Bellamy and others vs. Bellamy.-Opinion of Court.

the uses and trusts limited and appointed in the deed of the 19th day of November, 1844. It is further decreed that the defendant, E. C. Bellamy, account before George F. Baltzell, a Master in Chancery, of and concerning the said trust, rendering a full, true and perfect account in detail of all and singular the trust property and funds committed to his charge, and the rents, issues, profits, crops and proceeds, issuing out of the same, or accruing therefrom; that he be removed from his said trust, and ousted of his said trust estate, and that he deliver over to the Receiver hereinafter appointed, all of the said trust property and funds, and the rents, issues and profits, and crops, arising from, or issuing out of, the said trust property, and that he stand and remain restrained and enjoined from any interference with, control over, or management of, the said trust property, until the further order of the court in the premises. It is further ordered that Frederick C. Pittman be appointed Receiver of the court in this cause, upon his entering into bond in the penalty of ten thousand dollars, with good and sufficient security to be approved by the master, conditioned for the due and faithful performance of his duties. It is then ordered that the Receiver shall take possession of said trust property, and rent out the plantation, and hire out the slaves at public auction by the year, until the further order of the court, and shall render and file in the clerk's office of the court, annual accounts of his actings and doings in the premises, and of the amount of funds and securities in hand. It was further decreed that the master proceed to ascertain and report to the court, the names of the creditors entitled to the benefits of the said trust estate, with the amount due to each respectively, and their respective order of priorities, and to advertise, in a reasonable and proper manner, for the presentation of such claims; and all further directions are reserved until the coming in of said reports.

It is very plain that this decree is not more, or so nearly

Bellamy and others vs. Bellamy.-Opinion of Court.

a final decree, as any of those we have before mentioned as having been decided by the Supreme Court to be not final, nor is there any precise similitude between it and the case of Forgay, et al., v. Conrad, which will authorize us to entertain this appeal on the authority of that case. There the property was decreed to be delivered to the complainanthere to a Receiver of the court. There the property, if received by the complainant, who was assignee of a bankrupt, would have gone into distribution among the creditors of that bankrupt—here it is retained in the custody, and under. the control of the court. There if the appellants waited to appeal, until the accounts were reported by the master, and confirmed by the court, they were subject to an irreparable injury-here no such injury can ensue. It was, moreover, laid down in that case, that where money is directed to be paid into court, or property to be delivered to a receiver, or property held in trust to be delivered to a new trustee appointed by the court, or in cases of a like description, such orders or decrees are interlocutory only, and are frequently and necessarily made in the progress of a cause. We think, also, the Supreme Court went as far in assuming jurisdiction of the appeal, in the case of Forgay v. Conrad, as they would willingly go, and were rather surprised into an assumption of jurisdiction, by the perception of irreparable injury to the appellants, if they refused to entertain the appeal, than by any strong opinion that the decree was final; because they say, "undoubtedly it is not final in the strict technical sense of that term," and because they admonish chancellors in the Circuit Courts not to shape their interlocutory decrees so as to give them a final effect. The opinion delivered in the case of Forgay v. Conrad is an able and lucid one, and deserves well the serious consideration of every chancellor, when engaged in making an interlocutory decree.

There are many things required by the decree given in this cause to be done, which, when done, may be the sub

Fry vs. Hawley.-Points decided.

ject of exception, and, consequently, of appeal. If an appeal should be taken at every step, where a party may feel dissatisfied or aggrieved, there is no foreseeing when a cause would end, and the delays of chancery would become as justly a blot and reproach on the jurisprudence of this country, as they now are, and long have been, to that of England.

We consider the decree appealed from in this case as an interlocutory, and not a final judgment, sentence or decree. The appeal must, therefore, be dismissed, and Samuel C. Bellamy, the appellee, must recover his costs.

