Watson v. Fletcher

| Va. | May 4, 1850

On the 26th of February 1844, Thomas R. Comer made his will, by which, after directing that his debts should be paid, he gave the whole residue of his estate, real and personal, to Ellen Fletcher; and he appointed Samuel H. Myers his executor. On the 11th of April following, Comer, upon the consideration, as stated in the deed, of 1500 dollars, conveyed to Ellen Fletcher a house and lot on L street, near Bacon Quarter branch; and on the same day by another deed, on the consideration as stated therein, of 300 dollars, he conveyed to Ellen Fletcher all the personal property in said house. Comer died on the 23d of April 1844, and his will was duly admitted to probat in the County court of Henrico, when Samuel H. Myers having refused to qualify as executor, administration with the will annexed, was committed to Thomas D. Watson.

On the 6th of June 1844, Watson, in his own right, and as administrator with the will annexed of Comer, filed his bill in the Superior court of chancery for the Richmond circuit, against Ellen Fletcher, in which, after stating the foregoing facts, he said that he was only induced to qualify as administrator with the will annexed upon the estate, because he was a large creditor of Comer. That Comer and himself had purchased jointly, a house and lot on 14th street, in the City of Richmond, for which they agreed to give 8000 dollars, of which the complainant had paid the whole amount and a deed had been made to Comer and himself for the house and lot; so that complainant had a claim against Comer's estate for 4000 dollars, and an equitable lien on Comer's moiety of the said house and lot; and it was doubtful whether the said moiety would reimburse the complainant the advances made by him. That in addition to this debt, Comer was indebted to the complainant in the' following sums, viz: 415 dollars, with interest from the 18th of April 1840; 2795 dollars 87 cents, with interest from the 15th of October 1842; and 1000 dollars for money loaned to him or paid for him, for which sums complainant had vouchers: thus making Comer's indebtedness to the complainant about 8000 dollars.

The plaintiff further charged that few, if any, debts were due to Comer; and that the whole means which could be relied on from this source, would not be more than 1000 dollars; and this, with the moiety of the house and lot aforesaid, would not exceed 5000 dollars of available means for the payment of Comer's debts. That at the time of making his will, he had sufficient capacity for executing such a paper; but between that period and the 11th of April, when the deeds aforesaid were executed, from constant excitement, his mind became greatly impaired, and he was on the 11th of April, totally incapable of discreetly disposing of his property, or entering into any contract; and for this reason, the said deeds ought to be treated as nullities. That moreover, the said Ellen Fletcher, who was a free mulatto, and had been the mistress of Comer for some years, never paid one dollar for this property; that she never was worth 1800 dollars, but that she was at all times, dependent on Comer for the support of herself and her relations. That the property thus conveyed was worth at least 4000 dollars: that the conveyances were fraudulent, and were contrived and designed to defeat the payment of the debts of Comer. That the said Ellen Fletcher had entered upon and taken possession of the real and personal estate so conveyed to her, and the complainant apprehended that for the purpose of consummating the fraud, she would sell the personal property conveyed to her; which would then be wholly lost to the estate and creditors of Comer, as Ellen Fletcher had no means to make satisfaction for the value of the property. He therefore prayed for an injunction to restrain the said Ellen Fletcher from alienating the said house and lot; and that the Court would direct the sheriff to take possession of the personal property aforesaid, and hold the same subject to the future order of the Court, unless Ellen Fletcher should give bond with approved security to have the same forthcoming subject to the final decree of the Court. That the Court would set aside the deeds aforesaid, and subject the said property to the payment of Comer's debts; and grant to the plaintiff such other and further relief as might seem just and equitable.

The Court overruled the plaintiff's application for an injunction in his character of administrator with the will annexed of Thomas R. Comer; and also rejected his motion to enjoin the sale of the real property charged in the bill to have been fraudulently conveyed by Comer to the defendant, being of opinion that the lis pendens created by filing the bill, afforded adequate protection; but on the ground of the defendant's alleged insolvency, the Court awarded to the plaintiff in his individual character an injunction to restrain the defendant from selling the personal property conveyed in one of the deeds of the 11th of April 1844. until the further order of the Court.

