After adding and subtracting various other matters of account not connected with the partnership, they found a balance due by Rufus to the estate to be $17,190, of which $8,106 was cash, and the remainder, $9,084, consisted of John's share of the notes and accounts due to the store, and which Rufus retained in his hands for collection. The first administration account filed by Sarah Page acknowledges the receipt in cash of the sun of $8,106 from R. K. Page, and the accounts afterwards filed show that she had received the balance of $9,804, partly in cash and partly in notes. Sarah Page settled the final account of her administration on the 20th of February, 1816. books of the firm were kept on these principles, and always open to the inspection of John, and frequently examined by him; that when John advanced money or goods for the use of the firm, he took the notes of the firm; and that defendant gave notes to John for goods and money supplied, and (to use his own phrase) "for equalizing the capital," to the amount of over $10,000; that immediately on the announcement of the death of John O. Page, an inventory of the goods in the store was taken and placed in the hands of Bond, the attorney of Sarah Page, the administratrix: that he afterwards settled fully and fairly all accounts with the administratrix and her attorney, and produces the books, and the state She died in 1826. In 1828, Stearns, the comment of their final settlement as made out by If a defendant can be compelled to open set-recting the whole account to be opened and plainant, intermarried with Louisa, one of the daughters and heirs of John O. Page. In 1834, he took out letters of administration de bonis non on the estate of John O. Page, for the purpose of prosecuting claims under the treaty of the United States with France. After this he commenced an examination of the administration accounts of Sarah Page, and began to entertain suspicions that Rufus K. Page had taken advantage of her ignorance of accounts, and had defrauded her in his settlement. And finally, at November Term, 1838, more than twenty-six years after the settlement of defendant's account with the administratrix, this bill was filed against Rufus K. Page for a discovery and account. The amended bill abounds in general charges of fraud against the defendant; alleges that he concealed from the administratrix the true state of the affairs of the deceased, which had been intrusted to his care; that the partnership claimed by him with the deceased was a false pretense, "and that the said Sarah did not distrust, or had it not in her power to disprove the same;" that the accounts exhibited of the partnership transactions were totally false and fraudulent in their statements and aggregates, calculated and designed to deceive and mislead. It charges, also, that some ten thousand dollars of private debts due by Rufus to John were intermingled with the partnership accounts so as to produce an erroneous result, and that he had sold and converted to his own use the brig Emmeline, which was owned, in whole or in part, by John, and rendered no account of the same. 828*] *Afterwards, in October, 1841, by a further amendment to the bill, the complainant admits, that, "from means of information which he now has," there was a partnership between John and Rufus, but insists that the profits were to be divided between them in the ratio of two thirds to John and one third to Rufus. The defendant, in his answer, after denying the general charges of fraud and mistake, asserts, that he entered into partnership, by parol agreement, with his brother, John, in 1806; that the business of the firm was transacted in the name of Rufus K. Page; that John advanced the capital, and Rufus superintended and conducted the business of the store, and the profits thereof were to be divided five eights to John and three eights to Rufus; that the Robins and Agry, the referees chosen by the parties to make the settlement and adjust the accounts, and shows, moreover, by the administration accounts filed by said Sarah, that he had paid her the balance of over $17,000 found to be due by him according to the account thus stated: He asserts, moreover, that John owned but one half of the brig Emmeline, which the administratrix afterwards sold to the defendant for the sum of $3,000, with which she charged herself in her administration account. And finally, the answer relies on the settlement of accounts thus made more than twenty-five years before the filing of the bill, as a bar to all further account, especially after so great a lapse of time, when papers are lost, witnesses dead, and transactions forgotton, and pleads the statute of limitations. Statutes of limitation form a part of the legislation of every government, and are necessary to the peace and repose of society. When they are addressed to courts of equity as well as to courts of law, as they seem to be in all cases of concurrent jurisdiction (as in matters of account), they are equally obligatory on each court. In other cases, courts of equity act upon *the analogy of limitations at law, [*829 and sometimes upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, by