Volume 1 — South Carolina Equity Reports

This case was heard (at Edgefield, June, 1839,) by Chancellor Johnston, who delivered the following decree : Johnston, Ch. It appears that the plaintiff, being indebted to the late Dr. Samuel Pressly, in the sum of 5,565 dollars and 11 cents, by sealed note, dated the 1st of January, 1833, and due at one day after date, did, on the day of the dáte of said note, or on the succeeding day, in consideration of said debt, and in order to secure the payment of the same, execute a…

<p>Before Evans, J. at Union, Spring Term, 1839.</p> <p>This was an action on the case for obstructing the plaintiff’s private way from his house to a public road. The way was through the uninclosed ground of Davis, who caused his overseer, Tygart, to inclose the land and make a way around it. The other points of fact on which the decision of the Court rested are fully set out in the subjoined opinion from the Bench. The jury found for the plaintiff; upon which the defendant appealed:</p> <p>Because the court ought to have ordered a nonsuit, on the motion of the defendant’s counsel; the evidence being insufficient in law to sustain the action.</p>

<p>Proceedings before an inferior Court are void, unless they carry upon their face the evidence of jurisdiction; and, therefore,</p> <p>The oath upon which a Magistrate issues an attachment, though it need not be taken in writing, must be recited in the >vrit.</p> <p>An affidavit in the disjunctive (of one or the other) of two facts, would be bad to sustain an attachment, though either, positively deposed, might be sufficient.</p> <p>An affidavit that defendant “ is about to remove out of the State peisonally,” will not sustain a domestic attachment.</p>

Before Evans, J, at Lancaster,- Spring Term, 1839. Sum. Pro. to recover the amount of two judgments rendered against the defendant by justices of the peace in North Carolina.

Before O’Neall, J. at Laurens, Spring Term, 1839. This was an action for malicious prosecution. Mrs. Lowe had been arrested, at the instance of defendant, on a chárge of trading with a slave, and had entered into recognizance. On the indictment presented, the grand jury found a true bill, upon which the prisoner was acquitted before the petit jury.

Before Richardson, J. at Spartanburg, Fall Term, 1839. The defendant pleaded in discount to a note of $970, the part value of a negro slave whom he had delivered to the plaintiff as security or satisfaction for a debt of $500, “which negro,” said the plea, “the plaintiff was to account for at his true value, or what he could be sold at; and the defendant avers that the said plaintiff was afterwards offered and could have obtained for the said negro man the sum of fifteen…

<p>Before Richardson, J. at Greenville, Fall Term, 1839.</p> <p>This was a special action on the case against the late Sheriff of Greenville district, for failing to arrest Russel Price, and to take bond, under the act of 1827, upon a writ in Trover for a negro, at the suit- of the plaintiff.</p> <p>The writ was returnable to Spartanburg Court House, and had, besides the usual order for bail, the following endorsement: “Spartanburg district,” &c. “To all and singular the Sheriffs” &c. “You and each, of you are hereby required, without delay, to cause the defendant to enter into bond with sufficient security to the Sheriff of said district, for the production of a negro boy Job, ■ in his possession, to satisfy the plaintiffs judgment in case he should recover against the defendant. • Oct. 6, 1836. — T. Tapp, Clerk.” This writ was lodged with the sheriff of Greenville district, and, upon his failure as above stated to make the arrest, this action was Drought.</p> <p>The court charged that this process was a good and sufficient authority for the sheriff of Greenville to arrest Price in his district, and the jury gave a verdict for the plaintiff of $41.0. ■</p> <p>Defendant moved for a new trial on the’ground of error in the judge’s charge.</p>

Before Butler J. at Chester, Fall Term, 1839. Sum. pro. for money paid by the plaintiff, who was surety on a note of William Crowder, intestate. He was sued, let judgment go by default, and paid the debt and interest. The administrator of Crowder was sued at the same court, defended the case and got a decree in his favour.

Before O’Neall, J. at Fairfield, Fall Term, 1839. This was an action for slanderous words. They are charged, in the first count, to have been uttered of the plaintiff‘as a merchant.’ The second count alledges that the plaintiff was a merchant, and charges that the words were spoken of and concerning him, without adding ‘ as a merchant.’ The declaration also averred special damage.

<p>Mrs. Caroline Herbemont disposed by will, amongst other things, as follows, viz: “and I hereby devise and bequeath the proceeds of the said sále, together with the bond of John Howell, for twenty-nine thousand dollars, given by him for the plantation and negroes on Broad River, or rather the securities taken in substitution for the said bond, and now in the hands of my Trustees, in the following manner, to wit: — I direct that the proceeds of the sale of the house and lot, and the proceeds of John Howell’s bond or its substitutes, be divided into ten equal .parts, whereof I devise and bequeath one tenth part to my sister, Harriett Sollee — I devise and bequeath one other tenth part to my sister, Charlotte Marshall — I devise and bequeath one other tenth part to my niece, Laura E. Breevoort — I devise and bequeath one other tenth part to my niece; Charlotte Eleanor Percival — I devise and bequeath one other tenth pavt to my niece, Caroline Gracia Marshall — I devise and bequeath one other tenth part to my niece, Caroline Neyle Sollee; and I devise and bequeath the remaining four tenths, to my four nieces in Georgia, daughters of my brother Sampson Neyle, to wit; Mary Bryan Neyle, Eliza Hesther Neyle, Charlotte Neyle, and Emily Neyle. To my grand niece, Charlotte Percival, th£ daughter of my niece, Charlotte Eleanor Percival, I giye and bequeath the negroes, Henry, Mortimer, Sophia and Ariadne, with the future increase of the females forever.”“In case either of my nieces should die unmarried, before the period when my will is to take effect, (for I repeat that my dear husband is to have the full use of all my property during his life) I devise and bequeath the share of the legatee so dying, to my surviving sisters and nieces.”-“I devise and bequeath the residue of my estate to my grand niece, Charlotte Percival.”</p> <p>Mary Bryan Neyle married and died, leaving a husband and children, before the death of Mrs. Herbeinont.</p> <p>Under these circumstances the three surviving sisters (with their husbands, the defendants in this case,) claimed the entire four tenths as a joint tenancy; but the court directed the share of Mary Bryan to be given to Charlotte Percival, the residuary legatee.</p> <p>From this decree the defendants appealed, on the ground that the legacy was to the four daughters of Sampson Neyle as joint tenants, and that, on the death of their sister, Mary Bryan, the whole survived to them.</p>

Before Evans, J. at 'Darlington, Fall Term, 3 839, Ervin, an attorney, received from Thomas, in the year 1819, for collection, the bond of one Wiggins; and accordingly, on the inquiry docket of Marion district, S. T. 1820, appears the case of W. Thomas vs. B. Wiggins, in debt, with a note of ‘‘judgmentfinal’: but no judgment was ever entered up, or execution issued. Very soon after, Thomas died.

Before Earle, J. at Abbeville, Fall Term, 1839. Appeal from taxation of costs. Witnesses who had attend=.ed for both parties, (having been already paid by the defendant, who was defeated in the suit,) were afterwards taxed for the plaintiff. The clerk also allowed, for other witnesses who had attended for the plaintiff, upon subpoena tickets only, without any writ, the sum of 2s. 4d. per diem. Defendant’s motion to strike out both these charges was refused.