On the 25th of June, Ellen Fletcher filed her bill in the same Court against Thomas D. Watson in his own right, and as administrator with the will annexed of Thomas R. Comer. She stated the death of Thomas R. Comer, and the admission of his will to probat; and further stated that at the time of his death, he was the partner of Thomas D. Watson, and that they were the joint owners of a house and lot on 14th street in the city of Richmond; and that they were jointly and equally interested in numerous and large outstanding claims against various individuals: and that Watson was indebted to Comer for his share of numerous debts which were due to them jointly, and had been collected by Watson, some of which she mentioned, and among them a debt of 3000 dollars and upwards collected by Watson of James Garden of the county of Charlotte. This debt was secured by a deed of trust upon land and slaves, which were sold to satisfy it, and were purchased by Watson, and retained by him; thereby making him chargeable to Comer for one moiety of the debt.

She further charged that Watson had advertised the undivided moiety of the house and lot on 14th street, for sale at public auction, upon the pretence that Comer was largely indebted to him, which she charged, was not true if a fair settlement of accounts between the said Watson and Comer was had. That though Watson held a bond of Comer's for about 2500 dollars, the amount of that bond, and probably no part of it, was due, if a fair settlement was made, and the credits to which Comer was entitled, were allowed. That although Watson may have made the payments to Galt for the house and lot on 14th street, the payments were not made out of his own private funds; and that Comer made large payments for the repairs and improvement of said house, for which he was entitled to credit. That under these circumstances, even if Watson was entitled to sell the house and lot, which she was advised was at least questionable, yet it would be unjust and injurious to the complainant to permit him to sell an undivided moiety thereof before a settlement of his account with Comer was had, so as to ascertain whether a sale would be necessary. She therefore prayed that Watson might be required to render a full account of all moneys received by him, to any portion of which Comer was entitled; that he might exhibit all his claims against the estate of Comer, and fairly settle the account between himself and said estate; that he might be enjoined from selling the undivided moiety of the said house and lot until the further order of the Court; and for such other and further relief as her case might require, and to equity might seem meet.

The injunction was granted as prayed for in the bill.

In July 1844 Watson answered the bill. He denied that Comer was his partner at the time of his death. He alleged that he had paid the whole purchase money of the house and lot on 14th street, and that the improvements and repairs thereon were paid for out of money furnished by him; and that Comer was not only indebted to him for his proportion of the purchase money and of the costs of the repairs and improvements made upon the house, but was indebted to him to a large amount in addition thereto. He denied that he was indebted to Comer for his share of numerous debts which were due to them jointly, and had been collected by him, or that he owed Comer one dollar on that account. He alleged, that on the 15th of October 1842 they had a settlement of all accounts between them, (except the sum of 415 dollars, for which Comer had previously executed to him his bond.) on which settlement Comer was found indebted to him in the sum of 2795 dollars 87 cents, for which he executed his bond. He denied he was indebted to Comer on account of the debt of Garden, in any form whatever. He said Garden was not jointly indebted to Comer and himself, but was indebted severally to each in different sums. He denied that Comer's estate was sufficient to pay his debts without a sale of the lot on 14th street, or that on L street, in which the plaintiff Ellen Fletcher lived.

Upon filing his answer Watson moved the court to dissolve the injunction; but the Court overruled the motion, and made a decree that he render before one of the commissioners of the court an account of his administration of the estate of Comer; and the commissioner was authorized to examine the defendant upon oath touching the subject matter of the accounts, if required by the plaintiff.

On the 25th of February 1845 Ellen Fletcher filed her answer to Watson's bill. She admitted the execution of the conveyances by Comer, but denied he was incompetent at the time. She admitted, too, that she did not pay to Comer money for the property conveyed to her, and that he was prompted in a great measure by regard for her to make the conveyances. She denied that Watson was a creditor of Comer; or if he was, the estate of Comer was ample to pay him and all other of his creditors, without touching the property conveyed to her. If it was not she would make no question of that property being liable for the payment of Comer's debts. That she was, however, the devisee of the whole of Comer's estate, after the payment of his debts, and the plaintiff admitted that his will was valid.

In March 1845 the Court made a decree in the case ofWatson v. Fletcher, that the plaintiff should render before a commissioner of the Court, an account of his administration upon the estate of Thomas R. Comer, deceased, and of all debts due to or from the estate of said Comer, and from whom and to whom due; and that the same commissioner should take and state an account of the value of the personal estate held by the defendant, and conveyed to her by the deed of the 11th of April 1844.

