180 4 CHAMBERS and WIFE versus the money, first, in payment of the charges, commission to himself, as usually received by trustees, agents, and attornies acting for absentees, the commissions payable upon GOLDWIN. the sales as usual among merchants and factors in London or the island; secondly, all money to grow due on account of the execution of the trusts, and the necessary supplies and contingencies of the estate; and, thirdly, all sums which Foulkes should thereafter advance on account of Ratcliffe, or for the cultivation or improvement of the estate, with interest at 61. per cent. and to pay the surplus to Ratcliffe, his heirs or assigns. From one of the covenants in this deed it seems to have been in the contemplation of the parties, that this estate would be able to pay off Foulkes' debt in four years. The deed also contains covenants, on the part of Foulkes, to deliver just accounts, not to sue Ratcliffe, and to yield up possession on repayment of the 90001. &c.; and it concludes with a covenant, referring to the former part of the deed, as to what was to be done by Foulkes, when it does not appear that he was compelled either to advance money or do any one act whatever, the former part of the deed leaving it entirely to himself. One cannot very well see what it was supposed by the parties such a covenant meant, but if I were to say that it afforded any decisive remedy to the grantor, it would be advancing more than could be collected from expressions so loosely put together. any "I shall now advert to a deed of the same date as that which I have stated, which is not noticed in the proceedings. As Mr. Goldwin had no share in framing it, nor ever heard of it until the commencement of this suit, it would be contrary to all principles of justice to press inference arising upon it against him. By this deed it is agreed that Ratcliffe shall remain in possession of the estate, and take all the trouble of management in the same degree as if the other instrument had never existed. Now, if the question had arisen immediately on the execution of these two instruments, and they were to be considered either according to the law of Jamaica, or of 1804. CHAMBERS and WIFE England, it would be impossible not to say that this transaction originated in fraud, oppression, usury, and extortion; and if the case were now to be considered as between Ratcliffe and Foulkes, these deeds could not be GOLDWIN, permitted to stand for a moment. "The next transaction was in the month of May, 1785, and it appears that the debt, which in August, 1781, was 9000l. and the discharge of which the parties then contemplated in four years, was increased to 32,000l. currency. I observe that the noble and learned Judge who pronounced the decree was struck with that circumstance; but I hardly ever knew a West India concern, the management of which was confided to a trustee, for the benefit of others, where incumbrance was not heaped upon incumbrance, until the whole estate at last, some how or other, became the property of the trustee. It may be true that Foulkes thus increased his debt by paying off other incumbrances, but, at all events, Mr. Goldwin could have no share in the increase; and if he is to be charged with the consequences of any improper increase of this debt, it ought to have been distinctly charged in the bill, that he might have had an opportunity of answering it; but as that is not done, there is no evidence in the case, and that is not the fault of the defendant, what the nature of the actual management and possession of the estate was from the year 1781. If it should have appeared that the second instrument was acted upon, and that Ratcliffe retained the direction and management, it would be impossible to charge Foulkes with any improper conduct respecting these accounts. On the other hand, if Foulkes had the management and possession, and lived in the island, another question would arise on the declaration in the decree. "The deed, which was executed on the 1st of May, 1785, recite, that Foulkes had not only applied the rents, &c. according to the trust, but had made several advances, and that the sum of 32,000l. currency was then due to him. It then contains a conveyance in fee to Foulkes of versus 1804. CHAMBERS and WIFE versus these estates, subject to a mortgage, and the trusts of this conveyance are to pay 4501. a year to Ratcliffe, and, after his death, among his widow and children, and to GOLDWIN. apply the residue in satisfaction of all expences, commissions for himself, and of all such sums as he, Foulkes, should advance, and the sum of 32,000l. and interest, and as to the surplus, in trust for Ratcliffe, with a power to if sell in one year after the determination of six years, the whole sum of 32,0001. should not be then paid : and it was stipulated that the accounts should be settled annually. In the year 1787, deeds are executed between Foulkes and Goldwin, by which all the interest of the former in these premises, whatever it might be, was assigned to Goldwin for 32,000l. currency. "The decree which has been pronounced, has given directions to surcharge and falsify as far back as the year 1785; now I confess I can see no reason, if the principle be right on which it goes back to 1785, why it should not go back to 1781. If the principle be (and I have not been able to suggest any other), that where a person takes an assignment of a mortgage in general