Heard by Johnson, Ch. The defendants were the heirs at law of Reuben Patterson, who died intestate, possessed of real and personal estate, but insolvent to a large amount. At the time of his death there were judgments and executions against him; under which, after exhausting the personalty, the sheriff proceeded to levy on and sell part of the real estate. Of the proceeds of the latter, there remained in the sheriff’s hands a surplus of about ninety-seven dollars.

Before G. Q,. McIntosh, Commissioner of Special Bail for Kershaw District. The defendant, arrested and imprisoned on bail process, at the suit of one Arrants, moved, before the Commissioner of Special Bail, to be discharged, on making an assignment to the plaintiff of his schedule, which had been duly filed.

Before Evans, J. at Darlington, Fall Term, 1839. This was an assumpsit; in which, for default of appearance, the usual order for judgment was indorsed upon the record. Very shortly after, the defendant died. Plaintiff then sued out a Sci. Fa. (under the Act of 1746, P. L. 212; 7 Stat. So. Ca. 191,) against his administrator, who also made default, and the case was put upon the inquiry docket.

<p>A bond, in consideration of marriage, conditioned for the payment of money to the obligor’s intended wife, after his death, is a marriage settlement within the purview of A. A. 1785, and void for not being duly recorded.</p>

Before O’Neall, J. at Lancaster, Fall Term, 1839. The prisoner was convicted of petit larceny. In the body of the indictment he was called by the name of William Fos-ier, instead of William Thompson. The indorsement was in his true name. He pleaded to the indictment, and the case had gone to the jury, and had been argued in part, before it was objected that William Foster, and not the prisoner, was the person charged.

Before Richardson, J. at Pickens, Fall Term, 1839. This was an action for a malicious prosecution.

<p>Josiah Smith conveyed a certain messuage in trust for William Stevens Smith during his natural life, and after his death, to such person, &c., as he, by any writing in nature of his last will and testament, signed and sealed by him,, and executed in presence of three credible witnesses, might limit and appoint, and, in default of such appointment, to such child or children as he might leave, equally to be divided among them. William Stevens Smith, being indebted to Robert Bentham, the complainant, executed a mortgage of the premises to secure the debt. Under a fore-closure; at law, of this mortgage, the premises were sold and conveyed by the Sheriff, in fee simple, to the complainant. Smith af-terwards died insolvent and intestate, leaving Juliette Ann and other children, the present defendants.</p> <p>After Wm. Smith’s death, Juliette Ann, having been in possession as complainant’s tenant, claimed to hold, in right of herself and the other children, under the deed of Josiah Smith.</p> <p>The complainant insisted that the remainders were contingent and might have been barred by William Smith, who had a right, under the deed, to appoint to whom he pleased, and was bound to appoint for the benefit of his creditors; and prayed to have the benefit of his deeds as an equitable execution of the power of appointment; suggesting, also? that the mortgage, fore-closure and judicial sale, were equivalent to a feoffment and livery of seisin ; but that, at all events, the defendants ought not to be allowed, in Equity, to set up .¡the want of these to defeat creditors.</p>

<p>Defendant’s admission that “ he was willing to settle, and to pay any thing that might be due on a fair settlement; but he thought he had paid plaintiff enough,” did not prevent the bar of the statute of limitations.</p> <p>The purchase of one’s land at Sheriff’s sale, with an agreement that he shall remain in possession and refund the money at an indefinite period, does not create a continuing trust to bar the statute of limitations.</p>

<p>Bequest to a wife, for life and widowhood, with remainders over, and in case of a second marriage, to “devolve upon the persons mentioned in the said will as if she my said wife had departed this life; my will being that she shall have no interest whatever in my estate after hersebcind marriage.” Held to be a sufficient implication of an intent to exclude the ivife from her dower.</p> <p>By proving the will and receiving the profits for five years, it seems the widow must be held to have determined her election and relinquished her dower.</p>

<p>The rule, that oue shall not discredit his own witness, is for the protection of the witness himself, and shall not be dispensed with by consent of the parties litigant.</p> <p>And the rule excludes, not only general evidence against the character, but former inconsistent declarations; and every matter that would be inadmissible or irrelevant, except for the purpose of impeaching the credit.</p> <p>But a party may introduce contradictory evidence upon facts material to the issue, and thus incidentally impeach the credit of his own witness ; and this will not let in evidence of good character in reply.</p> <p>Where, however, a party was, irregularly, allowed to introduce the inconsistent declarations of his own witness, evidence of character ought to have been admitted in reply.</p> <p>A will legally executed shall not be set aside on the mere ground that its provisions are in favour of a mulatto woman, with whom the testator (a hard drinker and paralytic) had lived in disgraceful intimacy; who had had great domestic influence over him, and of whom he had sometimes appeared to be in personal fear.</p> <p>There must be proof, not only of influence, but, that it had been expressly and unlawfully brought to bear upon the will.</p> <p>A disposition of property, though ever so capricious and unreasonable, will not be avoided on that ground alone.</p> <p>“ What facts, if proved, shall constitute undue or improper influence, to avoid a will, I hold to be a question of law; and I think in cases of this kind, the particular sort of influence should be set down in the pleadings.” (Earle, J.)</p>

Before his Honor, Chancellor Dunkin, at Charleston, October, 1839. The purpose of the bill, in this case, was to compel the executors to account for the proceeds of sale of a plantation, sold by Thomas Hunt, deceased, as Commissioner in Equity for Sumter District.

Heard before his Honor Ch. Dunkin, at Walterborough, January, 1839, who made the following order: “The object of this petition is to obtain provision for Adeline Elizabeth Risher, the posthumous child of Adeline F. Risher, dec’d. The Act of 1789 explicitly declares, that |:he portion of the posthumous child shall be made up from .'the shares of the other child or children, for whom provision is made by the will of the testator.

