case, if in the intermediate time the settlement | unnatural that M. Gratz should, after the was made with Colonel Croghan, the credit event, have communicated the fact to Colonel must have been allowed in that account as it Croghan, and with his consent, altered the acstands, and having been once allowed, M. count, so as to conform to it. Or, the interGratz could not, on a recision of the sale, have lineation might have been made in the account, been entitled to countermand that credit. He after the failure of the contract with Howard, would have been bound to take the land at the in order to show against which of the firm of sum which he had elected to allow for it, and B. & M. Gratz this sum ought to be charged, in for which he had sold it. On the other hand, the adjustment of their partnership concerns. supposing a deed actually to have passed to It adds some force to these considerations, that Howard, the latter may have become dissatisfied Colonel Croghan continued, during the residue with his bargain, or have failed to pay the con- of his life, to entertain the same friendship and sideration money, and have yielded it back to confidence in M. Gratz; and this, at least, Gratz, and dissolved the purchase. But this demonstrated his belief that the Tenederah circumstance could not have varied the situ- lands had not been unjustly sacrificed by him. ation of Gratz in respect to the settlement with If we look to the subsequent conduct of M. Colonel Croghan. All that was important, or Gratz, in relation to the Tenederah lands, his useful, or necessary, as between them, upon great expenses in making improvements on it, the supposition that the trust was merely a re- after the year 1786, and his diligent attention 501*] sulting trust, until the price *was fixed, to it, it leads to the *conclusion that he [*503 was, that the price should have been satisfac- always considered himself as the real bona fide torily ascertained and agreed to between them. owner. His possession of it must have been In this view of the transaction, there could be known to the parents of the plaintiff, whose no ground to impute fraud to M. Gratz; nor mother was the heir of Colonel Croghan; and could his conduct involve a violation of trust. it is proved, that his father had the most unreIn the absence of all contrary evidence, is it not served and frequent access to the papers of just, is it not reasonable, to presume such to Colonel Croghan; and that he actually resided have been the reality of the case? That there several years in Philadelphia, with the exis no evidence to the contrary, may be safely press view of examining the estate, and finally affirmed. abandoned all hopes of deriving any benefit from the fragments that were left of it. The very account now produced by the plaintiff, by which this trust is brought to light, was delivered over to him by the representatives of M. Gratz, among the other papers of Colonel Croghan; and yet, if there had been anything false or foul in the transaction, it seems almost incredible that M. Gratz, into whose possession it came as early as 1782, should have suffered it to remain as a monument of his own indiscretion, and an evidence of his want of good faith.

In addition to this, it may be asked, whether M. Gratz had any adequate motive for practicing a deception in this case. Men do not usual ly act under circumstances such as are imputed to M. Gratz, unless from some strong inducement of interest. It cannot be presumed that any man of fair character, such as M. Gratz is proved to have been, could perpetrate a fraud or deception without some motive that should overbalance all the ordinary influence of prudence and honor. If there be anything beyond all doubt established in this case, it is, that the value of the land, as fixed in the account of 1775, was its full value. It is proved by public sales of adjoining tracts, at the very period when Howard is asserted to have purchased the land; and so far from there being any chance of an immediate rise in value, the state of the country, on the very eve of the revolutionary war, forbade the indulgence of every such hope, and must have dissolved every dream of speculation. As far, then, as we can investigate motives, by referring to the general principles of human action, there does not seem to have been any motive for disguise or concealment on the part of Michael 502*] *Gratz towards Colonel Croghan. The reasonable conclusion, therefore, would certainly be, that no such disguise or concealment was practiced.