In pursuance of this decree, the commissioner reported in May 1845, that the personal property held by the defendant under the deed from Comer, was of the value of 308 dollars 33 cents. And he reported that by consent of parties, the other accounts directed by the decree, were reported in the case of Fletcher v. Watson.

In the case of Fletcher v. Watson, the commissioner reported a balance of 22 dollars 25 cents, due from Watson as administrator of Comer. In stating the private account between Watson and Comer, the commissioner assumed that the bond dated the 15th of October 1842, for 2795 dollars 87 cents, which was executed on a settlement of accounts between them, closed all their accounts' up to that period. This bond was therefore charged as the first item in the account. There were then other credits to Watson for all payments made after the execution of the bond, for the house and lot on 14th street, and for taxes, and repairs done to the house, and moneys due to them jointly, which had been paid to Comer; and the credits to Comer were for payments made by him for repairs and moneys received by Watson. And the balance reported to be due to Watson on this account, on the 31st of December 1844, was 6911 dollars.

The plaintiff Fletcher excepted to the report of the commissioner; 1st. Because Watson was allowed a credit for payments made to Gait for the house and lot on 14th street, after the 15th of October 1842, whilst all credits to Comer prior to that period, as for instance, Garden's debt, were excluded.

There, were other exceptions to the omission of particular items of charge against Watson and credits to Comer, of the latter of which one was for failing to credit Comer for 1788 dollars 54 cents, paid by him for improvements and repairs to the house, and expenses of the establishment.

In June 1845, the Court recommitted the report with the exceptions to the same commissioner, with instructions to make a general and thorough re-settlement of the accounts between Watson and Comer; and that he should require Watson to state, and shew as far as practicable, the true consideration, and all the particulars which constituted the amount of Comer's bond to Watson, for 2795 dollars 87 cents, and to render an account of all partnership property, if any. And the commissioner was authorized to examine the defendant Watson upon oath touching the said accounts, if required by the plaintiff, or deemed necessary by himself.

The evidence taken when the accounts were before the commissioner, and which was in the record when the last order was made, throw suspicion over the accounts between Watson and Comer; and although it was not positively stated by any of the witnesses, that the connexion between them was for gambling purposes, yet both from the witnesses and their evidence, this was strongly to be inferred. It appeared too, that on the 15th of September 1841, Watson had received from a sale of the property of James Garden, on account of a debt due from Garden to Comer, a sum of money which he afterwards admitted to be 1065 dollars 46 cents.

When the case went before the commissioner under the order last mentioned, the examination of Watson left no doubt at all, that a gambling establishment was conducted in the upper part of the house on 14th street, and that Watson and Comer were partners in that establishment. It appeared, too, that certainly many of the items of account between them was connected with that business; and the doubt was, whether all of them were not. The Court below thought they were; this Court excepted the purchase of the house and lot, and Garden's debt.

The commissioner first reported an account to shew the consideration of the bond of 2795 dollars 87 cents, and according to his statement, after crediting Comer with Garden's debt at 1065 dollars 46 cents, and also crediting him with his payments for improvements and repairs upon the house on 14th street, and also for supplies furnished the gambling establishment; and excluding the bond of 415 dollars mentioned in the plaintiff's bill, he stated the amount due from Comer to Watson on the 15th of October 1842 at 2774 dollars 6 cents. The report stated Comer's indebtedness on the 31st December 1844, at 6909 dollars 55 cents of principal, and 872 dollars 46 cents of interest.

The plaintiff, Ellen Fletcher, excepted to this report, for every charge in the account for money paid as capital or expenses for the gaming establishment; to every charge not supported by testimony other than the oath of Watson; to the due bill for 415 dollars; to all credits on account of payments to Galt, on the ground that they were covered by the bond of the 15th of October 1842; and as against that bond, she claimed a credit for Garden's debt, and some other debts which she claimed that Watson had collected.

In April 1847, the Court made another decree in these causes, by which the accounts were recommitted, with directions to the commissioner to state an account of all sums paid by Comer in his lifetime, and by Watson respectively, on account of the purchase of the house and lot on 14th street, and for repairs, taxes and other expenses thereof, and also of all sums received, expended or advanced by either for the other, in or about any bonafide dealing or transaction; omitting, however, the rents of the lower part of the said house to the period of Comer's death, and all bills paid the tenant by either of the said parties for clothing furnished the other during the same period.

