tion of those bills was transferred, in satisfaction of debts due to them from Fisher; and also by the evidence of Barney, to whom, as the agent of the United States Bank, a much larger portion of those bills was delivered.

In addition to the liabilities set forth as above, it is proved by the testimony of John A. Campbell, Esq., that Hunter, on the 16th of April, 1838, by his attorneys, Gordon, Campbell & Chandler, paid to the Bank of Columbus, upon a judgment obtained by that bank against him, the sum of $4,818.27, which sum, the witness was informed by Fisher, was a debt incurred by Hunter for Fisher.

Long to Hunter of the judgment in the name of Wanzer, and the execution by Hunter of a receipt in full discharge of that judgment, is not directly answered; that the answer as to this interrogatory is evasive, and therefore is deprived of that weight which, if directly responsive, it would require the testimony of two witnesses, or that of one witness with strong corroborating circumstances, to overthrow. Hence it is insisted, that the testimony of the single witness, Mrs. Long, swearing positively to the written discharge or receipt of the amount of the judgment, must be taken as conclusive upon the subject of payment.

The rule of proceeding in equity here appealed to, is too well established and to familiar to require the citation of authorities for its support, or even to admit of its being ques tioned. The proper inquiry upon the point under consideration is, to ascertain how far the requirements of that rule have been complied with.

The charge in the bill in terms is as follows: "That your orator, sometime in the year 1841, was informed by Thomas Long, that he had fully paid off and satisfied to the said Hunter the amount of the said judgment; and the said Long then produced and showed to your orator a receipt or statement, in writing signed by said John S. Hunter (whose handwriting was well known to your orator), showing that the said judgment had been so paid and satistied by said Long."

The answer contains a statement purporting to be a full exhibit of the money raised by sales of the property pledged by Fisher for the indemnity of his sureties and indorsers, as well as of all other sums derived from Fisher or from his debtors, and which have been applied for Hunter's reimbursement. This statement in the answer, including the judgment against Hinkle and Long, amounts to $16,558.28. To this statement, however, must be added the sum of $2,200, proved by the witness, Sadler, to have been paid to Hunter, upon the compromise of a debt due from Sadler & Barnes, and also a sum of $175, shown to have been received from a witness, Gilchrist; which sums. though derived from Fisher, are not comprised in statement in the answer. There is also exhibited in proof, in this case, a list of claims, by notes and open accounts, making an aggregate of $2,115.83, assigned by the executor of Fisher to Hunter & Cook, attorneys, which claims, it is stated in the assignment, were in tended to meet the liabilities of Hunter for said John Fisher; but of these claims, many of which were not above $3, and resting upon open accounts, it is not in proof that any portion of them was certainly applied to Hunter's indemnity, or indeed, was ever collected. But conceding the fact that the sums spoken of by Sadler & Gilchrist, and the entire list of claims Divesting this interrogatory of unnecessary assigned as above mentioned, were realized by verboseness and tautology, it may be remarked, Hunter, they would, when added to the sum of that the substance or meaning of the charge in $16,558.28, admitted in the answer, compose an the bill, and the object of the interrogatory aggregate falling far short of the liabilities framed upon that charge, are made up of the which Hunter, as the indorser and surety for alleged facts of payment by Long to Hunter, John Fisher, and Fisher & Johnson, under the and of a written acknowledgment of such payagreement with Gordon, Campbell & Chand- ment by the latter. The terms "pay, satisfy, setler, has actually incurred, and is proved to have tle or secure," are equipollent words, when used satisfied. Upon a correct view, therefore, of the to express the fulfillment by Long of his liabilproofs in this cause, we are led to the concluity upon the judgment, and in a similar sense sion, in opposition to the allegations in the bill, and in accordance with the answer and the proofs, that Fisher & Johnson, and John Fisher, who, at the time of his death, was utterly insolvent, had failed, by a large deficiency, to reimburse to Hunter the losses incurred by the latter as indorser and surety for the former.