<p>Heard before his Honor Chancellor Harper, at Charleston,'</p> <p>A bill was filed, by the “Southern Steam Packet Company,’’ to compel certain subscribers to pay their shares. Among the defendants, to whom writs of subpoena were directed, Was Thomas J. Roger. The copy,of the subpoena writ was’ left at his residence in Charleston.</p> <p>Several of the defendants answered ; and, on the 10th December, 1838, the bill was taken pro confesso, for want of an answer, against others, including Roger. On the 14th January, the case was referred to the Commissioner, to hear testimony and report, and on the 28th, it was ordered, inter alia, “that the Said Thomas Roger do forthwith pay to the Southern Steam Packet Company the sum of $100, the amount of his subscription to the said Company, with interest from the 17th August, 1838, and costs of suit.”</p> <p>From this the defendant appealed; but, in the mean time, made an application to his Honor Chancellor Harper, at Chambers, tp set aside the decretal order, as well as the order to take the bill pro confesso ; — on the following grounds :</p> <p>1. That it appears, by the "return of the writ of subpoena, that it was not served on the said defendant, otherwise than by leaving a copy at,his residence; and it does not appear, that at the time of such service, he was within the State; the fact being that he was, at the time, absent from the State, and that he never saw the copy left at his residence, until he was notified of the foregoing decretal order by the complainant’s solicitors, on the 12th February, 1839. He, therefore, submits, that the service of the subpoena was void, under the second rule of court, and that he was not a party in court, against whom a decree could be made.</p> <p>2. That the said decree was made without giving day to •this defendant to shew cause against the same, as required by the twenty-third rule of court</p> <p>3. That the said decree was made without adducing any proofs, and without giving the defendant any opportunity of being heard upon the merits disclosed by the bill and proofs, as required by the thirty-fifth rule of court.</p> <p>4. That after the cause had been referred to the commissioner, to take testimony, and report on the matters in dispute, a decree, before report made, was wholly irregular.</p> <p>5. That upon the face of the bill the complainants are not entitled to a decree.</p> <p>The defendant also submitted an affidavit “that he left Charleston, for New York, on the seventh day of August last, and did not return until the sixteenth day of October after-wards ; and that during the whole of the time intervening between those periods, he was constantly absent from and without the limits of this State. And he further swears, that he never saw the subpoena left for him, in this cause, until after he had received notice from the complainant’s solicitors, that a decree had been made against him, which notice was delivered to him on the 12th inst. He admits, that while at t]ie North, he was informed by his agent, Mr. Mottet, that scsme legal paper' was left for him, bpt it was not forwarded to ibis deponent, nor was his attention called to it, until notified of the decree, as above stated. This deponent further swears, that he has, as he - believes, a just and valid defence to the complainant’s demands, and asks nothing more than an opportunity to make his defence: .that he is willing to plead, answer, or demur, to the bill, within a reasonable time, and if he should be advised to file an answer, then to join in the prder of reference to the commissioner, made in regard to the other defendants.”</p> <p>An affidavit was submitted, in reply, by lb. Yeadon, Junr., ..“that some time -in July last, he wrote, as one of the firm of Yeadon & Macbeth, acting as solicitors of the Southern Steam Backet Company, the usual lawyer’s letter to Mr. .Thomas J. Roger,, calling an him to pay his subscription to the Southern Steam Packet Company, or to refer the said firm to his solicitor, for an appearance to a suit in equity for the same, and personally delivered the letter to Mr. Roger : that not hearing from Mr. Roger, on the 17th August Mr. Macbeth issued the subpoena, which it appears, by the sheriff’s return, was served, by leaving a copy at the defendant’s residence; that no answer having been put in by Mr. Roger; near the close of the last term of the Equity Court for Charleston, this deponent, on reading the bill, which had b,een taken pro confesso against Mr. Roger and others, and all the answers of the parties who had answered, obtained a decree against Mr. Roger, and has ¡since lodged an execution, to bind his property, with the sheriff of Charleston district: that the order of reference obtained by deponent, was taken by consent of the solicitors of the parties who had answered in legal time, 'or after that period, by consent of deponent; and Was, as it imports on its face, to settle the matters in' dispute between the company and such of the defendants as had answered, and had no reference whatever to Mr. Roger and Mr. Boyce; the only two who had failed to answer; that deponent wrote Mr. Roger a letter, informing him of the decree, and Mr. Roger waited on him, and alledged that he had never seen the writ; (which he said had been left during his temporary . absence from the city,) until after this deponent’s letter; that his clerk, on its being left, had taken it to Mr. Bailey, who said there was abundant time to attend to it after Mr. Roger’s return, and the clerk brought it back ; but that his clerk had neglected to give it to him after his return, and that was the reason why it had not been attended to ; and this deponent, as solicitor for the said company, objects to the opening of the said decree, and especially as Mr; Roger now further ad--mits, on his affidavit, that he received notice of the suit, while at the North, from his clerk.”</p> <p>His Honor, the Chancellor,, pronounced the following decree, Overruling the defendant’s motion;</p> <p>This is a motion to vacate and set aside a decree, which had been obtained against the defendant, Thomás J; Roger, on á bill ordered to be takeií pro confesso against him.</p> <p>A number of persons had subscribed to form á Southern Steam Packet Company, and to take the number of shares set down opposite to their names, at $500 each. The defendant had taken two shares, amounting tó one thousand dollars. The subscribers, or some of them, on petition to the Legisla-lature, were incorporated under the title by which they have sued. Some of the defendants who' havé answered, say as a defence, that they did not join in the application to the Legislature, and could not be made members óf a corporation, without their consent.</p> <p>The first ground of the motion is founded on the 2d rule of court, which is, that “all subpoenas ad respondendum shall be served personally, or where the defendant cannot be found, but is imtltin the State, by leaving a true copy of the writ at the dwelling house, or most notorious place of residence, or habitation, of the person to whom directed/’ The defendant swears, that the copy of the subpoena was left at his house during his temporary absence in New York, but admits that he was informed by a letter from his clerk, that some legal paper had been left for him. This seems to be the very case contemplated by the rule, in which the service shall be by leaving a copy. In giving construction to the rule, I should be inclined to follow the decision of the Courts of Law, giving construction to the Act of 1720, P. L. 109: which provides for serving process by leaving a copy at the residence, when the defendant absconds, or is absent; provided that nothing in the Act contained, “shall extend to any person or persons gone off from this settlement, and not being actually resident in the same, at the time when the copy of such writ shall be left at the house of such person, as aforesaid.”</p> <p>In the case of Lark vs. Chappel, (1 M’C. 566) the motion was to set aside the service of process; the defendant making oath, that he was without the State at the time the copy was left at his residence. The court refused the motion, on the ground that he did not deny having received the copy writ, or say that he had been surprised, or was in danger of suffering any injury by it. This was followed by the case of Frean ads. Cruikshanks, (3 M’C. 84.) In this case, the defendant swears that he did not see the copy of the subpoena, until after he was informed of the decree; and that he believes he has a good defence. He admits, however, that he was informed that some legal paper had been left for him, which was enough to put him on enquiry. It appears, from the affidavit of Mr. Yeadon, the complainant’s solicitor, that he wrote, and personally delivered to the defendant, before his departure for New York, the usual lawyer’s letter, requiring' him to pay his subscription to the Southern Steam Packet Company, or to refer him to a solicitor for an appearance to a suit in Equity. He stated to Mr. Yeadon, that when the copy was left, his clerk carried it to Mr. Bailey,' who said there would be time to attend to it after defendant’s return, and the clerk carried it back. Defendant did in fact return to Charleston on the 16th of October, and the decree was made on the 28th of January, more than three months after-wards. It is possible, that the defendant may have forgotten Mr. Peadon’s letter, and the information received from his clerk, while in New York; but it is just as easy:to believe, that he would have forgotten the circumstance of a copy being left. I cannot say that he has suffered any injury, from its having been left in his absence. To give the rule the construction contended for, would make it subservient to purposes of grossest laches, if not of actual bad faith.</p> <p>The second ground of the motion is, that the decree was made without giving any day to the defendant to shew cause' against it The 23d rule of court directs, that “if the defendant shall not appear and defend the suit, the bill and answer shall be read ; and if the court, upon hearing, shall find cause to decree for the plaintiff, yet a day shall be given for the defendant to shew cause against the same.” This seems, evidently, to relate to a case where the defendant has answered, and may be supposed to have denied the charges of the bill, or to have stated some defence against them; not, as in the present instance, where he has admitted them by his default</p> <p>The third ground is, that the decree was made in violation of the 35th rule of court, directing that, in making a final decree,' when a bill has been taken pro confesso, the court shall require such proofs as will satisfy it of the justice of the co'rrfplain ant’s demand. This, I suppose, must be matter for the discretion of the court. The English rule is, that when a bill is taken pro confessó, the plaintiff draws his own decree: or, as it is said, takes such a decree as he can abide ■by. The object of our rule must have been, to put it in the power of the court to guard against possible injustice to a defendant. The proof which' was provided in the present case, was the agreement signed by the defendant. That was the material part. It was to be inferred, that the members generally of the Company, had joined in the petition for incorporation. If the defendant could defend himself by shewing that he did not, it could scarcely be said, that •injustice was done him, by compelling him to perform an agreement made with individuals, though these individuals' had been transformed into a corporation. The Act of incorporation is not before me; but I suppose it, prima facie, includes him, as incorporating those persons a Steam Packet Company.</p> <p>There is nothing in thé fourth ground. The motion is overruled.</p> <p>From this decree the defendants appealed, oh the grounds Set forth, and also on the following additional grounds:</p> <p>1. That the defendant-was not made a party to the suit by any mode prescribed of recognized by law; and. is therefore entitled, as a matter of strict right, to v,acate all the proceedings against íiim.</p> <p>2. That in point of fact, the defendant had no notice that any suit was actually instituted against him, until he was called upon to pay the decree; and he has not, therefore, had any opportunity of contesting it at any stage of the proceedings.</p> <p>8. That the decree operates as a complete surprise upon the defendant, who has been condemned without any oppor* tunity of making his. defence; although, as he is advised, he lias a full and complete defence to the complainant’s demands,</p> <p>4. That the decree is in other respects contrary to the rules of law, and the principles and practice of Courts of Equity.</p>