There is one circumstance also which has been thought to have thrown some cloud over this part of the case, that upon the opinion already indicated, would admit of a favorable exposition. It is this: In the possession of M. Gratz, a counterpart of the account of 1775 is found, in which the word Howard is crossed out with a pen, but so that it is perfectly legible, and the name of Michael Gratz, is, in his own handwriting, written over it. The writing seems to be of great antiquity, and supposing that there was a real sale to Howard, which was afterwards abandoned, it is not

If, on the other hand, the trust is to be considered as a trust to sell, and apply the proceeds to the payment of the debt due to B. & M. Gratz, most of the considerations already stated will apply with equal force. If the sale was real, and Howard did not comply with the terms of sale, Col. Croghan having knowledge of the fact, might have been well satisfied to let M. Gratz hold the land, at the price thus fixed by the sale. To him, it must have been wholly immaterial who was the purchaser, if the full value was obtained; and that it was obtained, in Col. Croghan's own judgment, seems undeniable. The only *question [*504 is, whether such knowledge can be inferred; and after such a length of time, under all the circumstances of this case, we are clearly of opinion that it ought to be inferred. Col. Croghan had it in his power to make inquiries on the subject; if he did, and was satisfied, his acquiescence was conclusive; if he did not, he considered that the sale, as between himself and Gratz, was consummated when the price was fixed, and was willing that the trust should be deemed extinguished forever. If, after the lapse of forty years, and the death of all the original parties, we were to come to a different conclusion, it would be pressing doubtful circumstances with uncommon rigor against unblemished characters; where the confidence reposed was so intimate, that the whole evi

dence could not be presumed to be before us. 1794 a judgment *was recovered against [*506 We should indulge in opinions which might be him for £89 6s. 10d., the balance then due uperroneous, and might, in an attempt to redeem on the bond, which sum was afterwards paid the plaintiff from a conjectured fraud, inflict by M. Gratz. The judgment of Humphreys upon others the most gross injustice. We think, against Col. Croghan, was kept alive from time therefore, that the true and safe course is to to time, until 1786, and in that year, on the abide by the rule of law, which, after a lapse death of Humphreys, Joseph Bloomfield was of time, will presume payment of a debt, sur- appointed administrator de bonis non, with the render of a deed, and extinguishment of a trust, will annexed, of Humphreys, and revived the where circumstances may reasonably justify it. judgment; and it is kept in full force until it The doctrine in Hillary v. Waller (12 Vez., 261, | was finally levied on certain lands of Col. Cro266), on this subject, meets our entire approba- ghan, as hereafter stated. Some time in the tion. It is there said, that general presump- year 1800, Bernard Gratz assigned this judgtions are raised by the law, upon subjects of ment to his nephew, Simon Gratz, one of the which there is no record or written instrument, defendants, partly in consideation of natural not because there are the means of belief or affection, and partly in consideration of the above disbelief, but because mankind, judging of sum of £89 6s. 10d. paid towards the discharge matters of antiquity from the infirmity and ne- of the bond of Bernard Gratz, by his (Simon's) 505*] cessity of their *situation must, for the father, Michael Gratz. Simon Gratz having preservation of their property and rights, have thus become the beneficial owner of the judg recourse to some general principle, to take the ment, proceeded to issue executions on the place of individual and specific belief, which same, and at different times between Septemcan hold only as to matters within our own ber, 1801, and November, 1804, caused the time, upon which a conclusion can be formed same executions to be levied on sundry tracts from particular and individual knowledge. In of land of Col. Croghan, in Westmoreland and our judgment, the trust in the Tenederah lands, Huntington counties, of five of which he, being such as it was, must be now presumed to have the highest bidder at the sale, became the purbeen extinguished by the parties, in the life- chaser. The tracts so sold, contained upwards time of Col. Croghan. There is no ground, of 2,000 acres, and were sold for little more then, for relieving the plaintiff, as to this part than $1,000. The title to some part of the land of his claim. so sold, appears to be yet in controversy.

