Archer, J.
delivered the opinion of the Court. This cause Is one of great magnitude and interest; of magnitude, in relation to the amount involved in its determination, and of interest, not only on account of the principles connected with its decision, but of the peculiar relations in which the parties concerned stand to each other. On the one side, the complainants are the widow and children of one, whose infirmities and dissipated habits were, early in life, involving in rum and entanglement; a large patrimonial estate, and who gave sure indications that. In a short time, he would reduce to poverty his wife and family. On the other hand, the respondents are the uncles of the com - [68]*68plainants, who, observing the unfortunate habits of their brother, generously stepped in between him and his tottering fortune, and took upon themselves the onerous duties of trustees of his estate. After a period of twenty-four years, they are presenting to this tribunal an account of their stewardship, which has been demanded by the widow and children of their brother.
After a laborious discussion of the very eminent counsel concerned for the parties, we have approached the examination oí the multifarious and perplexed transactions which have grown out of a trust of such duration, with an anxious solicitude tp arrive at truth, and by applying the law to ascertained facts, to reach the justice of the case. Courts have very frequently painful duties to perform; and although they cannot be blind to the consequences which may flow to individuals from their decrees, yet insensibility to them is a stern mandate of j'udicial duty.
We do not deem it necessary for the purpose of this decree, to recapitulate the proceedings and numerous facts in the record; they will, perhaps, be found to be sufficiently stated in the auditor’s report and in the chancellor’s decree. The cross appeals will, for the purpose of this opinion, be considered as consolidated; and we shall proceed to present our views of the Various questions which have been raised in the discussion by the counsel on either side.
The court conceive that the trustees are accountable for the value of Hopewell. In the view which we take of this subject, so far at least as concerns this question, it is immaterial to inquire, whether the transfer of this estate was made under the deed of 17S8, or of 1807; for, in either view, they were not authorised to transfer that .estate except by a sale. If it were considered as coming under the provisions of the deed of December 1807, it§ terms are too explicit to need illustration. As it regards the deed of 1798, they were authorised to sell the whole or a part of the real estate on credit, or for cash, and the surplus, whether consisting of real estate, bonds or money, was to be applied as is therein directed. It has been contended, that the trustees under this deed had authority to make the exchange of Hopewell for the Ferry property on the Susquehanna, because the deed contemplates a surplus of land re[69]*69maining on hand after the objeets of the deed are gratified. The trustees might, in their discretion, only sell a part of the real estate, and the partin that event remaining in their hands, would have been a surplus over and above what was necessary ¿o effectuate the objects of the trust. The argument would iiave been entitled to more weight, had the direction been to sell tiie whole estate. The sale of Hopewell, was not only a violation of the express stipulations of the trust, but was known and acknowledged to be so by the respondents. The deed for the ferries, from Riehard S. Thomas, was given to them in their individual characters, and not as trustees, and the reason for this procedure, as is deducible from the complainants’ exhibit B, is, that they had no right, by the terms of the trust, to take the ferries in exchange. In this transaction they both co-operated, and although they may have acted with the best intentions, and with the most honourable views towards their cestui qne trusts, this court must hold them jointly responsible, unless by the various acts of sanction which have been given by Thomas Ringgold, they shall appear to have been justified. Apprehending, indeed, responsibility growing out of this transaction, the trustees, if they did not seek indemnity for this contract, accepted a hand from Thomas Ringgold reciting his original assent to the exchange, and binding himself to save them harmless; and on the same day on which the bond was executed, as if the more surely to guard them from anticipated responsibility, he made his last will and testament, in which, as far as he could, he attempted a ratification of this transaction. This instrument, although its expressions are general, has an undoubted allusion to this contract alone, for no other sales of real estate are alleged to have been made, which needed ratification. These instruments were executed nearly four years after the execution of the deed of December 1807, by which he transferred all his land, negroes, stock and farming utensils to the trustees. His habits of inebriety are represented by the testimony before us to have been confirmed, and to have gr eatly debased and debilitated his mind. He was either placed, or believed himself to be placed, in a condition of the most abject dependence on his brothers, for even the most common necessaries of life. He had clear and unquestionable rights, [70]*70as one of the cestui que trusts under the different deeds of trust, which secured to him in all probability, an ample independence. Yet, instead of manifesting any desire to enforce those rights, as his necessities might require, his letters rather represent him in the condition of a pennyless dependant on their charity and bounty. The relation existing between a trustee and cestui que trust, the policy of the law requires, should be guarded with vigilance by a eourt of ’equity — contracts between them should be scrutinised, that no injustice should be done the cestui que trusts. It is true, these Various acts of attempted indemnity do not, in relation to the transactions to which they have reference, or from their character as manifested on the face of them,' bear any striking evidence of legal inefficiency. It might not have been inconsistent with those great principles of moral duty; or just liberality, which one brother might owe to another, to grant indemnity for acts, which, though injurious in their consequences, he might have believed proceeded from the, purest motives. But a court of equity ought to be perfectly satisfied, that he was free to act as a rational intelligent man, that he was not governed by considerations growing out of a dependant condition; and in this case there is too much reason to believe, not only from his letters, but from his general character and conduct, as detailed by the testimony, that the considerations above alluded to,- entered largely into the motives for executing these instruments.