<p>Before Earle, J. at Abbeville, Fall. Term, 1839.</p> <p>Sum. Pro. on a joint note; to which the plaintiff’s note to one of the defendants, on a separate demand, was offered in discount and allowed.</p> <p>The plaintiff moved the Court of Appeals to rescind so much of the circuit decree as admitted the discount.</p>

Before Earle, J. at Charleston, Spring Term, 1839. This was an action on a bill of exchange, drawn at Vicksburg, by one Moore, in favor of Wm. J. Day, at six months, and accepted by the defendant, who, on the maturity of the acceptance, refused to pay the bill. The name of Wm.

Before Gantt, J. at Georgetoum, Fall Term, 1839. Sum. Pro. against the assignee of the indentures of an apprentice, Ann Delany, who had bound herself “as an apprentice for education,” to the plaintiffs, “ to dwell and continue in the said Orphan House, &c. — and from thence to dwell &c., with such person as the said indentures might be transferred to, until &c. And during the term aforesaid, the said Ann Delany to demean herself agreeably to the rules, &c. until the…

Heard before bis Honor Ch. Dunkin, whose decree on the circuit presents a sufficient abstract of the ease. 'Freeman Wing, a seafaring .man, left .Charleston, on a voy-» :age, ip October or Noyember,… Held: that after twenty years exclusive possession, by one tenant in common, an ouster of his co-tenant would be presumed, and the right to partition barred. If the intestate died in 1810, the complainant was barred in 1850, during the lifetime of Mrs. Wing.

Before the Honorable the Recorder of the City Court of Charleston, November Term, 1839. Assumpsit lor freight; to which was pleaded a discount for damage to the goods by leakage of the ship. The damage wras not discovered till after the goods, which had been delivered apparently in good order, were unpacked. The jury found for the defendant’s discount, and thereby established a considerable balance in his favour.

Before Evans, J. at Marion, - Term, 1839. This was an assumpsit, which went to the jury upon the general count, for money had and received, a special count having been overruled on demurrer at a previous term, and the Court of Appeals having determined that, upon this general count, the plaintiff might recover.

<p>A t.estatof’s executor marrie'd the widow of the deceased; to whom a life estate in a vaeá’ót lot had been devised, to' commence' at her eldest child’s coming of age. After marriage and beforé the life estate commenced, the executor erected buildings, out of his own funds — there being none of the estate — on the lot, and afterwards, as tenant per autre, mé, enjoyed the same for many years, till the wife’s death. The improvements being permanent, and at the time of erection likely to be beneficial, Held, that the executor ivas entitled to remuneration.</p> <p>He was entitled to the value of the improvements as they stood, when the estate left his hands, that being less than the amount expended, and it appearing that his profit out of the estate had not been as much as the interest on his money.</p>

<p>The declaration averred an assault on the plaintiff “ while sitting in his gig.” The replication represented the defendant in the gig, “and the plaintiff gently laid hands on him to put him out,” and then the assault: — held not to be a departure ; for both allegations, though apparently discrepant, might be true, as they did not necessarily refer to the same exact point of time.</p> <p>Plea to assault and battery, son assault demesne; which the replication confessed and avoided. The rejoinder substantially reiterated the plea, and was held bad for not traversing the replication.</p> <p>Approved precedents are to be followed, and a rejoinder wantonly deviating therefrom, held bad.</p> <p>The effect of a judgement in special demurrer is, only, that the party cast shall plead over or amend on payment of costs; so, his demurrer having been overruled, to a rejoinder concluding to the country, he should be allowed to add the similiter and go to trial.</p> <p>“I am not prepared to hold that a judgment for the defendant in demurrer as to one count in the declaration, would deprive the party of a right to judgment on a verdict found on the other counts.” — (O'Neall, J.)</p>

JBefore O’Neall, J. at Charleston, January Term, 1840. This was an action of assumpsit, against the purchaser, on a contract for the sale and purchase of a plantation. The plaintiff and the defendant met, on the 28th November, 1838, at the office of Elliott & Condy, who had been employed by the plaintiff to make the sale of the property in question.

<p>Where a militia execution (under the A. A. 1835, p. 18,) directed the Sheriff to levy a certain percentage on the general tax of the delinquent, the Sheriff was bound to ascertain the amount and collect it.</p> <p>The Sheriff is not entitled to any fee on a militia execution, under the A. A. 1835, except where the fine has been collected.</p>

Before O’Neall, J. at Charleston, January Term, 1840. This was an action by the Captain of the steamer Dudley, against the Captain of the steamer Neptune, for a mortal injury to the plaintiff’s slave, occasioned by the collision of the two boats. The Neptune, in coming in to her accustomed landing, fell foul of the other vessel,’ which was moored to a wharf immediately below.

Before Butler, J. at Williamsburg, Spring Term, 1839. The defendant was indicted for cattle-stealing.

Before Evans, J. at Charleston, January Term, 1840. This was an indictment for selling spirits to a negro, the slave of William Patton. Verdict, guilty. The defendant appealed, and moved in arrest of judgment on account of a defect in the face of the indictment.

Before Earle, J. at Charleston, May Term, 1839. The defendant, a Lieutenant in the Navy of the United States, was a citizen of South Carolina, resident in Charleston, and owned property there. Being on furlough, and at home in the city, he was summoned to serve as a juror, and made default. On the return of a scire facias, he shewed cause, and claimed exemption from that duty, by virtue of his commission in the U. S. service.

