thorities and opinions in relation to this ques- an alien, so as to endanger the estate, but will See some of them in 4 Kent's Com. | rather pass a title to the executors in trust. 2 Wash. C. C. 447. So it has been held that, if it can be avoided, a court will not vest the estate in an alien by construction, in order to have it escheat, when otherwise it would not. 3 Leigh, 513, and cases cited.

We are prepared next to see whether Samuel Savage or his representatives are liable to account for this property in Alabama, provided he is chargeable anywhere. Because, if not so

321, note, 5th ed. In such cases, till the sale is made, the title usually vests in the heirs, if no other intent is manifest. Jackson v. Burr, 9 Johns. 105, 106; Denn v. Gaskin, Cowp. 661. But where it is given by devise, as here, and the devisees were not the cestuis que trust and heirs as to those lands when he died, it is proper that the title should be considered as passing by devise, and as being in the complainants by devise rather than descent. Jack-liable in Alabama, this part of the case must son v. Schauber, 7 Cowen, 197; Cowp. 661; 8 Wheat. 206, 207; 2 Wend. 34; Coster v. Lorillard, 14 Wend. 326. And the more especially is it so, when, if the heirs took it as heirs, it might escheat.

fail for want of jurisdiction in the State in which the proceedings were instituted; and the further questions as to his liability need not be examined.

*First, then, it happens, that though [*271 the heirs of Nathaniel Forbes and Elizabeth are the same persons here as the residuary legatees of William F. Taylor, yet they take an interest in the Kentucky lands and their proceeds, in a different right and for a different purpose from what they do in the property of William F. Taylor held in his own right. It happens, too, that the interest they thus take is derived from the deed by Mary Forbes to William F. Taylor, and not through the will of the latter, except as directing the trust property to be sold by his executors and paid over to them. It is important to observe also, in this connection, that their taking of this property and the sale of it are neither of them by virtue of any letters testa

The case of Jackson v. De Lancy, 13 Johns. 555, reviews most of the cases connected with this question, and comes to the conclusion, 270*] *substantially, that the title to the trust estate would pass in a case like this to the residuary legatees, and be held by them for the cestuis que trust. See the cases there cited, among them Braybroke v. Inskip, 8 Ves. 417; 2 P. Wms. 198; Ex-parte Sergison, 4 Ves. 147; 1 Merivale, 450; 5 Pick. 112; see, also, Dexter v. Stewart, 7 Johns. Ch. 55. The better opinion is, that a trust estate always passes in a general devise like this to the residuary legatees, if no circumstances appear to indicate a contrary intent. Braybroke v. Inskip, 8 Ves. 417, 436; 3 Ibid. 348; 4 Ibid. 147; 13 Johns. 537;mentary issued in South Carolina; that the Ballard et al. v. Carter, 5 Pick. 115; Marlow v. Smith, 2 P. Wms. 198, 201. Here, the circumstances fortify the idea, rather than impair it, that the trust estate was intended, in the end, to pass to the residuary legatees, as they were then probably supposed to be the cestuis que trust, and in fact became so before the devise took effect.

Another reason is, that the devisee would, if not cestuis que trust, hold the estate for them, and be bound to account for it to them, so as to make it safe. Marlow v. Smith, 2 P. Wms. 201.

This view of the case disposes first of the point made, that these lands had, before the sale by Savage, escheated to the State of Kentucky. It was hence argued that they could not be sold by him, though no office had been found, the respondent considering an escheat good without any office found. Montgomery v. Dorion, 7 N. H. Rep. 480; 6 Johns. Ch. 365. But that is correct only as to land cast by descent on an alien. 7 Cranch, 629. For, as to land taken by devise or purchase, an alien can always hold it till office found. Knight v. Duplessis, 2 Ves. Sen. 360; Co. Litt. 2, 6; Powell on Devises, 316; Hubbard v. Goodwin, 3 Leigh, 512; 3 Wheat. 589; Governeur's Heirs v. Robertson, 11 Ib. 332, 355; Fairfax v. Hunter's Lessee, 7 Cranch, 618.