The remaining point in this case respects the M'Ilvaine bond and judgment. On the 30th of March, 1769, Col. Croghan gave his bond to Wm. M'Ilvaine, for the sum of £400, which debt, by the will of M'Ilvaine, became, on his death, vested in his widow, who afterwards intermarried with John Clark. A judgment was obtained upon this bond against Col. Croghan, in the name of Wm. Humphreys, executor of M'Ilvaine, in the Court of Common Pleas, in Westmoreland County, in Pennsylvania, at the October term, 1774, upon which a fi. fa. issued, returnable to the April term of the same court, in 1775. On the 8th of March preceding the return day of the fi. fa., Bernard Gratz purchased this judgment from Clark, and received an assignment of it, for which he gave his own bond for £300 and interest. About this period, Col. Croghan appears to have been considerably embarrassed in his pecuniary affairs, and several suits were depending against him. Bernard Gratz having failed to pay his bond, was sued by Clark, and in

1.-The following is that part of the opinion of Mr. Justice Washington in the court below, here alluded to:

"Upon these facts, it is contended by the complainant's counsel, that B. Gratz ought to be considered by this court, as having purchased the above judgment with the trust funds, and, consequently, for the benefit of G. Croghan; and that even if it was purchased with his own money, still, being a trustee for Croghan, the purchase should be considered as having been made for his benefit, entitling B. Gratz to claim no more than the sum which he actually paid, and to retain the same out of G. Croghan's estate, the whole of which is charged with the payment of his debts. That Simon Gratz, being an assignee of this judgment, with notice of the trust, and without a valuable consideration paid for the same, can stand in no better situation than the assignor did, and ought, therefore, to be treated as a trustee for the estate of G. Croghan, of the lands which he purchased under the executions issued on that judgment, and

Shortly after the assignment of the M'Ilvaine judgment to Bernard Gratz, on the 16th of May, 1775, Col. Croghan (probably having knowledge of the assignment, though the fact does not appear), *by two deeds of that [*507 date, conveyed to B. Gratz, for a valuable consideration expressed therein, about 45,000 acres of land. A declaration of trust was executed by Bernard Gratz, on the 2d of June, 1775, by which he acknowledged that these conveyances were in trust to enable Bernard Gratz to sell the same, and with the proceeds to discharge certain enumerated debts of Col. Croghan, and among them, the debt due on the M'Ilvaine bond, and to account for the residue with Col. Croghan.

The subject of the M'Ilvaine judgment was very minutely considered in the court below, by the learned judge who decided the cause, and the principle grounds on which the plaintiff relied for a decree were so fully answered there, that a complete review of them does not seem to be necessary in this court. It is ob

be entitled to claim merely the sum actually paid by B. Gratz, with interest.

It is to be observed, in the first place, that there is not the slightest evidence on which to ground a presumption, that this judgment was purchased with trust funds. B. Gratz gave his own bond for the £300, at which time he and M. Gratz were considerably the creditors of G. Croghan; and it further appears by the exhibits in the cause, that the accounts between these parties were regularly settled from time to time, leaving at each settlement a balance against G. Croghan.

Neither did any funds arise from the trust property, no part of the same having at any time been sold by the trustee.

As to the argument predicated upon the admission that the purchase was made upon the credit and with the funds of B. Gratz, I hold it to be altogether untenable. B. Gratz became the purchaser some months before the date of the conveyances to him, of the 45,000 acres of land, and I am yet to learn upon what principle of equity it is,

sumptive evidence, that this power was never acted upon, or was revoked, and held a nullity before the time of the assignment in question.

The ground that has been principally relied upon here, is, that Bernard Gratz having taken the two trust deeds in 1775, already referred to, in trust for the payment of this very debt out of the proceeds of the sale of the lands conveyed by those deeds, could not proceed to satisfy the judgment out of any other lands, without notice to Col. Croghan, or his representatives. But there is not the least evidence in the cause to show, that any of the lands *conveyed by [*512 either of these deeds ever turned out productive. And there are the strongest presumptions in the case, and it seems, indeed, to be on all sides conceded, that either the title to these lands wholly failed, or became altogether unsalable. There is no reason to suppose that these facts lay more peculiarly in the knowledge of one party than the other; and if the trust became utterly frustrated and inert, there could not be any necessity of giving a formal notice, that Bernard Gratz must look to other property, and particularly to the property in Westmoreland county, upon which alone, it is understood by the laws of Pennsylvania, the lien of the judgment attached.