Upon the account in relation to the house on 14th street, the report stated that there was due to Watson, on the 15th of October 1842, the sum of 2072 dollars 22 cents, and on the 20th January 1844, there was due the sum of 5378 dollars 88 cents. And for other bona fide advances by Watson to Comer, there was due on the 1st of February 1844, 923 dollars 45 cents. There were exceptions to this report by Ellen Fletcher, but it is not necessary to state them.

In the progress of the cause, the Court, on the motion of the defendant Watson, made a decree, that, unless the plaintiff, Ellen Fletcher, should execute a bond with satisfactory security, with condition to account for the rents of the real estate conveyed to her by Comer, that the sheriff should take possession thereof as the receiver of the Court.

It is not deemed necessary to extend this statement by setting out more particularly, the items in these accounts. Those which are commented on by the Judge, are sufficiently explained in his opinion, and any further explanation of them is not necessary to a correct understanding of the principles involved in the cause.

The two causes came on to be heard together on the 30th of June 1847, when the Court decreed that the injunctions awarded the parties, should be dissolved; the order for the appointment of a receiver should be set aside; and the bills of the plaintiffs, respectively, should be dismissed without costs. From this decree, the plaintiffs in the causes, respectively, applied to this Court for an appeal which was allowed. In these causes it appears from the record that Watson and Comer, gamblers by profession, were associated several years in one or more copartnerships for gaming purposes, during which others were connected with them, from time to time, as sub-partners. The particular partnership out of which this controversy has arisen existed early in the year 1841, and perhaps previously, and continued until Comer's death in the month of April 1844. The information which we have of the operations of this concern, is mainly in regard to an establishment on 14th street in Richmond, where a faro bank, with its appurtenances, was kept, in a house purchased by Watson Comer from Galt, on the 1st of February 1841, at the price of $ 8000, of which one third was to be paid in cash and the residue in two equal annual instalments. At the date of this contract the house and lot was conveyed by the vendor to the purchasers jointly, and the deferred instalments were secured by the joint bonds of the latter, and a deed of trust which they gave upon the property.

Of the terms of this gaming partnership we have but little reliable or distinct information. It does not appear that there was any written partnership agreement, or that there were any partnership books, or that any other means now accessible have been preserved, of ascertaining the capital stock invested in the business, or its expenses, profits and losses, or the advances made to or receips from the concern, by the respective partners, or to or from each other upon the faith of the partnership funds or resources. In short, there are no adequate materials for a settlement and adjustment of the partnership affairs for the purpose of ascertaining any supposed rights or interests of the parties litigant therein, or their respective claims against each other arising therefrom, if such settlement and adjustment were at all allowable in a court of justice.

But it is clear that a Court of equity will not lend its aid for such a purpose, nor give relief to either partner against the other, founded upon transactions arising out of their immoral and unlawful partnership, whether for profits, losses, expenses, contribution or reimbursement. I am not aware of any reported case in relation to a gambling partnership; but the principle is a general one in reference to partnerships prohibited by law or for an unlawful purpose; and prevails at law as well as in equity. Coll. Part. 50, ed. of 1848; Gow. Part. 119; 1 Bac. Abr. 109, n. Assump. A, ed. of 1846; Aubert v. Maze, 2 Bos. Pul. 371; Holman v. Johnson, Cowp. R. 343; Watson Part. 5, 7; Griswold v. Waddington, 16 John. R. 438, 486, 489; Mitchell v. Cockburn, 2 H. Bl. 379; Knowles v. Haughton, 11 Ves. R. 168. And it is applicable with peculiar force to such an association as the one developed in this controversy, the object of which was a tissue of offences, and a course of conduct denounced, restrained and severely punished by law; and moreover not only contrary to good morals, but highly prejudicial to the public interests. There is in the administration of justice but one rational and politic treatment of the mutual claims of such associates, thus springing out of their spoliations upon society, and that is, to refuse them all aid in the prosecution of their respective demands of that nature against each other. Of this the parties litigant and their counsel in the Court below were doubtless apprised, and accordingly we find that the true character of the association and of its operations is withheld from the pleadings; but it is sufficiently exposed by the evidence.

Comer, at his death, left a will, by which he gave all his estate, real and personal, to Ellen Fletcher, a woman who had lived with him a number of years in a state of illicit intercourse, charged, however, with the payment of his debts, and directing that his other property should be sold before the house and lot where he resided on L street. The will was admitted to probat, and the executor named therein declining to take upon himself the burthen thereof, Watson qualified as administrator with the will annexed, and took possession of the decedent's papers. The testator, however, after the making of his will, and shortly before his death, executed deeds to Fletcher, by which he conveyed to her the house and lot on L street, and his furniture therein.