property is not assets of William F. Taylor collected or to be accounted for there; and as the sale made by Samuel Savage of a part of these lands was made in a different State,' and of property situated in a different State, and the proceeds of it never carried into South Carolina, and the sale made after he had removed therefrom and closed up his administration there, no reason exists for making him account in that State for the sale. See 1 Rich. S. C. Rep. 116; 2 Wend. 471; 6 Pick. 481; 3 Mon. 514; Story's Conflict of Laws, sec. 523. So, not having taken out letters testamentary in Kentucky, or even proved the will there, and residing elsewhere, he could not be sued in that State. Fletcher's Administrators v. Wier, 7 Dana, 348. It follows, then, that if liable at all for the proceeds of the sale of this trust property, being not that owned by the testator in his own right, and the sale made by virtue of a power in the will, and not of letters testamentary, he was liable in Alabama, the State where he had his domicil; the State whither he carried his proceeds-where the demand was made on him by the complainants; where George M. Savage, his executor, took out letters on his estate, and where alone George M. Savage could be proceeded against for any claim against his testator. Bryan et al. v. McGee, 2 Wash. C. C. 338; Trecothick v. Austin et al. 4 Mason, C. C. 29.

It will be seen, on a very brief examination, that the idea of a descent cast upon aliens of Being liable, then, in Alabama, if at all, for these lands, on the death of William F. Tay- the acts done in respect to these lands, it is lor or Nathaniel Forbes, cannot be sustained next to be considered whether Samuel Savage under the opinions we have just expressed. or his representatives are responsible for them The aliens took them by devise, and not by de- to the complainants at all, and if so, to what scent, in either of the two constructions of the extent. When applied to in 1838, by Primrose, will which can be at all vindicated. As a gen- the attorney of the complainants, to pay over eral principle, too, in all cases, a court of chan the proceeds of his sale, Savage admitted that cery will not raise a use "by implication," in 'in 1818 he executed releases of about one fourth

*Again, if all of several trustees de- [*273 cline the trust except one, the estate vests in 3 him, and he is authorized to sell alone. Paige, 420; 4 Kent's Com. 326, note; King v. Donelly et al. 5 Paige, 46; In re Van Schoonhoven, 560; Cro. Eliz. 80; 7 Dana, 1; Zebach v. Smith, 3 Binney, 69.

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of these lands, in which he acknowledged a | 562; 8 Wheat. 203; Jackson v. Ferris, 15 Johns. consideration received by him of more than 346. Several of the States have positive stattwo thousand dollars; that he professed to utes regulating this matter, and usually in this make the sale and receive the consideration as way. surviving executor of William F. Taylor, and by virtue of a power in his will, and that he never had accounted for the proceeds since, but contended that the sum actually realized by him was much smaller than that named in the deeds, and objected to pay over anything, though 272*] *not assigning particularly his reasons for the refusal. But the counsel for the respondent now interpose various specific reasons against accounting for those proceeds beside that already disposed of, which questioned the jurisdiction over the matter in Alabama. One of their objections is the want of interest in the complainants as legatees or cestuis que trust to recover. Another is the irregularity, and indeed illegality, of his sale. Another is the small amount received, not exceeding his expenses. And another, still, is the statute of limitations. But we have already shown that the complainants, as residuary legatees, were entitled to the trust estate under the devise immediately, and, in any permissible view, as soon as it was converted into money, and would be bound to manage and account for it to the true cestuis que trust, if they were not so themselves. See before, 13 Johns. 555, and 8 Ves. 417, 436, and other cases. Being now, however, cestuis que trust themselves, as well as devisees, their interest in the proceeds of the sale is beyond controversy, there having been, as already shown, no previous escheat of the lands.

All the executors in this case, except Savage, declined to have any concern with these lands, and do not appear ever to have done anything concerning them. It is obvious, likewise, on principle, that where a sale is made under a will, which is merely the evidence of authority or power to do it, the omission to record it will not vitiate the sale, unless recording is in such case required by a local statute. If so required, the statute must of course govern. 9 Wheat. 565; 10 Wheat. 202. Probably the necessity for this must depend entirely on the local laws applicable to the transaction-the lex rei sitæ, 2 Hann. 124; Kerr v. Moon, 9 Wheat. 570; 7 Cranch, 115,-and not on any general principles of international law applicable to immovable property. If not necessary by those laws, the omission to do it would not be taken advantage of by anyone in any case; and if necessary, it would not seem very equitable to let the executor take advantage of it, who himself had been guilty of the omission.