<p>Before Gantt, J. at Georgetown, Fall Term, 1839.</p> <p>Trespass to try title to land. The plaintiffs offered, in evidence, a deed dated 1st April, 1805, purporting to be a conveyance of the land in dispute from William Frierson, sheriff of Georgetown, to Adam Tunno, and which was essential to complete their chain of title. It was in proof that' Frierson was sheriff at that time, and left the district soon after; that the signatures of the two subscribing witnesses (whose death appears to be admitted, though the fact does not appear, either in the report of the circuit judge, or in his notes of the evidence,) were their genuine handwriting; and that the deed had been proved before a justice of the peace, and was duly recorded in the Register’s office. The handwriting of Frierson, the grantor, was not proved, nor was it shewn that there had been any possession in the grantee under the deed.</p> <p>The defendant insisted against the admissibility of the deed in evidence, and moved for a non-suit; but the Court overruled the objection, and'sent the case to the jury, who found for the plaintiffs.</p> <p>The defendant appealed, and renewed his motion for a non-suit.</p>

Before Gantt, J. at Marion, Fall Term, 1839. Assumpsit, on a sealed note, given for the purchase of a female slave, named Doll. She had been the wife of the defendant, a free man of colour, and had 'been separated from him by her master, Lyles, who carried her away into North Carolina. The defendant went to North’ Carolina to purchase her.

Before the Honourable Recorder of the City Court of Charleston, January, 1840. This was an action of assumpsit on an implied Warranty of soundness, to recover the value of a negro named Philander, who was, with some others, sold by the defendant, through Thomas Gadsden, to the plaintiff, on the 9th of March, 1839, and died soon after.

Before Gantt, J. at Conwayboro\ Fall Term, 1839. This was an action of assumpsit brought on the following instrument: “ Due Willis Wiggins, two hundred and forty-two dollars sixty-four cents, which I promise to pay as soon as I am in possession of funds to do so from the estate of Bellune. JOS. VAUGHT, Guardian, for John D. & —- Bellune.

Heard at Marion, January, 1839, before Johnston, Ch., and carried up upon the following report by his Honor: The bill was filed, in this case, by the plaintiffs, who were distributees of the estate of Donald McKay and Flora McKay, against the defendants, part of whom were co-distributees, and others administrators of the said estate, for partition and account.

Before Butler, J. at Walterboro’ Fall Term, 1839. Declaration in prohibition; upon which the following verdict was had: “We find that the plaintiff, having a plantation and house in the lower part of St. George’s parish, had hired by the month, and had under his control, eighteen male hands, between the ages of sixteen and fifty, which belonged to, and were hired from, different persons residing in St. James’s parish.

Heard before his Honor Oh. Johnston, at Charleston, January, 1839. Hugh Swinton Ball, with his wife and his adopted daughter, Emma, embarked at Charleston, on board the Steamer Pulaski, on the 14th June 1838. The vessel was destroyed, on that night, by the explosion of one of her boilers, and the greater part of the passengers perished ; among them, Mr. and Mrs. Ball.

<p>Avowry by an administratrix for rent in arrear, set forth the demise under which the tenant held, made in her own name after her intestate’s death. Held that no further title need be shewn, and a verdict for the avowant was right.</p> <p>A landlord is not bound to set out in his avowry for rent in arrear any further title than the lease under which his tenant entered and held the premises.</p> <p>The Statute 11 Geo. II, c. 19, though not expressly made of force in this-State, has been adopted in practice.</p>

Before Evans, J. at Charleston, January Term, 1840. In this case, an action had been brought in the court of Common Pleas, on a judgment of a foreign State. Afterwards a bill was filed in equity to discover assets, by calling on the defendant to account as executor. Upon the prayer of the defendant, the plaintiff was put to his election and chose to proceed in Equity.

Before Earle, J. at Coosawhatchie, Spring Term, 1839. The defendant was convicted upon an indictment which charged that he “ did buy and purchase of and from a certain slave of Frederic Mole, named Frank, one bushel of Indian corn, of the value of one dollar, the said slave then and there not having a permit to sell, from or under the hand of the said Frederick Mole, &c.” And, in a second count, that he “ did deal, trade and traffic” with the same slave, “ by selling said…

Before Evans J. at Charleston, January, 1840. Suggestion for prohibition. Major, a slave of the relator, ■was convicted by a court of Magistrates and Freeholders, in Christ Church parish, of the murder of Mary, the slave of Robert Howard, and was sentenced to be hung.' The verdict was found by one Magistrate and three Freeholders' a bare majority; the other magistrate and two freeholders finding manslaughter.

<p>«asa i.</p> <p>botSfifo! l, P- 13.</p> <p>Injunction.</p> <p>Question of '</p> <p>pUb325,L326</p>

<p>CASH II.</p> <p>"Nh, took,</p> <p>?ürlítion of jand, and sale of land,</p>

<p>Case III</p> <p>Keg. book, No. 1, p. 23</p> <p>Decree for specific perform anee a-gainstthere*. presciuatives of one of '.hecontracting parties.</p>

<p>Persons required by law to work on Wait’s Cut, (Edisto Island,) are not exempt from ordinary road duty.</p> <p>The road Act of 1825, (A. A. p. 29,) repeals all previously existing exemptions.</p> <p>The Commissioners of roads have power to impose and collect fines of $20, but no more.</p> <p>The Commissioners are authorized (A. A. 1825, sec. 12,) to assess, in certain cases, to a larger amount, but no mode of collecting is prescribed.</p>

<p>case it.</p> <p>Keg. book, N°. l, p. 28.</p> <p>Compensa-cr.</p> <p>vide post for report.</p>

<p>cjse w</p> <p>|»Ci?. hook,, P- :;'L</p> <p>vi¿le ante,</p> <p>Allowance for money, i-iii “•teest</p>

<p> osevz. </p> <p>Reg. book, p. 34.</p> <p>The comí ordered e/iíite devised to r soil, to he sold, Co p:y legacies charged cr. il; mid if; re-hebarse late for 'properly taiei awry }<y the legatee nvi. devisee,</p>

<p>A fine of $60 having been paid to the Sheriff, upon presentation (without levy) of an execution issuing from a Board of Commissioners of Roads, the Sheriff, who had the money still in his hands, was liable to an action of indebi-tatus assumpsit for the excess over $20, (the limit of the Comraissioners’s jurisdiction. See Supra, p. 109.)</p> <p>And, it seems, it would not have been otherwise, if the Sheriff had paid over the money.</p> <p>Payment to the Sheriff, upon service (without actual levy) of an execution void for defect of'jurisdiction, is not a voluntary payment.</p>

<p>case vii.</p> <p>Reg. book, »- 36.</p> <p>issue direct-feet.*0 tVy &</p>

<p>case viji.</p> <p>Reg. book, P- 43-</p> <p>Decree for an cording* to the jujyDe °f</p>

<p>Ci.SE £,</p> <p>Reg. book, P- 49.</p> <p>Order for giving bond to retimdl</p>

<p>CASE XI.</p> <p>ttecree or-derin.S a set: tlement; and protecting</p>

<p>CASE 2IÍ.</p> <p>Reg. p. 52. book,</p> <p>Lien created.</p>

<p>CASE XIII.</p> <p>Reg. p. 55.book,</p> <p>Eldest sons’ estates chargeable with daughters’ portions.</p> <p>One of the son’s estate ordered to be sold, without allowance to the purchaser from the Son.</p>

<p>CASE XV.</p> <p>Reg. book, F 64-</p> <p>Devisee restricted from selling ^bis heaccounted f°F ProPerty taken away by him.</p>

<p>CAS3 XY2*</p> <p>Reg. book, F 69-</p> <p>Miliitertoput money out to interest.</p> <p>CASE XVII.</p> <p>Reg. book, ’</p>

Before Earle, J. at Barnwell, Spring Term, 1839. Assumpsit on two notes of hand drawn by the defendant, one for $2000, and the other for $500 payable to G. Perdue, or bearer, and transferred to the plaintiff! The consideration was certain real estate in Aiken, purchased by defendant from Perdue, and known to the plaintiff, who had sold the premises to Perdue, and took these notes of the defendant in payment of Perdue’s debt to himself.