508*] servable, that the bill charges that *the | assignment of this judgment was secretly procured by Bernard or Michael Gratz, or both of them, after the death of Col. Croghan, and that 509*] nothing *was due upon the judgment; or if anything was due, it was paid upon the assignment out of moneys belonging to the es510*] tate of Col. Croghan. The bill *asserts no other ground for relief on this subject. The proof in the cause completely establishes the material charges in the bill to be false. The 511*Jassignment *was made to Bernard Gratz, in the life-time of Col. Croghan; the judgment never was paid or satisfied by Col. Croghan, or out of his estate; and no fraud is pretended in the bill to have taken place in the levy of the judgment on Col. Croghan's lands, independently of the legal inference to be deduced from the facts charged in the bill. If Bernard Gratz was not, at the time, in the situation of a trustee of Col. Croghan, there is no pretense to say, that he might not rightfully and lawfully purchase the judgment. And there are very strong reasons to believe, that it was purchased with the knowledge, and for the relief of Col. Croghan. It was somewhat insisted upon in the court below, that by a power of attorney of the 10th of July, 1772, Col. Croghan constituted Bernard and Michael Gratz trustees of There is no proof that any assets ever came all his lands, with unlimited power to sell them to the hands of Bernard Gratz or Michael Gratz, and pay off his debts. But this ground has out of which this judgment was, or could be not been insisted upon here, and, indeed, for satisfied. Bernard Gratz was alone interested the best reasons. There is the strongest pre-in it; and it was kept alive from time to time,

that a creditor, who after he is so, becomes a trus- | Gratzs, was considered by all the parties as a blank tee for his debtor, does by that act impair or affect paper. This conjecture is strongly countenanced rights which he had antecedently acquired against by the fact that this paper, as well as the deeds of him. I admit the soundness of the doctrine laid May, 1775, was found amongst the papers of G. Crodown by the complainant's counsel, that if a trus-ghan, after his death. These very deeds furnish tee, executor, or agent, buy in debts due by his themselves the most persuasive evidence in supcestui que trust, testator, or principal, for less port of this presumption. For, if the general powthan their nominal amount, the benefit gained er to sell the whole of G. Croghan's lands, continthereby belongs not to him, but to the person for ued in force up to the year 1775, there could have whom he acted. A court of equity will not permit been no necessity for giving to one of those agents a person, acting as a trustee, to create in himself an authority to sell a part of them. The fact that an interest opposite to that of his cestui que trust or no part of those lands was sold by the agents, or principal. But this doctrine is inapplicable to the by Croghan himself, without a complaint having case of a fair bona fide creditor, who became so, been uttered by the latter, that appears, is nearly prior to the assumption of his fiduciary character, conclusive to prove that they were unsalable. In such a case he is entitled to claim the full Another point insisted upon by the complainant's amount of what was due from his cestui que trust, counsel under this head is, that G. Croghan was not &c., and the latter has no right to inquire how in reality a debtor to M'Ilvaine, inasmuch as there much the former paid for it; so, too, the trustee, was found amongst Croghan's papers, a bond of &c., may pursue all legal remedies for enforcing M'Ilvaine to him, dated the 5th of March, 1769, with payment of the debt, which would have been open condition that M'Ilvaine should by a certain day to him if he had not become a trustee. reconvey to Croghan certain lands lying in VirIt is said, however, that the declaration of trust ginia, which Croghan had conveyed to M'Ilvaine, of the 2d of July, 1775, contains a promise to dis- in trust for the payment of a particular debt, or charge this very debt out of the trust property, as in case it should not be in his power to make such soon as the same could be disposed of. But it was conveyance, then to pay to Croghan the sum of not disposed of, and there are the strongest reasons £400. It was contended, that this bond being found for believing that it was altogether unsalable. uncancelled amongst the papers of the obligee, proves that neither of the conditions had been performed.