Upon the basis of this charge is constructed and propounded the 13th interrogatory, in these words, viz.: "Did or did not the said Thomas Long, at any time or in any manner, pay, satisfy, settle or secure to the said John S. Hunter the amount of the said judgment or any part thereof? Did or did not the said Hunter give or sign any receipt or statement, showing the payment, settlement, satisfaction, or securing the said judgment or any part thereof?"

must be understood the terms “receipt" and "statement" when used to describe a written acknowledgment of payment by a party making or signing such acknowledgment. And here it may be remarked, that whatever may be the technical meaning and effect of the word "release" at law, it can hardly be doubted that a The second question which we have men receipt or written acknowledgment of payment tioned as arising in this cause, viz.: that of sat- or settlement would be construed as a release isfaction by Long of the judgment against Long, in a court which looks rather to the substance Hinkle and Fisher, has not been entirely free of things than to their forms; and whose maxfrom embarrassment when tested by the rules im is ut res magis valeat quam pereat. The rewhich govern proceedings in courts of equity. ply to the 13th interrogatory is, that the reCorrectly viewed, however, we deem that em- spondent had not received from Long any setbarrassment rather apparent than real, and such tlement, payment or satisfaction. So far the as yields necessarily under a correct interpreta-reply to the interrogatory falls within the litertion of the pleadings and evidence in this cause. It has been contended that the interrogatory propounded by the bill, as to the payment by

al terms of that inquiry. But it proceeds to state further, that the respondent has never released Long from his liability to satisfy the

judgment, and this form of denial, it is insisted, made the return of nulla bona. It would, we does not exclude the execution of a written re- think, challenge no ordinary degree of credulceipt such as has been alleged in the bill, and ity to believe that a man in whose possession mentioned by the witness, Mary Long. We no property could be found for five years prehave already said, that in equity at least, a re- vious to his death, and who in the case before ceipt for the payment of debt would be re- us had resisted to the very extreme of the law, garded as a release from further demand by the should, during the same time, have voluntarily creditor; and we think that, according to the gen-discharged an obligation which it is shown he erally received acceptation of language, a cred- was both unable and unwilling to fulfill. itor who, in speaking of his debtor, denies hav. ing received of him either settlement, payment or satisfaction, and in the same statement avers that he has never released that debtor, must be understood as intending to declare that he had given him no written acknowledgment of payment, nor acquittance of any description whatsoever. The exception now urged to the answer to the 13th interrogatory, even upon the face of that response, appears to partake more of the character of a verbal criticism than of that of a fair and substantial impeachment. And we are the less inclined to extend the scope of this exception, since the complainant below, by a more timely and regular proceeding, might have obtained what he now contends for, without hazard of injury or surprise to the respondent.

We regard the answer as substantially responsive, and entitled to every legal effect incident to it as such.

With respect to the circumstances connected with this charge of payment in the bill, we think that so far as they have been disclosed, their preponderance is decidedly to the statement in the answer.

The bill admits the insolvency of Long at the period of his death. At what precise time he became insolvent is not stated. It is not probable that he became insolvent just at that period; and the widow of Long, whose testimony is relied on to establish the payment and the existence of the receipt in 1841, assigns as a reason for her knowledge of these transactions, her familiarity with her husband's embarrassments at that date.

Alfred Harrison, in December, 1851, swears, that from the 4th of March. 1839, to the 4th of March, 1842, he was sheriff of Lowndes County, in which Long lived and died, and was also sheriff of that county at the time of his testifying. That, as sheriff, he has had in his hands various executions against Long, and although some of them were for very small sums, he was never able to collect any one of them, and had returned on them "No property.'

B. Harrison, another witness, states that from March, 1839, to March, 1842, he acted as deputy sheriff of the County of Lowndes, and from March, 1842, to March, 1845, was sheriff of that county; that, as sheriff and deputysheriff, he had opportunities of knowing the pecuniary situation of Long, against whom the witness had held various executions, not one of which could be collected, but all of which were returned, "No property found." It should be remarked here that the statement of these sheriffs covers the entire interval from 1839 to 1845, including the period of the alleged payment by Long, as well as that of his death. It is proper further to observe, that on the judgment now under consideration there were sued out two writs of fieri facias, one of them as late as January, 1840, on each of which writs was

The returns upon the fi. fa. and alias fi. fa. sued upon this judgment, afford a satisfactory explanation of the circumstance from which it has been endeavored to deduce a presumption unfavorable to the appellee. That circumstance is the lapse of time between the return upon the alias and the suing out of the pluries fi. fa. upon the judgment. The solution is this: the plaintiff in the judgment having ascertained, by two experiments, the futility of process against the defendants, was unwilling, for the time being, to repeat such experiments, which were not only useless but expensive; but were, perhaps, induced subsequently to renew their efforts, by some change in the condition of parties, from which success was rendered more probable.