refusing to interfere where there has been gross laches or unreasonable delay. They also interfere in many cases to prevent the bar of the statutes, where it would be inequitable or unjust; as, for example, if a party has perpetrated a fraud which has not been discovered till the statutable bar may apply to it in law, courts of equity will interpose and remove the bar out of the way of the injured party. In cases of mistake also, as well as fraud, they will not consider the statute as running till after the discovery of the mistake, as laches cannot be imputed to the injured party till the discovery of the fraud or mistake has been made. 2 Story's Eq. sec. 1520. But as lapse of time necessarily obscures the truth and destroys the evidence of past transactions, courts of chancery will exercise great caution in sustaining bills which seek to disturb them. They will hold the complainant to stringent rules of pleading and evidence, and require him to make out a clear case. Charges of fraud are easily made, and lapse of time affords no reason for relaxing the rules of evidence or treating mere suspicion as proof. tled accounts, to explain or prove each item, after a lapse of near thirty years, by general allegations of fraud-if the fraud can be proved by his inability to elucidate past transactions after so great a length of time, or by showing some slips of recollection, or by contradicting him in some collateral facts by the frail recollection of other witnesses-no man's property or reputation would be safe. A complainant, seeking the aid of a court of chancery under such circumstances, must state in his bill distinctly the particular act of fraud, misrepresentation, or concealment must specify how, when, and in what manner, it was perpetrated. The charges must be definite and reasonably certain, capable of proof, and clearly proved. If a mistake is alleged, it must be stated with precision, and made apparent, so that the court may rectify it with a feeling of certainty that they are not committing another, and perhaps greater, mis take. And especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see, whether, by the exercise of ordinary diligence, the discovery might not have been before made. Every case must, of course, depend on its own peculiar circumstances, and there would be little profit in referring to the very numerous cases to be found in the books on this subject. In the case of Michoud v. Girod, 4 How. 830*] 504, lately decided in *this court, transactions were investigated after a lapse of more than twenty years; but the facts proving the fraud were all on record, and were not disputed. The false accounts made out against the estate of the deceased by the executors were on file, and their iniquity was apparent on their face. Moreover, the complainants resided in Europe, and were kept in ignorance of their rights, and hindered from prosecuting them by the promises, threats, and fraud of the guilty parties. In this case, the complainant seeks to open an account stated and settled twenty-six years before the filing of his bill, and this account not rendered by the defendant to a woman unacquainted with business, and received by her without examination, but stated from the books, by referees or arbitrators chosen for the purpose, and in the nature of an award between the parties, executed and acquiesced in by both without complaint for a quarter of a century. Six years is a statute bar to an action of account, both at law and in equity. Has the complainant stated in his bill, and sustained by proof, such a case as would justify the interference of a court of equity after so great a lapse of time? 1. Has he discovered anything which was taken de novo? 3. Or has such clear mistake or omission been shown with regard to any of the items of the account, that the court would grant liberty to the complainant to surcharge and falsify generally, or as to any particular item? : In order to repel the imputation of laches, the complainant states that he did not take out letters of administration de bonis non on the estate of John O. Page till the year 1834, eight years after the death of Sarah Page, the administratrix, and six years after his marriage with one of the heirs; "that, on examining the papers and accounts, he discovered that there was a considerable amount of property of said estate included in the inventory which had not been administered by said Sarah in her lifetime; that, in pursuing the inquiry, he gradually obtained information by various means, afforded, in the first place, by the state of those papers, and from sundry other sources and conversations with persons now living or deceased, which produced the persuasion and firm belief that there was much of said property in the hands and possession of Rufus K. Page which has not been exhibited or accounted for by him," etc.; *"but that how far the [*831 said Sarah Page was in the knowledge and possession of all the information in respect to the premises that has come to his knowledge, he is not able to say, on account of her death before he had any reason or opportunity to ascertain the same." It appears, therefore, that