Bartle v. Coleman. 6 W.

Jones and Taylor, for the defendant in error.

The case is stated in the opinion of the court.

MARSHALL, C. J., delivered the opinion of the court.

This is a writ of error to a judgment rendered by the circuit court for the District of Columbia and county of Alexandria, against Andrew Bartle and Samuel Bartle, on a writ issued by George Coleman, against Andrew Bartle, on the service of which Samuel Bartle became bail for his appearance. The defendant in the court below not having entered his appearance, a conditional judgment was entered at the rules held in the clerk's office, against the defendant and his appearance bail. This being an action on the case, the judgment at the rules was for no specific sum, but for the damages which the plaintiff in that suit has sustained, which damages are to be inquired into and ascertained by a jury. After this writ of inquiry shall be executed, and not till then, a final judgment for the damages assessed by the jury is rendered by the court. In the mean time the cause stands on the court docket for trial.

The Act of Assembly respecting this subject, is in these words: "And every judgment entered in the office against a de[477] fendant and bail, or against a defendant and sheriff, shall be set aside, if the defendant at the succeeding court shall be allowed to appear without bail, put in good bail, being ruled so to do, or surrender himself in custody, and shall plead to issue immediately." "If the defendant shall fail to appear, or shall not give special bail, being ruled thereto by the court, the bail for appearance may defend the suit, and shall be subject to the same judgment and recovery as the defendant might or would be subject to, if he had appeared and given special bail."

The courts of Virginia have never construed this act strictly as to time. Although the absolute right given to the defendant to appear and set aside the judgment rendered in the office, is limited to "the succeeding court," he has always been allowed to appear and set it aside, at any time before it became final. In all actions which sound in damages, the judgment cannot become final until the damages shall be ascertained for which it is to be rendered.

In other respects, too, this law which authorizes a judgment against the appearance, or common bail, without the service of process on him, has been construed with great liberality. The cases which have been cited show that the decisions in the court of appeals of Virginia, have settled principles which seem to decide this case. It has not only been determined that the defendant may

Bartle v. Coleman. 6 W.

enter special bail, and defend the suit, at any time before a final judgment, but also, that if he appears and pleads, without giving special bail, or appears and confesses judgment, the appearance bail is discharged.

* It is also well known to be the settled practice of Vir- [*478] ginia, if special bail be given, to discharge the appearance bail, although the defendant should not appear, but the judgment should become final, either on his default, or on the execution of a writ of inquiry.

It is then settled that the appearance of the defendant or the entry of special bail, before final judgment, discharges the appear ance bail.

Let these principles be applied to the case before the court. While the writ of inquiry was depending we find this entry on the record: "In the case of George Coleman, plaintiff, and Andrew Bartle, defendant; and Andrew Bartle, plaintiff, and George Coleman, defendant; by consent of parties this case is referred to Joseph Deane," &c.

Could this rule be made without consent? Or could this consent be given without the appearance of the party, by himself or his attorney? Both these questions must be answered in the negative. What party, then, did appear and give this consent? Was it Andrew Bartle, the defendant in the cause, who is named as the party, or was it Samuel Bartle, his appearance bail, who is not named? In addition to the omission of the name of Samuel Bartle, an omission which could not have been made had he actually appeared and been a party to the rule, it is to be observed that he had no power to consent to it. The law allows him to defend the suit, but does not allow him to refer it to arbitrators. We do not hazard much in saying, that no court would or ought to permit such a rule as this to be made, without the consent of the defendant given in person, or by his attorney. But were it [479] even supposed to be in the power of Samuel Bartle to

refer the suit of Coleman against Andrew Bartle, he could not refer that of Andrew Bartle against Coleman; and this suit also is embraced in the same rule.

It is then apparent that it is Andrew Bartle who consented to this rule.

It has been contended that the consent of Samuel Bartle must

also be implied. We do not think so. It is reasonable to suppose that his name would have appeared, had he been a party to the rule. But it was not necessary that he should be a party to it. Andrew Bartle was himself competent to make this reference, and the

Bartle v. Coleman. 6 W.

appearance bail never comes into court, unless it be to defend the sult in consequence of the non-appearance of the defendant. But, were it even true that the consent of Samuel Bartle could be inferred, it would, nevertheless, be also true, that Andrew Bartle appeared by the admission of the plaintiff; and such appearance, according to the decisions in Virginia, discharges his bail.

In the mode pursued by the clerk, in making his entry, the usual form of saying, "this day came the parties," &c., is not pursued. But this is immaterial, because the parties perform an act in court, which could not be performed without appearing; they consent to a rule which implies appearance, and the form of the entry cannot affect its substance. Were it otherwise the appearance of the

defendant is entered in the usual form before final judg[*480] ment. On the return of the * award, the following entry is made: "And now here, &c., at this day, &c., came, as well the plaintiff aforesaid, by his said attorney, as the said defendant, by Thomas Swan, his attorney, and the following award was returned," &c. The award is then recited, which shows that the arbitrators proceeded on notice to Andrew Bartle only, and the judgment of the court is immediately rendered for the amount of the award against " Andrew Bartle, the defendant, and Samuel Bartle, the security for his appearance." Yet the appearance of Andrew Bartle is formally entered on the record previous to this judgment. If, instead of entering the judgment in pursuance of the award, it had been entered in pursuance of the confession of the defendant, this would have been the very case cited from 1 Hen. & Munf. 329. And what distinction can be taken between this case and that? The counsel for the defendant in error says, that a judgment by confession is a different judgment from that entered in the office, and, therefore, must be a substitute for it, received by consent of the plaintiff. And is not this also a different judgment from that rendered in the office? And is it not entered at the instance of the plaintiff?

