4. Because it did not allow the appellant a lien on or pro rata dividend out of the trust fund for the debts paid off, and assigned for his use, as shown in the record. reat to this trustee in pursuance of such agree- | virtue of various assignments named in said ment, until a claim was interposed on behalf decree. of the United States, as creditors of the insolvent debtor; it further proves a failure or forbearance by the plaintiff to assert any interest or right to the subject, anterior to the year 1839, about the time of the institution of the plaintiff's action, and so far as a negative is capable of proof, a total ignorance on the part of the defendant of any right of the plaintiff, either to the rents or to the subject from which they were to issue. Upon the above view of the evidence as disclosed in the second, third, fourth, and fifth bills of exceptions, we hold the opinion of the Circuit Court to be correct; is therefore affirmed. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Alexandria, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Supreme Court in this cause be, and the same is hereby affirmed, with costs. 5. Because the court should have presumed payment of the debts, in the absence of all evidence showing them still due, after the great lapse of time; or, if the court believed them still unpaid, they should have presumed an abandonment of the claims by the creditors from their aches and the lapse of time; and therefore erred in decreeing relief to claimants whose demands were stale, and who had knowingly slept upon their rights. 6. Because the court should, for like [*162 reason, have presumed a performance of the covenant contained in the deed of trust executed between the appellant and Robert I. Taylor, for payment of the schedule debts-a release of the same, or that it was abandoned or extinguished. 7. Because, if the said covenant was any part of the grounds or foundation of their decree, the court erred in decreeing upon it in favor of parties between whom and the covenantor there was no privity; or, if there was any such privity, then, because the covenant was a personal matter, disconnected from the trust, and upon which the remedy was by action 161*] *CHARLES MCKNIGHT, Appellant, at law; and more especially as there was no V. LAWRENCE B. TAYLOR, Trustee, &c. Court of Equity-stale claim-refusal to interfere after considerable lapse of time. There must be conscience, good faith, and reasonable diligence, to call into action the powers of a court of equity. In matters of account, where they are not barred by the Act of Limitations, courts of equity refuse to interfere, after a considerable lapse of time, from consideration of public policy, and from the diffculty of doing entire justice, when the original transactions have become obscure by time, and the evidence may be lost. This was an appeal from the equity side of the Circuit Court of the United States for the District of Columbia, holden in and for the County of Alexandria. The facts in the case are fully stated in the opinion of the court, to which the reader is referred. Messrs. Semmes and Jones for the appellant. Messrs. Lee and Bradley for the appellee. Mr. Semmes, for the appellant, contended that the decree of the court below was erroneous, and should be reversed for the following, among other reasons: 1. Because there is no equity in the bill or supplemental bill and no case made for the interference of the court. 2. Because it decrees debts to be paid which the record shows has already been paid. 3. Because it decrees the debt mentioned in the schedule as that due to Thomas Janney & Co., to be paid to John Lloyd, who claims by NOTE.-As to lapse of time and statute of limitations, when a defense in equity cases, see note to Prevost v. Gratz, 6 Wheat., 481; and note to Thom as v. Harvie. 10 Wheat., 146; and note to Pratt v. Carroll, 8 Cranch, 471. prayer in the bill for an enforcement of the covenant. 8. Because, if it was right under the circumstances to give any relief at all, the court should have decreed only the principal of the debts found due, and should, on account of the laches, have refused to allow any interest, on the principle on which the account of profits was denied in Acherly v. Roe (5 Ves., 565); or, upon the principle of Pickering v. Lord Stamford (2 Ves., Jun., 272, 581), interest should have been allowed only from the filing of the bill; the plaintiffs having gone into equity for general relief, and not for an enforcement of the covenant in the deed, on which there was full remedy at law. On the subject of the lapse of time, he cited 5 Leigh, 350; 6 Wheat., 481; 4 Johns., 1; 9 Peters, 416; 5 Leigh, 381; 7 Johns., 556; 2 Nott & McCord, 360; 9 Leigh, 393; 2 Baldwin, 477; Cowper, 109. Mr. Bradley, for appellee: As to lapse of time, there was a covenant between McKnight and