The remaining inquiry for consideration relates to the assignment or appropriation of the judgment, and the right or power of Fisher or his attorneys to make such appropriation for the benefit of Hunter. The true character of the transaction with reference to this judgment is disclosed in its history contained in the deposition of John A. Campbell, Esq., taken in this cause. The facts as therein narrated are substantially these: The law firm of Gordon, Campbell & Chandler, in the year 1837, having in their hands a very large amount of claims of the creditors of Fisher, in order to avoid being sued upon these claims, Fisher arranged a portion of them by giving the drafts specified in the answer of Hunter, and which were indorsed by Hunter. The residue of those claims he arranged by depositing various notes with the firm of Gordon, Campbell & Chandler, to be collected by that firm, and by them to be applied in satisfaction of the debts of Fisher. Amongst the notes so deposited was that executed by Thomas Long, George D. Fisher, and the appellant Hinckle, on which the judgment in the name of Wanzer has been obtained. And it may be in this place remarked, that in exhibit A, filed with the bill of the complainant below and relied on by him, and which exhibit is the receipt of Gordon, Campbell & Chandler, for the notes deposited with them by Fisher, after an enumeration of those notes, is contained the following stipulation, viz.: The proceeds of all which notes, as they shall be collected, are to be appropriated by us to the payment of any demands we may hold against the said Fisher & Johnson, upon their own debts, and not upon indorsements or liabilities for others." Here, then, we have a contract between Fisher & Johnson and their creditors, represented by Gordon, Campbell & Chandler, who held vari ous claims of those creditors against Fisher & Johnson-a contract founded on the consideration of forbearance as well as on the claims themselves, and therefore beyond the power of Fisher & Johnson to revoke or control-constituting Messrs. Gordon, Campbell & Chandler trustees for the creditors of Fisher & John

son, and with full power to appropriate the funds provided for their payment.

law, with respect to assignments of equitable interests and choses in action, the books abound with cases showing that the rule at the common law has been much relaxed, or almost disregarded, by the courts of equity, which, from a very early period, have held that assignments for valuable consideration, of a mere possibility, are valid, and will be carried into effect upon the same principle as they enforce the performance of an agreement, when not contrary to their own rules or to public policy. In the case of Wright v. Wright, 1 Ves., 412, it is said by Lord Hardwicke: " That such an assignment always operates by way of agreement or contract, amounting, in the consideration of the court, to this: that one agrees with another to transfer and make good that right or interest.” By the same judge it is said, in the case of Row v. Dawson, 1 Ves., 331, that for such an assignment no particular words are necessary, but any words are sufficient which show an intention of transferring the chose in action for the use of the assignee.

It is probable that every one of the notes placed in the hands of Messrs. Gordon, Campbell & Chandler bore upon it the indorsement of Fisher & Johnson, or of John Fisher; but as it is not rational to impute to these persons the design to frustrate their arrangement in the very act of making it, we must conclude that such indorsement, if made, was designed to give more complete control of these notes to the persons to whose management the notes and their proceeds were expressly intrusted. Wanzer was a creditor of Fisher, on a note for $885.89, which note was in the hands of Gordon, Campbell & Chandler, and was provided for and paid out of the funds or notes deposited with the firm; but it would be absurd, as well as unjust to the other creditors of Fisher & Johnson, to suppose that to this demand on behalf of Wanzer there was to be specifically appropriated, out of the funds designed for all the creditors of Fisher, an amount equal to double that demand. This pretension, too, would contradict It has been expressly ruled, that a mere exthe explicit statements on oath of Messrs. Camp-pectancy, as that of an heir at law to the estate bell & Chandler, who held and discharged of his ancestor, or the interest which a person the note due to Wanzer, who also recovered the may take under the will of another then living. judgment against Long, Fisher and Hinkle, or the share to which such person may become and who state that Wanzer's claim had been entitled under an appointment or in personal paid out of other securities of Fisher in their estate, as presumptive next of kin, is assignable hands, and that Wanzer had no interest whatso- in equity. ever in the judgment rendered in his name.

