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THE CAPE SABLE COMPANY'S CASE. 645
defendants, including The Cape Sable Company, and Robert Oliver,
on the 19th of March, 1827, under a 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 audi-
tor submits, that the said claim is not barred by limitations. But
the auditor further suggests, that if those bills were intended to be
secured by the mortgage, before referred to, they are to be consi-
dered 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 of 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 primarily 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 not barred;
as payments are proved to be made on account within three years.
Claim No. 10 is not proved in 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 Gerard Troost; who was, for seve-
ral years, the manager or superintendant 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
the account; but so many are defective in form, that the auditor is
unable to state any satisfactory account from them. He has found,
amongst the papers filed by the company, an account which agrees
substantially with the account now exhibited. It does not appear,
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