Taylor, the consideration of which was the forbearance of creditors to sue, and they did forbear. (3 Swanston, 417). As to the presumption of payment. it is not well settled whether it is a matter of fact or law. (Hughes v. Edwards, 9 Wheat.; same case in Cond. Rep., 654, 655; Elmendorf v. Taylor, 10 Wheat., 152; same case in Cond. Rep., 55, 56; see, also, 10 Leigh, 284.) Mr. Jones, for appellant: A decree must follow the equity of the bill, but the court below has not done it. Hellary v. Waller (12 Vesey) settles the rule that a *court of equity will put itself in the [*163 position of a court and jury. The trustee here had full legal power to sell without coming to equity, and courts act on different principles when called upon to lend their aid, than when acting regularly. (Ambler, 645.) The creditors, | of Hoffman (he being dead), and against Mcgenerally, do not answer or take any notice, but appear to have abandoned the claim. Only one acts. This circumstance ought to be coupled with the staleness of the demand. Knight and Stewart, and all of the creditors named in the schedule; and, among the rest, against George Johnson, in order that they may be compelled to appear and answer the several matters charged in the bill. A supplemental Mr. Chief Justice TANEY delivered the opin- bill was afterwards filed, in order to make adion of the court: ditional parties, and for other purposes; but in the view which the court take of this subject it is unnecessary to state its contents. The creditors secured by the deed of trust are eleven in number, their respective claims varying in amount: the lowest being $85.72, and the highest $1,227.19. The trustee, Robert I. Taylor, is himself one, and the debt due him stated to be $214.54. To this bill Hugh Smith, one of the credit. ors, whose debt was $151, answered, saying merely that his claim is still due. James Carson, another of the creditors, whose claim was $85.72, answered and admitted that he had been paid. This is an appeal from the decree of the Circuit Court of the District of Columbia, for the County of Alexandria, sitting in chancery. It appears from the record that the appellant, Charles McKnight, by deed bearing date the 29th day of September, 1813, conveyed to Robert I. Taylor certain real property described in the deed, situate in the town of Alexandria, upon trust, to permit the appellant to occupy the same, and to receive the rents and profits without account, until a sale should become necessary, under the terms of the deed; and if he, the said Charles McKnight, should not on the 1st day of April, 1818, have paid the several creditors named in a schedule, annexed to The heirs of Hoffman also answered, and adthe deed, the debts therein mentioned, with in-mitted that the notes intended to be secured by terest, then the said Robert I. Taylor should, the conveyance to their father had been paid; on notice of such default from any one of the and submit themselves to such decree as the said creditors or his representatives, proceed to court may deem just. sell the said property, or so much thereof as might be necessary, for cash at public auction, after giving three weeks' notice of the time and place of sale, by advertisement in any paper published in Alexandria, and after defraying the reasonable expenses of sale, discharge the aforesaid debts with all interest due thereon. The bill in this case was filed in August, 1837, by Robert I. Taylor, the trustee above mentioned, and after setting forth the deed of trust, proceeds to state that Thomas Janney & Co. (who are named as creditors in the schedule) had assigned the debt due to them, to Joseph Janney, in trust for the payment of their creditors; and that Joseph Janney, under a provision in the deed of assignment, afterwards transferred the same to George Johnson, in trust for the same purpose; and that the complainant had been required by the said George John 164*] son, and by certain other creditors named in the schedule (but who are not named in the bill), to sell the premises, so as aforesaid conveyed to him in execution of the trust; that the debts mentioned in the schedule were due from McKnight, the appellant, and John Stew art, who had been trading under the firm of McKnight & Stewart, and that no part of any of them had been paid. The bill further states that before the execution of this deed, the appellant had, on the 30th of April, 1808, convey ed a part of the same premises to a certain Jacob Hoffman, in order to secure Thomas Janney, against his responsibility as indorser on two notes discounted at the Bank of Alexandria and the Bank of Potamac; and that the said notes had been long before paid, although the property had not been reconveyed to the appellant; that McKnight was giving out that the debts in the schedule had been all paid, and threatened to withhold