cases, he takes it entirely at his risk as to what is due from the mortgagor to the mortgagee, I cannot help saying that it appears to me this decree ought either to have gone back to 1781, or not so far back as 1785. "In the year 1787, Mr. Goldwin does that, which was a hazardous transaction for a prudent man to be engaged in, but not therefore blameable. He trusts to Foulkes that this sum of 32,000l. was then fairly due, for if it was not, he certainly paid his money at his own risk, and subject to the real state of the affairs between the mortgagor and mortgagee. In the year 1790, deeds are executed between Goldwin and Ratcliffe, by which the trust is prolonged, and the right of sale postponed to 1797, and the principle and interest is made payable on the Royal Exchange of the city of London. In all other respects the former trust-deed remains unaltered. In 1791 Ratcliffe died, and, by his will, the present plaintiff became entitled to his property. Goldwin was an executor 1804. CHAMIERS and WIFE versus in the will, it being in the contemplation of the testator, that he would take an active part in the settlement of the affairs, but he has renounced. As an executor, however, whatever he may have supposed, any species of deal- GOLDWIN ing or intermeddling with the trust property, will make him more accountable than he is aware of. Since Ratcliffe's death, Mr. Goldwin has settled several accounts with the other executors, in which he is allowed commission I do not know whether exactly in the same manner as since he came to England, for I do not know, whether the commission, while he was in Jamaica, was on the gross or net produce; in England, I take it to be a commission upon the net amount. However, these accounts having been settled and signed, and the law being that, when so solemnly sanctioned, they shall not be falsified except for error, it becomes necessary to give the closest attention to the frame of the bill, to see how far, consistently with what the Court must never overlook, the allegations and proofs of the case, this decree be right or not. "The bill charges that undue advantage was taken of the distress of Ratcliffe, and that if the accounts were made out and signed, they were signed by Ratcliffe without examining them. Now, as to circumstances of distress, there is no evidence except that of the deeds themselves; and to take these deeds as proofs of the distress of one of the parties who signed and executed them, would be going beyond what any decision in this Court will warrant. The transmission of the accounts, and the signing of them by Ratcliffe, cannot be taken as evidence of fraud, merely on account of its being here suggested that they were never examined, for that would be to take circumstances which, as far as they go, shew the absence of fraud, to prove its existence. No stipulation, however, that the accounts should be considered as settled, will prevent the Court from correcting error the moment that it becomes manifest. The bill then charges Goldwin with having paid more money to Ratcliffe than he ought to have done according to the terms of the trust; a circum 1804. and WIFE versus GOLDWIN. : stance, however improper in itself, yet one which RatCHAMBERS cliffe and his family cannot very well be allowed to quarrel with And then follows the most material charge in the whole bill-That in the accounts pretended to be settled ' and signed, there are manifest errors and overcharges, ' and particularly that six per cent. upon the gross profits ' is charged for management, although Goldwin now, and 'for several years past, has resided in England, and when ' no such charges are allowed.' The bill, therefore, must succeed, if at all, by imputing the settlement of the accounts to fraud or error. I apprehend the rule of the Court in such cases to be, that you must charge and prove some of the errors which you impute, and that the Court does not open the account unless they are proved. It would be otherwise impossible for a defendant to defend himself. It is an objection which I once myself took before Lord THURLOW, that if you seek to open accounts on the ground of error (and error ought always to be most certain because it is error,) you must specify it; but I do not know any case in which the Court has gone the length of declaring any thing to be error, unless it be so alleged in the pleadings. It would be attended with great inconvenience if the rule were otherwise, because there may be cases in which, at the hearing, it is quite clear that there is error, yet the Court must be satisfied that the party accused had notice of the charge from the bill, and was consequently prepared to meet it. It will not do for a plaintiff to say that previous specification was unnecessary, and that the whole of the matter may be considered at the hearing. I therefore think that you should surcharge and falsify (and confine yourself to that) according to the error specified in the pleadings. Beyond that, the party must be left to make out his case in the Master's office, and the matter may then be brought here again. "The bill charges that Mr. Goldwin is liable to losses for not having caused proper insurances to be made, and it prays, that an account may be taken of what is due to him on the mortgage, and that he may not be permitted. to insist on the accounts as settled. Now the bill having specified as matter of error, the circumstances respecting |