Spencer, J.
It is proper that I first consider, whether the proceedings on the petitions presented by the appellant for a re-hearing of the cause, after a decree settling all the princi- ^ u i pies, and the dismissing those petitions, is warranted by the course of proceedings in the court of chancery. It appears to me, that the Chancellor disposed of those petitions correctly; for, as has been insisted on by the respondents^ counsel, instead of asking a re-hearing, on the discovery of new evidence, the application ought to have been for a bill of review, upon which the competency of the two witnesses, Hezekiah Field and Susannah Coe, would have been directly in issue, It was, however, not necessary to have filed articles; and in Callaghan v. Rochfort, 3 Atk. 643, Ld. Hardwicke decided, that articles were improper, when the objection was to the competency of the witnesses; but when to their credit, they were proper. The question, as to the interest of money upon Long-Island during the war, was certainly a question to which the appellants examined witnesses; and it cannot, with any propriety, be pretended, that he discovered testimony as to the rate of interest, of which he had no knowledge before the passing of publication, or the decree. But, upon any grounds which may be assumed, as the application to the Chancellor was for a re-hearing, in my opinion, the appellants’ counsel mistook their remedy, and the Chancellor very properly dismissed the petitions. In making up my opinion, therefore, I have rejected all the exceptions to the testimony of the two witnesses, Hezekiah Field and Susannah Coe. The first question presenting itself, is, whether there is testimony enough to warrant the court in saying, there was a robbery? And, upon this head of the inquiry, without at all re[106]*106S'arc^n8 Vfhat Wm. Furman. said, there cannot remain a doubt». It is proved by the depositions of three witnesses, who were present at the time the robbery was perpetrated. Abigail Rhodes, Mary Boss, and Robert Drummond, depose to the facts. They relate the circumstances, and agree in the principal occurrences more correctly than is common-for three persons, who are deposing to an incident twenty-three years after it has happened. There can exist no reasonable ground - on which to doubt the robbery. The Chancellor was impressed with its having taken place; and in truth,, the respondents’* counsel admitted it. The next important points of inquiry are, 1st, Whether the money which had been paid by Mr. Titus to the executor of Robert Coe, Wm. Furman, and which appertained to the respondents, was part of the money whereof Mr. Furman was robbed i and, 2d, Whether this money was ever recovered by Furman? The law on the subject of bailments, and with respect to the responsibility of factors and trustees, is as firmly settled as on any other subject which can be presented. If the nature of the bailment or trust be such, that the bailee or trustee is to have no reward for his services, the law will not require of him any greater diligence than he usually exercises with regard to his own property; and it seems well established, “ that if a trustee be “ robbed of the money he received, he shall be allowed it on “ account, the robbery being proved, although the sum is only “ proved by his own oath ; for he was to keep it as his own; “ so in case of a factor, for he cannot possibly have other “ proof.” And it was correctly said on the argument, by one of the appellants’ counsel, that it would be bringing an executor, in whom the testator reposes such especial confidence, to a test too severe, when he has proved a robbery, to require of him an identification of the money belonging to the cestui que trust. Such severity would well nigh deter any man from assuming a station of such responsibility, upon the calls of friendship, and without any possible advantage to himself. It is objected, that William Furman, the executor of Robert Coe, never made oath, either as to the robbery, or to the identity of the money belonging to the respondents. It has been answered, and I think satisfactorily, that there is no mode pointed out for a trustee, under his situation, to have pursued. Had he made an affidavit, it would have been extra-judicial, [107]*107mncl of no more importance than his own declarations. He could not resort to a court of chancery; because, from the time of the robbery, until very near the time of his death, which was in 1783, that court was shut. What means could "he have pursued under the then state of things, which he not ? I confess myself at a loss to perceive any neglect on the part of William Furman, in that respect. If, then, William Furman could not avail himself of an opportunity to make the •oath, which most certainly will, in cases of this kind, protect .a person, as to the amount of the sum robbed, what shall we require of him that he did not