possession if the trustee proceeded to sell under the deed, and that from these declarations of the appellant, and the outstanding legal title, the sale could not be made without injury to the interests of the parties concerned, without the aid of the Court of Chancery; and prays process against the heirs The answer of the appellant, so far as it is material to set forth its contents, [*165 states that the claim of Thomas Janney & Co., which was $1,022.69, was due upon open account, and that the respondent was entitled to a deduction of considerably more than $300 for money overpaid by mistake on the settlement of a former account, but that he cannot find a memorandum in writing to establish it, which he knows did once exist; and that after the execution of the deed of trust he transferred to Thomas Janney on account of this debt, the note of a certain Jonathan Mandeville, for $467.08, due on the 20th of January, 1815, which, from what Janney himself afterwards told him, he believes to have been paid; and in respect to this item, his answer is responsive to the bill. He also specifies several creditors whose claims he states that he has paid, and among them the trustee, Robert I. Taylor, and he sets forth the manner in which he satisfied that debt. Some of the creditors mentioned in the schedule are not, however, named in his answer; and he mentions three whom he admits that he has not paid, and makes the same admission as to the small balance which would be due to Thomas Janney & Co., after deducting the credits claimed by him as above stated; but he does not admit that these debts are yet due, and insists that there is every reason to believe that they were paid by his former partner, Stewart, who was equally liable with himself; or, if not paid, that it was owing to the negligence and laches of the creditors in not proceeding against him; the respondent alleging that Stewart, after the dissolution of the partnership with him, removed to Martinsburg, in Virginia, about the year 1812, where he carried on a prosperous business until his death in 1825, and was fully able to pay these debts if the creditors had used proper diligence to recover them; and he relies upon the lapse of time as a good defense upon principles of equity against this proceeding. There is a general replication to this answer; and it appears in evidence that upon the dissolution of the partnership of McKnight and Stew art, in 1812, a notice of it was published in the | ner sought for by the bill. Of the remaining newspapers, stating that McKnight was author- three, one has answered and stated that his ized to collect the debts and settle the business of the concern. And a witness was also examined on the part of the complainant, who states, that from a perfect knowledge of the pecuniary situation of Stewart, from 1812 until his death, 166*] he knows that he was insolvent *when he removed from Alexandria to Martinsburg, and that he continued and died insolvent; that he had no property he could call his own, and out of which an old debt of $100 or $200 could have been made. It also appears in evidence, that Thomas Janney & Co., on the 30th of April, 1823, assigned all their effects and claims to Joseph Janney, in trust to pay their debts. That by virtue of a provision contained in this deed of assignment, Joseph Janney afterwards, on the 10th of August, 1829, renounced the further execution of the trust, and transferred all the property and claims that remained in his hands to George Johnson, in trust, for the same purposes for which they have been conveyed to him. And on the 14th of November, 1837, after this bill was filed, Johnson sold and assigned all the effects and claims which he then held as trustee of Thomas Janney & Co., to John Lloyd, of Alexandria; and on the same day executed a power of attorney in his favor, authorizing him to receive whatever might be recovered in this suit or on any other claims of Thomas Janney & Co., and to compromise and settle them in any manner he might think proper. The consideration paid by Lloyd is not stated, nor, indeed, does it appear by the assignment that any consideration whatever was paid. The deed of assignment merely states that Johnson had sold these effects and claims to Lloyd, and authorizes him to collect, compromise, and settle them. The bill was taken pro confesso against all of the creditors who had not appeared and answered, and the Circuit Court proceeded on final hearing to decree that the appellant should pay the full amount of the debts mentioned in the schedule, with interest, by a certain day specified in the decree, except those of Joseph Janney, John Leo, and James Carson, which were admitted to have been paid; and in default of payment by the day limited in the decree, the property was directed to be sold and the proceeds applied to discharge the