the complainant has discovered no fact of which Sarah Page was ignorant. He can specify no misrepresentation, concealment, or fraud, practiced by defendant, which has for the first time come to light. He does not state what property was not accounted for by Sarah Page, or how she was deceived or defrauded by Rufus. In fact, taking the various bills and amendments together, it is very plain that this bill was filed on suspicion of fraud, and for the. purpose of a discovery of facts from the defendant on which to found specific charges of fraud. It is clear, also, that these suspicions had their origin, not on the discovery of any new facts concealed from his predecessor in the administration, but from his necessary ignorance of facts of which Sarah Page and her counsel must have been fully conversant, from the very nature and circumstances of the case. When this bill is devested of its general and vague charges of fraud in matters of which the complainant could have no personal knowledge, it might well be doubted whether it contains sufficient matter properly set forth to entitle the complainant to call on the defendant, after so great a length of time, to answer to its allegations and make a discovery with regard to facts so likely to be forgotton or indistinctly remembered. But, waiving this point, let us examine the attempts have been made to substantiate. not as open to discovery by himself or his specifications of fraud or mistake which some predecessor in the administration, more than twenty years before? 2. Has he shown any fraud, misrepresentation, or concealment, practiced by the defendant on Sarah Page, and "made it palpable to the court," so that it would be justified in di 1. The complaint about the ship Horatio being found untenable is left out of the amended bill, and need not be noticed. 2. The bill denied that any partnership had existed between Rufus and John O. Page; but, after taking testimony to contradict the answer 933 in this respect, an amendment, filed in 1841, *THE UNITED STATES, Plaintiffs [*833 or some admits the partnership, but charges that the 3. The notes of Rufus to John for $10,000, if given, as stated in the answer, to show the amount of capital advanced to the store by John, are fully and properly accounted for. 832*] *The referees who stated these accounts had the partnership books and the parties before them, and could best judge how the capital account had been kept, whether by credits in the books or giving the notes of the firm, which would be the notes of Rufus K. Page. The parties acquainted with the transaction had no difficulty about it, and the mere suggestion of a stranger to the whole transaction, now made, some thirty years afterwards, that possibly these notes were the private debt of Rufus, and not given to represent the capital of the store, cannot be received as evidence of mistake or fraud. The answer being responsive to the bill, and uncontradicted by the evidence, is conclusive of the fact. The accounts show that Rufus accounted with the administratrix for the goods of the store inventoried on the decrease of John Page, for the capital of the firm, amounting to over $10,000, and for John's share of the profits, exceeding $12,000. The complainant has wholly failed to show any mistake, omission, fraud, conceal ment, or misrepresentation, on the part of Rufus K. Page, in connection with the subject. 4. The interest of John O. Page in the brig Emmeline was transferred by Sarah Page, the administratrix, to Rufus, and the amount accounted for by her in the inventory and administration accounts settled by her. Whether the money was paid to her by Rufus, as he asserts in his answer, or she made a gift of it to him on account of the known intention of her husband to give it to him by his will, is wholly immaterial in this case, as the administrator de bonis non can have no concern with property administered and accounted for by his prede cessor in the trust. In the course of the argument, the learned counsel noticed other items of account, which they alleged to be erroneously stated or not sufficiently explained; but as they were not charged in the bill, they will not be noticed. The decree of the Circuit Court must therefore be affirmed, with costs. Order. in Error, V. RICHARD KING and Daniel W. Coxe, Defend ants. Louisiana practice-facts found by court-contract between Spanish government and Marquis de Maison Rouge construed. The case of the United States v. King and Coxe, 3 Howard, 773, reviewed. According to the practice of Louisiana, where cases are carried to an appellate tribunal, in which the court below has decided questions of fact as well as of law, the appellate tribunal also reviews and decides both classes of questions. But this practice is not applicable to the courts of the United States. A writ of error in them brings up only questions of law, and questions of fact remain as unexaminable as if they had been decided by a jury below. Where the court below decides both law and fact, no bill of exceptions need be taken. The case then becomes like one at common law, where a special verdict is found or a case is stated, in neither of which