Watson, soon after his qualification as administrator, filed his bill in that character, and also in his individual right, against Fletcher, in which he alleged himself to be a creditor of his testator's estate to a large amount, specifying his claims to be, 1, Comer's moiety of the purchase money of the house and lot on 14th street, the whole of which he charged that he had himself paid, and for which moiety he represented that he had an equitable lien on Comer's undivided moiety of that property, the sufficiency of which for his reimbursement he considered very doubtful; 2, the sum of 415 dollars, with interest from the 18th of April 1840; 3, the sum of 2795 dollars 87 cents, with interest from the 15th of October 1842; 4, about 1000 dollars for money loaned to or paid for him. For all these claims he alleged that he had vouchers, but these were not exhibited with the bill. He represented that, being the personal representative of Comer, he could not sue himself, and thus place his debts on the footing of judgments, as other creditors differently situated might do. He further represented the insufficiency of assets, and charged that Comer, at the time of executing the deeds above mentioned, was, from the disordered state of his mind, incapable of contracting, and that the deeds were without consideration and fraudulent. And he prayed an injunction to prevent the defendant from disposing of the property conveyed, and that the deeds might be declared null and void, and the property to belong to his testator's estate, and subject to the payment of his debts.

We need not consider whether the provision in Comer's will for the payment of debts was a mere charge upon his estate for that purpose, with a direction as to the order in which that charge should be enforced; or a devise of lands to be sold for the same purpose, to be executed under our statute, 1 Rev. Code, ch. 104, § 52, p. 388, by his personal representative. Watson himself seems to have thought, that as administrator, with the will annexed, he had authority to make sales of his testator's real estate, as well as personal, and he appears from the language of his bill to have only desired the aid of the Court to remove out of his way the deeds to Fletcher, which invested her with the title to the property thereby conveyed, and operated protanto as a revocation of the charge for payment of debts. And we find that a few days after filing his bill and obtaining his injunction, he advertised a sale of Comer's undivided moiety of the house on 14th street, and of the furniture therein. In this he acted improperly and oppressively. Having invoked the jurisdiction of the Court to establish the validity of his claims as creditor, and the invalidity of the conveyances to Fletcher, he thereby placed his whole trust and authority under the control and direction of the Court, and it was an abuse of his fiduciary relation to proceed to sell an important portion of the real estate, before an adjudication could be had of the matters in controversy between him and the only object of his testator's bounty. To arrest the contemplated sale, Fletcher filed her bill, and the injunction which she prayed was granted. Her bill, and her answer subsequently filed to Watson's bill, put in issue the justice of his demands, and assert that nothing will be found due to him upon a fair settlement before a commissioner of the Court.

Under interlocutory decrees for accounts, several settlements thereof were made by a commissioner of the Court, and numerous depositions and vouchers were returned and filed.

It appears from the evidence that the deeds to Fletcher were executed by Comer when he was in due possession of his mental faculties, and were not obtained from him by any fraud or duress, but were his own spontaneous acts. They were not made, it is true, for the pecuniary considerations expressed to have been paid by her, and therefore stand in relation to creditors, as she admits in her answer, merely upon the footing of voluntary conveyances. But they are not the less obligatory from that circumstance upon the representatives of the grantor, and are good against them both at law and in equity, notwithstanding the character of the cohabitation between the parties. A bond or other instrument for the consideration upon its face of future cohabitation is doubtless unlawful and void, but not where the consideration expressed is for past cohabitation, for that is not incompatible with a motive of honour and duty, Newl. Cont. 488, and serves only to place it upon the footing of a voluntary deed. And though equity has, on the ground of fraud, enquired into the consideration of, and given relief against, securities obtained by the arts of common prostitutes, yet a great Judge has held that the cases which have determined against securities given to common prostitutes, went upon the circumstance of the securities being given previous to the cohabitation, which being turpis in its nature, the Court had relieved against them; but that there was no principle of equity which says that a man may not give a voluntary bond to a common prostitute, and that it would be going but a little further to say he could not give her money without being liable to be called upon for it. Hill v. Spencer, Ambl. R. 641. In the present case, however, there is no proof, nor even allegation, that the grantee was a common strumpet, nor any reason to believe that the grantor was influenced by any other motive than a sentiment of attachment for her, and a desire in his last illness, and in view of approaching death, to secure to her some provision for her future maintenance. And, in fact, a successful impeachment of the deeds, upon any ground, could avail Watson nothing in this controversy; for if the deeds were null and void, the will devising the estate to Fletcher, and which has been admitted to probat, would still remain; and no one supposes that could ever have been impeached, whatever might have been the want or turpitude of consideration.