But however this should be decided, looking to the laws of Kentucky, and how far it may In respect to the informality and illegality of be cured by the subsequent proof and recordthe sale, they are insisted on from its not ap-ing of the will by Primrose for the complainpearing that all the executors except Savage were then dead, from his not recording the will in Kentucky, and from the verbal denial at first of the validity of his sale by Primrose. But it is to be remembered that this is a bill in equity, that the executors had a power under the will to sell this property, which was a power coupled with a trust. That is not a title to be made out at law under a special statute, where much strictness is required. 6 Mass. R. 40; 14 Ibid. 286.

Nor is it only a naked power, not coupled with any trust or interest, where much strictness is also requisite. Williams et al. v. Peyton's Lessee, 4 Wheat. 79; 10 Peters, 161, and others cases cited. But it is merely a case to show such a sale as may make, in a court of equity, an agent or trustee liable to those for whom he acts. Minuse v. Cox, 5 Johns. Ch. 441, and Rodriguez v. Hefferman, Ibid. 429.

Now, it appears that Savage, in his deeds of this land, averred himself to be surviving executor of Taylor's will. And the case discloses the death of two of them, but says nothing of the other, except, in 1824 and 1825 he is referred to as dead "some time ago." Considering him also as then dead, which is the probable inference from these facts, the right of Savage alone to sell under the will would be good. A power to sell, not merely a naked one, but coupled either with an interest or a trust, survives to the surviving executor. Peter v. Beverly, 10 Peters, 533; Co. Litt. 113 a, 181 b; Lewin on Trusts, 266; Sugden on Powers, 165, 166; 2 Johns. Ch. R. 1; 7 Dana, 1; 5 Paige, 46; 2 Story's Eq. Jurisp. sec. 1062; 10 Johns.

ants (11 Peters, 211), and whether it is necessary to take out letters testamentary in Kentucky to make such a sale, Lewis v. MacFarland, 9 Cranch, 151, we need not give any decisive opinion; since this branch of the inquiry, as to the liability of Savage, can be disposed of under a different aspect of the case.

If the land was sold informally by Savage. still it was sold in fact; it was conveyed in the character of surviving executor; the authority for doing it was claimed under the will; the money for it was received in this way; the lands were occupied quietly under his deed for near twenty years; the consideration was never paid back to the grantees, nor by law liable to be, as his deed was without warranty except against those claiming under W. F. Taylor, and, as regards them, was in the end expressly confirmed by his heirs and devisees under the compromise before detailed.

It is true that their agent at first denied the legality of the sale by Savage, but from its having actually taken place, money been received under it, and the lands occupied in conformity to it so long, he was in the end obliged to compromise and confirm it for much less than the real value of the lands, and expressly reserved. the right to resort to Savage for the amount he had received.

On a consideration of these facts, can there be a doubt that it is equitable to make Samuel Savage and his representatives pay over to the cestuis que trust the money he thus received on their account? *Can they be allowed [*274 to set up his own imperfect doings or neglect as a justification for not paying over what he

actually received for them, and still holds? Is he is liable, whether he himself gains by his he not estopped in equity to deny his liability misbehavior or not. Lewin on Trusts, 634; 3 to the complainants? Have they not suffered in their interests to this extent by his conduct? Have not he and his estate profited to this extent by his sale of their property? These questions can be answered only in one way, and the replies must give a stamp and character to the whole transaction in a court of conscience unfavorable to Savage. Consequently, in this bill in equity between the parties as to a trust, we think it manifestly just that the complainants, as against Savage's estate, are entitled to this money; at least, to the amount adjudged in the court below. 1 Johns Ch. R. 620; 1 Paige's Ch. R. 147, 151; 6 Paige, 355; 2 Johns. Ch. R. 1; 7 Ibid. 122. Simple interest in such cases seems proper, and was allowed. 4 Ves. 101; 5 Ibid. 794; 16 Ibid. 410. As an analogy for estopping Savage to deny what he has said in his own deed, see Speake et al. v. The United States, 9 Cranch, 28, and cases in Com. Dig. Estoppel, a, 2. So, "it is a settled principle of equity, that when a person undertakes to act as an agent for another, he cannot be permitted to deal in the matter of that agency upon his own account and for his own benefit." Sweet v. Jacocks, 6 Paige, 365.

So, "every person who receives money to be paid to another, or to be applied to a particular purpose, to which he does not apply it, is a trustee, and may be sued either at law, for money had and received, or in equity, as a trustee, for a breach of trust." Kane v. Bloodgood, 7 Jolins. Ch. 110; Scott v. Surman, Willes, 404; Shakeshaft's case, 3 Bro. Ch. Cas. 198.