there is any necessity for a bill of exceptions. Where the court below decides the facts, a statement of them should appear upon the record; but if such a statement be filed after judgment is entered and a writ of error sued out, it cannot be considered a part of the record, which is closed against it. Leaving this statement out, there is still enough in the record to enable the court to take cognizance of this case, because the defendants below asserted a legal title to be in themselves by virtue of a grant which severed the land claimed from the royal domain. The construction of this grant, issued in 1797, by the Baron de Carondelet, to the Marquis de Maison Rouge, is a question of law upon which this court must review the decision of the Circuit Court. The two grants or contracts of 1797 and 1795 must be construed together. That of 1797 refer to the one of 1795, and cannot be understood without it. The contract of 1795 was for the benefit of the emigrants, and must have been intended to be shown by Maison Rouge to those persons whom he was inviting to settle upon the land. No personal benefit or compensation to himself individually is provided in it. The object was to promote the policy of the Spanish government, as whose agent Maison Rouge acted, and not as the proprietor of the land. The contract of 1797 was intended to supply two omissions in that of 1795, namely, to designate with more particularity the place where the settlement was to be made, and to provide for a larger number of families than was mentioned in the original contract. For both these purposes, a certain tract of land was marked out, and "destined and appropriated" for the uses of the settlement. The grant of 1797 does not contain the words usually employed in Spanish colonial grants, when there was an intention to sever land from the royal domain and convey it as individual property. HIS case was formerly before this court, and is reported in 3 Howard, 773. Being sent down to the Circuit Court under a mandate from this court, it came up for trial before the Circuit Court in May, 1845, when sundry proceedings took place before that court, which it is not necessary to specify. The This cause came on to be heard on the tran- | result was, a judgment in favor of the United script of the record from the Circuit Court of the United States for the District of Maine, and was argued by counsel; on consideration whereof, it is now here ordered 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. States, from which King and Coxe sued out a writ of error, and brought the case again before this court. Whilst so pending, this court, on the 16th of February, 1848, passed the following order, which was announced by Mr. Chief Justice Taney: 834*] * King and Coxe V. "United States. Supreme Court of construction of both parties was in accordance the United States, December 1847. Term, "Upon examining the record now before the court and referring to the points originally in controversy and still remaining undecided, the court are of opinion, that the matters in dispute can be more conveniently and speedily heard, and finally determined, by re-instating the case in this court in the condition in which it stood at December Term, 1844, previous to the judgment rendered at that term; and the counsel for the respective parties having, upon the recommendation of the court, consented to re-instate the case in the manner proposed "It is thereupon, with the consent of counsel, as aforesaid, ordered, that the judgment rendered in this court at December Term, 1844, and all the proceedings thereon, and subsequent thereto, be, and the same are hereby set aside and vacated, and the case as it stood at term aforesaid, previous to the said judgment, re-instated. And it is further ordered, that it be placed on the docket of December Term, 1848, to be argued at that term on such day as the court may assign-the United States being, as before, the plaintiffs in error, and King and Coxe the defendants." The case was therefore before the court just as it stood prior to the argument of it, as reported in 3 Howard, 773. The history of the case is there given, and all the documents upon which the claim of King and Coxe was founded are set forth at large. It is unnecessary, therefore, to repeat them here. The United States being plaintiffs in error, the argument was opened and concluded by Mr. Toucey (Attorney-General), who was replied to by Mr. Coxe and Mr. Gilpin, on behalf of the defendants in error. All the parts of their arguments are omitted, except those which bear upon the points decided by the court. The Reporter has his own notes of Mr. Coxe's argument, but prefers to print the argument of Mr. Gilpin, as that gentleman has been kind enough to revise the notes of his argument. Mr. Toucey (Attorney-General), for the plaintiffs in error: Whether the paper dated 20th June, 1797, signed by the Baron de Carondelet, was a grant to the Marquis de Maison Rouge of a complete title to the thirty square leagues, is the principal question presented upon the record. It is supposed, that, under the Spanish or any other government, if a grant from the sovereign is set up and