DANIEL FRY, APPELLANT, V. NELSON HAWLEY, APPELLEE. H. and A. having obtained a contract to carry the United States mail from the port of Apalachicola to Chattahoochee, on the Apalachicola river, for four years, at a yearly stipend of about $2,600; and H. having informed one F. that he was desirous of purchasing a steamboat for the service, and that it would require about $6,000 to purchase one suitable in all respects, and that he, H., was to furnish one-half of said sum, and A. the other half, and that each was to own a moiety in the said contract and boat; and F. agreeing with H. to furnish, and actually paying into the hands of H. one-half of the sum which he, H., had agreed to furnish or $1,500-H. binding himself to give to F. an interest with himself to the extent of the amount placed in his hands, and that he, F., should share in the profits accruing from said contract, in proportion to that amount, "all losses to be borne equally ;" and the said boat having been built under the superintendence of A., and at an expense of $14,900, $6,000 of which sum was paid, and the balance cured by a mortgage upon the boat, which A. was authorized by H. to execute-Held, that F. acquired only an interest in said boat in proportion to the amount furnished by him--that is,about one tenth,instead of one-fourth, which was the amount of interest claimed by F.-Held, also that, although the balance of the purchase money was paid by the profits of the steamboat, the extent of the interest of F. therein was only one-tenth, he not

se

Fry vs. Hawley.-Statement of Case.

being liable upon the contract of purchase, the boat having been built under the direction and superintendence of A., and purchased by A., acting for himself and H.

The Hon. THOMAS DOUGLAS, Judge of the Eastern Circuit, and the Hon. J. WAYLES BAKER, Judge of the Middle Circuit, sat at the hearing of this case, in the place of Justices THOMPSON and SEMMES, who had been of counsel in this cause. The following statement of the case was made by DOUGLAS, Justice, who delivered the opinion of the court:

This suit was instituted by Daniel Fry, the complainant, against Nelson Hawley, Benjamin Allen and Benjamin S. Hawley, defendants, to obtain the specific execution of a contract. The facts are as follows: viz: one Henry Allen and the defendant, Nelson Hawley, had entered into a contract with the United States, to carry a mail between Apalachicola and Chattahoochee, in Florida, for four years, at a yearly stipend or sum of about $2,600; and for the purpose of performing the said contract, as well as the business of carrying merchandize and conveying passengers, entered into an agreement on the 8th day of May, 1847, which agreement, under the hands and seals of the parties, is as follows, viz:

STATE OF FLORIDA-FRANKLIN COUNTY.

This agreement made and entered into between Henry Allen, of the State and county aforesaid, and Nelson Hawley, of the aforesaid State, and county of Gadsden, witnesseth-That the said Henry Allen and Nelson Hawley, being jointly interested in a contract with the United States, for carrying the mail for four years, commencing on the first day of July next, on the Apalachicola river, between the city of Apalachicola and Chattahoochee, on said river, known as route No. 2523, all in the State aforesaid, and in order to carry out said contract, to agree that the said Henry Allen, on his part, is to furnish in cash the sum of three thousand dollars, and the said Nelson Hawley, on his part, is to furnish the like sum of three thousand dollars. And

Fry vs. Hawley.-Statement of Case.

it is further understood and agreed that the said money, say six thousand dollars, is to be paid in the hands of the said Henry Allen, and he is to proceed at once to New Orleans, and if necessary up the Mississippi and Ohio rivers, for the purpose of purchasing a suitable steamboat to carry out the conditions of the said mail contract-using his judgment and means to the best advantage in making a selection and purchase of said boat; and if found upon examination to be for the advantage of the parties interested to pay more than $6,000 for said boat, he, the said Allen, shall be authorized to give a joint note for the balance required, or secure the parties by lien upon the boat, as may be deemed most expedient, all necessary expenses accruing in purchasing said boat to be shared equally by both the above named parties. And it is understood and agreed that said Allen is to have command as master of said boat, or boats, at a reasonable salary, say one hundred dollars per month, and to give his undivided attention to the interest of the contractors. And it is further agreed that Daniel Fry is to be employed in the capacity of engineer, to furnish his second, at a salary of one hundred and thirty-five dollars per month, so long as he faithfully discharges his duties in the above capacity, to the satisfaction of the master of said boat. And on the same day, (8th day of May, 1847,) after said agreement had been executed, an arrangement was made by the said Nelson Hawley and the complainant, as evidenced by a receipt given by the said Hawley, which is in the following words, viz: "Received of Daniel Fry fifteen hundred dollars, to be invested in a steamboat by Captain Allen, for the purpose of carrying the mail between Apalachicola and Chattahoochee, for the term of four years, commencing July 1, 1847; Nelson Hawley being jointly interested with Captain Henry Allen in the above mentioned contract, binds himself to give to the said Fry an interest with himself, to the extent of the amount placed in his hands, and in proportion to that amount, he is to share in the profits accruing