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Lynch v. De Viar.

had an opportunity of making by the use of the money of the latter; and this compensation being dictated by justice and equity, is allowed both in courts of law and of equity.

4. Because it is a settled rule at law and in equity, that a balance of a stated account shall carry interest from the time the account is stated; and the interest reported by the master is calculated in conformity to that rule.

Hoffman, for the appellants.

Troup, contra.

RADCLIFF, J. This is an appeal from a decree of the late chancellor, by which the appellants, who were the defendants below, were adjudged to pay to the respondent the sum of 9,632 dollars and 77 cents, being the balance of moneys received by them to the use of the respondent's testator, Don Diego de Gardoqui, and also the farther sum of 3,918 dollars and 68 cents, for the interest of that balance. The principal sum is admitted by the appellants to be due to the respondent, and the only question between the parties relates to the allowance of interest.

From the state of the case before this court, it does not appear how soon the voyages were accomplished, or when the several adventures terminated. The first account of the proceeds appears to have been rendered by the appellants

on the 6th September, 1794, nearly four years and a [*309] half after the commencement of the enterprise. By that account, the proceeds were admitted to be 9,632 dollars and 77 cents, the principal sum above stated, which sum was thereby acknowledged to have been received by the appellants. The reason assigned by them for not paying it, as alleged in their answer, is, that they could not do it with safety, without the return of the written acknowledgment above mentioned; and that on the 4th January, 1796, they offered by letter to come to a settlement with the respondent, if he would deliver up that paper. The respondent, who was the complainant below, replied to their answer, and thereby put them to the proof of its contents. This fact therefore, of their offering to come to a settlement on the 4th

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Lynch v. De Viar.

January, 1796, is not admitted by the pleadings, and there being no proofs in the cause, it cannot strictly be considered as in evidence. But whether proved or not, I think it unimportant to a decision of the merits.

On these facts, the respondent contends, that the appellants ought to be held liable to the payment of interest, on several gounds, which, however, may be reduced to two; 1st. That the account rendered by them on the 6th September, 1794, is to be considered as assented or agreed to on the part of Gardoqui and his administrator, the present respondent, and is to be viewed as an account stated between them, and, therefore, carrying interest; 2d. That the principal sum was due at the moment the appellants received it, and they were guilty of a default in not immediately paying it to Gardoqui, and therefore ought to pay the interest.

The first point, I think, is not supported by the facts. It is true, the account was rendered by the appellants, and a balance stated by them to be due to Gardoqui, but his assent to that balance does not appear, and the presumption of acquiescence, arising from his silence, is rebutted by the conduct of the present respondent, and the claim set up in his bill, filled in the court below. He does not, in his bill,. proceed on the principle of an account stated, *or any precise balance admitted to be due, but [*310] treats the demand as opened and unsettled, and

prays a discovery and an account de novo of the whole proceeds, and the payment of the balance which shall be found due on such account. He thereby disaffirmed any previous sattlement, and destroyed the presumption of an acquiescence in the account, as it had been rendered by the appellants. If the account had been in fact settled, he might, as has been observed, have sued at law, without appealing to a court of equity.

2. But on the second ground, I think the respondent is entitled to recover the interest. The proceeds of these speculations were received by the appellants in cash. The proportion due to Gardoqui was so much money in their hands,

Lynch v. De Viar.

received to his use. It is a settled rule, that money received to the use of another, and improperly retained, always carries interest. In this case, too, the appellants expressly agreed and promissed to pay the money when received. But they attempt to excuse the non-payment, by alleging that the redelivery of the written acknowledgment was essential to their security. The idea of danger from this paper is altogether imaginary. It is no more than an accountable receipt, an evidence of a special agreement by simple contract merely, and not an instrument which under any circumstances, can operate to their prejudice. From it nature, it is incapable of being negotiated, and by a counter receipt, or the payment of the money, would be effectually discharged. The non-delivery of this harmless paper cannot, therefore, justify the appellants in retaining the money. I am, accordingly, of opinion, that the decree of the chancellor, in respect to the interest, was proper, and ought to be affirmed. But I am also of opinion, that it is incorrect in respect to the idemnity which it requires against this innocent receipt. In this particular it is inconsistent in principle. Ifan indemnity be neces

sary the appellants were not in fault, and ought not [*311] to be liable to the payment of interest, nor to the costs which were awarded against them in the suit below. If it was unnecessary, it ought not to have been decreed. No party ought to be compelled to do a useless or nugatory act, which may be attended with real inconvenience, and particularly so in the case of an administrator, like the present, whose administration of his intestate's estate, may be incommoded and embarrassed by the responsibility which might be apprehended to flow from it.