do ? It appears from the deposition of Robert Drummond, that immediately after the robbers had retired, William Furman went with him up stairs, where it is agreed, by all the witnesses, the money was deposited ; and that he then stated to Drummond the amount to be ¿£900; that ¿£300 belonged to some orphan children, of the name of Coe; and that he was an executor for the children. Abigail Rhodes, who, from her situation and relationship to William Furman, being his daughter, may be presumed to know, states in positive terms, “ that a part of the mo-a ney of which the said William Furman was robbed, as aforesaid, was money received of the estate of Robert Coe, deu ceased, and then in the hands of the said William Furman, “ senr. as executor of that, estate.” Mary Boss, who is spoken of as Polly Thompson, also resided in the family of William Furman. She states, that he was robbed of all the money he had in the house; and that the next morning she heard "him say, that all the money belonging to the grand-children of Robert Coe was taken by the said robbers, together with .his own. Mrs. Rhodes could only speak of the money belonging to the respondent; because, on the third of August 'before the robbery, the other legatees had been paid their proportions of the proceeds of the real and personal estate. It appears to me, that, from these facts, taken collectively (and I know of nothing to detract from them) it must be manifest, that the money belonging to the respondents, and in the hands of William Furman, was taken by the robbers, together with his own. Did William Furman recover this money ? The only witness who establishes this fact is John Moore. His character appears to be fair; to Iiis declaration, therefore, .great weight is to be attached. He says, “ that he heard. [108]*108“ William Furman say, he had been robbed of a certain sum “ of money, but that the robbery had been detected, and the “ money recovered; and that he had got the same again.” To believe this to be correct, is also to believe William Fur-man to have been a most profligate and abandoned character. That he was otherwise, appears from the confidence reposed in him by Robert Coe, and the proof that he was a man of good character. It is to be again remembered, that John Moore is speaking to a conversation more than twenty years past -; and -it would be going too far, to believe that he did not labour under some mistake, when the testimony opposing this fact shall have been considered and weighed.
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Spencer, J.
It is proper that I first consider, whether the proceedings on the petitions presented by the appellant for a re-hearing of the cause, after a decree settling all the princi- ^ u i pies, and the dismissing those petitions, is warranted by the course of proceedings in the court of chancery. It appears to me, that the Chancellor disposed of those petitions correctly; for, as has been insisted on by the respondents^ counsel, instead of asking a re-hearing, on the discovery of new evidence, the application ought to have been for a bill of review, upon which the competency of the two witnesses, Hezekiah Field and Susannah Coe, would have been directly in issue, It was, however, not necessary to have filed articles; and in Callaghan v. Rochfort, 3 Atk. 643, Ld. Hardwicke decided, that articles were improper, when the objection was to the competency of the witnesses; but when to their credit, they were proper. The question, as to the interest of money upon Long-Island during the war, was certainly a question to which the appellants examined witnesses; and it cannot, with any propriety, be pretended, that he discovered testimony as to the rate of interest, of which he had no knowledge before the passing of publication, or the decree. But, upon any grounds which may be assumed, as the application to the Chancellor was for a re-hearing, in my opinion, the appellants’ counsel mistook their remedy, and the Chancellor very properly dismissed the petitions. In making up my opinion, therefore, I have rejected all the exceptions to the testimony of the two witnesses, Hezekiah Field and Susannah Coe. The first question presenting itself, is, whether there is testimony enough to warrant the court in saying, there was a robbery? And, upon this head of the inquiry, without at all re[106]*106S'arc^n8 Vfhat Wm. Furman. said, there cannot remain a doubt». It is proved by the depositions of three witnesses, who were present at the time the robbery was perpetrated. Abigail Rhodes, Mary Boss, and Robert Drummond, depose to the facts. They relate the circumstances, and agree in the principal occurrences more correctly than is common-for three persons, who are deposing to an incident twenty-three years after it has happened. There can exist no reasonable ground - on which to doubt the robbery. The Chancellor was impressed with its