Orange County NcArchives Court.....Bruce, V. Child Et Al 1826 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 11:54 pm Source: Nc Court Reports Vol 11, 1826 Written: 1826 June Term 1826 BRUCE et al. v. CHILD et al. From Orange. When a bill is filed to surcharge and falsify an account stated nineteen years before, the delay must be well accounted for, to repel the presumption arising from this acquiescence. For this purpose, it is not enough that the mistake sought to be rectified was discovered within a few months previous to exhibiting the bill, but it should appear why the discovery was not sooner made. The bill alleged a certain sum received by the defendant, larger than that charged in the stated account. The defendant, in her answer, suited that her faculties were impaired by age and infirmities, and after so great a length of time since the transaction (about forty years) she could not speak with certainty to the matters charged in the bill, and said, in answer to the particular error, that she believed the sum charged in the stated account to be the true one, and did "expressly aver that to be the sum she received from her attorney, J. N., and no other." The attorney, in his deposition, swore that he paid her the larger sum; Held, that the charge was sufficiently denied to bring the case within the rule, that a decree will not be made against a positive denial, on the unsupported testimony of a single witness. This was a bill filed August 28, 1812, setting forth that the plaintiffs were heirs at law and distributees of John M'Kerall, late of Norfolk, Va., who died intestate, January, 1776, possessed of, and entitled to, a very considerable personal estate; that immediately upon his death, the defendant, his widow, took possession of the personal estate, and on the 21st of October, 1784, took out letters of administration in Norfolk; that in 1785, the defendant intermarried with Child, who possessed himself of the estate of M'Kerall, and afterwards died, leaving the defendant his executrix. That on or about the 1st of January, 1793, the (373) plaintiffs, children of John M'Kerall and William M'Kerall, another of the children, who was made a defendant to the bill, and Mrs. Child, caused an account to be stated of the estate of John M'Kerall, whereby a balance of £2,057 67, was found to be due to the estate from Mrs. Child, and on the 31st of January, 1803, the plaintiffs received their shares under such settlement. The bill then charged, that in the settlement were divers errors, which were particularized; the only one material in the cause was the following, that the executrix gave creit for the sum of £220 only, Virginia currency, as cash received by her from John Niveson, of Norfolk, when in truth, she received £301 3 5. It was further stated in the bill, that the plaintiffs never discovered this error until six months before filing the bill; that letters of administration on the estate of John M'Kerall, within North-Carolina, had been granted to the plaintiffs, and that they had applied in vain to Mrs. Child to have the errors rectified. The prayer of the bill was, that the defendant Mrs. Child might be decreed to rectify the settlement and account, and to supply and correct its errors and omissions, and pay to the plaintiffs what might be coming to them. The account and settlement, which were made part of the bill, exhibited a balance due, as before stated, and contained also the following statement: We, Absalom Tatom and John Hogg, at the desire and request of the widow and heirs of John M'Kerall, heretofore of Norfolk, in Virginia, deceased, viz.: Mrs. Frances Child, heretofore widow and administratrix of said John M'Kerall, deceased, but now widow of Francis Child, Esq., deceased, Miss Frances M'Kerall, daughter, and John M'Kerall, and William M'Kerall, sons of the said John M'Kerall, deceased (the said William, who is a minor, appearing and consenting hereto by his brother John, as is suggested by said John), having proceeded to state and settle the account of Frances Child, Esq., deceased, who intermarried with Frances M'Kerall, widow and administratrix of said John M'Kerall, deceased, for his, the said Francis's intromissions with the estate of said John M'Kerall, deceased, do, from the vouchers and statements handed to us by the parties, find the amount to stand as above stated, by (374) which it appears that the net amount of said estate in the hands of the executrix of the said Francis Child, deceased, on the 1st day of January, 1793, was, &c. [Then follows a statement of the gross amount, and the share of each.] In which account we have not included or taken into view, any charge the said Frances may have against the said children for boarding, clothing and schooling, previous to and during her intermarriage with the said Francis Child, Esq. The said parties having, in our presence, assented to and signified their approbation to this statement and settlement. This was signed by Messrs. Tatom & Hogg, and bore date 13th of August, 1793. A receipt for their shares, signed by plaintiffs, and dated 1st of January, 1803, followed. Mrs. Child, by her answer (so far as it is here material) insisted on the great length of time which had elapsed since the accounts were settled by referees chosen by all parties; and as to the error in the sum received from Nevison, she stated that Nevison was her agent and attorney to settle and collect an account due from one Sheddon in Norfolk; that Sheddon had an account against her husband M'Kerall, and that on the adjustment of these accounts by Mr. Nevison, the balance due her husband's estate, as she believed, was £220, for which she had once accounted to plaintiff's, and she expressly averred that, and no other, to be the sum received by her from Mr. Nevison. As to the discovery of errors in the account by plaintiffs, but six months before the bill was filed, she denied it. At March Term, 1824, of Orange Court of Equity, on motion of complainant's solicitor, the cause was referred to the clerk & master of that Court to take the account, and report to the next term of the Court. At the following term, the clerk & master reported, that Mrs. Child had fully accounted for the estate of John M'Kerall, except as to the sum of £81 3 6, Virginia currency, received from John Nevison, as appeared by his deposition, which was referred to, and which the master stated to be the only proof. No exceptions were filed below to the mas-(375)ter's report; but at the same term, the cause was removed to this Court, on the affidavit of Mrs. Child. Mr. Nevison's deposition stated, that Mrs. Child, while the widow of M'Kerall, and residing in North-Carolina, placed in his hands as an attorney, a number of claims belonging to the estate of M'Kerall, on various persons residing in various places; that the length of time rendered it improper for him to speak positively. That one of these claims was against Sheddon, and the deponent believed was received by him at different times, and from different persons; but the deponent could not recollect with certainty, nor could he resort to his books, as they had been sent away during the late war, and had not been brought back; that the only claim on which he ever received any thing for Mrs. Child was that against Sheddon. The deposition further stated, that of the money thus received, the deponent "paid to Mrs. Child, the sums stated as per a memorandum on an annexed commission, which memorandum was taken prior to his books being sent away, to enable the deponent to state the sums so paid, in a deposition then intended to be taken, at the request of Mr. Bruce, but which was prevented, he believes, by the interruption of the times." The sums were then stated in three items, and exceeded the sum with which Mrs. Child had been charged in the settlement by £81 3 6. Deponent further stated, that he made no agreement for the amount of his compensation; he charged a commission of five per cent, on money received; for travelling on his client's business, not only the travelling expenses, but a compensation for the same; and for all other business, customary fees according to the service, and that he made several journeys on the business of Mrs. Child. That not long before the late war, the plaintiffs called on him and asked information relative to his transactions, as the agent and attorney of Mrs. Child, when he showed them his books and vouchers, and gave them a memorandum. On the opening of the cause here, Badger for (376) complainants, said, that as no exceptions had been filed below to the report of the clerk and master, nothing remained for complainants to do, but to move for a confirmation of the report, and to take a decree accordingly; that the reference to the master was an interlocutory decree, showing that this was a proper case to surcharge and falsify in, and the question could not be here debated. Gaston, contra, contended, that this reference was not an interlocutory decree, and according to our practice, could not be considered as decisive of the question whether the account should be opened; the reference to the master was merely made on motion to expedite the cause; and of this opinion was the Chief Justice; but Hall and Henderson thought otherwise, and considered it necessary for defendant to proceed first to set aside this order of reference, before any other step could bs taken in the cause; whereupon Mr. Badger said, to save time and trouble, he was content the cause should be considered as on a petition to set aside the interlocutory decree. And on the next day Badger for complainants, argued as follows: The bill seeks not to open or unravel, but to surcharge and falsify a stated account. When an account is opened both parties become actors, and proof must be offered by both; when leave is given to surcharge and falsify, the plaintiff must produce the proof of error in the particulars alleged, and the whole account stands as stated, unless very clear