The responsibility of the respondents growing out of this contract, having been determined, it is necessary to ascertain the price with which they should be charged. The cestui que trusts are entitled, upon every principle of equity, to the full value of the lands at the time of the sale. The trust has been violated, the title to the lands disposed of contrary to the express injunction of the instrument under which they act, and there is no possible means by which this court can reinstate the complainants in their interest, but by charging the trustees with the utmost value of the property. This is the principle adopted in the case of a mixture or confusion of property, and the ground of it is, that although the trustee may be injured by its application, yet the cestui que trusts are certain of indemnity; and it would be but just, that if, in the impossibility growing [71]*71out of the conduct of the trustee of ascertaining the actual value, injury should probably result, it should rather fall on him whose conduct had been delinquent, than on the innocent cestui que trusts. Yet, where the value of the property can he clearly ascertained, that must be the measure of indemnity. But, for the circumstances which preceded and followed this sale, we should have been compelled to fix the value of these lands, from the opinions and recollections of witnesses, of the state and condition of the property, and what it would have sold for in 1807, and for this purpose, the depositions of Mr■ Thomas, Mr. fVorveil and Mr. Barroll, would have been sufficient; but the record furnishes us with the evidence that these lands were advertised for sale; that the sale was attended by many persons of property; that the lands were examined by several who were considered as desirous of purchasing, and who were able to have become the purchasers: yet, that when it was set up, a greater price could not be obtained than $16 per acre, and that the trustees bought it in for the estate, at that sum, and after - wards actually agreed to sell it to R. S. Thomas for that price, and even he refused to execute his contract. These facts furnish the best evidence, that the lands did not exceed the value of $16, and greatly outweigh the opinions of witnesses, as to its value, given many years after it was thus publicly offered,, If the land had been more valuable, it would surely have been hid for at a greater sum, when it was thus offered under such favourable circumstances. Nothing can be deduced of the value of Hopewell, from the price which was fixed on it in the deed from the trustees to R. S. Thomas — this was done in consideration of the exchange — Thomas, whose experience made him better acquainted with the ferries, was anxious to dispose of them, and probably anticipated some of the losses and inconveniencies which subsequently attended them; although he was unwilling to give $16 an acre for Hopewell in cash, yet, if the ferries were taken in part, he was willing to give a much greater sum. This only shows his anxiety to rid himself of the ferries, and , not that Hopewell was, even in his estimation, worth more. The court, therefore, think the chancellor erred in charging the value of Hopewell and Chester-Town property at $25,000.
