Mr. Neale, for defendants in error:

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claims of the two creditors and the two legatees | rights to the lot of land in question, and to the named in these exceptions remained sub judice. rent of which lot the appellant in this chancery Last, that the court had no jurisdiction to de- suit claims to be entitled. It would therefore cree satisfaction of the creditors out of the real appear to be a fit subject for an action at law, estate. and not a bill in equity, for the right of property in this case is a question which involves 2d. Exception. If this exception is made as matters of fact as well as of law, and should a legal and valid objection, it is thought that be adjudicated in a court of law, where the apsuch is not the law; on the contrary, the allow-pellant has adequate remedy; and having such ance is fully authorized by law. No doubt the remedy, a court of equity is not the proper commissioner was guided by the allowance forum. 1 Laws U. S. old edition, p. 59, sec. made the executor of Mandeville by the Or- 16. phans' Court of Alexandria County, in which 405*] *the accounts were settled; and that court had full power and authority, under the testamentary system of Maryland, to make the allowance, it being a matter within the admit ted discretion of the court; and being in its discretion, not even an appeal, much less this ex-sonal knowledge and consent, and that they ception, is sustainable. 2 Laws of Maryland, 482; Dorsey's Testamentary Law of Maryland, 17; 1 Peters, 565; 5 Ib. 224.

The exception, if sustained, might, by a future proceeding on the part of the appellant against the executor's legal representative, tend to defeat, at least in part, the commission allowed Mandeville's executor by the Orphans' Court aforesaid, and which could only have been done, in the first instance, by an appeal, alleging and proving fraud in its procurement. It would, therefore, seem to be an attempt to do that indirectly which could not have been done directly and lawfully.

The evidence in the record is, that the Misses Mandeville entered on the premises in dispute, under a gift from their uncle, the late Mr. Mandeville, and that they held, used, and occupied it for more than twenty years prior to their said uncle's death, and that, too, with his per

still hold, use, and occupy it as their own property. If, then, the Misses Mandeville entered on the premises under color or claim of title, and held possession adversely to their uncle for so long a period, with his knowledge, and without any attempt on his part to eject them, it gives them good right and title under Virginia law, and is a complete bar to a possessory action, although it might not be against a writ of right, founded on the seisin of the appellant's devisor or testator, for in Virginia it has been decided that a devisee, like an heir, may maintain a writ of right.


As to the first exception, because—

1. The realty as well as personalty being liable, under the will and law, to both debts and legacies, it is immaterial to the residuary devisee and legatee to which object the personalty is applied. Tayloe v. Thomson, 5 Pet. 367; 5 Geo. II. ch. 7, 1732; Silk v. Prime, 1 Dick. 384; 1 Bro. C. C. 138, note; 2 Stat. at Large, 103, 104, sec. 1-756, sec. 4.

Mr. Davis, for the defendant in error, con3d. Exception. This exception is clearly un-tended that the exceptions were properly overtenable for the following reasons: that is to say, because the judgments of every court of competent jurisdiction, if fairly obtained, are conclusive upon the parties, until reversed by writ of error or supersedeas; nor can a court of equity look into them, unless fraud, mistake, accident, or surprise in their procurement be alleged and proved; in such a case, it is admitted that chancery has jurisdiction. But no such allegations are to be found in the record of this cause, and for want thereof, this honorable court, sitting as an appellate chancery court, will not, it is imagined, disturb the allowance. The appellant was made a party defendant on the 8th of June, 1842, and although Commissioner Eaches made his report on the 31st of May, 1839, the appellant never filed exceptions thereto until the 3d of October, 1846, long after the death of Mandeville's executor; and having so long failed to do so, it is submitted whether the court will now entertain the same. 2 Robinson's Practice, 214, 383; 3 Howard, 691; and the same remarks apply to Commissioner Green's report.

[Mr. Neale then went into an argument that the statute of limitations did not apply.]

