torney. But were it even supposed to be in the power of Samuel Bartle to refer the suit of Coleman against Andrew Bartle, he could not refer that of Andrew Bartle against Coleman; and this suit also is embraced in the same rule.

It is then apparent, that it is Andrew Bartle who consented to this rule.

It has been contended, that the consent of Samuel Bartle must also be implied. We do not think so. It is reasonable to suppose that his name would have appeared, had he been a party to the rule. But it was not necessary that he should be a party to it. Andrew Bartle was himself competent to make this reference, and the appearance bail never comes into Court, unless it be to defend the suit in consequence of the non-appearance of the defendant. But, were it even true that the consent of Samuel Bartle could be inferred, it would, nevertheless, be also true, that Andrew Bartle appeared, by the admission of the plaintiff; and such appearance, according to the decisions in Virginia, discharges his bail.

In the mode pursued by the clerk, in making his entry, the usual form of saying "this day came the parties," &c. is not pursued. But this is immaterial, because the parties perform an act in Court, which could not be performed without appearing; they consent to a rule which implies appearance, and the form of the entry cannot affect its substance. Were it otherwise, the appearance of the defendant is entered in the usual form before final judgment. On the return of the

1821.

Bartle

.V.

Coleman.

1821.

Bartle

V.

Coleman,

award, the following entry is made: "And now here, &c. at this day, &c. came, as well the plaintiff aforesaid, by his said attorney, as the said defendant, by Thomas Swan, his attorney, and the following award was returned," &c. The award is then recited, which shows, that the arbitrators proceeded on notice to Andrew Bartle only, and the judgment of the Court is immediately rendered for the amount of the award against "Andrew Bartle, the defendant, and Samuel Bartle, the security for his appearance." Yet the appearance of Andrew Bartle is formally entered on the record previous to this judgment. If, instead of entering the judgment in pursuance of the award, it had been entered in pursuance of the confession of the defendant, this would have been the very case cited from 1 Hen. & Munf. 329. And what distinction can be taken between this case and that? The counsel for the defendant in error says, that a judgment by confession is a different judgment from that entered in the office, and, therefore, must be a substitute for it received by consent of the plaintiff. And is not this also a different judgment from that rendered in the office? And is it not entered at the instance of the plaintiff ?

Were it necessary to pursue this argument further, we should all be of opinion, that judgment could not be rendered against the appearance bail on this award, and without executing the writ of inquiry, unless by his consent. But as we are of opinion, that the appearance of the defendant has discharged his bail, it is unnecessary to pursue the subject

farther.

The judgment against Samuel Bartle is erroneous, and as it is joint, it must be reversed against both.

Judgment reversed.

1821.

Prevost

V.

Gratz.

(CHANCERY.)

PREVOST V. GRATZ et al.

GRATZ et al. v. PREVOST.

To establish the existence of a trust, the onus probandi lies on the party who alleges it.

In general, length of time is no bar to a trust clearly established to have once existed; and where fraud is imputed and proved, length of time ought not to exclude relief.

But as length of time necessarily obscures all human evidence, and deprives parties of the means of ascertaining the nature of the original transactions, it operates, by way of presumption, in favour of innocence, and against imputation of fraud.

The lapse of forty years, and the death of all the original parties, deemed sufficient to presume the discharge and extinguishment of a trust, proved once to have existed by strong circumstances; by analogy to the rule of law, which after a lapse of time presumes the payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances require it.

APPEAL from the Circuit Court of Pennsylvania. This was a bill in Chancery, filed in the Court below, by the plaintiff George W. Prevost, as administrator de bonis non, with the will annexed, of

1821.

Prevost

V.

Gratz.

George Croghan, deceased, against the defendants Simon Gratz, Joseph Gratz, and Jacob Gratz, administrators of the estate of Michael Gratz, deceased, for a discovery and account of all the estate of G. Croghan, which had come to their hands, or possession, either personally or as the representatives of M. Gratz, who was one of the executors of G. Croghan, who died in August, 1782, having appointed M. Gratz, B. Gratz, T. Smallman, J. Tunis, and W. Powell, executors of his last will and testament. All the executors, except W. Powell, died before the commencement of the suit. B. Gratz died in 1800, and M. Gratz in 1811. W. Powell was removed from his office as executor in the manner prescribed by the laws of Pennsylvania, after the death of M. Gratz; and the plaintiff was thereupon appointed administrator de bonis non, with the will annexed. The bill charged M Gratz and B. Gratz, (the representatives of B. Gratz not being made parties,) with sundry breaches of trust in respect to property conveyed to them in the lifetime of the testator, and with other breaches of trust in relation to the assets of the testator after his decease; and also charged the defendants with neglect of duty in relation to the property and papers of G. Croghan, which had come

to their hands since the decease of M. Gratz.

The first ground of complaint, on the part of the plaintiff, related to a tract of land lying on Tenederah river, in the State of New-York, which was conveyed by G. Croghan to M. Gratz, as containing 9,050 acres, by deed, dated the 2d of March, 1770, for the consideration expressed in the

deed of £1,800. The deed was upon its face absolute, and contained the covenants of general warranty, and for the title of the grantor, which are usual in absolute deeds. At the time of the execution of the deed, G. Croghan was in the State of New-York, and M. Gratz was at Philadelphia. The land, thus conveyed, was, in the year 1795, and after the death of G. Croghan, sold, by M. Gratz, to one Lawrence, in New-York, for a large sum of money. The plaintiff alleged, that this conveyance made by G. Croghan to M. Gratz, though in form absolute, was in reality a conveyance upon a secret trust, to be sold for the benefit of the grantor; and he claimed to be allowed the value of the lands at the time the present suit was brought, upon the ground of a fraudulent or improper breach of trust by the grantee, or at all events to the full amount of the profits made upon the sale in 1795, with interest up to the time of the decree. This trust was denied by the defendants, in their answer, so far as respects their own knowledge and belief; and if it did ever exist, they insisted, that the land was afterwards purchased by M. Gratz, with the consent of G. Croghan, for the sum of £850 15s. 5d. New-York currency. It appeared from the evidence, that G. Croghan, and B. and M. Gratz, were intimately acquainted with each other, and a variety of accounts were settled between them, from the year 1769, to a short period before the death of G. Croghan: that he was involved in pecuniary embarrasments, and extensively engaged in land speculations: and some portions of his property were conveyed to one or

1821.

Prevost

V.

Gratz