The amount due from Tench Ringgold for the sale of the [72]*723325 acres of the Washington lands, has been also one of the subjects of controversy. It has been contended by the respondents, that these lands were sold by Thomas Ringgold before the execution of the deed of trust of October 22d, 1798, and that having been so sold, they were not conveyed, or intended to be transferred by that instrument, and were not a part of the trust property; and this is emphatically stated in the answers of the respondents; and in the letters of General Ringgold to Mr. Brice, exhibited by the complainants, he regrets it as a misfortune, that the lands were sold by Thomas before the deed of trust was thought of; and it is said that one of the complainants, James G. Ringgold, acting for himself, and as agent and solicitor for the other complainants, has admitted the fact. But whatever may be the strength of this testimony, it is not warranted by the exhibits and evidence in the cause. By exhibit S. R. No. 1,- Samuel Ringgold charges himself as trustee with the receipt of part of the purchase money of these lands; this account constitutes a part of the answer, as much so as any express averment in it; and in Tench Ringgold’s exhibit, which also constitutes a part of his answer, it is said, that on the 21st of November, 1798, a settlement took place between Tench and Thomas, and assented to by Samuel, by which it appears* that Thomas Ring-gold is charged with the legacy due Tench, with interest up to the 6th of March, 1799, which shows, that until that period the legacy was unsatisfied, as it could not have been if a sale had taken place betore the deed of trust. These inferences and facts are strongly supported too by the evidence furnished by the deed of October, 1798, itself; that declares on its face the indebtedness of Thomas to Tench, and one of the first objects of the trust there created, is the satisfaction of the legacies due from Thomas under his father’s will, (the legacy to Tench being one) by the sale of the lands. This instrument does, therefore, entirely negative the idea that a sale of these lands was made before the execution of that deed. But if Thomas had agreed to sell the lands to Tench, the legal estate in the Washington lands, with the amount due thereon, passed to the trustees, and it was unquestionably the duty of Samuel to collect the purchase money and convey the property. The" [73]*73deed of the 27th of May, 1799, from Thomas and Mary Ringgold to Samuel and Tench Ringgold, instead of impugning the idea of a sale by the trustees, is calculated to confirm it. If the Washington lands were not trust property, and did not pass by the deed of 1798, why was this deed executed to Tench and Samuel? Would he not have been more likely to have himself coerced the payment from Tench, and conveyed it to him, had he personally sold it to Tench, and retained the title? Instead of this, he joins his wife in a conveyance to Samuel and Tench, which is in entire inconsistency with the idea of a previous sale by him. The object of ibis deed was undoubtedly to pass to the trustees the dower of Mrs. Ringgold, that Samuel might be enabled to give an unincumbered title to Tench, when the purchase money should have been paid by him to Samuel. In any light in which this transaction can be viewed, a joint responsibility grows out of it. If the estate passed by the deed of 1798, there was a breach of trust in Samuel in selling to his co-trustee, which would make him responsible; and if contracted for by Thomas with Tench, before the execution of that instrument, it still passed the legal estate to the trustees, and it was Samuel’s duty to have collected it; and having not only failed to do so, but having made no effort for this purpose at any period of the existence of the trust, hut suffered it to lie in his hands when he knew the trust was abused, in consequence of a failure on 'Tench’s part to apply the amount of this purchase money to the payment of the debts of Thomas Ringgold, he has clearly made himself responsible equally with his co-trustee.
The joint responsibility of the respondents for the sale of the personal property in November, 1807, on the eastern shore, is a question which has also been submitted to the consideration of the court. The bill charges the trusts under the deeds of 1798 and 1807,and the answers of the defendants admit the trusts coniided to them; and in their various exhibits, which are made parts of their answers, they return accounts of their sales of the personal property as made under these deeds. It seems to have been considered by the trustees, as far as the evidence its. the cause will enable this court to judge, that the trustees conceived they had power, under the deed of 1807, to sell the per[74]*74sonal property which was disposed of by them, from Hunting-field and Hopewell. But it is very clear, that a deed made on the 18th of December, 18Ó7, could transfer no right to property which they had sold on the 27th of the November preceding. Thomas Ringgold, at that period, had no interest to convey. Samuel and Tench had sold it all previously to various purchasers, in his presence, or with his express approbation, at a time, too, when he had, for aught that appears in the cause, a complete right to it; for by the deed of 1798, no personal property was conveyed, and we cannot notice the deed of January 1807, as it is not evidence in any manner in this cause. It is very probable that these sales were all made in anticipation of the deed of December, 1807, which was to follow, and did follow a few days after the sales. That Samuel and Tench were trustees of this property, must be inferred from all the evidence. They exercised dominion over it; they sold it with the assent of Thomas; they took bonds from the purchasers in their own names; they collected a part of the purchase money, and they have proffered themselves ready to account for these sales, and have made a return thereof as having been made by them as trustees. These sales not being then within either deed of trust, must have been made under some conventional arrangement, either verbal or written, which is not before the court, and which is only