He is liable, then, first, on the ground that the cestuis que trust might confirm the sale and resort to the proceeds, as they finally did in this case. Story's Eq. Jurisp. sec. 1262; 2 Johns. Ch. 442; 1 Ibid. 581. It is true that such a confirmation must be full and distinct; whereas here a disavowal of it was at first made by their agent, and when it was in the end agreed to be ratified, the act was done on the receipt of additional money.

This, however, would not seem to vitiate it under the reservation made of a right to proreed against Savage for what he had received. The complainants, then, fully confirmed Savage's acts as a sale, just as much as if no further money had been paid. Though they asked for this additional sum, this was no injury to Savage, and should constitute no objection to his paying over to them what his vendees agreed he should, and what he virtually promised to do, when taking the money for their property. But if this view of the matter was at all doubtful, another ground exists on which he might be made liable to a like extent, and on which the complainants seek to charge him for a much larger amount. The sale by Savage, if 275*] not valid and not confirmed, was still injurious to the complainants. It gave such a color of title to the tenants as to prevent the complainants from obtaining anything more for their lands, but by way of compromise, and then a price in all, including what was paid to Savage, far less than their true value.

A trustee is liable for misconduct or breach of trust or negligence, as well as for money actually received. Jacobs' R. 120. And if in these ways he injures the cestui que trust,

Bro. Ch. Cas. 198. But when we come to inquire, as the complainants insist, whether Savage was not liable for a much larger sum on this ground than what was allowed in the court below, we are met by several difficulties. The amount, beyond the money received and interest thereon, rests on estimates somewhat conjectural after so long a lapse of time; and the neglect itself is not so easily fixed with much certainty, from a like cause, and the death of parties preventing explanations, and an extraordinary omission for almost a whole generation by the complainants themselves to bring this business to a close. Savage, also, may have proceeded no further in subsequent years to sell the rest of the lands, and take charge of the judgments which had been recovered, because discovering that Samuel and Mary Taylor, the heirs, had appointed Hutchinson and Bennock special agents instead of himself to manage the Kentucky property. The degree of neglect to be made out for any sum beyond that actually received is also different and greater. When the trustee is made liable for more, it must be, in the language of the books, "in cases of very supine negligence or willful default.” 14 Johns. 527; Ibid. 634; Pybus v. Smith, 1 Ves. Jun. 193; Palmer v. Jones, 1 Vern. 144; Osgood v. Franklin, 2 Johns. Ch. 27; 3 Bro. Ch. R. 340; 1 Madd. 290; Caffrey v. Darby, 6 Ves. 497. It would hardly be justifiable to find the existence of either of those after such a length of time, obscuring so much by its mists and obliterating so much by death.

Damages, likewise, for mere neglect would stand in a different attitude as to the statute of limitations from what we shall soon see it does as to money held in trust; and if the claim was on account of a breach of trust committed and perfected when the neglect first occurred, it would be difficult to overcome the bar occasioned by nineteen or twenty years since.


As to the remaining objection, under this head, that the sum received. did not exceed Savage's expenses, this is not in the first answer, and comes from from an executor executor could not possess full means of knowing the facts, and is not entitled to so much weight as if it had been put in and sworn to by Samuel Savage himself. Carpenter v. The Providence Insurance Company, 4 How. 185, and cases cited there.

Besides this, there is no evidence to support the denial. It is *not accompanied with [*276 any exhibit of expenses; and no account for them seems to have been offered in evidence in the court below. To overcome this denial stands the admission in the first answer of receipts, to the extent of three or four hundred dollars, and no set-off claimed; next, the acknowledgment to Primrose of something received; next, the recorded confession in the deed that $2,118 was paid to him; and, finally, the testimony of several witnesses to actual payments, and the solvency of all the purchasers. But if any doubt existed as to this amount being the proper one, with interest, it would be removed by the proceedings in the District Court, where the account was stated in this manner after an examination by agreement be

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fore the judge, and with liberty to except to the account, and no exception taken.

The last objection to the recovery of the amount actually received, with interest thereon, is the statute of limitations. As before intimated, this statute, in respect to money taken in express trust, rests on principles very different from what it might as to damages claimed for a mere neglect of duty, which happened, if at all, near twenty years before any demand or suit. Let it be remembered, that though this money was received by Savage, as trustee of the plaintiffs, in 1818, yet he never was requested to pay it over till 1837, and that then he first became in default for not accounting for it. Till then he lived remote from the complainants, they being residents in a foreign country, and was not obliged to settle for their money in South Carolina as assets belonging to William F. Taylor, in his own right, as has before been shown.

