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Randel v. Brown. 2 H.

pay the debt to Camac? And, if they were not so delivered; then, 2. Had Brown such a legal or equitable interest in the certificates as authorized the decree of the court below? A just solution of these questions depends upon a proper examination of the evidence applicable to them, and the particular circumstances under which the witnesses acquired a knowledge of the facts they have deposed to.

Shortly after the bill was filed, and before Brown had filed his answer, he went to Delaware to ascertain what evidence he could obtain from persons having a knowledge of the services he had rendered to Randel. And from the inquiries he made of several of the witnesses, and the disclosures made to them, of the nature of his controversy with Randel, it is reasonable to suppose that he intended, at that time, to rest his defence upon the amount and value of his services only, and that he had not then thought of claiming the certificates, as having been delivered to him in payment of a debt due for those services. The depositions of four of those persons are found in the record. T. B. Roberts states, in his deposition, that Brown asked him what evidence he could give, as to the value of his services while with Randel, stating that the witness was aware of his having been for years doing business for him.

* The witness then says that Brown stated to him, “ that [ * 420 ] the certificates had been put into his hands by Mr. Randel, to raise money upon them to pay certain debts of Randel's in Philadelphia ; one of which he mentioned was to Mr. Camac; I think he stated himself under some obligation to have paid by Mr. Randel; and another debt to Mr. Charles Ingersoll; he did not state that the balance was for himself. He said he had exerted himself to negotiate the certificates to several persons, but had not succeeded; " that Mr. Randel wished him to return the certificates to him, but he had refused to do so, until Mr. Randel settled certain debts he owed."

A. C. Gray, to whom Brown applied, for the purpose of getting his services as commissioner to take depositions for him, in this suit, says, Brown stated that he had received a transfer of $10,000 from Randel of the canal's debt, for the purpose of raising money; with which Mr. Randel wished to pay his debts. He stated also, that Mr. Randel owed him money for services which he had rendered him during the long litigation which had taken place between Randel and the canal company. In consequence of these things, he had determined to hold on to these certificates, as the only means to enforce the settlement of his claims."

Thomas Janvier, another of these witnesses, states, that when Brown applied to him to ascertain what testimony he could give in

Randel v. Brown. 2 H.

this case, Brown stated that Randel had promised to pay him two and a half per cent on the judgment against the canal company. The witness replied, that his testimony might operate against him, as the only claim he had ever heard him assert, was, that he intended to make Randel pay him $2,000 for his services. Janvier then says: “ That in the course of the conversation he gave me a history of the transaction, upon which this suit is founded; and told me that Randel had given him these certificates, which are now in controversy, for the purpose of negotiating a loan, to pay certain debts he had contracted — debts due to Mr. Camac, Mr. Charles Ingersoll, and himself; so far, I recollect positively. I am certain, from the information of Mr. Brown, that the certificates were given for the purpose of negotiating a loan, to enable Randel to pay certain creditors. I am certain he named Mr. Camac, Mr. C. Ingersoll

, and himself as creditors."

Cornelius D. Blaney, the fourth witness, says, he does not recollect that Brown stated how the certificates came into his hands; in other

respects his testimony is, substantially, the same as that of [ * 421 ] the other * three witnesses; and it appears that he was

present at the conversation between Brown and the witness, Roberts.

After collating this evidence with clearness and ability, the masters proceed to say:

“ It is remarkable that to none of these persons did the respondent state the fact, that he had transferred these certificates into his own name; it is remarkable also, that if, at that time, he did entertain the same clear and positive conceptions of his rights, which is set forth in the answer, he did not simply and plainly state that right, and say, “ they (the certificates) were given in payment, or part payment of my own claim, and of my liability to Mr. Camac.” We cannot close our minds to the force of the testimony of these four persons. It has been ably urged that evidence gathered from the declarations of a party is unsafe, peculiarly liable to the effects of misapprehension, of inattention, of defect, of recollection; that a word omitted, or displaced, may change the whole character of the declaration. We have felt the force of the argument, but it does not prevail against the influence of the concurring testimony of four intelligent and respectable men, giving a very uniform account of the respondent's representation of his own case; and, in relation to the question of trust, giving such a narration as to lead to one and the same result. We have observed, too, that it is the same species of evidence upon which the respondent asserts his alleged contract with the complainant, which contract he states in his answer, in the words or declarations of the complainant, alleged to have been uttered to

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himself, at a time much less recent than his own declarations to the witnesses."

“ The testimony of these witnesses, then, establishes, in our opinion, and accordingly we find, and so report:

“ 1. That the delivery of the certificates by the complainant to the respondent was not absolute, but upon a trust.

6 2. That the trust was to raise money.

“ 3. That of the money so to be raised, part was to be paid to Mr. Camac; and that, as to this part, the respondent had a direct interest in the execution of the trust, in consequence of his acceptance of the draft drawn in favor of Mr. Camac, referred to in the answer, and of his retransfer of the interest in the judgment upon which the draft was drawn.

“4. That another portion of the money so to be raised, was to be paid to Mr. C. Ingersoll.

“5. That no express appropriation of the balance, or any part * thereof, was made at the time by the complainant in [ * 422 ] favor of the respondent.”