7th and 8th Exceptions. The claim set up by the appellant for use and occupation is strictly legal, and as a general principle can only be enforced in a court of law. Such claim must be founded on the privity of contract, either express or implied, and neither the one nor the other can arise without the previous relation of landlord and tenant. 1 Howard, 153.

No such relation is pretended in this case; none such ever existed; the parties, on the con406*] trary, are now contending before *the court below, in a suit at law, about their legal

2. Had the executor sold the specific legacy for payment of debts, the legatee would have been substituted to the creditor's rights against the realty; it being liable to the debts by law, and charged with the legacies by will, and only the residue given to West.

By analogy to specialty creditors, 2 Lomax on Executors, 252, 253, sec. 7, 253, 254, secs. 14, 15, 16; Byrd v. Byrd, 2 Brock. 171.

Or where the devise is of the residue of personalty and realty, *Hanby v. Roberts, 1 [*407 Ambl. 129; 2 Smith's Ch. Pr. 282; Norris v. Norris, 1 Dick. 253; Headly v. Redhead, Coop.


Or when the lands are charged with debts, Keeling v. Brown, 5 Ves. 359; 2 Smith's Ch. Pr. 282, 283, a; Eland v. Eland, 4 Myl. & Cr. 42; 1 Story's Eq. Jur. secs. 565, 566; Clifton v. Burt, 1 P. Wms. 678, 679, Cox's note; Haslewood v. Pope, 3 P. Wms. 323; 2 Lomax on Executors, 254, sec. 13.

3. The language of the will imports a debt, and this legacy in satisfaction.

As to the second exception, because the commission is an incident to the legacy, and has been allowed by the Orphans' Court, and for the reasons given on the first exception.

As to the third exception, because-
1. The exception does not specify item by

item the part objected to, nor the grounds of objection, and is in the alternative. Harding v. Hardey, 11 Wheat. 103; Wilkes v. Rogers, 6 Johns. 568, 591, 592; Story v. Livingston, 13 Pet. 359, 365, 366; Buller v. Steele, reported in 2 Smith's Ch. Pr. 372.

2. If the exception covers all the items, then, as some are proper, it must be overruled. Green v. Weaver, 1 Simons, 404; 3 Cond. Ch. R. 204, 218, 219.

3. No objection was made before the master for want of, or to the competency of, the proof.

4. The verdict and judgment fix the debt as due at testator's death; and the receipts on the execution show its payment. Garret v. Macon, 2 Brock. 213, 214; Strodes v. Patton, 1 Brock. 230, 231; Powell v. Myers, 1 Dev. & Batt. Eq. 502; Munford v. Overseers of Poor, 2 Rand. 313, 316; Chamberlayne v. Temple, 2 Rand. 384, 396, 397.

5. There is no bill of particulars, nor any part of the record showing the items on which said judgment is founded.

6. The burden of showing the items to be barred rests on the exceptant, the judgment being prima facie evidence of a just debt, and he has produced no proof, either of what the items were, or of what proof was before the jury, or that any of them were barred by limitation.


crued in January, or in December, 1833; either case, it may have been within five years from the beginning of the suit; if after May, it must have been so.

The items composing $66.48 have nothing to fix their date, except that they are prior to April 30, 1835.

The item of $158.191⁄2 has no date assigned; it is only said to have been found in a book for 1831, 1832, and 1833; if it accrued due after July 25th, 1832, it may have been within five years of writ, and was within five years before testator's death.

Rev. Code (1792), 167, S. LVI. 8. The law requiring the court to strike out the items barred, and dispensing with a plea of limitation, the presumption is that any item which, though apparently barred, has not been stricken out, was sustained by evidence removing the bar. 2 Lomax on Executors, 423, sec. 25; 2 Pet. 165; 2 Howard, 340; Brook v. Shelly, 4 Hen. & Mun. 266.

9. If any items be apparently more than five years before suit, but not before testator's death, the executor may have promised to pay them within the five years, which he had a right to do.

