Dexter vs. Arnold. special interrogatory in the original bill, and a discovery prayed. Thomas Arnold, in his answer, expressly stated, that he had no knowledge of any insurance at Malaga; but had been informed, that there had been a policy there procured by Captain Proud (the master), on the cargo from Malaga to Genoa only; and as that risk terminated without loss, and the vessel was captured afterwards on her voyage home, he never received any thing on that insurance. Here, then, the petitioner was bound to use reasonable diligence, if he did not choose to rely upon the statement in the defendant's answer, and subsequent examination before the master. But he never sent to Malaga; and never made any search for Captain Proud or his papers. Captain Proud is now dead. There is not now the slightest proof, that any money ever was received from the insurance in Malaga. The petitioner now calls upon the other party for a discovery, exactly as he did in the original bill; not because any new fact has come to his knowledge since the decree; but because he has now discovered an old letter, unsigned and unfinished, in the handwriting of Captain Proud, (which does not appear ever to have been sent to the owners,) in which a suggestion is found about insurance made, or to be made by him, on cocoa (part of the cargo), up the Straits, and advising the owners to procure insurance on the vessel from Malaga home. The letter is exceedingly obscure in its terms, and it is utterly impossible to ascertain, what were the precise terms or nature of the insurance; though I should conjecture from its language, that it was limited to the cargo from Malaga to Genoa. If so, it stands completely in harmony with the original answer, and supports it. But if it were otherwise; what ground is here laid for a review? The paper, if newly discovered, is not evidence; and it establishes no receipt of any money by Thomas Arnold on the insurance, which is the material fact. A bill of review is not a bill for a discovery; but a bill founded upon a discovery already made of evidence material and decisive to the issue. Dexter vs. Arnold. The next charge is, that in the master's report an allowance is made for a note of Jonathan Arnold to Minturn & Champlin, indorsed by Thomas Arnold, and by him paid to Joseph Jenkins, viz. $824,12; whereas Minturn & Champlin had received 32 bags of pimento belonging to Jonathan, and had sold the same for $253, and applied the proceeds towards the discharge of the same note. It is sufficient to say, that there is no proof to this effect; nor any newly discovered evidence offered to support the statement. No reason is pretended, why Minturn & Champlin's accounts were not investigated at the original hearing. The next charge is, as to the. Tennessee Land Company shares, owned by Jonathan Arnold, the proceeds of which have been received by Thomas Arnold. The whole number owned by Jonathan was fifteen; Thomas accounted before the master for nine shares, as all received by him. The petitioner had the most ample means, by a search in the proper public office at Washington, to have ascertained the whole amount received by Thomas on the shares, if he had used any diligence. The case, therefore, falls precisely within the doctrine of Lord Eldon in Bingham vs. Dawson (3 Jac. & Walk. 243.) But the receipt, now produced from the public records at Washington, signed by Samuel Dexter, satisfactorily establishes, that Jonathan had long before sold the six shares, now in controversy, to Dexter. And that was the very explanation asserted before the master by Thomas Arnold. There is not a shadow of proof, that he ever received on these shares any money, which he has not accounted for. I pass over the next charge, which respects the £100 note, included in the mortgage on the Paget farm. It was disposed of upon an exception of the plaintiff in the former decree, which is reported in 3 Mason, R. 284, 286. No new evidence on this point is pretended. The next item is for an allowance made out of Jonathan's estate in the master's report of the sum of $4800 and upwards Dexter vs. Arnold. due from Jonathan's estate to the estate of Welcome Arnold, and secured by a mortgage given by Jonathan to Thomas Arnold, as administrator of Welcome, and which was allowed him upon his agreeing to cancel the mortgage, which he has not done, but refused ever afterwards to do. The mortgage appears to have been given to Samuel G. Arnold, as attorney of Thomas Arnold and Patience Arnold, administrators of Welcome Arnold. I agree, that it was the duty of Thomas Arnold to procure a cancellation of that mortgage after the credit was allowed, whether he made an express promise to do so, or not. If he had a right of retainer, as administrator on both estates, he had a right to the credit allowed in settling the account. It was not matter of and it furnishes no exception, at that time, that it was done; ground of review now. The proper remedy is by an original bill to compel satisfaction to be entered on the mortgage, and a re-delivery or