proof be offered of such error. Hence, the Courts discourage applications of the former kind after a great lapse of time, but receive favourably the latter. Is the lapse of nineteen years, since the settlement, a bar? I say, neither that, nor any other time is properly a bar. The subject matter of the account, is one of trust (377) direct, and is entirely without the operation of the statute of limitations. As no time was a bar to the plaintiff to have an account, so no time is a bar to him when he comes to correct the account. In regard to both, though the Court respects time, it creates no positive bar. Whatever the lapse of time may be, when fraud is charged and proved, the Court will open an account. Vernon v. Vaudry (2 Atk., 119). As fraud is the ground on which an account is opened, so mistake is the ground on which to surcharge and falsify: and the Court will always, upon the latter ground, permit plaintiffs to surcharge and falsify, where, if the former existed, it would open the account. Chambers v. Golding (5 Ves., jun., 834, S. C., 9, Ves., jun., 264). Brownell v. Brownell (2 Bro. Ch. R., 62). The case of Pitt v. Cholmondley (2 Ves., sen., 564), and that of Toogood v. Swanston (6 Ves., jun., 484), illustrate the distinction between opening and surcharging, and show that though the former is reluctantly granted, save for fraud, the Court anxiously extends the latter, whenever specific errors are assigned and proved. Hawks, in answer, insisted, that in Equity, considerations founded on lapse of time, had their origin in public policy alone; that before any statute of limitations was in existence, Equity respected time; and after statutes were passed regulating time in the Courts of Law, Equity, that there might be uniformity of decision on the subject, only said, that in analogous cases in Equity, the same length of time should be adopted, not as a bar proprio jure, but as evidence of acquiescence; the result of which was simply to circuit scribe, what had been more a subject of discretion in the chancellor. Smith v. Clay (3 Brown Ch. Rep., 639, note. Eden's ed). Expediency or policy, therefore, being the foundation of the rule in Equity, it would follow, that in every case where, from lapse of time, this expediency or policy applied, the Court would be influenced by it according to cir-(378) cumstances; that it hence followed, that a bill to surcharge and falsify an account, was no more entitled to favour, than a bill to have an account taken after great length of time; and though it was true, that on the former, the contest was confined to particular items of the account, and the onus fell on the plaintiff to support his allegation of errors, yet it was clear that the defendant might controvert by proof such allegation; and the difficulty of proof was no less as to the items complained of, than it would be on tho whole account, after great lapse of time. Here the time was 28 years, which would probably induce the Court to prevent the taking of an account had none ever been taken; witnesses were dead, vouchers lost, defendant's faculties impaired by age, her memory gone; and as had been well said, "it is too hard to force a man to keep his evidence by him forever." This proceeding then not being entitled to favour, how was it to be considered as respected time? The account is not impeached on the ground of fraud. Surely the plaintiffs must come, even to surcharge and falsify, within reasonable time. The time at law, for an action of account, is three years; plaintiffs come here to correct a mistake, if it be one, after 19 years. (2 Eq. Ca. ab., 576.) But the onus of proving the mistake is admitted to be on the plaintiff. He must prove it clearly. It is denied positively in the answer, and the only evidence is Nevison's deposition, which is far from being positive. The Court (if time be against us) will not decree against our positive answer, on the deposition of a single witness. This was not the case of an express trust, administrators and executors are, in Equity, trustees by implication only. (1 Maddocks, 466.) But if defendant had been a trustee, the fiduciary relation between her and plaintiffs was destroyed upon the settlement by Hogg & Tatom, and she stood in a new relation, that of debtor. Gaston, on the same side, took the following (379) grounds: 1. That the settlement by Hogg & Tatom must be considered an award, and as such was favoured in law; that it could not be set aside but on good grounds; it might be impeached for error, but this could be done only upon those errors being made manifest to the arbitrators; they must be convinced, and admit that they have committed an error. (1 Ves., jun., 369, 379. 2 Ves., jun., 14. 