The obligation to plead statute is discretionary, and failure should be shown to be unreasonable.

*10. The dealings between Bartle and [*409 Mandeville were mutual, long continued, and complex, and probably neither party kept or had full proof of all items, so that the only mode of making a fair settlement was by reference to a commissioner, with production of books and papers, and it should be shown that this proceeding was ill-advised, as in case of submission to arbitration. Strodes v. Patton, 1 Brock. 230, 231.

7. If he rely on the report and account incorporated by the clerk in the record of Bartle v. Mandeville's Executor, it is no part of the record, and so not competent evidence. Cunningham v. Mitchell, 4 Rand. 189, 190, 192; Moore v. Chapman, 3 Hen. & Mun. 260, 267; Lessor of Fisher v. Cockerel, 5 Pet. 248; Lessor of Reed v. Marsh, 13 Pet. 153. It does not appear ever to have been returned and filed in court, nor to have been confirmed or adopted by the 11. It appears, on the contrary, to have been court or parties. No judgment was entered on prudent and beneficial, for, 1st. Mandeville gets it. It does not appear even to have been read credit by his own books for $912.01, 17th Feb408*] *before the jury. Nor that it was allruary, 1834. 2d. For $1,314.06, for none of or the only evidence before them; and in the absence of proof to the contrary, the verdict and judgment must be presumed right. Thompson v. Tomlie, 2 Pet. 165; Grignon's Lessee v. Astor et al. 2 How. 319, 340; Voorhees v. Bank of United States, 10 Peters, 472, 473; Williams v. United States, 1 How. 290; 1 Saund. 329, notes 3, 4, 330, note 5; 2 Saund. 50, note 3; 1 Saund. 334, note, 9; 2 Lomax on Executors, 428, 429, sec. 33.

8. If the report is to be considered, then it does not appear from it that any item allowed in that report accrued more than five years before testator's death, nor more than five years before the commencement of the suit, and it rests on the exceptant to show that the items were barred. Adams v. Roberts, 2 How. 486,


Testator died 25th July, 1837, narr. filed Aug. rules, 1838. The capias must have been before May, 1838; it may have been before October, 1837, and on or at any time after July 25, 1837, the date of testator's death.

All the items reported as due or as suspended, i. e., for further evidence, appear to have accrued during or after 1834-except $158.19%, the several sums of $26.88, $17.23, $22.37, making $66.48, and $37.62.

which is there any proof in the record or report, and which seems to have come entirely from Mandeville's books by consent of plaintiff. 3d. For the claims of S. B. Larmour & Co., Daniel Cawood & Co., against Bartle, included in the above $1,314.06, otherwise than by consent not an offset.

As to the seventh and eighth exceptions:

1. A joint demand cannot be set off against a several demand. 2 Story's Eq. Jur. sec. 1437.

2. Credit for the whole sum is claimed against each legacy.

3. It does not appear that any such sum is due as claimed, no tenancy being proved, and, on the contrary, an adverse occupation being expressly reported.

Mr. Justice Woodbury delivered the opinion of the court:

The original proceeding in this case was bill in chancery instituted in September, 1839, in the Circuit Court for the District of Columbia, sitting for the County of Alexandria. The object was to recover a legacy of $3,000, bequeathed by Joseph Mandeville, in 1837, to Ellen Mandeville, now the wife of Smith.

William C. Gardner, the executor, took upon

The $37.62 is dated 1833; it may have ac- himself the execution of the will, and was made