The most important of Watson's claims against his testator's estate, is that for contribution on account of the purchase money of the house and lot on 14th street. The evidence is satisfactory to shew that the whole amount of the purchase money has been paid by Watson, and there is no reason to believe that his payments thereof were not made out of his individual resources. On the contrary, the relative pecuniary condition of the two persons, and the cotemporary declarations of Comer, warrant the conclusion that he contributed nothing himself, directly or indirectly, on that score. Watson is therefore entitled to the reimbursement sought by him on this head, and to an equitable security therefor upon Comer's undivided moiety of the property, unless, indeed, his demand can be repelled, as falling within the influence of the unlawful gambling partnership which existed between them.

There is no proof that this property formed any part of the partnership funds, or that it was purchased for a gambling establishment, though the circumstances of the case seem to indicate it as probable that the parties, at the time of their purchase, contemplated the use of it by themselves for gaming purposes. It was a joint purchase in fee by these persons, upon the strength of their individual resources and credit, of real estate, to be held by them and their representatives in perpetuity, or until alienation; and the temporary abuse of it by gaming operations could stamp no permanent unlawful character upon the property. The contract with the vendor was perfectly lawful; each of the joint vendees was liable to him for the whole purchase money; from that liability Watson could not escape, and has fully discharged it; and his right to contribution is the legal and equitable consequence. It is not founded upon or derived through the unlawful partnership, but springs from a transaction collateral thereto, though it may have been connected therewith; and in such cases I take the true principle to be that the claim to contribution or reimbursement cannot be repelled. See Gow. Part. 109; Toler v. Armstrong, 4 Wash. C. C. R. 297; 11 Wheat. R. 258.

Watson's claim to a debt, as due him from his testator, of 2795 dollars 87 cents, with interest from the 15th of October 1842, stands upon a different footing. His bill is silent as to the consideration and nature of that debt. But his answer to Fletcher's bill states it to be due by a bond, of the amount and date just mentioned, executed to him by Comer, on a settlement of all accounts between them, except 415 dollars, (mentioned in his bill,) for which Comer had previously, to wit, on the 18th of October 1840, given him his obligation, (a due bill under seal.) By the interlocutory decree of June 1845, recommitting a report which had been returned by the commissioner, with the exceptions thereto, for a general and thorough resettlement of the accounts between Watson and Comer, an enquiry was directed as to the consideration of the bond for 2795 dollars 87 cents, with authority for Watson's examination upon oath.

The direction of this enquiry was perfectly proper, for obvious reasons. There was at least a prima facie repugnancy between the execution of that bond, upon a settlement between the parties of their accounts, on the 15th of October 1842, and Watson's claim for a moiety of the whole amount of the purchase money of the house and lot; it appearing from his vouchers that the cash payment was made by him in February 1841. There was, when the enquiry was directed, evidence in the record disclosing the gambling partnership, and in relation to its operations, and mutual claims of the parties litigant arising therefrom. It was a duty which the Court owed to itself and the public, to sift these transactions thoroughly, in order to repel all efforts to make it the instrument of enforcing or relieving against, the turpis contractus, and its consequences, at the instance of either of the parties, standing as they didin pari delicto. This was emphatically so when the personal representative, with his decedent's papers in possession, was seeking to charge his estate with a heavy debt as due upon settlement, without any proof or even suggestion of the nature of the dealings upon which it was founded. The enquiry, therefore, was warranted by the evidence, and, under the circumstances, it would be idle to consider whether it was covered by the pleadings. A reference to them, however, will serve to shew that the substantial controversy between the parties was, whether Watson was a creditor (and of course a lawful creditor,) of Comer, and if so, to what amount.

The result of the enquiry directed into the consideration of the bond was, that, according to Watson's own shewing before the commissioner, it embraced Comer's moiety of the cash payment for the house and lot on 14th street, and numerous items of account arising out of the operations of the gaming establishment. It was therefore disregarded in the resettlement by the commissioner, and also in his final report; and the accounts restated as if it had never been executed.

