McKIM v. THOMPSON. 157

any facts, then to be found in the cause, warranting such a con-
clusion ? and next; if there are, can the party be allowed, at any
future stage of the proceedings, to contradict, or explain them
away? It is not necessary to shew, that the person called on
is a mere trustee, without any legal control over the fund: it is
sufficient, if it appear that he has no equitable right or title to
the money he is called upon to produce. As where an executor
admitted a balance in his hands, but alleged, that an action at law
was then depending against him, and insisted, that the fund should
not be taken out of his hands while he so remained liable to be
called on. But the court ordered in the whole balance; and, on
a recovery being had, the money was ordered to be paid to the
plaintiff in the action, and not to the executor.(e)

It is said, in the books, that orders of this kind were originally
confined to cases where the facts were expressly admitted in the
defendant's answer. It is easy to imagine, that their propriety
was originally suggested by cases of that obvious and unequivocal
character; but the court, having been made acquainted with their
beneficial consequences, soon perceived the principle on which they
were based; and in a short time threw aside the anomalous and
technical notions about the necessity of finding the facts expressly
admitted in the answer.

In the case of Freeman and Fairlie,(f) which was so cogently
pressed upon the attention of the court by both parties. Lord Eldon
says, a I think it right to say that, under all circumstances, I can
take the personal estate to have been in 1791, £2000, and that
I may add the accumulations to 1812; but I have not in this answer
any distinct admission, that he has laid out the money in East
India securities, in such a way as to enable me to ascertain and
order him to bring in what is the fair amount of the personal
estate." And in conclusion, the Chancellor ordered the defendant
to bring in the sum of ,£3680; whence it is clear, that he felt
himself at liberty to go as far in pronouncing the conclusion of law
from the facts, as those facts were then, and in that stage of the
cas£, established, and open to no contradiction or explanation in
the course of the subsequent proceedings. For, although the
Chancellor took much pains to shew, that the defendant had, by

(€) Tare v. Hamson, 2 Cox. 377; Mortlock v. Leathes, 2 Meriv. 491; Strange
v. Harris, 3 Bro. C. C. 365; Blake v. Blake, 2 Scho. & Lefir. 26; Rutherford v.
Dawson, 2 Ball &B. 17; Yates v. Farebrother, 4 Mad. 280; Johnson v. Aston, 1 Sim.
& Stu. 73; Rothwell v. Rothwell, 2 Sim. & Stu. 217.—(f) 3 Meriv. 29.