having taken place; and in truth,, the respondents’* counsel admitted it. The next important points of inquiry are, 1st, Whether the money which had been paid by Mr. Titus to the executor of Robert Coe, Wm. Furman, and which appertained to the respondents, was part of the money whereof Mr. Furman was robbed i and, 2d, Whether this money was ever recovered by Furman? The law on the subject of bailments, and with respect to the responsibility of factors and trustees, is as firmly settled as on any other subject which can be presented. If the nature of the bailment or trust be such, that the bailee or trustee is to have no reward for his services, the law will not require of him any greater diligence than he usually exercises with regard to his own property; and it seems well established, “ that if a trustee be “ robbed of the money he received, he shall be allowed it on “ account, the robbery being proved, although the sum is only “ proved by his own oath ; for he was to keep it as his own; “ so in case of a factor, for he cannot possibly have other “ proof.” And it was correctly said on the argument, by one of the appellants’ counsel, that it would be bringing an executor, in whom the testator reposes such especial confidence, to a test too severe, when he has proved a robbery, to require of him an identification of the money belonging to the cestui que trust. Such severity would well nigh deter any man from assuming a station of such responsibility, upon the calls of friendship, and without any possible advantage to himself. It is objected, that William Furman, the executor of Robert Coe, never made oath, either as to the robbery, or to the identity of the money belonging to the respondents. It has been answered, and I think satisfactorily, that there is no mode pointed out for a trustee, under his situation, to have pursued. Had he made an affidavit, it would have been extra-judicial, [107]*107mncl of no more importance than his own declarations. He could not resort to a court of chancery; because, from the time of the robbery, until very near the time of his death, which was in 1783, that court was shut. What means could "he have pursued under the then state of things, which he not ? I confess myself at a loss to perceive any neglect on the part of William Furman, in that respect. If, then, William Furman could not avail himself of an opportunity to make the •oath, which most certainly will, in cases of this kind, protect .a person, as to the amount of the sum robbed, what shall we require of him that he did not do ? It appears from the deposition of Robert Drummond, that immediately after the robbers had retired, William Furman went with him up stairs, where it is agreed, by all the witnesses, the money was deposited ; and that he then stated to Drummond the amount to be ¿£900; that ¿£300 belonged to some orphan children, of the name of Coe; and that he was an executor for the children. Abigail Rhodes, who, from her situation and relationship to William Furman, being his daughter, may be presumed to know, states in positive terms, “ that a part of the mo-a ney of which the said William Furman was robbed, as aforesaid, was money received of the estate of Robert Coe, deu ceased, and then in the hands of the said William Furman, “ senr. as executor of that, estate.” Mary Boss, who is spoken of as Polly Thompson, also resided in the family of William Furman. She states, that he was robbed of all the money he had in the house; and that the next morning she heard "him say, that all the money belonging to the grand-children of Robert Coe was taken by the said robbers, together with .his own. Mrs. Rhodes could only speak of the money belonging to the respondent; because, on the third of August 'before the robbery, the other legatees had been paid their proportions of the proceeds of the real and personal estate. It appears to me, that, from these facts, taken collectively (and I know of nothing to detract from them) it must be manifest, that the money belonging to the respondents, and in the hands of William Furman, was taken by the robbers, together with his own. Did William Furman recover this money ? The only witness who establishes this fact is John Moore. His character appears to be fair; to Iiis declaration, therefore, .great weight is to be attached. He says, “ that he heard. [108]*108“ William Furman say, he had been robbed of a certain sum “ of money, but that the robbery had been detected, and the “ money recovered; and that he had got the same again.” To believe this to be correct, is also to believe William Fur-man to have been a most profligate and abandoned character. That he was otherwise, appears from the confidence reposed in him by Robert Coe, and the proof that he was a man of good character. It is to be again remembered, that John Moore is speaking to a conversation more than twenty years past -; and -it would