18 Ves., jun, 447, 449.) And whether the award was the result of a submission without rule of Court, or under a rule, it had the same validity, and stood on precisely the same grounds at law and in Equity. (Kyd 10, 276, 327, 329, 330, 331.) And here, there was no admission of error by arbitrators, no attempt made to obtain it, and no cause shown for not attempting it. That if evidence short of the arbitrators' admissions would do, here there was no satisfactory evidence of any error; it rested on one witness, unsupported by any proof, and positively contradicted by defendant; which would not be sufficient if this were an original enquiry, even though witness should be positive. 2. That if the award be reviewed, plaintitfs had not come in time. In the case of a bill of review, the time was fixed by analogy to that prescribed by the statute for writs of error; and here a writ of error must be brought within five years. Awards are protected by time at least, as effectually, as the judgments of tribunals, whose decrees may be reversed by a superior tribunal. South-Sea Company v. Bumstead (2 Eq. Ca. ab. 80, pl. 8. Kyd 362). It was true that the mistake was alleged to have been discovered only six months before bill filed; this should have been accompanied by an affidavit, according to the analogy of bills of review, for new matter discovered. (Mitford 66.) But the allegation was denied, and no reason was shown why plaintiffs could not make discovery sooner. 3. If the settlement by Hogg & Tatom was not (380) an award, but a stated account, it might indeed be corrected, if erroneous, and the party might be permitted to surcharge and falsify before the Master; but he must first prove to the satisfaction of the Chancellor that there was an error; when it was clearly shown, then, and not till then, was there a ground to surcharge and falsify. (5 Vesey, jun., 835, 836. 9 Ves.,jun. 265. 2 Ves., sen., 566. 6 Ves., jun., 487.) But the enquiry here was not very material as the master had reported the evidence, and stated it to consist of one deposition. 4. But as an account, it was still open to the question of time. The fiduciary relation between the parties was dissolved by the settlement, and the plaintiffs had a now legal right and a corresponding remedy, which might have been enforced within three years; he should have come here within the same time. In England, the limitation in cases of this kind is six years. Booth v. Warrington, Western v. Cartwright (2 Eq. Ca. ab. 2 part 576), the latter case commented on in 2 Scho. and Lef., 636. Badger, in reply.—The report of Hogg & Totem, has not the character of an award; they were not chosen to settle a dispute, for none existed, but were auditors to take an account, which when taken, was the stated account of the parties, not the determination of arbitrators. The case in 2 Ves., 14, was an application to Equity to set aside an alleged mistake of a fact by an arbitrator who was to decide a disputed matter; and it was held that it could not be done, without the admission of the arbitrator that he had mistaken the fact, because he was absolute as to the facts and the legal consequences resulting therefrom. The same remark will apply to 18 Ves., 447. As to deficiency of proof, Nevison's testimony is positive, founded on entries made in his books in the course of his business, states the amount paid over after deduc-(381)tion of every charge; and defendant's denial is not positive, her answer begins with a declaration that her age is great, and memory imperfect, and every allegation or denial must be understood as being made with distrust and doubt. As to the analogy supposed to be found in the case of a bill of review, there is no decision that an application to correct error in an award, must be made within the period prescribed for a bill of review; besides, there is an essential difference between an award and a decree; while both ascertain the amount, the latter only can compel its own execution. The case of Horeden v. Lord Annesley, 2 Scho. and Lef., cited on the other side, investigates that class of cases where conflicting claims in Equity exist. These are clearly distinguished from controversies between trustee and cestui que trust, in a case of direct trust. In the latter, time operates only as evidence, as a circumstance from which an inference of fact arises. This doctrine is well stated and illustrated in Morse v. Royall (12 Ves., jun., 374). The Court will not examine the evidence to ascertain whether there be an error, before they refer it to the Master to take an account, with liberty to plaintiff to surcharge and falsify. (14 Ves., jun., 579.) Taylor, C. J.