aforesaid debts. This is the case in its material parts, as presented in the record. The omission of the creditors to appear and answer, upon which the bill as against them was taken pro confesso; was not, of course, regarded by the Circuit Court as establishing their claims. The decree, we presume, proceeded upon the ground that the creditors mentioned in the schedule were entitled to 167*] the aid of the court to enforce the payment of the whole amount originally admitted to be due, unless the appellant could show by legal proofs that the debt had been since discharged. Now, of the eight creditors in whose favor the decree was made, five of them seem to have taken no concern in these proceedings, and for aught that appears in the record, may not have known that it was pending; certainly there is nothing to show that they ask or desire the interposition of the court in the man claim is still due, but does not ask for a sale, nor say anything that sanctions, on his part, the proceedings of the trustee; and the trustee himself does not ground the bill upon his own claim, nor allege its nonpayment as the foundation of the suit, but places it entirely upon the notice and request of George Johnson and other creditors, and his own duty upon such an application to proceed to sell according to the provisions in the deed of trust. But although the application is alleged to be made by other creditors, as well as George Johnson, yet no other creditor has appeared to claim the execution of the trust; and, as they were all made defendants and called to answer, and have refused or neglected to appear, the bill under the provisions of the deed must be regarded as founded exclusively upon the application of the creditor named in it; and as instituted and conducted without the co-operation or request of any other creditor. In relation to this claim, it appears that nineteen year and three months were suffered to elapse before any application was made for the execution of the trust by which it had been secured. No reason is assigned for this delay; nor is it alleged to have been occasioned in any degree by obstacles thrown in the way by the appellant. As the record stands, it would seem to have been the result of mere negligence and laches. The original creditors were in business ten years after the deed was made, and five years after the expiration of the credit which it gave to McKnight and Stewart. And as they became insolvent in 1823, it must be presumed that in the last-mentioned period they were themselves pressed for money. The property is situated in the town of Alexandria, where the laws of Virginia have been adopted by Congress; and the trustee, under these laws, had an undoubted right to sell, upon the application of any creditor, as soon as [*168 default was made, without asking the interposition of the Court of Chancery. Such delay, under such circumstances, by the original creditors, followed by fourteen years more by the assignees who afterwards had charge of this claim, can, perhaps, hardly be accounted for without supposing that this debt had been nearly, if not altogether, satisfied in the manner suggested in the answer of the appellant. If, indeed, the suit had been postponed a few months longer, twenty years would have expired, and in that case, according to the whole current of authorities, the debts in the schedule would all have been presumed to be paid. But we do not found our judgment upon the presumption of payment. For it is not merely on the presumption of payment, or in analogy to the statute of limitations, that a court of chancery refuses to lend its aid to stale demands. There must be conscience, good faith, and reasonable diligence, to call into action the powers of the court. In matters of account, where they are not barred by the act of limitations, courts of equity refuse to interfere after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice when the original transactions have become obscure by time, and the evidence may be lost. The rule upon this sub ject must be considered as settled by the decision of this court in the case of Piatt v. Vattier (9 Peters, 416); and that nothing can call a court of chancery into activity but conscience, good faith, and reasonable diligence; and where these are wanting, the court is passive and does nothing; and therefore, from the beginning of equity jurisdiction, there was always a limitation of suit in that court. It certainly cannot be said that there has been anything like reasonable diligence by any of the creditors in the case before us; and at this distance of time, when many of the parties originally concerned are dead, we should hardly do justice between them if we required the appellant to pay the whole amount stated in the schedule, unless he can establish the credits he a relaxation of the rule in his favor. When A