There is no pretence that there is any thing untrue in any of the averments which the plea contains on the subject of the proceedings at law-such as that a judgment was obtained by the respondent-that the same is in full force, &c. The first averment in the plea, which will require a more particular consideration, is the one denying that the respondent had at any time obtained from E. Williams, any allowance or payment, for, or on account of his being bail for Gibson, in an action brought against him by one Evans. The respondent had been permitted, as appears by the facts of the case, to retain out of a fund, on which the appellant had a claim, a considerable sum to save him harmless against this responsibility, and which was, in all probability, allowed to him, on the trial at law. If, therefore, it could have been shown that Blake had been fully indemnified, or paid for this liability from any other quarter, and that this fact had come to the appellant's knowledge since the judgment at law, it would seem no more than equitable, notwithstanding these proceedings, thus far to open the account between them. But has this been done? The allegation of the bill in substance is, that Blake has been twice indemnified for the same loss, or, in other words, that he had been twice reimbursed the monies which he paid as the bail of Gibson. This fraud, which is so unhesitatingly charged upon the respondent, is not made out by any testimony in the cause. Independent of Blake's positive and absolute denial, which is equivalent to the testimony of one witness, there is nothing in the deposition of Williams, who is the only

1821.

Hughes

V.

Blake.

1821.

Hughes

V.

Blake.

witness to this point, to establish the fact as stated in the bill. This gentleman has been twice examined, once in the year 1805, as a witness in the trial at law; and again, as a witness in this cause. On his first examination, he stated that he was informed by Blake that he held in his hand about 6,300 dollars, which had been received of Henry Newman, as an indemnity for his having become bail for Gibson in an action by some person whose name he did not recollect, on which pretence Blake refused to pay him this sum. In his second deposition, which was taken in this cause, he swears that he was informed by Blake, that he had received from Newman about 6000 dollars, which he should retain, in consequence of his liability to Evans, as the bail of Gibson; and that he, Williams, allowed the respondent to apply this money for that purpose. Now, admitting that Blake retained these monies, and with the consent of Williams, who, it appears however, had no interest in, or control over them, with intent to apply them in this way, where is there any proof whatever, in contradiction of Blake's answer that he ever did make that use of them. He might have securities of Gibson of various kinds, the avails of which he might have a right to retain for the same object, but if he actually made only one appropriation for such object, no one could complain. That the fund spoken of by Williams, which arose out of Newman's note, was not applied to the indemnity which has so often been mentioned, appears not only by an averment in Blake's plea to that effect, but by the testimony of Gibson

himself, a witness of the appellant, who declares, that the note of Newman was subject to his order; that no privity existed between Williams and Blake respecting the same; and that it had not been placed in Blake's hands as an indemnity for becoming his bail. It follows, therefore, that Blake could not have obtained from Williams any allowance or payment on account of this responsibility; and we accordingly find, from the bill itself, that on a settlement which took place between Blake and Gibson, in November, 1796, about two months after the acceptance in favour of the appellant, the former fell in debt to the latter a sum exceeding two thousand dollars, the payment of which, by Blake, is one subject of complaint in the appellant's bill. Now, it is more than probable, that in this settlement, Gibson received a credit for the very money of which Williams speaks, as Gibson acknowledges it to have been a final settlement of all the accounts between him and Blake. The Court, therefore, is entirely satisfied, that the averment in the respondent's plea, which it has just been considering, is fully established, and that the proof is such as to leave no room whatever to believe, that Blake was ever repaid the moneys he advanced as the bail of Gibson, from any other fund than that which the appellant had consented should stand pledged for that purpose. As little truth is there in the allegation, that what Williams could testify on this subject, was unknown to Hughes during the pendency of the action at law; for Williams, who is examined as a witness for the

1821.

Hughes

V.

Blake.

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.

1821.

Prevost

V.

Gratz.

Judgment reversed.

(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