one of the original defendants, with West and other jurisdiction, and in which no service had several other legatees. West, being residuary been made on him. West v. Randall, 2 Mason, legatee, took a leading part in conducting the C. C. 181; Joy v. Wirtz, 1 Wash. C. C. 517; defense in the Circuit Court, and made the ap-Elmendorf v. Taylor, 10 Wheat. 152; Wheelan peal to this court. Various answers were put v. Wheelan, 3 Cowen, 538. in by the respective respondents, several depo- *To proceed next to the consideration [*411 sitions filed, and some documentary evidence. of the exceptions made below, it is to be reFrom these it appears, that proceedings had for membered that the first one was waived at the some time been instituted in the Orphans' Court hearing, and need not, therefore, be repeated. for the County of Alexandria, for the purpose The second exception is, that the executor, of settling the estate of Joseph Mandeville. | Gardner, was improperly allowed a commission Most of the debts had been adjusted, and some of $84.29 on a specific legacy of slaves, furniof the legacies; and the personal estate being ture, etc., made and paid to Sarah A. Hill. exhausted, permission had been asked to sell and apply a part of the real estate, situated in said County of Alexandria, to pay the residue. To this application, as well as to some of the 410*] previous proceedings *and decrees in the Orphans' Court, sundry objections had been interposed. But the exceptions made by West to the last report of the commissioner, in the Circuit Court, in May, 1846, disclose all the matter finally relied on in opposition in that court by the respondent. Those exceptions having been there overruled, this appeal was taken.

Before going into the consideration of those exceptions in detail, and the correctness of the decision which was pronounced upon them, it may be well to dispose of a preliminary question raised here, that James Mandeville, of Virginia, a legatee of 10,000 acres of land there situated, ought to be made a party defendant, with those already before the court.

We feel obliged to overrule this objection. It is not clear that it could be made here after an appeal; though, if proper, the case might perhaps be sent back, and an amendment as made there as new parties can be admitted there as late as the final hearing. Mitford, Pl. 144, 145; Owing's case, 1 Bland. Ch. 292; Clark v. Long, 4 Rand. 451.

This commission was at the rate of ten per cent.; and though that rate seems high, yet, if the Orphans' Court had authority to make any allowance in such a case, its decision within its authority and jurisdiction must be considered binding. 1 Peters, 566; Thomas v. Fred. City School, 9 Gill & Johns. 115.

On general principles, it would seem just and proper for all such courts to make some compensation to executors for such services as paying over legacies, no less than for paying debts. In the case of specific legacies, the trouble and risk are as great, if not greater, than in moneyed legacies, and it would be difficult to find elementary principles to justify commissions in one case, and withhold them in the other.

If this point is to be governed by these principles, as it must be, provided the laws of Virginia at that time controlled the matter in the County of Alexandria, then the exception must fail under those principles, and under a practice, well settled there, authorizing in such cases a quantum meruit. Under that, as much as ten per cent. on moneys received and paid out has in several instances been sanctioned, McCall v. Peachy, 3 Munf. 301; and Hutchinson v. Kellam, Ibid. 202.

But if it is to be governed by the laws of Maryland, as is contended by the plaintiffs, a like result will follow, by means of express statutory provisions and decisions in that State.

At the same time, it is true as to exceptions to a master's report, that none can generally be made in the appellate court which were not taken below. Brockett et al. v. Same, 3 How. They contend this, because in February, 691. The objection here, however, must in any 1801, Congress established in Washington and view be overruled, because the Orphans' as Alexandria counties an Orphans' Court for each well as the Circuit Court, for the County of county, and provided that they "shall have all Alexandria, proceeded, and ought to have pro- the powers, perform all the duties, and receive ceeded, against parties and property situated the like fees, as are exercised, performed, and within their limits, and not against either situ- received by the register of wills and judges of ated like James Mandeville and his land in the Orphans' Court within the State of MaryVirginia, and without their jurisdiction. Hal-land," etc. 2 Statutes at Large. p. 107, sec. 12; lett v. Hallett, 2 Paige, 15; Townsend v. Auger, Yeaton v. Lynn, 5 Peters, 230.