<p>CASE XIV.</p> <p>Reg. book, F 6L</p> <p>Sale of minor's estate andcompen-for</p> <p>Reg. book, p 81.</p>

<p>case xviii.</p> <p>a, b, p,42.</p> <p>Court refused to decree in favour of anagreement to make mutual wills, for want of sufficient proof</p>

Before Butler, J. at Coosaidhatchie, Fall Term, 1839. ‘ These were actions of trespass, involving the right to water privileges. The defendant moved for an order to survey the plaintiff’s, plantation and the adjoining lands of the defendant, and to take the level of the water course through the same.

<p>Before Earle, J. at Charleston, May Term, 1839.</p>

<p>CASE XIX.</p> <p>R. B. p. 17.</p>

<p>In an action on a policy of insurance of freight lost in transitu, the patroon, who was also owner of the boat, was not a competent witness to shew that the freight was lost by fire, so as to fix the liability of the insurers.</p> <p>A fraudulent conversion of freight, by one who was both owner and master of the vessel, was not barratry; for barratry is a fraud against the owner.</p>

<p>case xx.</p> <p>Issue direct-whether deed was du-executed”'17</p> <p>Certificate fairly executed; and de-Cpgg jq vour of it.</p>

<p>cam 3xi.</p> <p>Notice to creditors to theirilSl1 de-tnands.</p>

<p>CASE XXII.</p> <p>B, B. p. 79.</p> <p>Master to en-quire and report what property was wasted after judgment at law.</p> <p>Security bond to stand'*'’ as a pledge for the sux\ wasted.</p>

<p>case xxiv.</p> <p>B. B^p. 85.</p> <p>Case of elec' ^adTby the minors six coming of a£e*</p>

<p>CASE xxix</p> <p>B. B. p. 83.</p> <p>Defendant decreed _ to to complain-aa<i ^ rents.</p>

<p>CASE xxv.</p> <p>a. b. p. 85.</p> <p>Legatee to account for property he took away.</p> <p>Executor authorized to invest money in negroes for minors, oí-as he should judgeproper.</p>

<p>CASE xxvr.</p> <p>B. b. p. 88.</p> <p>Deeds and specialties to be deposited by defendant fit hands of the master.</p>

<p>CASE XXVII.</p> <p>s. a. p. 93.</p> <p>Dcvi~ee per~ nutted lo tell land mud~ the cliicu~i~n tnd the 1n)uucl~ to stuuuuj at a. 1)ledgQ ;lih~ debt to cst~th~</p> <p>E. B. p. 93.</p>

<p>Id case of eviction, the measure of damages, on the covenant of warranty, is the purchase money with interest from the date of the purchase.</p> <p>“ There is no case of eviction actually or constructively, by paramount title, where the party’s right to interest could be defeated by the reception of the rents and profits.” — O'Neall, J.</p>

