Daniel v. Mitchell et al.

frailty of human memory, and the mistakes, which may constantly occur in understanding the exact purport and meaning of the language, used by parties in conversation. Judges, therefore, in acting upon the proof of confessions, are not at liberty to draw inferences from their own personal knowledge of individuals; but they must deal with such evidence, as if the parties were unknown, and it were to be judged of upon its own intrinsic force, connected with the other circumstances of the case. But, when such confessions are to establish the solemn charge of deliberate perjury by any party, I am sure, that the Court is called upon to exercise the most scrupulous caution, before it arrives at the conclusion, that mere confessions establish such criminality. These, however, will properly occur as matters of observation at the argument; and they are now suggested, because they must be met and considered, whenever the petition comes on for a final hearing.

But the other point is a matter of great practical importance, and is that, upon which, I confess, I have a strong impression. It is, whether a Court of equity ought ever to open a cause for a rehearing and to admit new evidence, founded upon parol confessions made subsequently to the time of the original decree. I have searched the authorities to find some case of this sort; but I have not found any. The counsel have frankly admitted, that in their own researches they have discovered none. My judgment is, that no such case does exist. And this universal silence in a case, which must frequently have occurred in practice, affords an exceedingly strong presumption, that it has not been deemed admissible as a ground for a rehearing.

Memorandum. Upon these suggestions the counsel submitted the case to the Court without farther argument, and the Court overruled the application on the petition for a rehearing, and refused leave to file a supplemental bill.

Stearns v. Page.

GEORGE B. STEARNS, ADMINISTRATOR DE BONIS NON,

v.

RUFUS K. PAGE.

Where a bill in equity was brought by an administrator de bonis non, for an account of the intestate's estate, after the lapse of from twenty to twentyfive years, and the defendant pleaded the statute of limitations, and filed a general answer to the whole bill; it was held, that the plea should, in itself, contain averments, negativing such special matters, stated in the bill, as would, if true, avoid the operation of the statute; and that it was not suf ficient, that such matters were negatived in the answer.

Held, also, that when an answer contains more than is strictly applicable to the support of the plea, it overrules the plea.

Where a bill in equity is brought after a great lapse of time, it is incumbent on the plaintiff to state the reasons, why it was not brought before, in order to repel the presumption of laches or improper delay; and if fraud, mistake, &c. are charged, distinct and definite averments should be made in regard to the time, occasion, and subject matter of such fraud or mistake.

BILL in equity, brought by George B. Stearns, of Boston, as administrator de bonis non of John O. Page, against Rufus K. Page.

The bill alleges, in substance, as follows:

That John O. Page died in foreign parts, about the 28th of February, 1811, intestate, and possessed of real and personal estate to the amount of about $81,000; that he left a widow, who, on the 25th of June, 1811, was appointed his administratrix; that, during his absence, the management of most of his personal property was intrusted to Rufus K. Page, and, after his death, his widow being unacquainted with business transactions, it was continued in his care, together with all the residue of his personal property, as trustee. That the accounts rendered by the widow, as administratrix, the last of which was rendered on the 20th of February, 1816, were in

Stearns v. Page.

reality drawn up by Rufus K. Page, and signed by her as a mere matter of form, and were full of errors and mistakes.

The bill further charges, that Rufus K. Page, as trustee, fraudulently appropriated and converted to his own use certain portions of the property, viz.

1st. That he sold the brig Emmeline for the sum of $13,000, and converted the whole proceeds of the sale to his own use, without ever rendering any account of them.

2d. That he falsely represented to the administratrix, that a copartnership had existed between John O. Page and himself, by which he was entitled to a portion of the goods in the store of J. O. Page, in Hallowell, as well as of a portion of the credits belonging to the establishment; while, in fact, no such copartnership had ever existed, and the whole merchandise credits of the store were the sole property of John O. Page. 3d. That he induced the administratrix, by false and fraudulent representations, to give up, without consideration, certain promissory notes due from him to the estate of John O. Page.

4th. That, as trustee, at the death of John O. Page, he came into possession of the ship Horatio, which was then unfinished, and on the stocks; and that his duty was to sell the ship, and pay over the proceeds to the administratrix ; but, in breach of his trust, he grossly and fraudulently neglected so to do, and suffered the vessel to deteriorate and decay, until she became of little or no value, so that the estate lost the proceeds and benefits, which should have accrued from such sale ; and that the ship Horatio might and could have been sold for the sum of $12,000.

The bill further states, that the administratrix, Sarah Page, died in 1836, and that the plaintiff, on the 28th of October, 1828, married Louisa Page, the daughter of Sarah Page, then of age, and that he was appointed administrator de bonis non of the estate of John O. Page.

Stearns v. Page.

The bill goes on to charge,

5th. That Rufus K. Page has admitted to several persons, that he had property in his hands, which he had appropriated, and claimed to hold by virtue of a certain paper, purporting to be the will of John O. Page; but that, in fact, such paper, on being offered for probate, was set aside as invalid; and that J. O. Page therefore died intestate.

That he has also declared, that he made sales of John O. Page's property, among which was a sale of the brig Emmeline, for $13,000, the proceeds of which he converted to his

Own use.

That prior to the death of John O. Page, the defendant had apparently been possessed of scarcely any property; but that, with the proceeds of this fraudulently converted property, he had entered largely into business, and received large profits therefrom, for which he ought to account, as trustee.

6th. That from the nature of the transactions and lapse of time, the plaintiff has not full information relative to the other parts of the accounts of the property, but believes and avers, that it was fraudulently appropriated and converted to the use of Rufus K. Page.

That since the winter of 1834, the plaintiff had no suspicion of a breach of trust, or that the accounts were erroneous, and that he had not until recently obtained sufficient information to authorize him to proceed against Rufus K. Page.

That once, when applied to, Rufus K. Page agreed to submit the whole matter to the decision of some disinterested person, but that when requested to carry such agreement into effect, he absolutely refused so to do. And that a further proposal has been made to him to investigate the accounts between him and J. O. Page, and between him and the administratrix; with which he refuses to comply.

The bill prays, that the said Rufus K. Page may answer

Stearns. Page.

the premises and render an account of all the matters therein contained, and a full statement and account of all the property of the said John O. Page, at the time of his death, and of all the property, that ever came into the possession or control of the defendant, or of any person, subject to his directions, as trustee ; and that he shall pay to the plaintiff whatever may be due on a fair settlement of the accounts subsisting between him and the estate of the said John, going back to the time of the said John's death, and making examination of all accounts, with interest on all sums due from the defendant; and it concludes with the prayer for general relief.

The defendant pleaded the statute of limitations, and also made answer, in substance, as follows:

That he believes, that John O. Page died intestate, in foreign parts, in manner as stated in the bill, and that Sarah Page was appointed administratrix.

That after such a lapse of time, he is unable to specify particularly the property, which the said intestate left. But believes, that an inventory was returned by the administratrix of all his real and personal estate to the sum of between $70,000 and $80,000, which is now on file in the office of the Register of Probate, for the County of Kennebec.

That John O. Page was for some time in the business of building and sailing vessels, but his business having considerably increased, and he being feeble in health, he proposed in May, 1806, to take the defendant, who had been formerly a clerk in the store, into copartnership. The proposal was assented to, and the copartnership was formed without written articles of agreement, but verbally and without limitation of time. The agreement was, that the stock owned by the said John and already in the store, should be turned in, as a part of the capital of the firm, which was to be under the name of Rufus K. Page. An inventory of the stock was taken, and it