relied on, it would be necessary to appear, that there was an intention to make such grant. The intention is the principal 835*] thing. It is the essence of the act. *It is the disposing will which governs, when expressed. It lies at the foundation of all law and every contract. The rule that the intention must govern is not the property of any one system, but a maxim of universal law. If such an intention to make a grant do not appear, but the direct contrary, the supposition of a grant is absolutely excluded. And if this be the state of the case upon the face of the assumed paper title, the result will be fortified, if it be possible, by the fact that the practical with it. Such is the precise condition of the grant now alleged as a complete title in this court. It will be necessary to see, 1st, what was agreed to be done, on the part of the Spanish government; 2d, what was actually done, in pursuance of that agreement; and 3d, in what light it was viewed by the parties after it was done, or the practical construction. First, what was agreed to be done by the Spanish government. This is in the form of a written agreement, clearly expressed, and of a not liable to misinterpretation, bearing date March 17th, 1795. From this paper it appears there were certain "families who proposed to transport themselves" to Louisiana. The Marquis proposes to bring thirty families, "for the purpose of forming an establishment with them, on the lands bordering upon the Washita." The government agrees, st, to pay two hundred dollars to every family of two laborers, and in proportion; 2d. to furnish them with a guide, and provisions, from New Madrid to Washita; 3d, to pay for transportation of their baggage and implements, not to exceed three thousand pounds for each family; 4th, to give each family of two four hundred arpents of land, ten arpents by forty, and in proportion for a greater number; 5th, to give the same to their European servants with families, after six years. This contract was signed, "that it might come to the knowledge of those families who propose to transport themselves hither." It proposes to give nothing to anyone but the thirty families who are to constitute the establishment, and their European servants. stipulates to give nothing to De Maison Rouge for his services, neither land nor money. There is not a stipulation in it for his benefit. The whole benefit stipulated, including the land promised, is to go to the thirty families composing the establishment. The whole contract was for their benefit. This is the clear, express, unequivocal contract at the outset, and there is no pretense that it was ever modified. It The compensation to De Maison Rouge for his services was to be derived elsewhere, if he had any; either from collateral advantages, or through the emigrants, or in some other mode, which does not appear, except in the case of Alexander *Lawrence, where the Mar- [*836 quis secured the right to take to himself either the money or the land. This was the contract, "for the establishment on the Washita of the thirty families of farmers destined to cultivate wheat," which was approved by the king, "in all its parts." Thus, and thus only, it became obligatory upon the Spanish government, and its officers derived their authority to carry it into effect. The effect of it was to constitute the Marquis de Maison Rouge an agent of the Spanish government; it clothed him with authority to act in its name; it was his letter of credence to the emigrants who proposed to come; and that was its avowed object, as expressed in the concluding paragraph. When used by the agent in treating with the emigrants, and acted upon by them, it became a complete and perfect contract between the Spanish government on the one hand, and the emigrants on the other, by which they were entitled to demand of the government the stipulat ed benefits. Thus far, then, there is no intention manifested by the Spanish government to bestow these benefits upon the government agent, or to permit them to be intercepted by him; but the express language of the contract, which received the royal assent, shows the direct contrary in every particular. Having this safe ground at the outset certain knowledge of the previous contract, of the land promised to be given, of the persons to whom it was to be given, and of the agency of De Maison Rouge-it will be difficult to go astray afterwards, in tracing the acts of public functionaries, done in pursuance of this contract, and by virtue of this authority. The absence of the usual formalities tends strongly to show that here was no grant or concession. There was no petition for a grant to De Maison Rouge. He did not ask for any land. There is no decree or adjudication granting a petition. There is no warrant of location, permit to occupy, or any other formality, giving him possession, with promise of title upon performance of the usual or the stipulated conditions. There was no consideration proceed ing from him, moving the government, or that could be supposed to move the government, to grant to him this territory with the colonies upon it. He had introduced no emigrant at his own expense. The government had introduced all the families at its own expense. It had paid their transportation, furnished them with guides and provisions, given them a bounty in money, and promised them and their servants lands in proportion to their numbers. It had even paid the expenses of De Maison Rouge, as appears by the letter of Baron de Carondelet of the 1st of August, 1795, to Filhiol, the commandant of the post. "The journey of M. Maison Rouge has cost more than five hundred dollars." 