be going too far, to believe that he did not labour under some mistake, when the testimony opposing this fact shall have been considered and weighed. If William Furman made the declaration imputed to him by John Moore, there can be no satisfactory reason assigned, why it should have been confined to Moore alone; and most certainly his own family would have been informed of such singular good fortune, Robert Drummond states, that he was sent for to appear as a witness before the court-martial, on the apprehending some men charged with the robbery. He did appear, but could not identify the robbers, in consequence of which they were remanded; but he 'never heard or understood, that the money, -or any part of it, had been restored. This witness had the best means of knowing the fact of the recovery of the money, had it happened. This testimony, though negative, in my opinion affords a strong presumption that it never was reclaimed. Abigail Rhodes and Mary Boss both unite in declaring, that they never heard that any part of the money taken by the robbers had been-recovered.; and it is inconceivable, if the fact had been otherwise, that they,should not have -heard of it from Mr. Furman. John Gosper asserts, that he heard Mary Boss some years -afterwards say, “ that William -Furman had been very lucky, for that he had “ recovered all the money -he'had been robbed of, except a u small part.” This declaration she denies ever having-made ; and, admitting that it detracts from her credibility, for having asserted facts not under oath, which she denies when under oath, still the testimony of Drummond and Mrs. Rhodes remains unimpeached. Hoxvard Furman, who appears to have lived-in the neighbourhood, heard of the robbery the day after It was committed, but never heard that the money -was -recovered. -Benjamin Coe was told of the robbery [109]*109m 1783, by William Furman; and that he had been to New-York, on .he apprehending some soldiers suspected, but he told him he could get no account of the matter. Joseph Robiuson was told in 1783, by William Furman, of the robbery; anu mat it amounted to ¿£ 900, of which 5 or <£600 belonged to him. lie says nothing of its having been recovered. Ttwmas Burroughs says, he was informed by William Furman oí the robbery ; and that he had been sent for to New-York to tetch the money; but he did not fetch it, as the person having the charge of it had gone to Kingsbridge. Susannah Coe says, she has heard William Furman say he was robbed of a purse of money; that he had seen the purse and the money again in New-York ; and th t the person in whose charge it was had gone to Kingsbridge. It is manifest, that the last witness, to say the least of her, must have been mistaken; for, from the testimony of Drummond and the other witnesses, the money was in bags; and it is somewhat remarkable, that Mr. Furman could have seen the purse and money, when the person in whose charge it was, was absent at Kingsbridge. The testimony of Joseph Burroughs presents nothing but the vaguest hearsay, and deserves no consideration. Upon the whole, from the strictest examination of the evidence in my power, it appears to me, that the weight of evidence is decidedly in favour of the appellant. ; that the money was not recovered: therefore I am for reversing the decree, and dismissing the bill of the respondents with costs in that court. I have not noticed the pretended breach of trust, on the part of William Furman, in disposing of the real estate of Robert Coe at private, rather than public, sale. The testimony in the cause abundantly shows, that his conduct was fair and honest. If he really misjudged, ■in either the time or mode of selling, it will not warrant me in saying, contrary to the proof, that he was guilty of a breach of the trust reposed in him. There are other minor points in the cause, the decision of which is rendered unnecessaiy, by the opinion I have given. There is one thing yet to be noticed : it is alleged by Susannah Coe, that she applied to William Furman for money to purchase necessaries for the children, and that he refused, saying, “ that no person should “ have money, on account of those legacies, until the children “ were of age.” This, it has been contended, was a conver-ssion of the whole; or, in other words, that he became answer[110]*110able for the whole amount in his hands, if it was after-wards robbed, and never recovered. The testimony of Mrs. Coe, on this point, is very loose and inconclusive. She furnishes no dates; and it is impossible to say, whether her application was before or after the robbery. But to this there is a further answer, that Mrs. Coe had no right to make the demand, unless she was guardian to the children, which she appears not to have been. Mr. Furman’s refusal to an unauthorized person cannot, therefore, in law, draw after it the ■consequences which have been contended for.
