in the court below, if it does not tend to suppress, will go far to destroy the purpose and utility of these institutions. It may be said that in New York, the rule in Sunderlin v. Bradstreet has been productive of no such result. But there the pledge of secrecy has hitherto saved the agencies from a disastrous flood of civil suits and criminal prosecutions, which they could not have survived. Experience there furnishes proof, not of the wisdom of the rule, but that it is wise not to enforce it. There is no consideration or public policy which commends the application to them of an illiterate rule. If immunity is accorded to the master making statements concerning his servant, when in fact the inquiry is made by one who does not intend to employ the servant, and if malice is not presumed to exist where a merchant makes inquiry of his neighbor or friend, concerning the pecuniary responsibility of those with whom he may in the future have transactions, how can the doctrine of privileges be restricted, in this controversy, to cases where the subscriber has a present, direct and per sonal interest in the person who is the subject of inquiry? Business interests are so ramified at this day that large enterprises cannot be successfully conducted without a comprehensive survey of the whole field of industry. The manufacturer must have some knowledge of the financial condition of those who are his rivals in business, as well as of those who may be induced to purchase his productions, in order that he may act judiciously in fixing his limit of production. The dealer in brewer's grains, in order to determine the extent of his pur chases, must know something of the business of the consumers, their pecuniary ability to purchase, and the probable volume of business in the district of country over which his transactions extend. In fact, every man who has merchandise to sell is to some extent interested in knowing how every man in the country stands in credit. Though one is not a customer to-day he may be to-morrow. Orders are given by letter, by telegram, by telephone, or in person, requiring immediate response. It involves the use of the mercantile agency sheets, the loss of the customer, or the risk of selling blindly.

The subscribers to the commercial agency in effect say to it, we have an interest in knowing the financial condition of all business men whose standing you report, we assure you of our good faith by being willing to pay you for that information, and we pledge ourselves to receive it as a confidential communication. These circumstances, repellant of the presumption of malice, constitute the substance and essence of privileged communications. How, under these conditions, can the obligation be imposed upon the agency to make sure that the subscriber has a present interest in the person reported, without narrowing the privilege, which has operated as a shield in the many cases

Business methods have changed; every department of human activity is marked by progress. There must be a correct apprehension of legal principles as they apply to a progressive state of society, if we would keep pace with the march of events and render the common law as true and unerring a guide in jurisprudence to-day as it has been in the past. It is the pride of the common law that it is sufficiently broad

and elastic to adapt itself to the exigencies of the times, and to adjust itself to the new and ever-varying conditions that may arise in the progress of the age.

The rule that a business man may inquire of his friend or his neighbor, as to the responsibility of one who has applied for credit, answered well enough fifty years ago, but it is altogether inadequate to the present requirements of trade and commerce. The law of Sunderlin v. Bradstreet would even suppress the prevalent practice in business circles of employing a credit clerk, to ascertain and report the standing of business men in the district which he canvasses. No man could safely answer his inquiries, and the clerk could not report to his employer, without being liable to prosecution.

The old adjudications, relied upon to support the more narrow rule, are the declarations of judges, whose vision did not take in the widely different conditions which prevail in the affairs of men to-day. This doctrine utterly disables the agency to become capable of imparting even the information which it is conceded may lawfully be given. If the agency may furnish only to one having a direct interest, how would any one dare to give the information to the agency, for until some one having such interest has applied to the agency, the communication is within the prohibited class.

In my opinion the defendants, in furnishing information to subscribers under the conditions imposed, are not subject to the presumption that they were moved by malice, and I, therefore, vote to reverse the judgment below.

HENDRICKSON v. HENDRICKSON,

March Term, 1887.

In cases of implied trusts, relief is refused to parties who come into a court of equity after long acquiescence, and that, not only in circumstances where the length of time would render it difficult to ascertain the true state of the fact, but also where the true state of the fact is easily ascertained, and where it is perfectly clear that relief would originally have been given.

The complainant became entitled to an implied equitable interest in lands when she was six years old. Her brothers, thinking that they had a right to acquire her interest on making provision to compensate her for it, then made such provision -and always thereafter treated the property as their own. The complainant did not avail herself of the provision, but neither did she institute any proceedings to enforce her equitable claim until more than twenty years after she attained her majority and became sui juris. Held, that her claim was then, under all the circumstances, barred by lapse of time.