—The object of this bill is to surcharge for an omission made in a settled account closed between the parties, something less than twenty years before the filing of the bill, and relative to transactions which date their existence about forty years before. In such a case, there ought to be clear and satisfactory evidence of the existence of the error, and I do not think that the deposition of Nevison, singly opposed to the answer, containing as strong a denial as the nature of the subject admits of, affords such evidence. The Master's report is founded solely on that testimony, as appears upon the face of it, and this warrants the application of the rule, that there cannot be a decree in (382) this Court, upon the testimony of a single witness, unsupported by circumstances, against the positive denial in an answer, which is responsive to the bill. Her answer is, that upon the adjustment of the accounts by J. Nevison, she does not believe that the balance found to be due was £336 13 4, the sum with which she is charged by the referees; "and she does expressly aver that to be the sum she received from her said attorney, J. Nevison, and no other." I am also of opinion, that the complainants have not sufficiently accounted for the delay in not exhibiting this claim at an earlier period. The reason stated in the bill is unsatisfactory, that they did not know of it until six months before the filing of the bill. When the account was stated by the referees, at the instance of all parties concerned, it is fair to presume, that men of business would take the obvious and easy methods to become acquainted with their rights, that they might be prepared to exhibit just, and repeal unjust charges. Mr Nevison was known to be the attorney for the estate, and charged with the collection of debts due to it. When the account was stated, the administrators are charged with money paid by Nevison; and it was entirely in the power of the complainants to ascertain, within a reasonable period from the settlement, whether greater sums had been received from the attorney than the estate had been credited for. Long delay, in matters of account, places the accounting party under insuperable difficulties, especially where he is to be charged by memorandums of a third person. An earlier application might have revived the memory of circumstances serving to show that the credit has been rightly given. The very forbearance to make a demand, is considered as affording a consciousness that it was satisfied, or an intention to relinquish it. "The Court will not aid stale demands, where the party has slept upon his right, and acquiesced for a great length of time; the activity of the Court can only be awakened by conscience, good faith, and reasonable diligence; (383) where these are wanting, the Court is passive and does nothing. Laches and neglect are always discouraged; and therefore from the beginning of this jurisdiction, there was always a limitation to suits in this Court." 8 Bro., 639. In one case it has been held, that if the party, upon a notice that nothing was due, did not investigate his own account, and never made any demand for the money, a demurrer should be allowed upon the statute of limitations. 19 Vesey, 188. That case was within the statute of limitations; but it held, that though the Court follows the law by analogy to the statute, it does not adopt it in all cases. It may be equitable to demand a debt, though not legal; but if be not equitable, the party will be left to law. After a great length of time without suit, it shall be presumed that the balance is satisfied. Though this is not a case affected by the legal limitation, yet it comes within the law of this Court, and presents a case wherein laches have made the demand inequitable. 5 Vesey, 678. I am of opinion that the bill should be dismissed. Hall, Judge.—M'Kerall, the first husband of the defendant, Mrs. Child, part of whose estate is now sought after, died about the year 1776; his residence was at Norfolk, in the State of Virginia. Early in the revolutionary war, his widow and children removed to Hillsborough, in this State. In the year 1793, when the parties were of full age, a settlement was made between them by two persons chosen for that purpose. In this settlement, Mrs. Child, was debited with a certain sum of money received from Nevison, the witness, a resident of Norfolk. Nineteen years afterwards, the present bill was filed. The complainants allege, that Mrs. Child received a larger sum of money from Nevison than she was debited with in the settlement, and that they did not become acquainted with that fact until within six months before the suit was brought. They give us no reason, however, why they did not become acquainted with it. Nevison was as (384) easy of access then as afterwards; facts could have been established with more certainty then, than nineteen or more years afterwards. The mind and memory of Mrs. Child, who is now well stricken in years, was then much nearer their wonted vigour. For these reasons, I have but little hesitation in saying, that the bill ought to be dismissed with costs. By the Court, Bill dismissed with costs. Approved. McDonald v. McLeod, 36 N. C., 221. Additional Comments: North Carolina Reports, Volume 11 Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA. For December Term 1825 and June Term 1826 by Francis L Hawks (Vol. IV) Annotated by Walter Clark Richmond: James E Goode Printing Company, Printers 1897 File at: http://files.usgwarchives.net/nc/orange/court/bruce1474gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 25.6 Kb