to be inferred from the transactions of the parties. That such a trust may be asserted and enforced in a court of equity, cannot be- questioned. But the difficulty on the part of the complainants, arises from the circumstance, that there is no allegation in the bill which: covers or affects any other trusts than those of October, 1798, and of December, 1807. A court cannot be aided in the construction of any agreement by the acts which the parties may have done under it, nor isa party bound by any construction which he may have put upon the instrument. The answer, therefore, which prestents a list of the negroes and' specific articles of personal property sold on the eastern shore, also discloses the fact that the sales were made anterior to its execution, and the evidence confirms the answer in this respect. Had these sales- been actually made in anticipation of the deed of 1807, and resting on the agreement of the-parties-that they should be confirmed by that [75]*75instrument, and that their responsibility for the proceeds of these sales should be governed by its stipulations, which we have no doubt from the evidence was the fact; had some verbal or other trust existed under which they were made, or had Samuel exercised dominion over the property after the execution of the deed of January, 1807, and proceeded to sell the property as trustee in virtue of its stipulations, as if it had been a valid and operative transfer, and had under these circumstances joined Tench with him as agent, or associated him as a co-trustee with the assent of the parties, in anticipation of a deed of trust subsequently to be executed, it was surely important that each or all of these facts, as the truth might warrant, should have formed substantive allegations in the bill; or if either fraud or mistake liad given the deed of December, 1807, the shape which it now assumes, contrary to the understanding and agreement of the parties, that should also have been averred-A court of equity must always decree upon the allegations of the complainants. It is never justified in going beyond them. Such a course would violate the fundamental principles of pleading, and would work a surprize on the respondents. Had (lie respondents admitted a sale under these deeds, without disclosing the fact of the anterior sales, it might he well questioned whether what had been thus in pleading explicitly admitted, could be contradicted by the adduction of evidence on their part, showing that the sales were anterior to the deed. But having averred the sales previous to the deed, although they state that the sales have been made by them as trustees, they aro not estopped and precluded from demanding whether a -legal responsibility grows out of the deeds of trust for sales previously made by any just construction thereof. We are therefore of opinion, that in this causo, whatever under other circumstances might be the right of the complainants’ demands against the respondents as trustees for sales of the personal property on the eastern shore, this court, in the state pf these proceedings, cannot decree against them for the amount of those sales. In this respect, the rights of the parties are reserved for the future consideration of a court of equity, should the complainants deem that their interest demands an investigation.
[76]*76But although the sales oí the personal property cannot be covered by any allegations in the bill, this court, in this proceeding, will do equity between the parties as far as is consistent with the established principles of chancery proceedings. It appears from the evidence in the cause as furnished by the answers of the defendants, (see their various accounts filed as exhibits to their answers,) that Samuel Ringgold has received the sum of $1,117 83, part of these sales, and that Tench Ringgold has received the residue from the different purchasers. Samuel Ringgold has applied the sum thus received to debts of the estate, and Tench Ringgold has paid debts and made disbursements to a considerable amount after the sales of the personal property. We shall therefore consider, so far as Tench has, after the sales of the personal property, paid debts and made disbursements for the estate of Thomas, that they were made from such receipts. For all the residue of Tench’s receipts, which will be unexhausted by such an application, and for the amount of his own purchases at the sales of 1807, all of which remains uncollected, accountability must be sought by the complainants in a new proceeding. We conceive from the evidence in the cause, that although these sales were not within die terms of the trust of 1807, charged in the bill, yet they were in their hands as trustees for the payment of debts, as well as the property actually passing by that conveyance, and being so, and their accounts showing generally that debts were paid without designating out of what trust fund particularly they were paid, that for the purpose of effectuating justice between the parties, we have a right to consider that the debts and disbursements after the sales of 1807, were paid by each trustee to the amount of actual receipts by each from these sales, out of the money received by them from such sources.
We consider the respondents as properly chargeable for the amount received from Thomas Ringgold’s securities. These securities amounting to the sum of $8,191 47 were received iri the years 1799, 1800, 1801, 1803, and 1805, as appears by the accounts exhibited and receipts offered in evidence. The complainants allege, that at the time of the execution of the deed of trust of 1798, authority was given by Thomas Tkinggold to the respondents, to col lect all debts due to him, (to be [77]*77applied to the payment of his debts, and that in virtue of such authority, large sums of money were received by them) and they pray an account thereof. This allegation is not directly answered, otherwise than by their exhibited accounts, and by testimony from which it appears, that outstanding debts at that time, due to a large amount, were by them collected as trustees. These facts justify us in saying that such authority was given, and that they acted in regard to them as joint trustees.