We concur entirely with the masters in their reasoning, and in the conclusions they have arrived at, upon this testimony, except as to the supposed interest of Brown in the execution of the trust, mentioned in the third specification. Upon that we shall have occasion to comment, in another part of this opinion. This evidence sustains the allegations of the bill, fully, and contradicts the answer, as to the objects and purposes for which the two certificates were delivered by Randel to Brown. There is, therefore, no further pretence to say that Brown received the certificates in payment of a debt to himself, and for the purpose of paying the debt to Camac. And this evidence establishes another material fact in this case; and that is, that Brown had no interest or property in the certificates before they were delivered to him by Randel; and whether he acquired any in them afterwards, leads us to the consideration of the second question. Had Brown such an equitable interest in the certificates as authorized the decree of the court below ?

In the third specification before referred to, the masters reported that Brown had a direct interest in the certificates, on account of his acceptance of Randel's order in favor of Camac, and his having relinquished to Randel his interest in the judgment. It is difficult to ascertain upon what ground it was assumed, at the date of the report, that Brown had an interest in these certificates. The order was drawn upon a special and contingent fund, which might never be received ; and until received, Brown was not liable to pay. There is no proof in the cause that can be relied upon, to show on what con

Randel v. Brown. 2 H.

sideration the reassignment was made; unless the statements in Brown's answer are to be received as evidence. When the answers of the defendant are directly responsive to the allegations of the bill, they amount to positive proof. But in this case there is no allegation in the bill, in relation to this assignment or reassignment. Brown, in giving a history of the transactions between him and Randel, sets up in his answer this sum of $2,000, as having been assigned to him in part payment of his services; and in another part of his answer, he states that, upon receiving the certificates and power of attorney, at the request of Randel, he reassigned his interest in the judgment to him. This being clearly matter in avoidance, it is entitled to no more

consideration, as evidence, than are the allegations of the [ * 423 ] bill. There * is no evidence, therefore, that the reassign

ment was made in consideration of the delivery of the certificates by Randel to Brown. But there is strong presumptive evidence that it was made in consideration of the payment of the order to Camac by Randel, or of his promise to Brown, that he would pay it; for it appears by the report of the masters, that it was admitted by the parties, and the counsel on both sides, that the amount of the order had been paid by Randel to Camac after the commencement of this suit.

But if Brown had even acquired a valid lien on the certificates, on account of the acceptance of the order, and the reassignment of his interest in the judgment, the payment of the order by Randel, pend. ing the suit, extinguished the lien, and no decree ought, on account of this supposed lien, to have been rendered in favor of Brown; for it is the rights of the parties, at the time the decree is rendered, that ought to govern the court in rendering the decree. In either aspect of the case, however, Brown's right to these certificates is reduced to naked possession; and, since his refusal to restore them to Randel, his possession has been fraudulent.

It has been contended, by Brown's counsel, that, as the masters have reported that a large amount was due from Randel to Brown, and that Randel had parted with all the rest of his certificates of funded debt; that, therefore, Brown had a right to payment out of the certificates in controversy in this case. In support of this proposition, they relied on the case of Handy and Harding, 11 Wheat. 103.

The bill, in that case, stated that Wheaton, under whom the complainants claimed, as heirs at law, about the year 1802, began to exhibit symptoms indicating loss of intellect, and soon became incompetent to the management of his estate. Under these circumstances, it was agreed among his children that Handy, who had married his daughter, should endeavor to take his estate out of his hands, and

Randel v. Brown. 2 H.

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preserve it for the benefit of his heirs at law. That it was agreed that Wheaton should be prevailed on to convey the real property to Handy, for a nominal consideration, who should forthwith execute an instrument of writing declaring that he took and held the same in trust. 1. To provide a decent support for the grantor, during his life; and after a full remuneration for his expenses and trouble, in that respect, to hold the residue of the estate for the benefit of the heirs at law. Handy procured the conveyance from Wheaton, and entered upon and possessed the property till his death, but refused to execute the declaration of trust.

The bill then prayed for an account; and that a decree [ * 424 ) might be rendered, exonerating the estate from the deed to Handy, after satisfying his just claims, &c.

The answer denied that Wheaton was incapable of conveying, when the deed was made. It denied also that the defendant purchased as a trustee; and averred, that he was a purchaser for a full and valuable consideration.

The circuit court decreed that the deed should be set aside ; and that an account should be taken of the receipts and disbursements of Handy, and that he should be credited for all advances made, and charges incurred for the maintenance of Wheaton during his life, and for repairs and improvements made on the estate. This part of the decree was affirmed by the supreme court. Handy's possession of the estate was consistent with the intention of the parties; the advances made and charges incurred, for the maintenance of Wheaton, were according to their agreement; and the repairs and improvements made, preserved the estate, and enhanced its value. Thus far Handy executed the trust fairly, and thereby acquired a lien on the funds in his hands, arising from the rents and profits; nor were these acts tainted by his subsequent fraud, in refusing to execute other parts of the trust; and besides, the complainants, in their prayer for relief, authorized the court to allow Handy his just claims against the estate. This case does not, therefore, give any support to the proposition assumed by the counsel of Brown.

There is no parallel between these cases, as a brief comparison will show. Brown's possession of the certificates, after refusing to restore them to Randel, was not only fraudulent, but wholly inconsistent with the contract with Randel; and in violation of the trust upon which he received them. And Randel, so far from authorizing the court to allow Brown's claim out of the certificates, stated positively in his bill, that he owed him nothing. The proof shows conclusively that Brown had neither property nor interest in the certificates, before they were delivered to him by Randel. Unless he can

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