837*] *But to come to the paper alleged to be a grant to De Maison Rouge. Why should the Spanish government give the whole territory to him? It does not appear, upon the face of the instrument, that the government intended a benefit to him. The words are, "We destine and appropriate for the establishment of the aforesaid Marquis de Maison Rouge." It is called his establishment by way of distinction. Here is no grant in form to him, nor to any other person. The instrument does not name any grantee, nor contain words of grant. All the precedents require both. The instrument begins with the cause of the designation of the land. Because the establishment was nearly complete, it had become desirable to remove, for the future, all doubt respecting other families or new colonists who might come to establish themselves. The lands are expressly designated for the establishment, and the original contract, the king's approval, and the recital in this instrument, all show that the es tablishment is the colony of thirty families. The fact that the lands comprised in the figurative plan, as it is called, are the identical lands to be given to the emigrants composing this colony, as entirely decisive against the idea of a grant to De Maison Rouge. It was not the intention of the Spanish government to require the colonists to look to him for the title to their lands, but directly to the government, who introduced them, paid their expenses, gave them a bounty in money for coming, and promised to give them their lands upon the condition of inhabiting and cultivating them. The government did not intend to invest him with the title, because that would incapacitate it to perform its contract with the colonists, and with the European servants who should at the end of six years have become heads of families. The original contract, being specifically referred to, is incorporated in this instrument as fully as if recited verbatim, and the lands are designated under it, for the purposes set forth in it. There is no escape from the conclusion. The designation of the lands for the colony is expressly made "under the terms stipulated and contracted for" by the Marquis; and the royal order approving of that contract, and authorizing it, is expressly referred to by name, description, and date. The effect of this act of the government was merely to prescribe certain limits within which these colonists should receive their lands, when they should become entitled to them, and within which other emigrants should not be permitted to intrude, without the consent of government. That is the effect produced, and it is the only effect produced. It does not come up to the standard of an inchoate title to De Maison Rouge. He had no title at all-no promise of title to him upon the performance of conditions, express *or implied, imposed by the act of [*838 the parties or by act of law. Having thus shown what the government contracted to do, and what the government had done, and that neither in the one nor the other was there manifested an intention to convey this land to the Marquis de Maison Rouge, but the direct contrary, it remains to be seen how the parties regarded it, and what was the practical construction given to this instrument by both of them. First, the colonial government did not put. such a construction upon it as would vest in him the title to the thirty leagues square, and. require the colonists to look to him, instead of the government, for their titles. They did not regard the land as his property. The letters of Baron de Carondelet to Filhiol, the commanproperty. dant of the post, abundantly show this. Subsequent grants in the same tracts, made by the government from time to time, show it also. The inventory made after the death of De Maison Rouge by Filhiol, as commandant, it is admitted by the claimant, did not contain this land. This was in April, 1800, before the secret treaty of San Ildefonso. Second, the Marquis de Maison Rouge puts no such construction upon this instrument. This is shown by his letters to Filhiol. In that of the 21st of March, 1796, speaking of the claims of a Mr. Morrison, he says: "Mr. Morrison alleges that M. Miro has promised to him that quantity of land, but he does not say that it was not for him alone, but for the sixteen families and upwards of Americans he was to have brought into the country and settled in the Prairie Chatellraud. Moreover, he has promised to discover a saline. He has fulfilled none of these conditions. This extent not having been granted to him individually, it still remains in the domain of the king. He has no more right to claim it than I would have to consider myself as proprietor of the |