Snowden v. Thomas 4 H. & J. 335

Snowden, et al. vs. Thomas, et ux.

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Appeal from the Court of Chancery. The bill was filed by the appellees on the tsJ of January 1807. It is stated that one Richard Snowden being seized of the Patuxent iron works. &c. devised them to his three sons John, Thomas and oamud„ subject to the dower of ms wife betk. The iron works were carried on after the death of the devisor by the widow and three sons, until the death Thomas, which happened previous to 1772. He devised his interest to his three sons Richard, Henry and Thomas, as joint tenants. After the death of the last devisor the works were carried on in the name ot the widow ot Richard, his two sons, and the devisees of Thomas, until the death of Elizabeth, the widow, in 1772. After her they were carried on by tho two sons of Richard, and the devisees of their brother Thomas, till the latter part of when Richard died leaving a widow, Elizabeth, and an only child, Mary, one of the complainants. The estate of Richard wus administered on by his widow. At the death of the last named Richard, a balance was due to him from the partnership of ¿£517 16 9. as appears by the books of the company. Henry died soon after his brother Richard, leaving his estate to his brother Thomas. Soon after the death of Richard, the father of the complainant Mary, his widow Elizabeth married one Orme, who soon afterwards died leaving no issue, and in 1775 bis widow died leaving tho *336complainant, Mary, her only child, to whom she left her estate, making Thomas Snowden, her executor, and also guardian of Mary, the complainant. At the time of the death of Mrs. Orme, there was due to iler, from the partnership of Samuel, John and Thomas Snowden, in her own right, and as administratrix of her husband Richard Snowden,, a further sum of £140 5 5. The complainant, JohnC. Thomas, intermarried with the complainant, Mary, in 1738. In 1794 the complainant received from Samuel, John and Thomas Snowden, by the hands of Thomas Snowden, £457 18 3, in part payment of the sum due as aforesaid. That John and Samuel, although they admitted that sum to be due, yet they refused to pay interest, because the money was not demanded. The bill also stated the death of Samuel, and who are his ex-ecu tors, and also the. death of Thomas, with whose executors the complainants have had a settlement, and have ibe/en satisfied by tln*m one third part of the balance due on the said sums for principal and interest,the remaining two-thirds being still due. The complainant, John, is the administrator de bonis non of the first named Richard and Elizabeth Orme. The bill was filed against John Snow-den, and the executors of Samuel and Thomas Snowden„ The answer of the executors of Samuel states the payment made by Thomas Snowden, in behalf of the company, to the complainant, John, in 1794, of £457" 18 3, and his taking.the complainants’ receipt in full of all claims. That after this the company settled' their accounts, under the impression that the debt had been fully paid, and distributed the partnership effects, and insisted that this ought to be conclusive. John Snowden having also died, a bill of revivor was filed against his administrators. On the coming in óf the answers of the several defendants, a commission issued to take, testimony, which was taken and returned. The auditor being directed to state an account, aeported one charging the defendants with balances due on the books of the company, viz.

1773, June 24th, Due to Richard Snowden, 97 77

.1778, April 18, Due to ditto, 749 81

1783. Dec. 24, Due to Elizabeth Orme, , 374 06

1794, Feb. -1, Interest on the above sums from the respective dates above mentioned, 1059 05

82280 69

1794, Feb. 1, Crediting a payment of 81221 10

•Leaving a balance of 1059 59

82280 69

1806, Feb. 1, Charging the balance due, 1059 59

-interest from the Jsf .of Feb. X794, 762 91

81822 50

*337Crediting; so much paid by T,

Snowden’s executors for their one third part, 607 50

Balance due from the other defendants, «1215 00

Kilty, Chancellor, (Septena jer Term 1816.) The proceedings will show the. decree to account, by consent. A report has been made by the auditor under that decree, to which exceptions have been filed, but they go chiefly to the equity reserved on the decree.

In the case of Dixon vs Parkes, 1 Esp. Rep 110, cited by the counsel of the defendants, Lord Kenyon ruled that the plaintiff' could not, in the then form of action, recover the interest, having received the principal. But the reason given is more technical than just, to wit, that there must be something to support the interest given in the form of damages, and that there could be no verdict for the principal, that having been paid.

I am not satisfied, from any decisions in courts of equity, thar when an account of personal estate is demanded, and payment of a book account, this rule has been or ought to be adopted, unless the evidence showed a receipt of the amount of the principal in full, with an intention or agreement to give up the interest. And there is no such evidence in this case. The account stated by the auditor appears to have been made out according to the usual course of the court. And it has not been shown to be otherwise, supposing the objections, on account of the rule of law, not to prevail.

The balance is claimed from the defendants, the executors of S. Snowden, and the administrators of </. Snoio-den, equally. Decreed, that die administrators of,/. Snow-den pay to the complainants 8607 50, with interest thereon from the 1st of February 1806. And that the executors of S. Snowden pay to the complainants a similar sum. with interest as above. Assets in their hands being admitted. That the other defendants, executors of rE. Snowden, be hence dismissed. From this decree the administrators of J. Snowden appealed to this court.

The cause was argued before Buchanan, Earle, Johnson, Martin, and Dorsey, J.

Magruder and Ridout, for the Appellants.

The question is, Whether the complainants are entitled to interest on a sum of money, the principal being paid as early as” 1794? They cited Proctor vs. Cooper, Prec in than. 116., Waring vs. Ouvliffe, 1 Ves. jr. 99. Brown vs. Barkham,-1 P. fVms. 652. Vrelawney vs. Thomas, l H. Rlk. Rep, 303, Blaney vs Hendrick, 3 Wits. 206. Dixon vs Parkes, 1 Esp. Rep. 110- Tillocson vs. Preston, 3 Johns. Rep, *338'529. Parker vs. Hutchinson, 3 Ves. 135; and Upton v'S, Ferrers, 5 Ves. 803.

No Counsel appeared for the Appellees.