Were it necessary to pursue this argument further, we should all be of opinion that judgment could not be rendered against the appearance bail, on this award, and without executing the writ of inquiry, unless by his consent. But as we are of opinion that the

appearance of the defendant has discharged his bail, it is [*481] unnecessary to pursue the subject further. The judgment against Samuel Bartle is erroneous, and, as it is joint, it Judgment reversed.

must be reversed against both.

Prevost v. Gratz. Gratz v. Prevost. 6 W.

PREVOST V. GRATZ et al.

GRATZ et al. v. PREVOST. 6 W. 481.

To establish the existence of a trust, the onus probandi lies on the party who alleges it. In general, length of time is no bar to a trust clearly established to have once existed; and where fraud is imputed and proved, no length of time ought to exclude relief.

But as length of time necessarily obscures all human evidence, and deprives parties of the means of ascertaining the nature of the original transactions, it operates, by way of presumption, in favor of innocence, and against imputation of fraud.

The lapse of forty years, and the death of all the original parties, deemed sufficient to warrant a presumption of the discharge and extinguishment of a trust, proved to have existed by strong circumstances; by analogy to the rule of law, which after a lapse of time presumes the payment of a debt, surrender of a deed, and extinguishment of a trust, where circumstances may reasonably justify it.

APPEAL from the circuit court of the United States for Pennsylvania.

This was a bill in chancery, filed in the court below, by the plaintiff George W. Prevost, as administrator de bonis non, with the will annexed, of George Croghan, deceased, [* 482 ] against the defendants Simon Gratz, Joseph Gratz, and Jacob Gratz, administrators of the estate of Michael Gratz, deceased, for a discovery and account of all the estate of G. Croghan, which had come to their hands or, possession, either personally or as the representatives of M. Gratz, who was one of the executors of G. Croghan, who died in August, 1782, having appointed M. Gratz, B. Gratz, T. Smallman, J. Tunis, and W. Powell, executors of his last will and testament. All the executors, except W. Powell, died before the commencement of the suit. B. Gratz died in 1800, and M. Gratz in 1811. W. Powell was removed from his office as executor, in the manner prescribed by the laws of Pennsylvania, after the death of M. Gratz; and the plaintiff was thereupon appointed administrator de bonis non, with the will annexed. The bill charged M. Gratz, and B. Gratz, (the representatives of B. Gratz not being made parties,) with sundry breaches of trust in respect to property conveyed to them in the lifetime of the testator, and with other breaches of trust in relation to the assets of the testator after his decease; and also charged the defendants with neglect of duty in relation to the property and papers of G. Croghan, which had come to their hands since the decease of M. Gratz.

The scope of the bill, and the evidence, appear sufficiently in the opinion of the court.

Webster and Ogden, for the plaintiff.

Pinkney and Sergeant, contrà.

[ * 492 ]

follows:

Prevost v. Gratz. Gratz v. Prevost. 6 W.

* STORY, J., delivered the opinion of the court, and after stating the proceedings in the court below, proceeded as

The first point upon which the cause was argued, respects the tract of land on the Tenederah River. It appears from the evidence that this tract of land, containing 9,050 acres, was conveyed by Col. Croghan to Michael Gratz, by a deed bearing date on the 2d of March, 1770, for the consideration expressed in the deed, of £1,800. The deed is upon its face absolute, and contains the covenants of general warranty, and for the title of the grantor, which are usual in absolute deeds; but are unnecessary in deeds of trust. At the time of the execution of the deed, Col. Croghan was in the State of New York, and Michael Gratz was at Philadelphia. The land was, after the death of Col. Croghan, and in the year 1795, sold by Michael Gratz, to a Mr. Lawrence, in New York, for a large sum of money. The plaintiff contends that this conveyance made by Col. Croghan to Michael Gratz, though in form absolute, was in reality a conveyance upon a secret trust, to be sold for the benefit of the grantor; and in this view of the case he contends further that he is [*493] entitled to be allowed the full value of the lands at the time that the present suit was brought, upon the ground of a fraudulent or improper breach of trust by the grantee, or at all events, to the full amount of the profits made upon the sale in 1795, with interest up to the time of the decree!

The attention of the court will, therefore, be directed, in the first place, to the consideration of the question whether this was a conveyance in trust, and if so, of what nature that trust was; and in the next place, whether that trust was ever lawfully discharged or extinguished. If there be still a subsisting trust, there can be no doubt that the plaintiff is entitled to some relief.

It appears from the evidence that Col. Croghan, and Bernard and Michael Gratz, were intimately acquainted with each other, and a variety of accounts was settled between them, from the year 1769, to a short period before the death of Col. Croghan. During all this period, Col. Croghan appears to have had the most unbounded confidence in them; and particularly by his will, made in June, 1782, a short time before his decease, he named them among his executors, and gave to Michael Gratz, in consideration of services rendered to him, 5,000 acres of land, and to his daughter Rachel Gratz 1,000 acres of land on Charter Creek, with an election to take the same number of acres in lieu thereof, in any other lands belonging to the testator. The situation of the parties, therefore, was one in which secret trusts might probably exist, from the pecuniary embarrass