On the whole, I am of opinion, that the decree, as to the allowance of interest, ought to be affirmed; and as to the indemnity which it requires, it ought to be so amended as to dispense with that condition.

This being the unanimous opinion of the court, it was thereupon ORDERED, ADJUDGED and DECREED, that the decree of the court of chancery be affirmed, as to the sum de

Hickock v. Scribner.

creed to be paid by the appellants to the respondent; but that the same be so modified and altered as to dispense with the security thereby required.

Judgment of affirmance.(a)

EZRA HICKOCK, Appellant, against THOMAS SCRIBNER, Respondent.

A. being indebted to B. on the 23d March, 1787, assigned to him, as security for the payment of the debt, certain lands and a lease in fee, for the same. B. executed a bond to A., conditioned, that in case the debt and interest were paid on or before the first of June, 1788, he would reassign the lease and premises to A. and give him a receipt for the debt. The debt not being paid at the time, B. took possession of the premises under the assignment, in July, 1792, and assigned his interest in the lease and premises to C. and D., who took possession thereof. A. afterwards brought a bill to redeem the premises, on the ground that the transaction between him and B. amounted to a mortgage, and on appeal from the decree of the court of chancery, it was held, that C. and D. ought to have been made parties to the suit, and that the decree of the court below, for that reason, was reversed, with liberty to the respondent to have his bill dismissed in the court below, or to an end it, by adding all proper parties; and in that case, the evidence taken to stand, as between the present parties, saving all just exceptions, and that each party, in this court, pay his own costs.

In a suit in equity, the bill must call all necessary parties, who may be affected by the demand, before the court. If, upon the face of the bill, it is apparent, that any whose rights may be affected are not made parties, the defendant may demur, or if the want of parties do not appear, he may plead it. If it be disclosed by the answer, the complainant may immediately amend, by adding the proper parties. Per Radcliff, J.

(a) A party holding money against the will of the owner is chargeable with interest, though he has a set-off, and the amount due from him was not liquidated before bringing the action. (Greenly v. Hopkins, 10 Wend. 96.) See also, in support of the rule of the principal case, Williams v. Sherman, 7 id. 109; People v. Gusherie, 9 Johns. 71; Board of Justices v. Fennimore, Coxe, 242; Rapelje v. Emory, 1 Dallas, 349; Wood v. Robbins, 11 Mass. 504; Dickenson v. Legare, 1 Desaussure, 537; Stoughton v. Lynch, 1 Johns. Ch. 167

Hickock v. Scribner.

The court is, at all times, vigilant in requiring proper parties against whom its decrees are to operate. It will arrest the proceedings in any stage of the cause, in order to obtain them, and will not finally decree, if the want of parties appear on the hearing of the cause. If it does, the decree may be reversed, and if not reversed, yet none but such as were parties to the suit, and their representatives, can be bound by it. Per Radcliff, J.

THIS case came before the court, on appeal from the decree of the court of chancery.

[*312]

*A preliminary question was raised, and to which the arguments of the counsel and the decision of the court were confined, namely, whether all proper parties to the suit were before the court below?

It is unnecessary, therefore, to state the facts in the case, further than may be sufficient to understand the point decided.

Thomas Scribner, the respondent, being indebted to Ezra Hickock, the appellant, in the sum of 1431. 18s. 9d. on the 23d of March, 1787, assigned to him, as a security for the payment of that debt, certain lands in the patent of Kayaderosseras, together with a lease in fee, which he held for the same. Hickock thereupon executed to Scribner a bond, in the penalty of 400l., conditioned, that, in case the debt, with interest, was paid, on or before the first day of June, 1788, he would reassign the lease to Scribner, and pass his receipt for the debt. On the 19th of January, 1789, the debt and interest being unpaid, the parties in this cause, and John Mahony, who was then in possession of the premises, entered into articles of agreement, by which the parties to this suit, Hickock and Scribner, jointly covenanted, that Mahony should keep and remain in quiet possession, until the 15th of November, then next ensuing, of a certain saw-mill, (part of the premises,) and which is described in the covenant as lately the property of Scribner, and then the property of Hickock; and Mahony, on his part, covenanted, among other things, to allow Scribner the liberty of sawing logs until the time above mentioned, when he was to deliver the saw-mill to Hickock. Hickock, by his agent, accordingly received

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