<p>CASE XXVIII</p> <p>R. B. p. 84</p>

<p>Heard by Harper, Ch., at Charleston, January, 1839.</p> <p>Complainants’ testator devised, among other things, as follows: “I give, devise and bequeath all my plantation,-or tract of land, usually called “Cypress Trees,” containing about two hundred and twenty acres, unto my dear wife, Elizabeth Mary Clark, her heirs and assigns, forever. Item: I give, devise and bequeath, unto my dear daughter, Martha Mary Murray Clark, her heirs and assigns, forever, all my right, title, interest and estate in the plantation, or tract of land, commonly called “ Vinegar Hill,” that came from the estate of her grandfather, Joseph James M'urray: and, as the said plantation is, in my opinion, less valuable than the plantations, respectively, given to my wife and other children; and, as it is my wish, that, at my death, my wife and each of my children be, as nearly as possible, on an equality, in regard to property, I give, devise, and bequeath, unto my daughter, Martha Mary Murray Clark, so much money as, with the said plantation, “ Vinegar Hill,” will be equal in value to the “ Cypress” plantation, in lieu, and to stand in place of so much land, to her, and her heirs, forever. Item: I give, devise and bequeath the plantation, or tract of land, called “ Shell House,” unto my son, James Joseph Clark, his heirs and assigns, forever. Item: I give, devise and bequeath the plantation, or tract of land, called “ Mulberry Grove,” containing about two hundred and eighty acres, unto my dear daughter, Elizabeth Jenkins Clark, her heirs and assigns, forever. Item: It is, as I have already said, my desire that, at my death, my wife and children, respectively, should be, as nearly as possible, possessed of property of equal value; and, as my dear daughter, Martha Mary Murray Clark, under the'deed of her grand-father, Joseph James Murray, to her mother, then Abigail Jenkins Murray, dated 23d February, anno Domini, 1815, will be, possessed, in her own right, of as many slaves as can fall to my present dear wife and her two children, on a division among them of all the negroes that belong to me, I therefore will, order and direct, that all the negro slaves, of which I may die possessed in my own right, be divided into three equal portions, or parts; and that my negro slaves, Frank, Bob, Sarah and her children, Joe, Prince, John, Martha, Mary, Sam and Ben be included in one of these three equal parts: and I give and bequeath the one, of these three equal portions, in which the slaves designated are included, unto my dear wife, Elizabeth Mary Clark, forever, to and for her own sole and separate use,” &c„</p> <p>“Item: I will, order and direct, that the provision made by me, in this will, for my said wife, shall be in lieu and bar of dower and thirds, and all things else she can have a claim for, against my estate, real and personal. Item: I give, devise and bequeath all the rest, residue and remainder of my estate, real and personal, unto my dear wife and children, to be equally divided among them, share and share alike, to them and their heirs, forever.”</p> <p>The complainants, Executors of the deceased, stated that they had made a division of the negroes, according to the directions of the will, but that the y were advised that, in consequence of the infancy of the children, (who were all minors,) the division was invalid, unless confirmed by the sanction of the Court. They submitted, further, that “ the residue of the testator’s estate has proved entirely insufficient to satisfy all the debts and legacies, which are chargeable thereon; and complainants are advised that it will be requisite, that the legacies should proportionably abate, to satisfy the said demands. And complainants are desirous of carrying into execution the provisions of the said will, and effecting a full and final adjustment of the testator’s estate; but that questions have arisen and difficulties presented, as to the legal and proper manner of accomplishing these objects, and, more particularly, as to the payment of the testator’s debts; whether, in order to satisfy said claims, all the legatees and devisees, without exception, shall contribute in proportion to the amount of their several legacies and devises; and also, as to the difference, in value, between the “ Vinegar Hill” and “ Cypress Trees” plantations, how the same shall be ascertained and paid; and also, as to the mode of adjusting the accounts of the executors, in the administration of the estate; and whether a partition shall be made, by the authority of the 'Court, among the parties severally intitled, of the clear surplus which shall be found, after said adjustment, subject to such distribution.</p> <p>Elizabeth Mary Hanahan, one of the defendants, formerly .the wife of the testator, in her answer stated that the testator, > ¡after his intermarriage with her, had received, in her right, a number of slaves and about twenty-eight thousand dollars in money, and that the plantation, “ Shell House,” devised, by the testator, to his son, James Joseph, was her inheritance; •that the devise to her was, by the express terms of the will, in lieu of these claims and of her dower, which would have amounted, together, to more than what she had received from the estate. She therefore denied the liability of her portion .to contribute to the payment of debts, or legacies.</p> <p>The case was referred to the Master, who reported;</p> <p>1st. That the difference, in value, of the two tracts, “ Cypress Trees” and “Vinegar Hill,” was $9,046.</p> <p>2d. That Elizabeth Mary Hanahan was not liable to contribute for payment of debts or legacies, being, as to the devise and bequest to her, a purchaser for valuable consideration.</p> <p>3d. That the partition of the negroes ought to be confirm,ed; there being, in fact, no objection interposed by any of the parties.</p> <p>4th. That the complainants’ accounts, as executors, were regular, correct and properly vouched; except as to certain charges for the expense of dissecting and arranging the accounts, which were disallowed by the Master.</p> <p>To this report, the following objections were filed :</p> <p>(By the Complainant.) — That the charge, in the accounts, for payments made to an accountant, for arranging the accounts, ought to have been allowed.</p> <p>(By the infant Defendant, Martha Mary Murray Clark.) — ■</p> <p>1. That Mrs. Hanahan is improperly exempted from abatement and contribution, to pay the testator’s debts.</p> <p>2. That this defendant is not credited, in the executor’s accounts, as she ought to have been, with rent for the Vinegar Hill plantation; which was her property, under the will of her grand-father, Murray, and the produce of which has gone into the general funds of the estate; whereby she is made to contribute, out of her own property, to the payment of testator’s debts, and legacies.</p> <p>(By the infant Defendants, James Joseph Clark and Elizabeth Jenkins Clark.) — 1. That the Master ought to have reported,’ that the devises and bequests to those defendants are not liable to abate, or contribute to the payment of the sum assessed, as the difference in value between Cypress Trees, and Vinegar Hill.</p> <p>2. That he ought, further, to have reported the share of John Hanahan and wife, in the residuary estate of the testator, as liable to contribute, both to the payment of debts, and to the assessment in favor of the devisee of Vinegar Hill.</p> <p>After hearing the argument on the report and exceptions, his Honor pronounced the following decree :</p> <p>The Master’s report presents a full statement of this case, and of the questions made.</p> <p>With respect to the complainants’ single exception, I think the Master’s decision very well supported by his reasoning. It is sustained, also, by the decision of the Court, in Bogan vs. Logan, (1 M’C. Ch. 5,) and in Teagúe vs. Dendy, (2 Id. 213.)</p> <p>The first exception of the infant defendant, Martha M. M. Clark, and the second of the two infant defendants, James J. Clark and Elizabeth J. Clark, relate to the same matter. There is no doubt, on the authority of the cases referred to in the argument, that the provision made for testator’s wife, being in bar of dower, she must be regarded as a purchaser of it, for valuable consideration; and, if the residuary estate should prove insufficient for the payment of legacies, she cannot be called upon to abate with the other legatees. Burridge vs. Bradyl, (1 P. Wms. 126,) Blower vs. Morret, (2 Yes. 420,) Davenhill vs. Fletcher,) Ambl. 244,) and Loocock vs. Clarkson, (1 Desaus. 471.) This, of course, does not apply to the share ok the residue given to her. By a bequest of the residue, the testator means that which shall be left, after the payment of debts and legacies. The defendants, Hanahan and wife, are satisfied with the report. The exceptions are overruled.</p> <p>With respect to the matter of the second exception of the defendant Martha M. M. Clark, nothing appears in the report of the Master. It does not appear, that there was any shewing, before him, of the facts on which it is founded, nor any such question made: nor was there any shewing to the Court. , I cannot, therefore, regard it as involved in the cause.</p> <p>The first exception of the infant defendants, James J. Clark, and Elizabeth J. Clark, raises the question, how the legacy, or devise, to Martha M. M. Clark, of so much money as will make up the difference in value between the Vinegar Hill plantation, and the Cypress Trees, is to be made up. There is no exception to the assessment reported by the Commissioner: but it is apprehended that, after the payment of debts, there will not remain enough, of the residue, for the purpose; out of which fund, no doubt, the testator contemplated that it would be paid. Besides the provision for the wife, and some trifling specific legacies in the codicil, there remains only the land and stock, devised to the testator’s children, and the slaves given to the two younger children. The general rules on the subject are well known, that 'general, or pecuniary legacies must abate, rather than specific ones, and specific legacies of personalty, rather than devises of land. Questions might, perhaps, be made, whether the devise to Martha M. M. Clark is not to be regarded as a devise of land, privileged from abatement; of whether it is not a pecuniary legacy, which must fail, if there is not enough of the residue to pay it; and, with respect to the bequest of slaves, whether it is general, or specific. But, if the intention of the testator can be discovered, that is to govern, in preference to the artificial rules upon upon the subject. Of the intention of the testator, in the present instance, and the leading object of his will, there can be no doubt. Assuming that, by the provision made for her, by her grand-father, his daughter, Martha, is put upon an equality with his other children, in fespect to slave property, (and with the correctness of his estimates, we have nothing to do, he might make his own estimates,) his distinctly expressed object was to put them on a footing of equality, with respect to the landed provision made for them. And how is this eqality to be preserved 1 Very obviously, if there is not enough of the residue, to pay Martha the amount of the difference, in value, between the two plantations, all three of the children must abate equally. That is to say, if the whole residue should be exhausted by debts, Joseph and Elizabeth must contribute to Martha, out of their legacy of slaves, two-thirds of the amount reported by the Master. And so of any other deficiency of the residue: they must make good two-thirds o.f such deficiency.</p> <p>It is ordered and decreed, that the Master’s report be confirmed ; that the complainants proceed to administer the estate, and, out of the residue, pay to the defendant, Martha Mary Murray Clark, the amount reported by the Master, as the difference in value between the plantations, called Vinegar</p> <p>Hill, and Cypress Trees ; but, if the residue should not be sufficient for the purpose, that the infant defendants, James Joseph Clark and Elizabeth Jenkins Clark, pay two-thirds of such deficiency, out of the slaves bequeathed to them by the will of their father.</p> <p>The infant defendants, James Joseph Clark, and Elizabeth Jenkins Clark, appealed from so much of the foregoing decree, as directs that, in the event of the testator’s residuary estate proving insufficient to pay the sum of money assessed, as the difference in value between Vinegar. Hill, and the Cypress Trees, two-thirds of such deficiency should be paid out of the slaves bequeathed to these defendants; and they moved that the same be reversed, or modified, in that particular, on the following grounds:</p> <p>1. That the bequest of the said slaves to these defendants,</p> <p>was specific, and, therefore, not liable to abate, except for the payment of creditors. ,</p> <p>2. That the bequest to Martha Mary Murray .Clark, of the difference in value between Vinegar Hill and Cypress Trees, amounted to no more than a general pecuniary legacy; and no part of the estate, real or personal, specifically devised, or bequeathed, being expressly charged with the payment, it must either be paid out of the residuary estate, or fail altogether.</p> <p>3. That, if the pecuniary legacy to Martha Mary Murray Clark, was a charge upon any part of the estate specifically devised and bequeathed, it was equally a charge upon the whole estate; and there was nothing, in the will, to warrant the selection of that part of the personal estate, bequeathed to these defendants, to bear a greater pro portion of the charge, than the value of the part, so bequeathed, bore to the whole estate.</p> <p>4. That the decree, in the particular objected to, was contrary to the true intention of the testator, whether the same</p> <p>be ascertained by the rules of law, for the construction of testaments, or is inferred from a particular interpretation of his will; and was, in every respect, contrary to law and equity.'</p> <p>The complainants also appealed on the ground- stated in their exception to the report of the Master.</p> <p>The defendant, Mary M. M. Clark, also appealed, on the' grounds stated in her exceptions to the Master’s report, and on the further ground, that, in case the residue should not be sufficient to pay the amount' reported by the Master, as the difference in value, between Vinegar Hill and Cypress Trees, the defendants, James Joseph and Elizabeth J. Clark, ought to be required to pay the whole, instead of two-thirds of such deficiency, (as directed by the decree,) out of the slaves bequeathed to them, otherwise the testator’s intention to put them on a footing of equality, as to the landed provision made for them, would be defeated.</p>