These respondents are also chargeable with the rents received for the lands of Thomas Ringgold. The legal estate passed in these estates to the trustees by the deed of 1798. They were rented out and the rents received, and should have been applied to the purposes of the trust.
The subject of interest forms a very important item in the controversies between the parties — the respondents insisting that interest ought not to be charged against them, while the complainants contend, that they should be allowed compound interest, or if not, that the chancellor has erred in allowing a rest of six months from the receipt of monies by the trustees free of interest.
As it regards the balance due from Tench for the Washing-Ion lands, there can be no pretence for exemption from interest; he was to pay for them at a stipulated period and has failed to do so; and it having been determined that there is a joint responsibility for the principal, there is, of course, a joint responsibility for the interest.
As it regards the receipts of Tench between the execution of the two deeds of trust, which were not applied by him to the payment of debts, it may be remarked that it was his duty to apply them to such outstanding claims as were then due from the cestui que trust, or if he had detained them, to have met the outstanding judgment of J. J. Maund, to have placed those monies in a situation where they could never have met with those accidents to which every individual’s fortune may be liable. He should at least have shown, us, that the funds were kept separaled from the mass of his estate. Could this have been done, this court would have been disposed to shew the utmost indulgence. The pressing character of the outstanding debts, could not but be known during this period of Samuel, [78]*78for he was, during the most of this time, advancing from his private estate to meet them; yet he makes no effort to obtain the funds in Tench's hands to be applied to these objects. He must have known that Tench had funds; for he was permitted to collect debts on the eastern shore, and if he did not know, he was surely bound to know and to watch over the conduct of his co-trustee. Upon such sums, they must be conjointly charged with interest.
For the amount due from them on account of the Hopewell estate, they are certainly chargeable with interest. That they invested it in property unproductive, can furnish no ground for exemption, bfecause they acknowledgedly transcended their power and violated their legal duties and obligations. We must consider them as having the value of this estate in hand at the time of the sale; and the reason assigned for the previous liability, will apply to them in this particular, if the sales were even made under the deed of 1798, where the obligations of the trustees to pay interest is not so entirely clear and apparent as under the deed of 1807. But the sale may and ought to be considered as made under the latter deed. It is true, the contract of sale was made before, but they derived their power and authority to perfect it under the deed of 1807, for that conferred the power to pass it free from the incumbrance of Mary Ring-gold’s dower; and the title of R. S. Thomas, was in fact, made and perfected after and under that instrument, the conveyance to R. S. Thomas, having been made in 1808. Now, what are the stipulations of the deed of December 1807, so far as they relate to the present question? “That the whole estate thereby conveyed, should be immediately sold, and after paying all the just debts of Thomas Ringgold, the proceeds should, as received, be invested in government, bank, or turnpike stock, and the interest or dividends to be paid in the proportions therein mentioned; part to Mrs. Ringgold during the joint lives of herself and Thomas; part to Thomas during his life, and part to be applied to the support and education of the children of Thomas and Mary, yearly and half-yearly, as the same may be received ; and that, until the proceeds of the sale shall be invested in stock, the interest arising therefrom, shall be paid and applied, when and as it is received in the proportions therein designated,. [79]*79to the cestui que trusts.” Having the proceeds of this estate in hand, it was their imperative duty to have invested unless a portion, or the whole oí them, had been demanded by acknowledged debts of Thomas Ringgold. The deed was intended as a family provision, and the debts then outstanding, except' Maund’s judgment, were inconsiderable. By transferring the legal estate to the trustees in all this property they placed their dependence upon its productiveness in they- hands for a support. They parted with the income which it furnished in consideration, and evidently under the expectation, that it would be immediately invested. It had been represented nearly a year prior by one of the trustees, that the estate was nearly disencumbered of debts, and hopes were entertained that Maund’s claim, which was then depending in court, would be perpetually enjoined. It had been litigated at that period for several years and no reasonable expectation could then be entertained that it would be very speedily brought to a close. Under these circumstances, would the trustees have been justified it\ laying by the money and patiently waiting for the event of a protracted chancery suit; the debt daily growing larger by accumulating interest, the funds remaining idle and stationary, and the family suffering for want ef the means of subsistence , depending on the charity of their relatives? It never could have been the intention of the parties, that the investment in stocks should await the determination of J. J. Maund’s judgment; or that the family should for a moment be left without support, for the interest on the sales are directed to be paid them until the fund's are invested; thus, looking to a constantly accruing interest, and negativing every idea of any intended permission, that they should lie idle for such a purpose. Had the money then remained in their hands, they would have been grossly negligent in not investing, it. In such a case the rule is settled, that trustees are chargeable with interest. Treves vs. Townshend, 1 Brown’s Ch. Rep. 364. Rock vs. Hart, 11 Ves. 58; and the rule, Chancellor Kent declares to be founded in justice and good policy, as tending both to prevent abuse and indemnify against negligence. Dunscomb vs. Dunscomb, 1 Johns. Cha. Rep. 504, 508.