Retaining it, under all the circumstances, till called on by the complainants or their agent, is therefore by no means decisive evidence of any neglect or intention not to account for it, till the demand made by Primrose, in A. D. 1837. Consequently, the statute in relation to this would not begin to run till then, and hence could have created no bar in September, 1838, when this bill in equity was filed. 1 Jac. & Walk. 87; Attorney-General v. Mayor of Exeter, Jac. 448; 10 Peters, 177; Michoud v. Girod, 4 How. 503; Zeller's Lessee v. Eckert et al. Ibid. 289; 3 Johns. Ch. 90, 216; Kane v. Bloodgood, 7 Johns. Ch. 90; Gist et al. v. Cattell, 2 Desaus. 55. The case of Trecothick v. Austin, 4 Mason, C. C. 29, was in this, and some other respects, such as to involve and settle principles similar to what have been laid down in this opinion.

The question of fraud and concealment has also been raised at the bar, not only to aid in charging the respondent, but in obviating the operation of the statute of limitations, as it would if existing. 3 Atk. 130; Hardw. 184; 7 Johns. Ch. 122; 20 Johns. 576; 6 Wheat. 181. But as it is not necessary to decide on these, we waive an opinion as to imputations, so difficult to settle correctly after the death of most of the parties and the lapse of a quarter of a century.

There are some exceptions as to the form of the claim and of the bill, that deserve a moment's notice before closing.

277*] *Though the plaintiffs make their claim in both cases against Savage, and would be entitled in the end, in one as legatees, if at all, and in the other as cestuis que trust rather than legatees; yet the views already expressed would allow them to recover in both cases as residuary legatees, because the trust passes properly to them under the devise, though accompanied by an obligation to account for the property to the cestuis que trust, if they should happen to be persons other than themselves.

The description of the complainants, and of their rights, then, in the bill, is not exceptionable; but the description of the liability of Samuel Savage, which is also objected to, is not so free from imperfection. He acted under William F. Taylor's will in a fiduciary capacity in two respects not exactly the same, but not discriminated from each other in the bill. One

was, to sell the lands his testator held in Kentucky in trust, and the other, to sell the lands and the other property, held in his own right, in South Carolina. Notwithstanding this, the variance does not seem to us to be such as, in this stage of the cause, and in a court of equity, imperatively to require an amendment.

The claim in both respects is for the acts of Samuel Savage alone, and is to be recovered from his executor alone, and belongs to the complainants alone. The material facts are alleged, upon which it rests in both respects; and hence, as no objection was taken to this in the answer or other pleadings, it may be regarded as cured now, and more especially in a proceeding in chancery, and where there is enough alleged to indicate with distinctness the subject matter in dispute between the parties. See 32d section of Act of Sept. 24, 1789, 1 Statutes at Large, 91; Garland v. Davis, 4 How. 131.

It will be seen, that by the course of reasoning we have adopted, and by the points on which our opinions have been formed, it has become unnecessary to decide some other questions presented in this cause in the able arguments of the counsel on both sides. But having decided enough to dispose of the case, and being satisfied that the judgment of the court below was right, however we differ as to some of the reasons assigned in its support, we do not propose to go further into the questions raised, and direct, that in this case the judgment below be affirmed.

The other appeal, relating to this matter and argued with it, must consequently be dismissed. Order.

Vincent M. Benham, administrator de bonis non, with the will annexed, of Samuel Savage, deceased, Appellant, V. William Taylor, George Taylor, William Primrose, and Eliza, his wife, George Porter, and Elspet, his wife, William Rainey, Alexander Rainey, and Elizabeth Rainey.

This cause came on to be heard on the transcript of the record *from the District [*278 Court of the United States for the Northern District of Alabama, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said District Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum.

William Taylor, George Taylor, William Primrose, and Eliza, his wife, George Porter, and Elspet, his wife, William Rainey, Alexander Rainey, and Elizabeth Rainey, Appellants, v. Vincent M. Benham, administrator de bonis non, with the will annexed, of Samuel Savage, deceased.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Alabama, and was argued by counsel; on consideration whereof, this court having affirmed the decree of the said District Court in this cause, on the appeal of the respondents at the. present term, it is now here ordered and decreed by this court, that this appeal of the

complainants be, and the same is hereby dismissed, with costs.