On appeal from court of chancery.

Dennis McMahon, for complainant. H. M. Nevius, for defendant. DIXON, J. On February 1, 1849, Tobias S. Hendrickson made a written contract to purchase the Globe Hotel property in Red Bank, New Jersey, of which he was then a tenant, for the price of $3,000. On March 17, 1849, he paid $420.36 on account of the purchase-money. By the terms of the contract he was bound to pay $800 more with interest on April 1, 1850, when he was to receive a conveyance and give a bond and mortgage for the balance of the price. But on May 9, 1849, he died intestate, leaving a widow and seven children, of whom

two only, Samuel T. and James H., were of age, and the youngest, aged six years, was the present complainant. The widow and oldest son, Samuel, forthwith took out letters of administration on the decedent's estate, which consisted of the hotel furniture, then appraised at $581.65, good credits appraised at about $200, and his interest in the contract already mentioned, which was appraised at what he had paid upon it, $420.36. He left also a wood lot worth less than $50. His indebtedness amounted to about $600, outside of the obligations of this contract. The adult members of the family, seeing that the decedent's estate was insufficient to complete the purchase, arranged among themselves that the two elder sons, Samuel and James, should take their father's interest under the contract, paying therefor to the estate what he had paid for it, and should also purchase the hotel furniture at its appraised valuation. The chief incentive to this arrangement was that a home might be preserved for the widow and younger children in the hotel, where the two sons proposed to carry on the business in which their father had engaged, their mother agreeing to be housekeeper for them. This arrangement was carried out. The administrators charged themselves with the appraised value of the furniture, and of the decedent's interest under the contract, the two sons paid the residue of the purchase-money, and on September 15, 1850, took the title to the hotel property in their own names, and they continued the hotel business, their mother and her family residing with them until 1856.

On August 23, 1884, the complainant filed her bill against her mother, her sister, and her surviving brothers, including Samuel and James, praying a decree that Samuel and James hold title to the hotel property in trust for their father's widow and heirs, and that they shall convey, to the complainant, her share now one sixth- and shall account for all the net income, issues and profits therefrom from the death of their father until such conveyance be made.

It may be conceded that the complainant's claim, if seasonably made, would have been valid. By this contract to purchase, her father became in equity the owner of the hotel property, the equitable title to which descended, on his death, in part to the complainant. Haughwout v. Murphy, 7 C. E. Gr. 531; Palmer v. Morrison, 6 Cent. Rep'r, 193. This title was not divested by the family arrangement made during her infancy, and remained notwithstanding the transfer of the legal title to her brothers, who knew all the facts on which her right rested. But, in saying this, all is said that can be, in favor of the complainant's claim. Her right, though real, was of but little value, $60 or $70, and would be lost by the omission to do what she was plainly unable to do. Her brothers, on attempting to acquire it for themselves, acted in good faith and from laudable motives, and were charged with its full value for her benefit. They thought they had become its legal and equitable owners, and on that hypothesis dealt with it for over thirty-five years. During this period they purchased other lands adjoining the original hotel property, which they incorporated with it as a single plant; they repaired, improved and enlarged the buildings, and they have carried on the hotel business there in a way that has given to the stand a value far beyond what it would have reached by the lapse of time. It is

impracticable to separate the original premises from the present establishment, and it cannot be expected that the brothers would be able to render even an approximately accurate account of the repairs and betterments which they have made during so many years, the expense of which must be ascertained in order to do justice between them and the complainant, if she is to be regarded as still holding her equitable estate. This condition of things has arisen without any actual culpability on the part of these brothers. Their purchase in 1849 was concurred in by all parties interested who were old enough to comprehend it, and they did not then conceal nor have they since attempted to conceal any circumstances which affected its propriety. From that time to this their possession of these premises has been open, notorious, exclusive and adverse to every claim that might be set up against it. On the other hand, the complainant asserted no claim not only during her minority, but also during more than twenty years after it, while she was perfectly sui juris. So that had her estate been legal as well as equitable, it would have been barred when she filed her bill. Under these circumstances her application for relief comes too late.

