12 Peters, 241.

General Principles.

235. In England, the decree always recites the substance of the bill and answer, and the pleadings, and also the facts on which the court founds its decree. But in America the decree 244. The twenty-eighth rule prescribed for the does not, ordinarily, recite these; and, generally, practice of courts of equity of the United States, not the facts on which the decree is founded. provides for bringing witnesses before the masBut with us, the bill and answer, and other plead-ter; for their compensation; for attachments; ings, together with the decree, constitute what is properly considered as the record. Ibid.

248. It is a well-settled point in equity, that 240. Strictly, in chancery practice, (though it a judgment creditor, where he is compelled to is different in some of the states of the Union,) pay off prior encumbrances on land to obtain no exceptions to a master's report can be made, the benefit of his judgment, may, by assignment, which were not taken before the master, the secure to himself the rights of the encumobject being to save time, and to give him an brances; and the same rule applies, where a opportunity to correct his errors, or to reconsider junior mortgagee is obliged to satisfy prior morthis opinions. A party neglecting to bring in ex-gages. He stands as the assignee of such mortceptions before the master, cannot afterwards except to the report; unless the court, on motion, see reasons to be dissatisfied with the report, and refer it to the master to re-examine it, with liberty to the party to take exceptions to it. Story v. Livingston, 13 Peters, 359.