Independent of the doubts which clouded the title, it would seem sufficient to observe, that B. Gratz had the strongest temptations to sell, and even to sacrifice this property, if it had been possible to dispose of it upon any terms.

The short, but conclusive answer to this argument is, that the condition of this bond was to be performed in the year 1770, and that if it was brokIt is further contended, that the power of attor- en by the failure of M'Ilvaine to make the reconney given by G. Croghan to B. & M. Gratz, dated veyance, M'Ilvaine became in that year a debtor the 10th of July, 1772, constituted them trustees of to G. Croghan, in the sum of £400, the equivalent; all his lands, with unlimited power to sell them, yet Croghan suffered judgment to pass against him, and to pay off his debts. It is in this part of the and execution to issue in the year 1775, after which case that I experience the difficulty of deciding he lived about seven years, without having brought satisfactorily to myself, in consequence of the an- a suit on the bond, or asserted, in any manner tiquity of these transactions, and the death of all whatever, a right to the money. If, after a lapse those who might have explained them. What be- of so many years, and under these strong circumcame of this power of attorney, and why it was stances, the court is not bound to presume against never acted upon, are questions which no evidence the existence of this debt, I know of no instance in in the cause enables me to resolve. There are, how- which such a presumption ought to be made. If ever, strong reasons for presuming, that the pow-in truth the debt was really due, the charge of ers vested in these agents were found unproduc- neglect is fairly imputable to Croghan, but not to tive of any useful results; and, that the instru- his executors. Upon the whole, I am of opinion, ment which bestowed them was afterwards deliv- upon this point, that the complainant is entitled to ered back to G. Croghan, or remaining with the no relief." 1 Peters, Jun., Rep. 372.

It will

until the levies in question were made.
be recollected also, that even if Michael Gratz
were disposed to connive, after the death of
his brother, in the levies of his son Simon,
William Powell, who was another executor,
had no such motive. And, it is not shown that,
by any law or usage in Pennsylvania, any
notice is required to be given to any other
persons than the personal representatives of
the deceased, of the execution of any such
judgment on lands, so that laches could be
fairly imputed to the executors for neglect to
give notice to the heirs of Col. Croghan of the
sale. The very length of time during which
this judgment remained unsatified, is evidence
513*] of the desperate state *of Col. Croghan's

affairs; and the record abounds with corrobora

tions of the great embarrassments attending all his concerns, and of apparent insolvency at the time of his decease. No evidence has been submitted to us to establish that the levies on the lands, under the judgment, were fraudulently conducted by the sheriff, or that they did not sell for the full value of the title, such as it was, which Col. Croghan had in them. It appears that the title, as to some part of them, is still in controversy. And Simon Gratz, the judgment creditor, had as much right, if the sale was bona fide conducted, to become the purchaser, if he was the highest bidder, as any other person.

Upon the whole, the majority of the court entirely concurs in the opinion of the Circuit Court upon this part of the case. But, as to the decree respecting the proceeds of the Tenederah lands, we are all of opinion that it ought

[LOCAL LAW.]

BOWIE v. HENDERSON ET AL.

The third section of the act of Congress, of March 30th, 1803, for the relief of insolvent debtors in the District of Columbia, does not create any express or implied exception to the operation of the statute of limitations, by making the insolvent a trustee for his creditors, in respect to his future property, or by making any demand, included in the schedule of his debts, a debt of record.

The including of a demand in the schedule of the insolvent's debts, is sufficient evidence to sustain an issue on a replication of a new promise to the plea of the statute of limitations, if the period of limitation has not elapsed after the date of the schedule.