The claim of Watson in his bill for a debt of about 1000 dollars, as due to him from his testator, "for money loaned to him or paid for him," falls into the consideration of the unliquidated matters of account, exclusive of the purchase money of the house and lot.

These unliquidated matters of account, it is obvious,' have originated to a great extent, if not entirely, out of the relation between Watson and Comer as partners in the gambling concern; and the difficulty is in ascertaining how far, if at all, they can be treated as individual transactions between them, which would not properly belong to a settlement of the partnership affairs, if that were allowable.

Such of them as consist of bills paid for supplies of provisions and liquors for the comfort and refreshment of gaming guests, or for furniture and other articles purchased for the concern, or of collections of debts due the partnership, are upon their face of such a nature as to condemn and expunge themselves from the controversy.

The debits and credits claimed for bills paid to mechanics for the fitting up, reparation and improvement of the house and lot while used as a gaming establishment; and for payments during the same period, of taxes, insurance and the like; and for collections of rents of a part of the building occupied by tenants, require more consideration. If these items could be referred exclusively to the joint ownership of the property in fee, and its permanent advantage — if the expenditures were such as would have been equally incurred by joint owners unconnected as gambling partners — if the payments were made out of their respective individual means, and not out of the capital, profits or funds of the partnership — if the rents were applied to their individual, and not to their partnership purposes; in a word, if their expenditures upon and receipts from the property appeared to be separate and distinct from their gambling operations, and, so, unaffected and untainted by the turpitude of their temporary association, I would think that such matters of account would be proper for adjustment by the Court. But I do not so understand the evidence. The house, though owned jointly, was devoted during the partnership to the purposes of the concern; the use of it for that period may be regarded as part of their stock in trade; and its revenues and charges were blended indiscriminately with the partnership affairs. It is impossible now to separate them; that could not be done, if at all, without a settlement of the gambling partnership, including its capital stocks, profits and disbursements; even if the Court could lend its authority for such a purpose.

The items for moneys loaned or advanced by one partner to the other, stand upon the like footing. It does not appear from any distinct or reliable evidence, that the sums reported by the commissioner on this score were derived from individual funds, or designed for other than partnership objects. Indeed, it appears from Watson's examination before the commissioner, that a sum corresponding with that claimed by Watson, in his bill, "as loaned to Comer, or paid for him," was sent to Comer by a servant, to pay mechanics' bills, and buy furniture; and that the 500 dollars per check, claimed before the commissioner, was furnished for the same purpose. The further sum, it is true, reported by the commissioner per note for 600 dollars to Tate, is stated by Watson, in his examination, to have been a loan to Comer for his own purposes; and the answers of a party to interrogatories upon such an examination are doubtless evidence for him, to the same effect as a responsive answer to a bill, but liable to discredit in like manner; and no one can read the examination before the commissioner, without agreeing with the Chancellor, that its statements in support of Watson's pretensions, are entitled to but little weight. It is to be remarked, also, that the form of the transaction as stated, a blank endorsement for raising money, left by the absent with the resident partner, indicates an advance to the firm rather than a loan to the individual. And that such was the fact, is shewn by Watson's own statement of the items of the settlement of the 15th of October 1842, when Comer's bond for 2795 dollars 87 cents was executed; in which Comer is debited with only a moiety on account of the note to Tate, and with a moiety only of the 1000 dollars per servant, and of the 500 dollars per check; and credited with a moiety of a large amount of disbursements in payment of mechanics' and other bills.

Of the unliquidated matters of account between the parties, there remains only to be noticed, the credit to Comer, reported by the commissioner, of 1065 dollars 46 cents, on account of the debt from Garden. That debt appears from the evidence, and is admitted by Watson, to have been due to Comer individually, and the sum credited was furnished by Watson, as the true amount for which he was accountable. It may be doubted whether the credit is not short of the proper sum; but the materials for correcting it, if wrong, are not in the record, and there appears no sufficient reason for disturbing it.