3 Conn. 354. Though he held his land under It is argued that this provision extended to the same will, yet it is admitted that he and his the power and duty of the Orphans' Court in land were both in another State. Another ex- | Virginia to allow commissions as large as here, cuse for not joining him is, that property and for specific as well as moneyed legacies, enough existed within the County of Alexandria and not to the mere organic structure and juristo discharge the claims of the original plain-diction of the Orphans' Court, leaving all else tiffs without a resort to James Mandeville, or in Alexandria County to be governed by the the land devised to him. Russell v. Clarke's laws of Virginia, and in Washington County Executors, 7 Cranch, 72. by the laws of Maryland.

Especially must West and all the property If this view be correct, which is supposed to devised to him be first made liable, as he is be the one *usually acted on in this Dis- [*412 only a residuary legatee, or, in other words, is trict, it was provided in Maryland by statute entitled only to what is left, after all others in 1798, ch. 101, that a commission may be alare satisfied. And, finally, it was not neces-lowed, "not under five per cent., nor exceeding sary to make James Mandeville a party to this ten per cent. on the amount of the inventory.' bill, when neither he nor his land could be af- Nichols et al. v. Hodges, 1 Peters, 565; 5 Gill & fected by a decree made against other persons Johns. 64. and other lands, and in a case instituted in an

The third exception is, that a judgment was

allowed by the executor to be recovered by one
Bartle against the estate of the deceased Mande-
ville, which "was unsustained by legal proof,
and barred by the statute of limitations.
But this judgment was recovered after due
notice and hearing. No fraud or collusion is
set up or proved between the parties to it, for
the purpose of charging the estate. And the
chief, if not only, exception to its fairness or
validity is, that Gardner, the executor, did not
plead the statute of limitations to a part of the
claim on account, when he might have done it
under the apparent time when the cause of ac-
tion accrued on that item. But in Virginia,
and especially if the court, by not striking out
the item, sanction a waiver of the statute, as is
inferred to have been done here, the executor
seems fully justified in not pleading it. 2 Lomax
on Executors, 419; Bishop v. Harrison, 2 Leigh,
532; 1 Robinson's Practice, 112; 1 Rev. Stat.
492. So in England, formerly, the executor
was held excused in his discretion from inter-
posing as a defense the statute of limitations.
Norton v. Frecker, 1 Atk. 526. But in a
recent case, doubt is cast over this in England,
in 9 Dowl. & Ryl. 43.

The Virginia law, however, must control here, and conduces to justice, when the court or the executor is satisfied no payment has been made, or that there has been a re-promise by the deceased. Holladay's Ex'rs v. Littlepage, 2 Munf. 316; 4 Hen. & Mun. 266.

At all events, on elementary principles, the judgment thus obtained must stand as binding till duly reversed, and be till then for most purposes presumed correct. Vorhees v. Bank of United States, 10 Peters, 472, 489; 2 Howard, 319; Lupton v. Janney, 13 Peters, 381.

could not legally set off this claim against their legacies.

The rights to the land, or to any rent thereon, must be settled by a direct action at law, and not in this collateral manner; and if the legatees do not succeed there, they can be made to pay, in trespass, for mesne profits, what they are not liable for as rent, ex contractu, when holding adversely.

A concluding objection to the proceedings below, subsequent to overruling the written exceptions to the report, is, that the court proceeded to a final decree whilst the claims of two of the creditors and two of the legatees were held under consideration.

But either those claims are independent and not necessary to be decided before a final decision on the rest, or they are so connected that a decision on them was proper at the same time, and then this appeal itself would be premature, and would have to be dismissed. 4 Howard, 524; Perkins v. Fourniquet et al. 6 Howard, 206. This, it is understood, is not moved, nor desired by either party.

Such independent claims, however, may properly be suspended under the circumstances existing here, according to Royal's Administrators v. Johnson et al. 1 Randolph, 421.

The judgment below must therefore be affirmed.


This cause came on to be heard on the tran

script of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Alexandria, and was argued by counsel; on consideration whereof, it is *now here ordered, ad- [*414 judged and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs.

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Construction of deed of trust for benefit of creditors-partnership creditors-individual creditors-order of payment.