APPEAL from the Circuit Court of the Dis

trict of Columbia.

*This suit was instituted by the ap- [*515 pellant against the respondents, on the chancery side of the Circuit Court of the District of Columbia, for the county of Alexandria, under the local law giving a process in chancery in the nature of a foreign attachment.

The bill charged a debt due on bills of exchange, from the defendant, Henderson, to the complainant; that the debtor was an absentee; that he had funds in the hands of the defendant Auld; and prayed a condemnation of those funds, to answer the complainant's demand. The defendant, Henderson, pleaded the statute of limitations, non assumpsit infra quinque annos. To this plea the complainant filed the following replication: And the said W. Bowie saith, that he ought not to be precluded from having and maintaining his bill aforesaid, by anything alleged by the defendant, Henderson, If the court had felt any doubts as to the in his plea aforesaid; because he saith, that the merits, it would have been proper to have given said A. Henderson, on the 8th of May, 1806, serious consideration to the very able argument in the county of Alexandria, before N. F., one made at the bar, respecting the defect of proper of the judges of the district of Columbia, did parties to the bill. But, as upon the merits, the take the benefit of the act for the relief of incourt is decidedly against the plaintiff, it seem-solvent debtors within the district of Columed useless to send back the cause upon this objection, if it should be found tenable, when, after all, the case furnished no substantial ground for relief in equity.1

to be reversed.

DECREE.-These causes, being cross appeals, 514*1*came on to be heard at the same time, and were argued by counsel. On consideration whereof, it is ordered and decreed, that the decree of the Circuit Court for the District of Pennsylvania in the premises, be, and the same is hereby reversed. And this court proceeding to pass such decree as the said Circuit Court should have passed, it is further ordered and decreed, that the complainant's bill, as to all the matters contained therein, be, and the same is hereby dismissed; and that a mandate issue to the said Circuit Court, to dismiss the same accordingly, without costs.

bia, and did then and there give a schedule of his estate, and a list of his creditors; and in the said list of his creditors so given in, he, the said Henderson, did state, that the said complainant was a creditor of his to the amount of $4,586.39-which said list of creditors so given in, he, the said Henderson, did state, was entered of record in the clerk's office of the court of the county of Alexandria, as by reference to the records of the said court will fully and at large appear, and which said debt *so [*516 given in, is the debt for which the complainant has instituted his suit aforesaid. And the said complainant saith, that the moneys and effects which the said complainant seeks, in his bill aforesaid, to subject to the payment of his debt aforesaid, were obtained and acquired by the said defendant, Henderson, long subsequent to his taking the oath of insolvency aforesaid. And the said complainant saith, that as soon as he, the said complainant, obtained any knowledge of the said defendant, Henderson, having obtained the funds aforesaid, and within the period of six months after he obtained a knowledge thereof, he, the said complainant, did institute his aforesaid bill in chancery, to subject the funds to the payment of his said debt, all which, &c. The defendant demurred to this replication, and the court below, on hearing, adjudged the demurrer good.

The question in this case turned upon the construction of the third section of the act of Congress, for the relief of insolvent debtors within the district of Columbia, passed March 3d, 1803, which is in these words:

proviso of the section respecting the liability of the future property of the insolvent, has been supposed to aid the argument that he is a trustee. But we are all of a different opinion. The previous part of the section having exempted his person from imprisonment, the object of the proviso was to make all his future effects liable, and to retain all the remedies against it. in the same manner as if his person had not been discharged. The act, therefore, did not intend to create any new liability, or any new trust.

