Marshall, Ch. J.
delivered the opinion of the court as follows ':
In this case some objections have been made
te
the regularity of the proceedings in the circuit court, which will be considered before the merits of the controversy are discussed.'
In May term, 1803, the following order was made.
“*By consent of parties, it is agreed, that William Wallace, Jame.-j Wallace and John Cumming, or any two of them, be appointed auditors, who-shall have power to examine all papers and documents relative to payments made by Zachariah Cox, in satisfaction of judgments obtained by said Holland against said Zachariah, and charged in said bill to be satisfied, and that the testimony of John Vaughan, taken by complainants before Judge Peters, and now in the clerk’s office, may be produced by them to said auditors. And it is further agreed, that-said auditors may meet at any .time after the first day of April next, and not before, on ten days’ notice given to the adverse party.”
The auditors returned the following report.
“ We are of opinion, from the papers laid before
us, by both' parties, that the judgments in the above case have been satisfied by,payments made prior to February, 1796.”
On exceptions this report .was set aside.
By the plaintiffs in error it is contended, that the order under which the auditors proceeded was equivalent to a reference of the cause by consent, and that their report is to ire considered as an award obligatory on all-the parties, unless set aside for some of those causes'which are admitted to vitiate an award. But this court is unanimously of opinion, that the view taken of this pqint. by. the plaintiffs is, incorrect. The order in question bears no Resemblance tb a rule of court referring a cause to arbiters. It is a reference to “ auditors,” a term which designates agents or officers of the court, who examine and digest accounts for the decision of the court. They do not decree, but prepare materials on which a decree may be made. The order in this case, so far from implying that the decision of the auditors shall be made the decree of the court, does not even' require, in termsy that the auditors shall form any opinion whatever. They are merely-directed to examine all papers andvdocumerits relative to payments made in satisfaction of the judgments.
Frbm the nature of their duty they were bound to report to the court, -and to state the result of their examination', but this report was open to ex- ' ceptión, and liable to be set aside. In the actúal case the report was a very unsatisfactory one, and was, bn that account, as well as on account, of the objections tb its accuracy, very properly set aside. .
The cause was again referred to auditors, who reported that no evidence had been offered to them of payments, to be credited on the judgments alleged by the plaintiffs to have been discharged.
The defendants insist that this • report ought to
haVe terminated the cause. But the court can perceive no reason for this opinion. If tiñere were exhibits in ’the cause which proved that payments had been made, the plaintiffs ought not to be deprived of the benefit of those payments, because the auditors had not noticpd the vouchers which established the fact.
The court, without making any order relative to this report, directed, ah issue for the purpose of ascertaining, by the verdict of a jury, the credits to. which the plaintiffs were entitled.
■ It was. completely in the discretion of the court to ascertain this fact themselves, if the testimony enabled them to ascertain it; or, if it did not, to .refer the question either to a; jury, or to auditors. There was, 'consequently, no-error, either in' directing this issue, or in. discharging it.
But, .without trying the issue, or setting, aside the order, the court has made an interlocutory decreé, deciding the merits of the case by specifying bóth the debits and credits which might be introduced into the account, and directing, their clerk td state, an account in conformity with that specification;
This interlocutory decree is undoubtedly an implied discharge of the order directing an issue, and is substantially equivalent to such discharge. Had the issue been set aside, in terms, in the body of1 the decree, or by a previous order, it would have been more formal, but the situation of the case and of the pai'ties would have been essentially the same. The only real objection to the proceeding is, that the
parties
might not have been prepared to'try the cause'in court, in consequence of their expectation that it WQuld be carried before a jury. There is, however,' no reason to believe that this could have been the fact. Had there been any objection to a hearing on this ground, it would certainly have been attended to, and, if overruled, would have been respected by this court. But no objection appears to have been made, and
the inference is, that the cause was believed to be ready for a trial.
These preliminary questions being disposed of, the court is brought to the merits of the case.
The. plaintiffs claim title tp a tract of land in the state of Georgia, under several mesne conveyances from MiCajah Williamson, the-original patentee. In the year 1793, while these lands were the property of Zachariah Cox, one of the defendants, two judgments were rendered against him in favour of John Holland, alsq a defendant, for the sum of 4,556/. sterling. These judgments remained in force until the year .1799, when executions were issued on them, which were levied on the lands of the plain-' tiffs held under conveyances from Cox, made subsequent to' the rendition, of the judgments. John Gibbons, the agent of the plaintiffs, objected to the sale, because, the judgments were satisfied either, in whole or in part, but as he failed to take the steps prescribed in such case by the 'laws of Georgia, the sheriff proceeded, and the lands were sold to Melton and others, who are also defendants in the cause.
