CAPE SABLE COMPANY'S CASE.—3 BLAND. 623

bound by accepting, or endorsing, or otherwise for the use of said
Lechleitner and Troost.

The auditor finds, that said Mitchell, Lechleitner and Troost, as
agents, were in the habit of drawing, endorsing and accepting
bills and notes on account of the Cape Sable Company, and that
in the ledger book of the company, folio S, the said James Neilson
is luade a creditor for amount of the said two bills. The last
entry, in relation to these bills, is of the 31st of December, 1823.
But the * defendants, including the Cape Sable Company,
and Robert Oliver, on the 19th of March, 1827, under a 645
commission issued in the causes, filed an account, W. 1; which
professes to be an account of the debts due by the company, and
states this claim to be a claim against the company. Under these
circumstances the auditor submits, that The said claim is not
barred by limitations. But the auditor further suggests, that if
those bills were intended to be seemed by the mortgage, before
referred to, they are to be considered as given, in fact, for the
proper debt of the drawer's; and the Cape Sable Company would
be in the nature of a surety. The general usage, in the case ol a
claim filed against the estate of a surety, is to require proof of
the insolvency of the principal debtor. He submits, whether the
peculiar form of the contracts which renders the company prima-
rily liable at law, should exempt this claim from the operation of
the general rule.

Claims No. 7 and 8, are not proved in the usual manner. They
are on notes of more than three years standing; and appear to be
barred by limitations; which is pleaded by Robert Oliver.

The said Robert Oliver has also pleaded limitations against
claims No. 9 and 12. But the auditor thinks they are nor barred; as
payments are proved to be made on account within three years.
Claim No. 10 is not proved iti the usual manner. The said Robert
Oliver has also pleaded the Act of Limitations against claim No.
11. But by the auditor's report, filed 8th of March, 1828, the said
Eli Balderson, the claimant, is made a creditor to the amount of
$2,285.25, exclusive of interest. If, as the auditor is inclined to
think, the said report, prepared from materials furnished by the
company, is evidence against the defendants to rebut the plea of
limitations, there will be sufficient evidence to sustain the whole
claim as stated. The auditor's report, so far as respected this
claimant, was ex parte; whereas, for the amount of his claim, he
relies on an account stated between himself and A. Mitchell, the
agent of the company.

Claim No. 14 is the claim of Gerald Troost; who was, for several
years, the manager or superintendent of the Cape Sable Com-
pany's Works. It commences in September, 1813, and continues
to the year 1822. A number of vouchers have been filed to sustain