Grove vs. Fresh.-1837.

its payment can be made. The bill was filed in less than eighteen months after the settlement took place, which is too short a time to raise a presumption of payment, sufficiently strong to render Grove personally answerable for the amount, and there was nothing in the nature of the settlement that imposed on him such a responsibility. The decree of the chancellor, therefore, is erroneous in so charging him. It is also erroneous on another ground, though perhaps one for which, on the present appeal, it could not be reversed. Yet as this case must be remanded for further proceedings in the court of Chancery, it is proper that we should suggest it, that it may be remedied by the final decree of that court. In a bill for an account, filed by one partner against his co-partners, after the termination of the partnership, all the partners, as well defendants as complainant, are regarded as actors, and the accounts must be stated by the auditor, and the concerns of the partnership and rights of the several partners finally adjudicated upon by the chancellor, in the same manner as if each partner was a complainant, filing a bill against his co-partners. The chancellor would not otherwise finally adjudicate upon the whole case before him. Such was not the course of proceedings adopted in this cause. The audit was made, and the decree passed, simply upon the claims of the complainant against the defendants, his co-partners, leaving the claims of the defendants as between themselves wholly undetermined.

This court will sign a decree, reversing without costs the decree of the chancellor, and remanding this cause to the court of Chancery, that such further proceeding may be had therein, as may be necessary to a final decree upon the rights of all the parties, according to their respective equities.

CAUSE REMANDED.

Union Bank of Maryland vs. Johnson and Glenn.—1837.

THE PRESIDent and Directors of tHE UNION BANK OF MARYLAND vs. REVERDY JOHNSON AND JOHN GLENN. December, 1837.

On the 23d of March, 1834, E. P. conveyed to the plaintiffs all his estate, real, personal, and mixed, in trust to sell the same, and apply the proceeds to the indemnification of the plaintiffs and others, against certain responsi bilities which they were under for him. This deed was duly acknowledged, on the day of its date, but not recorded until the 30th of June following. On the 8th of May, 1834, the said E. P. in consideration of the said responsibilities, and of other debts due from him, executed another deed to the plaintiffs, conveying to them all his property and estate, rights, and credits; in trust to indemnify the plaintiffs and others, and for other purposes. "Certain agents of E. P. on the 24th March, 1834, remitted him by mail, a draft for $5,000, at 60 days, drawn on a mercantile house in New York, which was received by him in Baltimore on the 7th of April, following.

On the same day E. P. endorsed and delivered the draft to P. E. & Co. who deposited the same with the defendants for collection on the same day, in the usual course of business.

This draft was forwarded by the defendants to New York for collection, was paid there on the 11th of June, 1834, by the acceptors; the proceeds received by the defendants on the 14th of the same month, and on that day was passed to the credit of the depositors, P. E. & Co.

On the 2d of June, 1834, the plaintiffs apprised the defendants by letter, that they claimed the proceeds of this draft, under the before mentioned deeds, if it was received by E. P. subsequently to the 23d of March, or was in his possession on that day, and not discounted by others.

After the receipt of this letter, and after the receipt by the defendants of the money for the draft, to wit: on the 5th July, 1834, they, in conformity with the opinion of counsel, paid the same to P. E. & Co.

The plaintiffs offered evidence to show that P. E. & Co. were indebted to E. P. at the date of the deed of the 23d of March, 1834, and on the 7th of April following, when he endorsed the draft in question to them, and that they had knowledge of the execution of the deed.

It was in proof, that the plaintiffs up to the 7th of April, 1834, had paid no money, nor suffered any loss on account of their responsibilities for E. P. though after that date, they had collected and paid away various sums under the deeds.

Upon this state of facts, the plaintiffs instituted suit against the defendants on the 5th July, 1834, for the amount of the draft, and it was held, upon appeal, that they were entitled to recover.

APPEAL from Baltimore county court.

This was an action of assumpsit, brought by the appellees against the appellants on the 5th day of July, 1834, to re

Union Bank of Maryland vs. Johnson and Glenn.-1837.

cover the sum of $5,000, had, and received by the appellants, to the use of the appellees. The defendants pleaded non assumpsit, on which issue was joined.