The case she presents is one of implied, constructive trust only. 3 Pom. Eq., $$ 1030, 1044. In cases of this nature relief is refused to a party who comes into a court of equity after long acquiescence, and that, not only in circumstances where the length of time would render it extremely difficult to ascertain the true state of the fact, is easily ascertained, and where it is perfectly clear that relief would originally have been given upon the ground of constructive trust. Beckford v. Wade, 17 Ves. 87, 97. What that reasonable time is within which a constructive trust such can be enforced depends on the circumstances of the case. Generally speaking, when a party has been guilty of such laches in prosecuting his equitable title as would bar him if his title was solely at law, he will be barred in equity, from a wise consideration of the paramount importance of quieting men's titles, and upon the principle "expedit rei publicæ ut sit finis litium; "and there can be few cases where relief will be granted after twenty years' peaceable possession by the person who claims in his own right, but whose acts have made him a trustee by implication. Boone v. Chiles, 10 Pet. 177, 233; Michoud v. Girod, 4 How. (U. S.) 503, 561; Dean v. Dean, 1 Stockt. 425.

In the present case, the smallness of the complainant's original interest, the difficulties that must attend any attempt to trace it equitably through the intervening years, the danger that such an attempt would result in great injustice to the defendants, the fact that they had made. provision for fair compensation to her, and their conspicuous good faith in the transaction, make it clear that the relief prayed for in this bill I ought not to be afforded.

The chancellor's decree dismissing the bill should be affirmed.

GULICK V. BRUERE.

March Term, 1887.

Upon the death of a testamentary trustee, who dies intestate, his office is transmitted, so far as relates to personalty, to his administrator, who may settle the trust accounts in the orphans' court.

George O. Vanderbilt, for appellant. A. G. Richey, for respondent. BEASLEY, Ch. J. This is an appeal from a decision of the ordinary. The question which it was the object of this appellate proceeding to present to this court was whether a person who was both executor and trustee under a will could legally be allowed commissions, calculated on the corpus of the estate in his hands, in view of his services in each of such several capacities. The decree in the court below was in negation of such claim, and it is necessary only to say on this head that this court has declared such result to be erroneous in the recent case of Pitney, surviving trustee, v. Everson, and now reported in 9 East. Rep'r, 188. But a doubt having been suggested by a member of this court whether the trust account now in question was within the jurisdiction, for the purpose of being settled, of the orphans' court, and in which tribunal the proceeding originated, the matter was laid over for advisement until the present term.

The account was that of the administrators of a surviving trustee, and the orphans' conrt settled in that procedure the accounts of the deceased trustee, and the inquiry is, had the orphans' court cognizance over the matter?

It is obvious that the orphans' court can have no judicature with regard to such a subject except such as it had derived from a statutory source. As a court of probate it has no such authority, and by force of the general principles the auditing and settlement of the accounts of trustees would belong to the province of equity. But upon looking into the subject, our conclusion is that the jurisdiction in question had been statutably conferred upon this tribunal.

It is the well-settled doctrine that upon the death of a trustee his office becomes vested in his personal representative, and upon such representative the law casts the title to the trust property, so far as the personalty is concerned. If the trustee has brought an action, his administrator may continue it. Becoming possessed of the personal assets, and clothed with the title to them, the representative necessarily must settle the accounts of the intestate, as well as his own accounts arising out of his dealings with such trust estate; as he is competent to execute the trusts, he will be liable for breaches of trust happening under his own management. 1 Perry Trusts, § 344; Schenk v. Schenk, 1 Green Ch. 174.

It is thus evident that the trusteeship under the will was cast upon these accountants as the representatives of the surviving trustee, and it is deemed equally evident that by force of the statutes of this State the orphans' court had authority to take cognizance of such accounts. It will be found by reference to Patteson's Laws, page 60, that in the act passed on the 16th of December, 1784, section 10, it is declared "that the orphans' court shall have full power and authority to hear and determine all disputes and controversies whatsoever, respecting the existence of wills, the fairness of inventories, the right of administration, and the allowance of the accounts of executors, administrators, guardians or trustees, audited and stated by the surrogate, as hereinafter directed;" and in section 16, after defining the duty of the surrogate, in auditing and reporting to the court the accounts of executors and