This bill is brought to set aside the sale and conveyance made by the sheriff; and it also contains a prayer for general relief.
As the judgments constituted a legal lien on the lands in question, and the title at law passed to the purchasers by the sale and conveyance of the public pfficer, the plaintiffs must show an • equity superior to that of the persons who hold the legal estate. That equity is, that the legal estate was; acquired under judgments'which were satisfied, and thatsuffi-cient notice was given to the purchasers', to put them, on their guard.
If the facts of ithe cause support this allegation, the equity of the plaintiffs m'ust-be acknowledged; but it is incumbent on them to make out their case.
. In the threshold of this inquiry;, it becomeé necessary to meet an objection suggested by the:plaintiffs relative to the testimony of the cause. It is alleged that neither Holland nor Cox are nec.essasy or proper parties, and that their answers are both to' be excluded from consideration.
The correctness -of this position cannot be admitted. The.
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Marshall, Ch. J.
delivered the opinion of the court as follows ':
In this case some objections have been made
te
the regularity of the proceedings in the circuit court, which will be considered before the merits of the controversy are discussed.'
In May term, 1803, the following order was made.
“*By consent of parties, it is agreed, that William Wallace, Jame.-j Wallace and John Cumming, or any two of them, be appointed auditors, who-shall have power to examine all papers and documents relative to payments made by Zachariah Cox, in satisfaction of judgments obtained by said Holland against said Zachariah, and charged in said bill to be satisfied, and that the testimony of John Vaughan, taken by complainants before Judge Peters, and now in the clerk’s office, may be produced by them to said auditors. And it is further agreed, that-said auditors may meet at any .time after the first day of April next, and not before, on ten days’ notice given to the adverse party.”
The auditors returned the following report.
“ We are of opinion, from the papers laid before
us, by both' parties, that the judgments in the above case have been satisfied by,payments made prior to February, 1796.”
On exceptions this report .was set aside.
By the plaintiffs in error it is contended, that the order under which the auditors proceeded was equivalent to a reference of the cause by consent, and that their report is to ire considered as an award obligatory on all-the parties, unless set aside for some of those causes'which are admitted to vitiate an award. But this court is unanimously of opinion, that the view taken of this pqint. by. the plaintiffs is, incorrect. The order in question bears no Resemblance tb a rule of court referring a cause to arbiters. It is a reference to “ auditors,” a term which designates agents or officers of the court, who examine and digest accounts for the decision of the court. They do not decree, but prepare materials on which a decree may be made. The order in this case, so far from implying that the decision of the auditors shall be made the decree of the court, does not even' require, in termsy that the auditors shall form any opinion whatever. They are merely-directed to examine all papers andvdocumerits relative to payments made in satisfaction of the judgments.
Frbm the nature of their duty they were bound to report to the court, -and to state the result of their examination', but this report was open to ex- ' ceptión, and liable to be set aside. In the actúal case the report was a very unsatisfactory one, and was, bn that account, as well as on account, of the objections tb its accuracy, very properly set aside. .
The cause was again referred to auditors, who reported that no evidence had been offered to them of payments, to be credited on the judgments alleged by the plaintiffs to have been discharged.
The defendants insist that this • report ought to
haVe terminated the cause. But the court can perceive no reason for this opinion. If tiñere were exhibits in ’the cause which proved that payments had been made, the plaintiffs ought not to be deprived of the benefit of those payments, because the auditors had not noticpd the vouchers which established the fact.
The court, without making any order relative to this report, directed, ah issue for the purpose of ascertaining, by the verdict of a jury, the credits to. which the plaintiffs were entitled.
■ It was. completely in the discretion of the court to ascertain this fact themselves, if the testimony enabled them to ascertain it; or, if it did not, to .refer the question either to a; jury, or to auditors. There was, 'consequently, no-error, either in' directing this issue, or in. discharging it.
But, .without trying the issue, or setting, aside the order, the court has made an interlocutory decreé, deciding the merits of the case by specifying bóth the debits and credits which might be introduced into the account, and directing, their clerk td state, an account in conformity with that specification;
This interlocutory decree is undoubtedly an implied discharge of the order directing an issue, and is substantially equivalent to such discharge. Had the issue been set aside, in terms, in the body of1 the decree, or by a previous order, it would have been more formal, but the situation of the case and of the pai'ties would have been essentially the same. The only real objection to the proceeding is, that the
parties
might not have been prepared to'try the cause'in court, in consequence of their expectation that it WQuld be carried before a jury. There is, however,' no reason to believe that this could have been the fact. Had there been any objection to a hearing on this ground, it would certainly have been attended to, and, if overruled, would have been respected by this court. But no objection appears to have been made, and
the inference is, that the cause was believed to be ready for a trial.