Livingston, J. The questions in this cause are principally questions of fact. They involve the robbery of the intestate, and the subsequent recovery of the money. That William Furman was robbed, can admit of no doubt; the testimony to this point is full and conclusive. His Honour the Chancellor •regarded it in that light; nor can any who will read the depositions entertain a different opinion. The want of Furman’s own oath (which indeed could not have been taken, except in an extra-judicial way) is abundantly supplied by other proof. There is as little difficulty in determining that the money of the complainants was taken, as well as his own. Some of the witnesses, who establish the robbery, expressly state that part pf the money of which he was robbed belonged to the estate of Robert Coe, deceased. Considering the manner of the robbery, which was perpetrated in the night, by several armed men, who must of course have had a complete control •over the dwelling-house and all its inhabitants, it is not probable they left any money, worth speaking of, behind. Whether the money was regained, is a question of more difficulty; and yet on the proof before us, my opinion would be in the negative. There is no one witness, except John Moore, who deposes affirmatively on this point; and although a man of character, it is probable either that he has committed some mistake, which would not be extraordinary, after so great a lapse ■of time, or that some circumstance is omitted, as to time and place, which would give a very different complexion to his testimony. Perhaps the declaration of Furman, which he speaks of, was made after he had heard of the detection of the robbers, and when he of course expected to recover the money. Some explanation is wanted from this witness to reconcile his testimony with the declaration of the other witnesses, and the conduct of Furai&q to other ^persons. How [111]*111happens it, that none of the persons who resided in his family ever heard this money was recovered, or that Furman, who bore the character of an honest man, never mentioned so important a circumstance to any but Mr. Moore ? or that the recovery of this money did not become a matter of as great, indeed greater, notoriety in the neighbourhood, than the robbery ? The money could not have been returned in secret. It would have been known to many; it would have been the subject of conversation throughout the neighbourhood; it would not have been in the power of an artful man to have suppressed a knowledge of such an incident. An honest man, as Furman was, would have had no motive to attempt it. But notwithstanding the strong inclination of my opinion in favour of the appellant on this point, it is one of those cases which ought to be submitted to a jury. A more full and satisfactory examination can thus take place, and there will be less danger of error in that way, than if we take the decision of it upon ourselves. My opinion therefore is, that his Honour the Chancellor be ordered to direct a feigned issue to be tried between the parties at common law, to determine whether any and what part of the monies of which William Furman, as executor to the last will and testament of Robert Coe, deceased, was robbed, during the late war between the United States and Great-Britain, was at any time and when recovered by him ; and that all further directions be reserved, until the trial of such issue. Some complaint was made against the sale of the real estate. This complaint was without cause. The Chancellor considered it so; and I entirely concur in this part of his opinion. The sale was fair, well intended,¡for a full value, and I think well-timed. Although money produced little or no interest on Long-Island, during the war, the farm would not have yielded any great rent, and might, and probably would, have suffered much. It was also said that William Furman, by refusing to advance any money to Susannah Coe, for the complainants’ support, was guilty of a breach of trust, and on the principle established in the case of Le Guen and Gouverneur & ICemble, he became liable, from that moment, for the whole fund in his hands, and that therefore no subsequent robbery could shield him from a responsibility to that extent. I cannot perceive how the case cited bears on the one under review. In Le Guen v. Gonver[112]*112neur and Kemble, nothing more was decided, according to my understanding of it, than that factors, who were in advance, and under heavy responsibilities for their principal, had no lien on his securities in their hands, and that in a special action on the case against them for misconduct, it was not only unnecessary in the plaintiff to prove a special damage, but incompetent for the defendant to show their principal had been benefited by this alleged misconduct. If Furman was guilty of a" breach of trust, it could only be for so much as was necessary for the support of these children; but that could not affect the surplus, which must have remained in his hands after advancing what Susannah Coe asked of him. It is however sufficient to say,' that Mrs. Coe had no right to make this demand, and that it does not appear with sufficient certainty that it was made.
In this last opinion Kent, Justice, concurred, contra Lewis, C. J. who, with the majority of the court, being for a reversal, the decree was accordingly reversed in toto.