Where the trustee is directed to invest funds and to reinvest [80]*80the dividends, or interest, or in other words, where the trust directs an accumulation, and the trustee has used the funds, compound interest will be allowed, as was done in the case of Raphael vs. Boehm, 11 Ves. 92, 108, 109; and S. C. 13 Ves. 407, 590; or where he has used the trust money, or employed it in his trade or business, he shall also be charged in the same manner as was decreed in Schieffelin vs. Stewart, and others, 1 Johns. Cha. Rep. 620. The grounds of this allowance,as is apparent from these cases, is founded on the gain or presumed gain of the trustees, and that the cestui que trust, may be indemnified by the efforts of the court in this way, to reaeh their profits or presumed profits. But, in this case, although the cestui que trusts could not, perhaps, be indemnified by a less allowance than compound interest, yet the circumstances forbid the presumption of a gain on the part of the trustees; although the investment was in violation of the trust, it was done doubtlessly with the best intentions; with no views whatever, of reaping from the transaction, any benefit to themselves, but declaring that the profits, whatever they might be, if any, should be for the benefit of the trust estate. Believing such to have been their motives and views, public policy forbids that courts of justice should pursue a course which would have a tendency to deter persons from accepting offices frequently so necessary for mankind.
The trustees have been allowed on the authority of the case of Dunscomb vs. Dunscomb, 1 Johns. Cha. Rep. 510, a rest of six months without interest on their receipts. This is allowed as a reasonable time within which to pay or invest the funds. There would be great reason in the rule, had they actually invested or made efforts to invest; but in this ease no dispositions were ever manifested to make such an application of the .money as the trust contemplated. Debts due from the estate, were in many instances accumulating interest with the addition of costs, while funds were suffered to lie idle in the hands of one of the trustees, or were diverted to objects of expenditure foreign to the trust. To allow this rest, would in our opinion be doing injustice to the cestui que trusts.
Part of the account of Simon Wilmcr, together with many-other charges against the estate, were allowed by the auditor in [81]*81his accounts, and sanctioned by the Chancellor’s decree, fee whieh no vouchers were produced, and these allowances have been made the respondents from the statement in their answers alone, by which they represent these disbursements to have been made. The general rule that an answer responsive to a bill, is evidence for a respondent, is a well established and settled principle. But, the answer of a defendant, where it asserts a right affirmatively in opposition to the plaintiff’s demand, is not evidence. Beckwith vs. Butler, 1 Wash. 224. Payne vs. Coles, 1 Munford, 373. An answer, will not. support a matter set. up in avoidance or discharge where the matter of avoidance is a distinct fact. In such case, the defence must be proved, Mr. Evans in his appendix to Pothier on Obligations, 157, lays down the following principle: That where the answer is replied to, the whole is put in issue, and the defendant must support fay proof, all the facts upon which-he means to insist, while the complainant may rely upon every fact admitted, which he conceives to be material, without being bound io the admission of others; and this rule he deduces from a case cited in Gilbert, 51, which, as it is a leading case, it will .ho necessary to notice. There, the defendant, by his answer, which was put in issue by the complainant’s replication, admitted as executor,that the testator had left £1100, and said, that afterwards, the testator gave a bond for £1000, and the testator gave him the other £100; as there was no evidence but the deiendant’s admission for the receipt, it was contended that he ought to fmd credit when he swears to his own discharge; but it was resolved by the court, that when an answer was put in issue, what was confessed and admitted need not be proved, but that it behoved the defendant to make out, by proof, what was insisted upon by way of avoidance. Chancellor Kent declares that this rule is well settled in chancery proceedings, and recognizes and adopts it in the case of Hart vs. Ten Eyck, 2 Johns. Ch. Rep. 62, where all the learning on this subject is ably collected and reviewed, and where it was determined that on a bill to account, the answer is no evidence of disbursements. The cases above cited from Washington and Mun-ford’s Reports, were also bills in chancery against, executors to account, and where discharges alleged in the answers were held [82]*82to be of no avail unless supported by proof. The doctrine may then be considered as settled, that on a general bill to account, the answer is no evidence of disbursements, notwithstanding it is said that the Court of Errors of the State of New-York, overruled on appeal the judgment of Chancellor Kent on this question. 