letter of guaranty, written in the United States, and addressed to a house in England, must be construed according to the laws of that country. Extrinsic evidence may be used to ascertain the true import of such an agreement, and its construction is matter of law for the court. In bonds, with conditions for the performance of duties, preceded by recitals, the undertaking, although general in its terms, is limited by the reCommercial letters are not to be construed upon the same principle as bonds, but ought to receive a fair and reasonable interpretation according to the presumed to have been the understanding of the true import of the terms, to what is fairly to be parties; and the presumption is to be ascertained from the facts and circumstances accompanying the cital. entire transaction. The court will not express an opinion upon a matter of defense which was not brought to the consideration of the court below. *This case was brought up by writ [*170 of error from the Circuit Court for the Dis plaintiffs below, were merchants and partners, The plaintiffs in this court, who were also trading under the name and firm of Bell & Grant, and resided in London. The action was brought to recover the value of five several sets £385, £318 12s. 6d., £1,500, £140, and £3,500, of bills of exchange, amounting respectively to which, it was alleged, were guarantied by the claims by legal proofs. In fact, but one of the The decree of the Circuit Court must therefore be reversed, and the bill be dismissed with costs. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Alexandria, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be, and the same is hereby reversed with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court, with directions to dismiss the bill of the complainant with costs. defendant. the defendant pleaded non assumpsit and the At the trial of the case in the Circuit Court, statute of limitations; but the questions arising under the latter plea were not argued, as the opinion of the court upon the guaranty was against the plaintiffs. The facts of the case according to the evidence, were as follows: Prior to the year 1830, George W. and H. Bruen, two sons of the defendant, had been carrying on commercial business under the partnership name of G. W. & H. Bruen, in the city of New York. In that year they failed, and William H. Thorn succeeded to the business of the house; George W. Bruen, one of the former partners, being interested in the business of the said Thorn. In the year 1831, George W. Bruen also transacted business at New York, in the name of his father, the defendant. There was no regular established house in the name of the defendant, although subsequently adventures were conducted in his name. This agency was car ried on under two very extensive powers of attorney, which were duly recorded in New York, throughout the years 1831-2-3-4, and part of 1835, when the defendant was preparing to go JAMES C. BELL and ROBERT GRANT, to Europe, and the powers of attorney were Plaintiffs in Error, V. MATTHIAS BRUEN. Construction of instrument signed in New York and to be executed in England, laws governing -evidence-bonds limited by recitals preceding conditions-construction of commercial letters -court will consider only matters presented to court below. NOTE-As to continuing, and other guarantees, and the effect and construction of, see note to Drummond v, Preston, 12 Wheat., 16; and note to Edmondston v. Drake, 5 Pet., 624; and note to Mauran . Bullus, 16 Pet., 528. revoked. Early in the year 1831, Thorn had credits furnished to him by Bell & Grant, upon houses in Trieste, Messina, Leghorn, and Marseilles. On the 23d February, 1831, he wrote to Bell & Grant, and among other things said, "My friends in Marseilles might secure many consignments for me, if I could put them in a situation to make the necessary advances, and I therefore hope you will oblige me by opening the credit I ask for, and if you require it, Mr. Lex loci, as to contracts, and their interpretation and validity. See note to Slacum v. Pomery, 6 Cranch, 122. In general, the law of the place where the contract is made, and not where the action is brought, On the 14th June, 1831, Bell & Grant ac knowledged the receipt of Bruen's letter as follows: M. Bruen will give you his guaranty. I inclose a letter for Messrs. Archias & Co., which you 171*] will forward to *them, should you think proper to open the credit; otherwise I do not "Matthias Bruen, Esq., New York: We are wish you to send it, as it relates entirely to in receipt of your favor of the 23d April, guarthis credit, and the manner in which the ad- antying the credit opened on behalf of Mr. W. vances are to be made; it is understood that H. Thorn, with Messrs. Archias & Co., of Marno more than £2,000 are to be drawn for at seilles, for £2,000, for the purpose