"And be it further enacted, That upon the petitioning debtor's executing a deed or deeds to the said trustee, conveying all his property, real, personal, and mixed, and all his claims, rights, and credits, agreeably to the oath or affirmation of the said debtor, and on delivering all his said property which he shall have in his possession, together with his books, papers, and evidences of debts of every kind, to the said trustee, and the said trustee's certifying the same to the said judge in writing, it shall 517*] be lawful *for the said judge to make an order to the marshal, jailer, or keeper of the prison, in which said debtor is then confined, commanding that the said debtor shall be thenceforth discharged from his imprison-recording this debt was merely an admission of ment; and he shall be immediately discharged, and the said order shall be a sufficient warrant therefor. Provided, That no person who has been guilty of a breach of the laws, and who has been imprisoned for or on account of the same, shall be discharged from imprisonment. And provided, likewise, That any property which the debtor may afterwards acquire (except the necessary wearing apparel and bedding for his family, and his tools, if a mechanic or manufacturer), shall be liable to the payment of his debts, anything herein to the contrary notwithstanding.

It is farther insisted, that this is to be considered as an exception out of the statute of limitations, because it is a debt of [*519 record. But a debt of record, in the sense of the common law, is a debt or contract created of record; such as a statute staple, or statute merchant, and not one whose previous existence is only admitted of record. The effect of its existence, and not a change of its nature. It would have been sufficient evidence, if five years had not elapsed after recording, to have sustained an issue on a replication of a new promise to the plea of the statute of limitations. But more than five years having elapsed, it could have no application in this case. It is the opinion of the court, that the demurrer to the replication is sustained, and that judgment ought to be given for the defendant. Decree affirmed.

Cited 2 Cranch, C. C. 121; 12 Bank. Reg. 542, 546

[PRACTICE.] SPRING ET AL.

This cause was argued by Mr. Swann and Mr. Jones for the appellant, and by Mr. Taylor for the respondents. The former insisted, that the above section of the insolvent act created an exception to the general operation of the statute of limitations in favor of those demands on which the insolvent's person was discharged under that section. They argued that the insolvent, after his discharge, was to be consid- THE SOUTH CAROLINA INSURANCE ered, in respect to his future property, as a trustee for his creditors, and that the statute of limitations does not run against a trust; and,

also, that this debt was to be considered as excepted out of the statute of limitations, because it was made a debt of record by being included

v.

COMPANY.

sold by order of the Circuit Court, and the pro

In an equity cause, the res in litigation may be

ceeds invested in stocks, notwithstanding the pendency of an appeal to this court.

in the list of creditors under the insolvent act. MR. HUNT, for the respondents, moved to 518*] *Mr. Chief Justice MARSHALL delivered the opinion of the court, and after stating the case, proceeded as follows:

It is perfectly clear that no such exception is contained in the statute of limitations, or in the act of Congress concerning insolvent debt

ors.

If it is to be created at all, it must be by implication. It is contended in the first place, that the insolvent debtor, after his discharge, is to be considered, in respect to his future property, as a trustee for his creditors; and the statute of limitation does not run against a trust. If he is a trustee for his creditors, is he a trustee for those creditors only who were such at the time he obtained the benefit of the act? or, is he a trustee for those who afterwards become his creditors? It will not be pretended that he is exclusively a trustee for the former; and if he be a trustee for the benefit of all his creditors, then this suit should have been brought for the benefit of all, and not for the benefit of a single creditor. The

docket and dismiss the appeal in this case, which was a suit in chancery, commenced in the Circuit Court of South Carolina, no transcript of the record having *been [*520 lodged by the appellants with the clerk of this court, within the first six days of the term, according to the rule.

Mr. Wheaton, for the appellants, opposed the motion, upon the ground that no certificate was produced from the clerk of the court below, stating that an appeal had been taken, according to the rule.

The court denied the motion, but stated that as the object of the respondents was to have the proceeds of the property in litigation, which had been sold by order of the court below, invested in stocks, such investment might be made by the court below, notwithstanding the pendency of the appeal in this court. Motion denied.1

1.-Vide new rule of court of the present term. Ante, Rule XXXII.