7 Johns. Ch. Rep. General Index, tit. Evidence, 75, pl. 11. That tribunal, from its peculiar structure, does not appear to be calculated for legal investigation, and its judgments cannot outweigh the opinion of Chancellor Kent, fortified as it is, by numerous cases of established authority. But, it is said, there being a call here for the amount of disbursements, and debts paid, that this case is varied from those which have been cited. It is true, there is, from aught that appears, a variance in form, but there is none in substance. For, a prayer that the defendant shall account, is in effect a call on the defendant, to state in his answer, not only his receipts, but his disbursements, so that the complainants may have an opportunity of putting them in issue; and without which, indeed, the defendant himself could give no evidence of them. Nothing more is demanded in the interrogatories in this bill, than, under a general call to account, the defendant would have been obliged to answer. It is nothing more in either case, than a demand on the defendant to show his receipts and the legal evidences of his expenditures, in conformity with the trust. Nor is there any hardship in the rule. Men of ordinary care preserve the evidences of their payments, and to say that the respondents should have done it, is demanding from them nothing extraordinary or out of the usual course of human transactions.
The establishment of a contrary doctrine would lead to dangerous consequences, and would be calculated to render trusts valueless, by giving to trustees, executors and guardians, the power on their own oaths, to exempt themselves from all responsibility. The rule then may be stated, (and it is .the good sense of all the cases cited in the argument,) that in all cases where a complainant seeks a discovery and relief, and to make out his case, applies himself to the conscience of the defendant, if, in his answer, the liability is once admitted, there can be no escape from it but by proof. It is true, every thing which he says, with regard to the creation of that liability, must be taken [83]*83together; detached sentences cannot he used against him, hut every thing which he says, relative to his original liability, is properly in evidence. This doctrine will he found to be supported in Lady Ormond vs. Hutchinson, 13 Ves. 53, 54, and by the cases above referred to.
The complainants, by their supplemental bill, seek to make the respondents accountable for nine negroes, taken by Samuel Ringgold, at the stipulated price of $2000. The answer of Samuel admits that they were so taken, but denies accountability, as they were taken at a valuation, in part payment of large sums of money, paid and advanced by the respondent, to Thomas Ringgold, and that a balance is still due him, of upwards of $3500. Samuel Ringgold, in. Exhibit No. 1, filed with his answer to the original bill, has charged Thomas Ring-gold with the payment to D. and TV. M‘Mechen of the sum $3574.
The court are of opinion, that the respondents cannot be-charged with the valuation of these negroes. It is in evidence, that Thomas Ringgold admitted, that they were taken in part satisfaction of a debt, due from him to Samuel, in the year 1806; at a time, when from aught that appears in evidence, he was exercising dominion over his personal estate, and when no deed of trust, which the court in this cause can notice, covered It. As it regards the sum ©f $3574, which Samuel Ringgold claims-credit for, the court deem it unnecessary, in pronouncing their judgment, to recapitulate the testimony of the various witnesses, who have been examined on the subject. Nor do they deem it necessary to determine the question, as to the competency of Tench Ringgold’s testimony, for it is considered, that there is enough in the record without it, to justify the allowance.
