THOMAS T. WHEELER'S ESTATE. 83

4th. Because there was no evidence in the cause, of the time
or amount of payment made by Hilleary, on which he procured
the assignment.

, It was contended by Hilleary's solicitor, that as his claim
was set up in his answer, and the decree was passed on bill and
answer, no further proof could be required of him; and on the
other side it was asserted, that the reservation in the decree
prevented that effect.]

THE CHANCELLOR :

I do not look upon it, the reservation, as at all affecting the
rule, that when a case is set down for hearing on bill and
answer, all the averments of the latter, whether responsive or
not to the allegations of the bill, are to be taken for true. All
the creditors of Wheeler not being parties to the bill, it seemed
proper that there should be a reservation of their equities, not
only with respect to the proceedings of the trustee, before he
invoked the aid of this court, in the execution of his trust, but
that the reservation should extend to what might be done sub-
sequently thereto.

This is my understanding of the scope of the reservation,
and I think it would be carrying it beyond its legitimate extent,
to construe it, so as to require proof of facts which according to
the rules of pleading, and the practice of this court, would, but
for the reservation, be considered admitted.

It is apparent upon the face of the instrument itself, (the sin-
gle bill,) "and it is admitted in writing, that the three parties
were all principals in the single bill, and therefore it is to be
intended, that they each receive one-third of the consideration
upon which it was executed. And it likewise appears by the
agreement between the representatives of Odel Wheeler and
Thomas T. Wheeler, that the latter, for a valuable considera-
tion paid him by the former, released and discharged them from
all obligation to contribute to the payment of the debt, to the
obligee, Wilson, and contracted to indemnify and save them
harmless on account of the same. It is true, Thomas T. Wheel-
er stipulates in the said agreement, that he shall have power