The claim of Watson in his bill for a debt of 415 dollars, as due him from Comer, with interest from the 18th of April 1840, without explanation of its consideration or nature, appears from the voucher subsequently filed, to be evidenced by the due bill under seal of that amount and date. It is therefore not embraced by the period for which the accounts between the partners have been reported by the commissioner, commencing in February 1841. And yet, there is evidence that they were gambling partners during several years previous to that date, and of course, at and before the date of the due bill; and of outstanding gaming debts due them, and collections on account of them, made by the partners respectively in the year 1839. And there is no evidence of any legitimate business transactions between them prior to the execution of the due bill. The presumption of law from a due bill under seal, is that it was given for a true and lawful consideration; but in this case, the presumption of fact, under the circumstances, is the other way. And the claim, with others, proved to have sprung exturpe causa, is preferred in a Court of equity, by a fiduciary, in possession of his decedent's papers, and seeking to subject the estate which he represents, without evidence, or even suggestion, of the consideration upon which it is founded. I think it ought not to be sustained.

The foregoing views dispose of all the matters of controversy between the parties down to the time of Comer's death; and the result of them, if correct, is to reject all the items of debit and credit reported by the commissioner, until that period, except the debits in favour of Watson, on account of his payments of the purchase money of the house and lot on 14th street, and the credit in favour of Comer, on account of Garden's debt.

I think, therefore, that the decree of the Chancellor ought to be reversed, and the injunctions which had been granted to the parties respectively, and the order for the appointment of a receiver, reinstated; that the accounts between the parties down to the time of Comer's death, should be recommitted and reformed as above designated; that the administration account ought also to be recommitted and reformed, and continued so as to exclude all credits to the administrator for costs and counsel fees in these suits, and add all proper debits against him for debts due the estate which he has collected, or ought to have collected; and on account of the rents of the house and lot on 14th street, which have accrued since Comer's death, with the proper deductions for repairs, taxes, insurance and the like; that the whole of the furniture in the house on 14th street, ought to be sold under the direction of the Court, and a moiety of the nett proceeds paid to Watson, and the other moiety carried into the administration account to the credit of the estate. That furniture was no doubt purchased for the gambling establishment; but it does not fall within the principles above indicated; for Comer's undivided moiety thereof having come to the hands of Watson as his personal representative, it would not be competent for the latter to deny, on any such ground, the title of his testator; and in fact, he has not done so, but has held and treated the same as belonging to the estate. He was wrong, however, in the attempt to sell Comer's undivided moiety of the furniture, the proper course in such cases of joint ownership of such property being to sell the whole, and divide the proceeds.

I am further of opinion that the creditors of Comer's estate ought to be convened before the commissioner, by a public notice to come in and assert and prove their demands. This is proper in order to close the administration, and to the due disposition and application of the assets legal and equitable. After the balance of principal money and interest due to Watson, shall have been ascertained, as also the sums due to other creditors, the Court should proceed according to the rules of equity, observing due priorities, to charge the same upon the assets legal and equitable, and to a final decree according to the rights of the parties.

The other Judges concurred in the opinion of JudgeBaldwin.

The following was the decree of the Court:

The Court is of opinion, that the decree is erroneous, and ought to be reversed and annulled, and the injunctions which had been granted to the parties respectively, and the order of the 27th of June 1846, for the appointment of a receiver, reinstated; that the accounts between the parties down to the time of Comer's death, should he recommitted and reformed, by rejecting all the items of debit and credit reported by the commissioner until that period, except the debits in favour of Watson on account of his payments of the purchase money of the house and lot on 14th street, and the credit in favour of Comer on account of Garden's debt; that the administration account ought also to be recommitted and reformed, and continued, so as to exclude all credits to the administrator for costs and counsel fees in these suits; and add all proper debits against him for debts due the estate which he has collected, or ought to have collected, and on account of the rents of the house and lot on 14th street, which have accrued since Comer's death, with the proper deductions for repairs, taxes, insurance and the like; that the whole of the furniture in the house on 14th street, ought to be sold under the direction of the Court, and a moiety of the net proceeds paid to Watson, and the other moiety carried into the administration account to the credit of the estate; that the creditors of Comer's estate ought to be convened before the commissioner, by a public notice, to come in and assert, and prove their demands; and that after the balance of principal money and interest to Watson, shall have been ascertained, as also the sums due to other creditors, the Court should proceed, according to the rules of equity, and observing due priorities, to charge the same upon the assets, legal and equitable, and to a final decree, according to the rights of the parties. It is, therefore, adjudged, ordered and decreed that the said decree of the Chancery court be reversed and annulled, with costs to the appellants respectively; and that these causes be remanded to the Chancery court, to be proceeded in according to the principles above declared.