It is contended, that this court is not competent to allow commissions, as a compensation to the trustees for their trouble. In England, a liberal indemnity is allowed to trustees for their expenses, but nothing as a compensation, unless founded in positive agreement between the parties. This rule appears to be applicable, not only to trustees of every description, but to executors. They are considered as confidential offices, gratuitously undertaken from motives of friendship or humanity, and-[84]*84without views of personal béfieñt or 'profit. Yet, the English courts grant per dierh allowances^ not in the nature of a compensation, but undér the riatne of an indernñity. The difference then, in truth, is only in the mode of allowance, not in. the principle. It is in fact, a mere difference in name. Commissions in a case like this, might very fairly he’considered as only extending a just and reasonable indemnity for time bestowed in the management of the concerns" of others. But if,indeed, there was a difference in principle, this court would feel themselves justified in granting reasonable commissions. Our statutes allow commissions to executors, administrators, guardians and trustees, under judicial sale's, and by analogy to these statutes, or by an equitable construction of them", the allowance mayj and ought to be made in this case. But, although the general claim to commissions is admissible, we conceive that none should be allowed for the sale of Prospect Hill. The trustees have paid N. Brice, their agent> the ohly commissions to which they Were entitled on this sale. ■
By the will of Mary Ringgold, bearing date in October 1803, certain legacies were bequeathed to Samuel and Tench Ring-gold, in trust for" Thomas Ringgold; with these legacies the respondents have charged themselves in their account accompanying tlieir answers, but have, at the same" time, referred to the source from which they emanate. Tbefe is no allegation in the bill of complainant dr supplemental bill, which' reaches this trust, and they cannot in this proceeding", be charged with them, either jointly or severally, but the equity of the compláinants, in respect theretif, is reserved.
The court' hav'e appointed an auditor for the purpose of stating ah account between the parties, upon the principles contained in this opinion, and will direct, that his costs shall be taxed in this proceeding. From the account thus audited, it appears that the suni of ¡$39,318 54, With interest oh the sum of $28,57$ 87, part thereof, from the 1st of July 1822, is due from the respondents to' the complainants, which will be decreed to be paid into the court of chancery, to be distributed dr invested under the authority thereof, according' to the rights of the respective complainants.
We cohcúr with the ehaficellorih awarding costs to the com[85]*85plainants, and are of opinion, as the decree of that court will be entirely reformed, that each party pay their own costs in this court
Buchanan, Ch. J. dissented.
Decreed, That the decree of the court of chancery given and rendered in these causes, be reversed, except as to the amount and sum of money, hereby decreed to be payable to the appellees in the first and the appellants in the second of those causes. And this court proceeding to pronounce such decree in the premises, as the court of chancery ought to have pronounced, Decreed also, that there is due from the appellants in the first and appellees in the second of these causes, and that they do pay to the appellees in the first and appellants in the second of these causes, in the manner hereinafter mentioned, the sum of $39,318 54, with interest on the sum of $28,576 87, part thereof, from the 1st day of July 1822, the said sum, with interest, having been ascertained by and agreeably to the accounts hereto annexed.
Decreed also, that the parties in- the said causes, pay their respective costs incurred by them in this court on their appeals, but that the appellants in the first and appellees in the second of these causes, pay to the appellees in the first and the appellants in the second thereof, the costs incurred by the said appellees in the first and appellants in the second of said causes, in the court of chancery.
Decreed also, that the chancellor make and pass all' necessary orders for carrying this decree into full and complete effect, by ordering and directing, that the said sum of money, with interest as aforesaid, and the costs as aforesaid, incurred in the eourt of chancery, be brought into the said court of chancery, by the appellants in the first and appellees in the second of these causes, to he distributed and paid, under the directions of the chancellor, to the said appellees in the first and appellants in the second of said causes, according to their respective rights and interests; and also, that the chancellor order and direct, that the said appellees in the first and appellants in the second of said causes, pay to the auditor of the court of chancery the sum of $23 33,, allowed by this court to the auditor, for his fees in [86]*86auditing and stating the accounts directed by this court to he made between the parties.
Decreed also, that all the equity and equitable rights and claim of the said appellees in the first and appellants in the second oí said causes, be, and the same is hereby reserved and maintained to them, against the said Samuel Ringgold and Tench Ringgold, or either of them, as to all or any personal estate, of the late Thomas Ringgold, or the proceeds of sales or dispositions thereof, of any kind, and interest on such proceeds, except as to so much of such personal estate and proceeds, as has by the accounts hereto annexed, and by this decree, been applied to or in reference to the payments and disbursements, by the said Samuel and Tench, or either of them; and also, that the like equity be reserved and maintained to the said appellees in the first and appellants in the second of said causes, against the said Samuel Ringgold and Tench Ring-gold, or each or either of them, as to any legacies bequeathed, to or for the benefit of the said Thomas Ringgold, by the last will and testament of his mother, Mary Ringgold.
DECREE REVERSED, &C.