A merchant who owed debts upon his own private account, and was also a partner in two com mercial houses which owed debts upon partnership account, executed a deed of trust containing the following provisions, viz.:

Under the sixth and seventh exceptions, the respondent insists that Mary and Julia Mandeville, legatees of the deceased, ought to have been charged rent for a piece of land which they occupied, and that the amount thereof ought to have been deducted from these legacies. JOHN D. MURRILL and The Bank of New It is true that this land once belonged to the Orleans, Appellants, deceased, but Mary and Julia insist that they have been in the exclusive occupation of it for ALEXANDER NEILL and William T. Somermore than twenty years. They had always since their entry claimed it as their own, and 413*] this land was not, *by name, devised by the deceased to anyone, as if still his property. The legatees insisted, that at first, being relations of J. Mandeville, and the premises contiguous to their house, they were given to them for a garden, and that their possession had ever since been adverse to all the world. Nor was there any contract shown to pay rent by them to him; nor any proof that rent had ever been demanded by him, while living. Without, then, settling here the disputed title to this property, it is sufficient to say, that under these peculiar circumstances such a use and occupation of these premises would not warrant the recovery of rent from them in an action of assumpsit at law. 1 Chit. Pl. 107; Birch v. Wright, 1 D. & E. 387; Smith v. Stewart, 6 Johns. 46. Such an action must rest on a contract express or implied. Lloyd v. Hough, 1 Howard, 159, and cases there cited. And if no implied promise could be raised to recover rent, when the occupation is adverse, and no express one is pretended to exist, the executor

It recited a relinquishment of dower by his wife then conveyed, and also a debt due to the daughin property previously sold and in the property ter of the grantor, which was still unpaid, and then proceeded to declare that he was indebted to divers other persons residing in different parts of the United States, the names of whom he was then unable to specify particularly, and that the trustee of the first moneys arising from sales, until he shall have remitted the sum of $15,000, to be paid by the said Neill to the creditors of the said grantor, whose demands shall then have been ascertained; and if such demands shall exceed the sum of $15,000, then to be divided amongst such creditors pari passu and out of further remittances there was to be paid the sum of $12,000 to his wife as a comNOTE.-Application of partnership assets to Rights of individual and partnership thereSee note to S L. ed. U. S. 941.

should remit from time to time to Alexander Neill



pensation for her relinquishment of dower, and next the debt due to his daughter, and after that the moneys arising from further sales were to be applied to the payment of all the creditors of the grantor whose demands shall have been ascertained. In case of a surplus, it was to revert to the grantor. The construction of this deed must be, that the grantor intended to provide for his private creditors only out of this fund, leaving the partnership creditors to be paid out of the partnership funds Under the deed, it was the duty of the trustee to divide the first $15,000, amongst the private creditors of the grantor, and exclude from all participation therein the creditors of the two commercial houses with which the grantor was connected; next to pay the debts due to the wife and daughter; then to pay in full the private creditors, or divide the amount amongst thêm proportionally.

The rule is, that partnership creditors shall, in the first instance, be satisfied from the partnership estate; and separate or private creditors of the in dividual partners from the separate and private estate of the partners, with whom they have made private and individual contracts; and that the pri vate and individual property of the partners shall not be applied in extinguishment of partnership debts, until the separate and individual creditors of the respective partners shall be paid. The American and English cases respecting this

rule examined.


After said sum of $15,000, shall have been remitted, then the sum of $12,000 is to be remitted by said Carroll to such person as said Anne Tiernan may designate, which is to be invested for the sole and separate use of said Anne, as a compensation to her for relinquishing her dower in the land by the deed conveyed.

Then the sum of $4,450, with interest from the 1st of January, 1841, is to be remitted by said Carroll in payment of the above mentioned debt due to Luke Tiernan Brien.