of facilitatany one time, and that the credit is then to being his business with that place, and [*172 considered at an end, until your advances are covered by remittances from me, when you will again renew it." On the 22d of March, 1831, Bell & Grant ac knowledged the receipt of the above, by a letter from which the following is an extract: "We have received, since the above, your letter of the 23d ult., with an inclosure for Messrs. Archias & Co., of Marseilles, which we forward to them today, with a confirmation of the credit you give them upon us to the amount of £2,000, for the purpose of making advances on consignments, and which we will accordingly thank you to have guarantied to us, as you propose, by Mr. Matthias Bruen." On the 23d April, 1831, Mr. Matthias Bruen, the defendant, wrote the following letter to Bell & Grant: "New York, 23d April, 1831. "Dear Sir: Our mutual friend, Mr. Wm. H. Thorn, has informed me that he has a credit for £2,000, given by you in his favor with Messrs. Archias & Co., to give facilities to his business at Marseilles. In expressing my obligations to you for the continuation of your friendship to this gentleman, I take occasion to state, that you may consider this, as well as any and every other credit you may open in his favor, as being under my guarantee." On the same day, the 23d of April, Thorn wrote to Bell & Grant a letter, from which the following is an extract: "Inclosed you will find Mr. M. Bruen's guaranty, and as you are now fully secured in any credit you may open for me, I hope you will consider on the propriety of allowing me to make insurance here on any goods that may be shipped for my account." is to govern in enforcing and expounding the con- A contract is governed by the law of the coun- 376; moreover, desiring us to consider, as under your guaranty, also, all credits existing, or that we may hereafter open for said friend, of which we take due note. And we trust that Mr. Thorn, as well as your good self, will have every reason to be satisfied with the confidence which we feel a pleasure in assigning to both of you." 1837, Thorn, by means of the credits opened It was given in evidence that from 1831 to for him at various places, received consignhad been made, and sent remittances, from ments from those places, upon which advances time to time, to Bell & Grant in London. On the 3d of March, 1834, Thorn wrote to Bell & Grant as follows: "I have informed Messrs. R. Anderson & Co. and Messrs. Archias & Co. that the times are such as to render con signments no longer desirable, which I hope will reach them in time to prevent any further draft on you." On the 7th of March, 1834, Bell & Grant wrote to Thorn: "We beg your reference to the foregoing copy of our letter of yesterday, and have only at present to add thereto an extract of what we write to-day (while communicating with them on other business), to Messrs. Archias & Co., of Marseilles, recommending their refraining from pressing shipments to you on consignment, until the state of commercial matters in the United States shall make business more acceptable than, under the recent circumstances, we may presume it would be to you. "We trust that the next accounts from your side will be less gloomy, and may enable us, as we shall most readily do in such case, to place business for you on its former footing." held valid everywhere. And on the other hand, if vold or illegal by the law of the place where made, it is vold everywhere. Trimby v. Viguier, 1 Bing. N. C., 151; De Sobry v. De Laistre, 2 H. & Johns., 191; Willings v. Consequa, Pet. C. C., 317; Pearsall v. Dwight, 2 Mass., 88; Smith v. Mead, 3 Conn., 253; Medbury v. Hopkins, 3 Conn., 472; Houghton v. Page, 2 N. H. 42; Dyer v. Hunt, 5 N. H., 401; Whiston v. Stodder, 8 Mart., 95; Andrews v. His Creditors, 11 La., 464; B'k of U. S. v. Donally, 8 Pet., 361; Andrews v. Pond, 13 Pet., 65; Wil. cox v. Hunt, 13 Pet. 378; Van Reimsdyk v. Kane, 1 Gall., 371; Touro v. Cassin, N. & McCord, 173; Robinson v. Bland, 2 Burr.,_1077; Burrows v. Jemino, 2 Str., 733; La June Eugenie, 2 Mason, 459, Alves v. Hodgson, 7 T. R., 241; Clegg v. Levy, Campb., 166. The rule which requires that every contract should be construed according to the law of the place where it was made, is very nearly universal. 2 Pars. on Cont., 89. Where the contract is made in one place, but is to be performed in another, then, in general, although, perhaps, not always, and for all purposes, the place of payment or performance is the place of the contract. Strother v. Lucas, 12 Pet., 410, 436. Le Breton v. Miles, 8 Paige, 261; Prentiss v. Sav. age, 13 Mass., 23; Thompson v. Ketchum, 8 Johns., 189; Cox v. United States, 6 Pet., 172; Fanning v. Consequa, 17 Johns., 511; Andrews v. Pond, 13 Pet., 65; Pars. on Cont., 94, 95. If a note be made bona fide, in one place, express. |