GEORGE W. PHILLIPS, Plaintiff in Error,


JOHN S. PRESTON, Defendant in Error.

Louisiana practice-one "peremptory exception" -no error that when first tendered it was not allowed-refusal to allow clerk to take down oral and documentary evidence-in agreement between indorsers to share loss equally, consideration is mutual promises.

court is not a sufficient cause for reversal.

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The act of sale, which was signed by Barrow and Carr, and executed before Louis T. Caire, a notary public, contained, amongst other things the following provisions, viz:

Under the practice of Louisiana, peremptory ex- 1. After reciting the cash payment, it proceptions must be considered as specially pleaded when they are set forth in writing, in a specific ceeded thus: "And in payment of the balance, or detailed form, and judgment prayed on them. the said purchaser handed over to me, the Although the court should refuse to receive ex-undersigned notary, six promissory notes, bearceptions thus tendered, yet if the party has the ing even date herewith, subscribed by him, to benefit of them on a motion in arrest of judging ment and in a bill of exceptions, the refusal of the the order [of] John S. Preston, indorsed by him, the said John S. Preston, domiciliated in the parish of Ascension, as first indorser, and by George W. Phillips, domiciliated in the parish of Assumption, as second indorser, it being understood that, although each of the indorsers is responsible for the whole amount of said notes, they are between themselves equally responsible; said notes have made payable at the domicil of the Union Bank of Louisiana, and their amount and terms of payment are as follows, viz." (then followed an enumeration of the notes as above).

The statute of Louisiana, requiring their courts to have the testimony taken down in all cases where an appeal lies to the Supreme Court, and the adoption of this rule by the court of the United States, includes only cases where an appeal (technically speaking) lies, and not the cases which are carried to an appellate court by writ of


Where the laws permit a waiver of a trial by jury, it is too late to raise an objection that the waiver was not made a matter of record, after the case has proceeded to a hearing.

In a suit by the first indorser of promissory notes against a second indorser, upon an alleged contract that the second indorser would bear half the loss which might accrue from their nonpayment by the drawer, it is not a sufficient objection to the jurisdiction of the court, that the second indorsee and defendant were citizens of the same State. Such an objection would be well founded if the suit had been upon the notes.

But not where the suit is brought upon a col

lateral contract.

A contract between two indorsers, that they will divide the loss between them, is a good contract,

and founded on a sufficient consideration.

Being a collateral contract, by parol, parol evidence can be given to prove it. The payee is a competent witness, and so is the notary, bringing

with him the act of sale.

THIS was hit of

HIS case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Louisiana.

279*] *It was a claim advanced by Preston, the first indorser upon certain promissory notes, that Phillips, the second indorser, should pay one half thereof, by virtue of a special agreement between them.

The facts in the case were these:

On the 15th of March, 1836, Sosthain Allain sold to Robert R. Barrow sundry species of property in Louisiana, for the sum of $110,700 payable as follows, viz.:

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stand mortgaged.
2. An agreement that the property should

3. An agreement that the last mentioned notes should be substituted, if possible, for those given by Barrow to Allain, and if it *should not be possible to do so, then [*280 that payments made upon the last set of notes should be applied to the first set, as they became due.

The notes given by Carr to Barrow were indorsed by John S. Preston, as the first indorser, and by George W. Phillips, as the second indorser.

On the 1st of March, 1838, the first note became due, and was not paid by Carr. But it appeared by the record not to have been protested until the 30th of March, 1839.

came due, which appears to have been protested On the 1st of March, 1839, another note bein proper time.

On the 5th of April, 1839, Barrow filed a petition in the District Court of the Fourth Judicial District of the State of Louisiana (a facts, and stating further, that he had made State court), representing the above mentioned the necessary payments and arrangements with Allain, respecting the notes due in 1837, 1838, and 1839, and praying for a sale of the property.

On the 1st of March, 1840, another note fell due, which was not paid, and was protested.

On the 5th of August, 1840, the property was sold in block by the sheriff to Isaac T. Preston, for his brother, John S. Preston, for the sum of $67,500, the purchaser assuming the payment of the notes due in 1841, 1842, and 1843.

On the 20th of August, 1840, the sheriff exe

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