"And after the last mentioned sum shall have been remitted as aforesaid, all the residue of the moneys arising from such sales (after deducting the expenses and commissions as aforesaid) shall be remitted by the said Charles H. Carroll from time to time, as the same shall be received, to the said Alexander Neill, in the manner | herein before provided for the remission of the said sum of $15,000, and the same shall be applied by the said Alexander Neill to the payment of the debts due from the said Luke Tiernan to all the creditors of the said Luke, whose HIS was an appeal from the Circuit Court *demands shall then have been ascer- [*416 of the United States for the District of tained by the said Alexander Neill; and in case Maryland, under the following circumstances: that the sum so to be applied shall be insuffiOn the 24th of September, 1839, Luke cient for the payment of all such demands, Tiernan, of the city of Baltimore, and Anne, then and in this case the same shall be applied his wife, made a deed of trust to Charles H. in part payment of each of said demands, in Carroll, of Livingston County, New York, there- the ratio that each of said demands respectively by conveying to said Carroll about 5,888 acres shall bear to the whole sum to be so applied to of land, part of Tuscarora Tract in said Liv- that object; and in case the said sum shall be ingston County, of which Luke Tiernan was more than equal to the payment of such deseized in fee-simple as his individual property.mands, then and in that case the residue thereThe property so conveyed is in said deed es- of shall be paid by the said Alexander Neill to timated to be worth about $120,000. the said Luke Tiernan, his heirs, executors, ad415*] *The deed, among other things, re- ministrators, or assigns." cites that Anne, the wife of Luke, had pre- The said Carroll, in pursuance of said deed, viously joined in a conveyance of various por-proceeded to make sale of various parts of the tions of said tract, the property of said Luke, property thereby conveyed, and from time to which before that time had been sold, without time, from the 1st of March, 1841, to the 22d receiving for her separate use any consideration of April, 1844, remitted to said Neill, in various amounts, the whole sum of $15,000, provided to be paid in the first place to said Neill out of the net proceeds of sales as above mentioned. This sum increased in the hands of Neill, by interest and premiums on the drafts in which it was remitted, to $16,440.55.


It also recites, that said Luke was indebted to Anne E. Brien, at the time of her death, in the sum of $4,450, which on her death became due to Luke Tiernan Brien, her only child and heir at law.

It also recites, that said Luke "is indebted to Luke Tiernan was a partner in the commerdivers other persons, residing in different parts cial firm of Luke Tiernan & Son, of Baltimore, of the United States of America, in a large the only other partner therein being his son amount of money in the aggregate, but the Charles Tiernan. This firm was dissolved prenames of all the persons to whom he is so in-viously to the death of Luke Tiernan, which debted, and the amount due to each respectively, the said Luke Tiernan is now unable to specify particularly."

The deed then conveys said land to said Carroll in trust, to sell and convey the same in the manner therein specified, and after paying expenses, including a commission for his services, to remit the net proceeds, of the first moneys arising from the sales, in bank checks or drafts, to Alexander Neill, of Maryland, "until he shall have remitted the sum of $15,000, to be paid by the said Alexander Neill to the creditors of the said Luke Tiernan, whose demands shall then have been ascertained; and if the demands so ascertained shall exceed the said sum of $15,000, the same shall be applied in part payment of each of said demands, in the ratio that each of said demands respectively shall bear to the whole sum to be so applied."

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occurred on the 9th of November, 1839, and after his death it was conducted under the same name by Charles Tiernan.


Luke Tiernan was also a partner in the commercial firms of Luke & Charles Tiernan, and Tiernan, Cuddy & Co., of New Orleans. partners of the first named firm were Luke and Charles Tiernan, and of the second, Luke_Tiernan, Charles Tiernan, Calvin Tate, and James McG. Cuddy.

The firm of Tiernan, Cuddy & Co. failed in December, 1835, for a large sum of money. Charles Tiernan was the liquidating partner thereof, and was engaged from April, 1836, to May, 1842, in collecting the assets of the firm. He collected about $100,000, the whole of which, and a good deal more, he paid in satisfaction of the debts of the firm. Calvin Tate, one of the partners, applied for the benefit of

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