These preliminary questions being disposed of, the court is brought to the merits of the case.
The. plaintiffs claim title tp a tract of land in the state of Georgia, under several mesne conveyances from MiCajah Williamson, the-original patentee. In the year 1793, while these lands were the property of Zachariah Cox, one of the defendants, two judgments were rendered against him in favour of John Holland, alsq a defendant, for the sum of 4,556/. sterling. These judgments remained in force until the year .1799, when executions were issued on them, which were levied on the lands of the plain-' tiffs held under conveyances from Cox, made subsequent to' the rendition, of the judgments. John Gibbons, the agent of the plaintiffs, objected to the sale, because, the judgments were satisfied either, in whole or in part, but as he failed to take the steps prescribed in such case by the 'laws of Georgia, the sheriff proceeded, and the lands were sold to Melton and others, who are also defendants in the cause.
This bill is brought to set aside the sale and conveyance made by the sheriff; and it also contains a prayer for general relief.
As the judgments constituted a legal lien on the lands in question, and the title at law passed to the purchasers by the sale and conveyance of the public pfficer, the plaintiffs must show an • equity superior to that of the persons who hold the legal estate. That equity is, that the legal estate was; acquired under judgments'which were satisfied, and thatsuffi-cient notice was given to the purchasers', to put them, on their guard.
If the facts of ithe cause support this allegation, the equity of the plaintiffs m'ust-be acknowledged; but it is incumbent on them to make out their case.
. In the threshold of this inquiry;, it becomeé necessary to meet an objection suggested by the:plaintiffs relative to the testimony of the cause. It is alleged that neither Holland nor Cox are nec.essasy or proper parties, and that their answers are both to' be excluded from consideration.
The correctness -of this position cannot be admitted. The. whole equity of the plaintiffs depends on the' state of accounts between Holland and Cox.' They .undertake to prove, that .the judgments ■ ojb‘tained by Holland against Cqx are.satisfied. Surely to a suit instituted' for this purpose, Holland and Cok are not only, proper but necessary parties. Had they been omitted, it would be incumbent on the plaintiffs to account for the omission, by showing that it was not in their power to make them parties. Not only are they essential to a settlement of accounts between themselves, but, in a possible state óf things, a decree might haye been rendered against one or both of them. Neither, is it to be--admitted that the answer of Holland is not testimony against the plaintiffs. ' He .is the party against whom the fact, that the judgments were discharged, is to • be established, and against whom it'is to operate. This fact, When established, it is true, affects the purchasers also, but it affects them consequentially,- and through him. It affects them as representing him. Consequently, when the fact is established against or for him, it binds them.
The plaintiffs themselves call upon Holland for a discovery. They aver that, the judgments were discharged, and expressly .'require hiifi to answer- this allegation. They cannot now be allowed .to say that this answer is. no testimony.
The situation of Cox is different. Though nominally a defendant, he is substantially a plaintiff.Their interest is his interest: their object is his object. .Hey as well as the plaintiffs, endeavours to show that the judgments were satisfied. ' He is dot to be considered as really, a, defend ant, nor does the.
bill charge him with colluding to defraud the plaintiffs, or require him to answer the charge ,of contributing to the imposition alleged to have been practised on them. It is not in the power of the plaintiffs, in such a case, to avail themselves of the answer of a party who is, in,reality, thou ah not in form, a plaintiff;
The answer of the defendant Holland, then, where it is responsive to the bill, is evidence against the plaintiffs, although the answer of Cox is not testimony against Holland.
The evidence in the cause, theh, is the answer of Holland, the deposition of Vaughan, and the various exhibits and documents of debt which are found in the record. Does this testimony support the interlocutory decree which was rendered in May term, 1805?
That decree specifies the dehits and credits which •are to be allowed, and directs a statement to be made showing how the account will stand, allowing the specified items.
To thL order two objections may be made.-
1. That it ought, to have been more general. If this be overruled,
2. That its principles are incorrect.
Upon the first objection it is to be observed, that a court of chancery may, with perfect propriety, refer an account generally, and, on the return of the ' report, determine-such questions as may be contested by the parties ; or it may, in the first instance, decide an} principle which the evidence in the cause may suggest, or all the principles on which the account is to be taken. The propriety of the one course or of the other depends on the nature of the case. Where items are numerous, the testimony questionable, the accounts complicated, the superior
advantage of a general reference, with a direction to state specially such matters as either party may require, or the auditors may deem necessary, will readily be perceived.