Such being the history of this case, it would seem to follow that the right to the judgment against Long, Fisher and Hinkle remained in Campbell & Chandler, to be appropriated by them under their agreement, to the creditors of Fisher, or to be disposed of by Fisher, with their assent. Upon this view of the law, we can perceive no valid objection to the authority given by Gordon, Campbell & Chandler, especially with Fisher's express sanction, to Hunter, the chief creditor of Fisher, to control and apply to his indemnity the judgment sought to be enjoined. No such objection, surely, can be sustained, unless it can be shown that an equitable interest cannot be assigned-a position which could rest upon no principle of justice, and which, at this day, it would be idle to attempt to sustain upon authority.

If the general indorsement by Fisher, ac companied with the delivery of the note of Long, Fisher and Hinkle, to Gordon, Camp bell & Chandler, created in the latter an absolute legal right and property in that note, no ex ception could, of course, be taken to any exer cise or application of the right and property so vested in them. If, on the other hand, the indorsement and delivery of the note created a trust for the benefit of the creditors of Fisher, and consequently for the benefit of Fisher him self, by his exoneration pro tanto, there remained in Fisher an equitable interest in the note and in the judgment rendered thereon, which he had a right, with or without the assent of the trustees, to assign or apply in payment of his creditors; such assignment or application he has made, in co-operation with those trustees, to his principal creditor, Hunter, and this act of Fisher in his lifetime has, since his death, been sanctioned by his personal representative. Notwithstanding the strictness, particularly in the earlier cases in the course of common

Hobson v. Trevor, 2 P. Wms., 191; Wethered v. Wethered, 2 Sim., 183; Smith v. Baker, 1 Y. & C., 223: Carleton v. Leighton, 3 Mer., 671; Hinde v. Blake, 3 Beav., 235.

The numerous authorities upon this point are collated in the second vol. of White & Tudor's Leading Cases in Equity, in the note of the editors upon the cases of Row v. Dawson, and Ryall v. Rowles, p. 204, et seq. A decision which bears very directly upon the case before us is that by Sir James Wigram, Vice-Chancellor, of Kirwin v. Daniel, 5 Hare., 500, in which it was ruled: That where a creditor, in whose behalf a stake has been deposited by the debtor with a third person, receives notice of that fact from the stakeholder, the notice will convert the stakeholder into an agent for, and debtor to, the creditor."

In the present case, Gordon, Campbell & Chandler were put in possession, by Fisher, of funds to be applied by them to Fisher's creditors, and had, by their written agreement, undertaken so to appropriate those funds. Hunter, a

principal creditor of Fisher, is, by information received both from Fisher and from Gordon, Campbell & Chandler, made cognizant of this deposit, and of the purpose to apply it to his indemnity. He accepts the proffer made him, and claims the benefit of it. And by instructious from Fisher, both verbal and written, as is proved in this cause, those depositaries were directed to apply the funds under their control (amongst those funds the judgment against Long, Fisher and Hinkle) to the benefit and protection of Hunter. Upon this single aspect of the transaction, can it be doubted that these depositaries were authorized and bound to conform to the instructions thus given? We think that both their authority and duty so to do, admit of no doubt. The decree of the Circuit Court, dismissing the bill of the complainant in that court, being warranted by the view we

nexed; and that on that day the complainant | bill, be made defendants to represent the other offered to purchase, at the Land Office, all the defendants mentioned, as they are so numerous 'lands described in the aforesaid schedule, at as to render it inconvenient to make all of them the price of 12 cents per acre; and for this parties to the suit; which motion was granted. purpose made an application to A. J. Edmond- These defendants were afterwards personally son, the Register of said Land Office, but that served with process, or appeared in the cause, the said register illegally refused to permit him and demurred to the cross bill; which demurto make the said purchase; that he also ten rer was sustained by the court, and the bill dered to J. F. Wray, the receiver, the amount dismissed. The case is now before us on an of the purchase money for the tracts he had appeal from this decree. thus applied to enter, but that he refused to receive the money or issue the proper certificates. The complainant further states, that since his application, as above set forth, the register and receiver have permitted the defendants to enter and purchase the several tracts, in sections and subdivisions, and at the times mentioned in the schedule above referred to; and charging that the said defendants had notice of the rights and equities of the complainant at the time.