cancellation of it. To such a bill the administratrix of Thomas Arnold might be properly made a party, at least for the purpose of compelling an application, or re-payment of the sum credited, if the mortgage deed is not cancelled, and the credit has not been already made to Welcome's estate. If such a suit should be unproductive, I do not mean to say, that there might not be circumstances, upon which this Court might give leave for a bill of review, in order, that the credit might be struck out, if Jonathan's estate was to sustain a real injury, as if possession under the mortgage was insisted upon, and held at law under the mortgage. At present I do no more than say, that the matter now presented furnishes no such ground. I have thus gone over all the principal grounds for the bill of review, supposing them to be before the Court with all due distinctness and particularity, and in a shape regular and tangible, If I had more leisure I might comment, somewhat more at large, upon the principles applicable to this subject. But it being my deliberate judgment, that the case is not a fit one for a review, I content myself with ordering, that the petition be dismissed with costs. Cassels, Adm'r vs. Vernon, Ex'r. The District Judge concurs in this opinion, and therefore let the petition be accordingly dismissed. JOHN CASSELS, ADMINISTRATOR OF JANE CASSELS vs. WILLIAM VERNON, EXECUTOR OF SAMUEL BROWN AND ANOTHER. The grant of administration to a husband on his wife's estate with the will annexed, by a Probate Court, is conclusive to establish her right to make the will, for the general jurisdiction includes the right to inquire into this fact. Interest will not be allowed against a Trustee holding a fund, when he had made no interest, if there be no laches or neglect, or use of the money, on his part. BILL in Equity for an account. The cause was set down by consent of parties upon the bill, answers, exhibits, and admissions of the parties, and was argued by Samuel A. Crapo and Philip Crapo for the plaintiff, and by Searle for the defendant. STORY J. The present bill is brought by John Cassels, as administrator with the will annexed of his late wife, Jane Cassels, deceased, against the defendant as executor of Samuel Brown, deceased, for an account and decree of payment of a certain trust fund belonging to her estate, entrusted during her lifetime to the defendant's testator for her use. Mrs. Cassels died in England, where her will was duly proved in the Prerogative Court of Canterbury, and administration thereon granted to the plaintiff in 1828; and he has since presented the same to the proper Probate Court of Rhode Island, by which administration has been granted to him in like manner. The will of Mrs. Cassels purports to have been made in virtue of a power reserved to her by a certain bond, executed before her marriage by the plaintiff to a Mr. Champlin of Newport, the object of which was to Cassels, Adm'r vs. Vernon, Ex'r. Her secure to her the absolute disposal of her whole estate. will purports to dispose of her real and personal estate, first, to her husband for life, with a power to him afterwards to appoint and distribute the same among their children; and in default of such appointment, an equal distribution among their children, who should survive him, and if none survived, then to his own use in fee. There is no dispute between the parties as to the sum now due to Mrs. Cassel's estate; and the defendant makes no objection to paying it, provided he can be secure in so doing. It will be necessary, therefore, only to consider, whether either of the objections taken at the argument furnishes any solid ground for a denial of relief. The first objection is, that the plaintiff has united in his bill a claim for the money as administrator of Mrs. Cassels, and also a claim for the same in his individual capacity, meaning probably, though not so stated in the bill, as husband of the deceased. It is very properly stated, that these claims are inconsistent with each other, and that an admission of the one necessarily supercedes the other. The allegation, however, of a right in his individual capacity, is sustained by no facts alleged in the bill, and indeed is a mere naked assertion in the introductory part of the bill, in which, after stating his representative character, the bill adds, “and also in his private and individual capacity." The bill is certainly incorrect in this union of inconsistent claims; and if the objection had been taken upon demurrer, it would have overthrown the bill, unless an amendment was allowed. Courts of Equity will not permit distinct and independent titles to be set up in the same bill, for that would be to allow multifariousness; much less will it permit inconsistent titles, or alternative titles, for that might tend to very inconvenient consequences in point of evidence. It is the duty of the party, who seeks the assistance of the Court, to state his own title directly, without any alternatives, and not to put the Court upon the duty to select, out of |