Where the account depends on particular principles which'aré developed in the cause, the convenience of establishing those principles before the report is taken will.also be acknowledged.
The discretion of the judge will be guided by the circumstances of the. case, and his decree ought not to be reversed because he has pursued the one course . or the other, unless it sháll appear either that injus-, tice has been actually done, or that there is reason to apprehend it has been done.
In this case it might, perhaps, have been more satisfactory had the parties been permitted to lay all their claims and all their objections before auditors, so that the precise points oi difference between them, and the testimony upon those points, might be br.ought in a single, view before the court*
But it is to be observed that two orders of refer-ence had before been made, on neither *>f which Was á satisfactory report obtained. That an issue had been directed, which had, for -several terms, remained untried. The probability is, that the controversy depended less on items than on principles, and that all parties were desiroüs of obtaining from the court a decision of those principles. That no debits nor credits were claimed but those which were stated in the papers, and that all parties wished the opinion o£ the court, on the .effect and application of those items. Kinder such circumstances, a judge would feel much difficulty in withholding his opinion.
In such a case the justice, of thé- cause could be defeated only by the exclusion of some item which ought to be admitted, or by an Erroneous.direction with respect to those items which were introduced.
This court perceives in the record no evidence of any credit to which' She defendant Cox might be entitled, which is not comprehended in the recapitulation of credits allowed him in the circuit court, and they are the more inclined to believe that no such omission was. made, as the fact would certainly have been suggested by the counsel for the plaintiffs, and the - circumstances . under which they claimed the item disallowed by the court, would have been spread upon the record, it is true, an additional Credit is claimed in the assignment of errors j but the testimony in the record does not support; this claim.
The majority of the court, therefore, is of opinion, that there is no error in the interlocutory decree, unless it shall appear that the principles it establishes are incorrect.
The items claimed by Holland, and allowed by the -court, aré'supported by documents, the obligation of which has not been disproved.
There is, then, no question on the merits but. this. Were the payments properly applied by the court, or were they applicable, to the judgments ?
The principle, that a debtor may control, at will, the application of his payments, is iiot controverted. Neither is it denied that, on his omitting, to make this application, the power devolves on the creditor. If this -power be exercised fey neitheiv it becomes the duty of thy court j and, ip its performance, a sound discretion is to be exercised.
It is contended by the plaintiffs that if the payments have .been applied by neither the creditor nór the debtor, they ought to be applied in the manner most advantageous to the debtor, because it must be presumed that such was his intention
The correctness of this conclusion, cannot be conceded. When a debtor fails to, avail himself of the. power which he possesses, in consequence of which
that power devolves on the creditor, it does not appéar unreasonable to- suppose that he is content with the manner in which the, creditor will exercise it. If neither party avails himself of his power, in consequence of which it devolves on the court, it would seem reasonable that an equitable application should be made. , It being equitable that the -whole debt should be paid, it cannot be inequitable to extinguish first those debts for which the security is most precarious. That course has been pursued in the present case.
But it is contended, that bills for 20,000 dollars were received, and have been applied in discharge of debts which became due two months afterwards.
It the receipt given for these bills, purported to receive them; in payment, this objection would be conclusive. If an immediate credit was to be given for thejja, that credit must be given on a debt existing at the time, unless this legal operation of the credit should be changed by express agreement. But the receipt for these bills does- not import that immediate credit was to be given for them. They are to be credited when paid. The time of receiving payment on them is the time when the credit was to be given ;. and, consequently, the power of application, which the creditor’ possessed, if no agreement to the contrary existed, was then
to
be exercised. • It cannot be doubted that he might have - credited-the sums so received to any debt actually demandable at the time of receiving such sum, unless this power "was previously abridged by the debtor.
It is contended that it was abridged; and that this is proved by the form of the receipt. The receipt states, that the bills, when paid, are to be credited\ on account of the demand of Holland against Cox, and the plaintifFs insist that the words import a .single, demand, and one existing at the time the receipt was given.
This court is not of that opinion. The whole
debt due from one man to the other, may well constitute an aggregate sum not' improperly designated by the term demand, and the receipt may very fairly be understood to speak of the demand existing when the credit should be given.
. If the principles previously stated be cprrfect, there is no evidence in the cause which er. bles this court to say that there was not due, on the judgments obtained by Holland against Cox,, a sum more than equal to the value of the lands sold under execution. If so, the plaintiffs have no equity against the purchasers of those lands, whose conduct appears, tp have been perfectly unexceptionable ; and the bill, both as to them and Holland, was properly dismissed.
It iá the opinion of the majority of the court, that there is no error in the proceedings of the circuit court, and that the decree be affirmed.