At the trial, the plaintiffs to support the issue on their part, offered in evidence to the jury, that the Bank of Maryland, whereof Evan Poultney was president, and principal owner, being in embarrassed circumstances, and compelled to stop payment, the said Evan Poultney on the 23d March, 1834, executed the following deed to the plaintiffs in this cause. EVAN POULTNEY, deed of trust

This indenture, made this twenty-third day of March, in the year of our

Lord one thousand eight hundred and thirty-four,

between Evan Poultney of Baltimore, of the one part, and John Glenn and Reverdy Johnson, of the same city, of the other part, witnesseth, that whereas, the said John Glenn, and Reverdy Johnson, and Hugh McElderry, David M. Perine, and Evan T. Ellicott, are, and stand responsible to the Union Bank of Maryland, for and on account of the president and directors of the Bank of Maryland, and of Evan Poultney aforesaid, or of either of them, in certain sums of money, at the instance and for the benefit of said Poultney; and whereas, it is the wish and desire of the said Poultney to save harmless, and indemnify the said John Glenn, Reverdy Johnson, Hugh McElderry, David M. Perine, and Evan T. Ellicott, for and on account of said responsibility, and for that purpose executes these presents. Now this indenture witnesseth, that for and in consideration of the premises, and of the sum of five dollars, to the said party of the first part paid by the parties of the second part, he, said party of the first part, hath granted, bargained and conveyed, and by these presents doth hereby grant, bargain and convey, to the said parties of the second part, all his, the said party of the first part's, estate, real, personal, and mixed, of every kind and description whatsoever, wherever situated. To have and to hold the said estate, real, personal, and mixed, to them, the

Union Bank of Maryland vs. Johnson and Glenn.-1837.

said John Glenn and Reverdy Johnson, parties of the second part, their heirs and assigns forever, to and for their exclusive use and benefit. In trust, nevertheless, that they, the said Glenn and Johnson, their heirs, executors, and administrators, shall, at such time and times as they may deem it necessary, to and for the purposes of saving and indemnifying themselves, and the other parties aforesaid, sell and dispose of the said estate, real, personal, and mixed, and on such terms as they may deem proper, and at either public or private sale, and in further trust, that they apply the proceeds of the sale or sales of said property, as aforesaid to be made, to the payment and discharge of the responsibilities aforesaid, held by the said Union Bank, and for which they, the said Glenn, Johnson, McElderry, Perine, and Evan T. Ellicott, are liable as before mentioned. In testimony whereof, the said Evan Poultney hereto affixes his hand and seal, the day and year herein before written. EVAN POULTNEY. [Seal.] Which said deed, it is admitted, was executed and acknowledged on the day of its date, but was not recorded until the 30th June following, and that on the 8th May following, the said Evan Poultney executed to the same parties, another deed in the following words and figures, to wit: EVAN POULTNEY, deed of trust

to

REVERDY JOHNSON

and

JOHN GLENN.

This indenture, made this eighth day of May, in the year of our Lord one thousand eight hundred and thirty-four, be

tween Evan Poultney, of the city of Baltimore, and state of Maryland, of the one part, and Reverdy Johnson and John Glenn, of the same city and state, of the other part: Whereas, the said Evan Poultney has heretofore obtained a loan at the Union Bank of Maryland, of fifty thousand dollars, on a certificate of special deposite issued by the Bank of Maryland, in his favour, and endorsed by him, and at his instance, and by his request, by the said Reverdy Johnson, John Glenn, and others, which loan was passed by him to the credit of said Bank of Maryland. And whereas, also, the said Reverdy

Union Bank of Maryland vs. Johnson and Glenn.-1837.

Johnson, John Glenn, and others, also loaned their three notes for ten thousand dollars each to said Poultney, upon which he also obtained at said Union Bank of Maryland, a loan for that amount, which was immediately passed to the credit of said Bank of Maryland. And whereas, at the time said Reverdy Johnson, John Glenn, and others, endorsed said certificate and loaned said notes, it was in consideration that said Evan Poultney agreed to save harmless and indemnify them, from all loss or damage from said endorsement and notes. And whereas, as a further protection to said parties, there was placed by said Evan Poultney, to their credit, in the Bank of Maryland, and which has ever since remained there undiminished, the sum of thirty thousand dollars. And whereas, also, the said Reverdy Johnson, John Glenn, and others, will be entitled, on payment of said certificate and notes to the Union Bank of Maryland, to be substituted to the rights of said latter bank, as a creditor of the Bank of Maryland, and of said Evan Poultney, and to all securities, collateral or otherwise, which the said Union Bank may hold or be entitled to, for and on aecount of the loans aforesaid. And whereas, the said Evan Poultney is also indebted to the General Insurance Company in an unsettled account, and is also indebted to the president and directors of the Bank of Maryland, or their trustees, Thomas Ellicott, John B. Morris, and Richard W. Gill, all of which he is desirous to secure. Now this indenture witnesseth, that for and in consideration of the premises, and of the sum of ten dollars, to him in hand. paid by the said Reverdy Johnson and John Glenn, the receipt whereof is hereby acknowledged, he, the said Evan Poultney, hath given, granted, assigned, bargained and sold, and by these presents doth give, grant, assign, bargain and sell, to the said Reverdy Johnson and John Glenn, their heirs, assigns, all the property and estate, rights, and credits of him, the said Evan Poultney, hereinafter particularly mentioned, that is to say, one-eleventh interest in the real estate of the father of him, the said Evan Poultney; the lot or lots at the intersection of Charles and Fayette streets, on which are