<p>This was an action on a bond for $1000, part of the'purchase money o( certain land and negroes. The defendant pleaded non est factum, and proved that three of the negroes, value $1110, had been taken from him, and sold under an elder mortgage, executed by the vendor.</p> <p>Verdict for the defendant; from which the plaintiff appealed.</p>

<p>A merchant agreed with the payee of a bill, who promised that certain produce of the drawei’s, whose agent he was, should be sent to him, that he would ¡honor his draft on that condition. The produce was not sent till after the bill had been dishonored and protested, and then only a part, with instructions from the owner to devote the proceeds to other purposes. The payee was non-suited in his action against the merchant, both as acceptor and for money had and received.</p> <p>When it is doubtful whether a non-suit ought to be ordered, the Judge, on -circuit, will sometimes, even against the inclination of his judgment, send the case to the jury. But the Appeal Court will not be restrained, by a verdict for the plaintiff, from opening the entire evidence to decide on the motion fot ,non-suit.</p>

<p>CASE XXIS,</p> <p>B. B. p. 104.</p> <p>B. 33. p, J94,</p>

<p>CASH XXX.</p> <p>B. 33. p. 113.</p> <p>Money to be repaid,</p> <p>Value of a house taken down to be paid and rent</p> <p>case xnr.</p> <p>it. b. p. 113.</p> <p>Lands of lu-$oid t0 be</p>

<p>case xxxii.</p> <p>it. b. p. 120.</p> <p>Bill to be taken pro con-cree founded on lt></p> <p>Complainant idty to abide the order of thedefendant appearing.</p>

<p>CASE XXXIII.</p> <p>r. b.p. 125.</p> <p>Issue to try of°a deet?1^</p> <p>r. b. p. 136.</p>

<p>Case xxxiv,</p> <p>a. b. p. 128,</p> <p>On application foe injunction, opposition may be made on the merits, as they are disclosed by the bill: Nothing extraneous to be admitted.</p>

<p>«¡ase xxxv.</p> <p>B. B p-132_</p> <p>Testator directs estate ¿°v|fe¿ÍUkut if any óf his die* his share to f°rsto SU1^ court limits time testator.</p> <p>i* b. p. 132.</p>

Before O’Neall, J. at Charleston, January, 1840. Trespass to try title.

<p>case xxxvi.</p> <p>r. b. p. 96.</p> <p>fcuinance^de" creed, on within*a li-noted time.</p>

<p>«use xxxvii.</p> <p>n. n.p. 103.</p> <p>Adm’r. of «tucicnt mils-ter to pay to the creditors ^bf^'court) proportigna/ b1-'-</p> <p>to creditor.-</p>

Before Butler, J. at Charleston, January, 1839, This was an action of debt, upon the bond of the defendant, as bail of Lydia Giberson, The declaration stated that judgment had been recovered against the defendant in the original action; that, as she was a female, the only enforcible execution that the law allowed, a fi. fa., had been lodged in the sheriff’s office, and that the sheriff had returned thereon nulla bona ; that the said defendant had not surrendered herself, nor…

<p>CASE xxxvnt</p> <p>11' B‘ 105'</p> <p>Husband suing for a legacy directed to make a settlement.</p>

<p>case XL.</p> <p>a. b. p. 137.</p> <p>Executors authorized to apply1 assetts of estate to pay partner" ship debts,</p>

<p>case xh.</p> <p>3i. b. p. 140.</p> <p>Order on purchaser to whjT there should not be Hs^isk.6’ &t</p>

<p>case xlii.</p> <p>a. b. p. 141.</p> <p>Commission of lunacy superseded, on covery of his senses.</p>

<p>CASE XLIII.</p> <p>a. b. p. 144.</p> <p>Ne gxeat suspended, ™r!b™T pre°</p>

<p>CASE XLIV.</p> <p>B. B. p. 134.</p> <p>a purchase! ^argeTwith legacies, and ^ordei^of the court. permitted to Md the es-pa;¿fo°buil-ert-ct-ft.- ™</p> <p>son"" wimR" Gibbes, exe-ward ° Vet-wick, dec’d.</p> <p>The legatee having earn-the°ft estiítí Kis part of tate held liar¿e %amak¿ good the loss,</p> <p>». b. p. 146.</p>

This case is bat a continuation of that of Dawson vs. Daw? .son, reported in Rice’s Eq. R. 243, to which the reader is referred. In obedience to the orders of the Court, as there star .ted, the Commissioner made a report, to which exception was taken by both parties. All the facts material to the points in this appeal are stated in the following decree of his Honor, Ch. Johnston, January, 1840.

Before Earle, J. at Charleston, May Term, 1839. This was an action of assumpsit, for not accepting and paying for a quantity of pilot bread, baked for the defendants. The report of the Judge below was as follows: “ The plaintiff is a baker ; and had baked for, and delivered to, the defendants, who were extensive dealers, large quantities oí bread, which was sent for and received by the defendants at their own premises.

<p>CASE XLV.</p> <p>E. B. p. 143.</p> <p>Executors Cannot on paying debts take theses-tate to them-out1Regular sale.</p> <p>Lapseoftime not to run against lega, tees, &c.</p>

<p>case xivr.</p> <p>b. b. p. ISO.</p> <p>not b^hisact Uter the des-funds°n °f</p> <p>funds, beco-TOwled^'has a right to the .an a.</p>

<p>CASE SEVII.</p> <p>B. B. p. 168</p> <p>Bonds appa. j^may’be shown, by e-b^en<merety countersecu*</p>

<p>CASE XLVIII,</p> <p>B- B. p. 165.</p> <p>Permission given by father's will, to his daughters,to reside on his plantation during their lives, gives a life estate, and they may plant there.</p>

<p>Before O’Neall, J. at Chesterville, Fall Term, 1839.</p> <p>The defendant was indicted under the 3rd section of A. A. 1789, (P. L. 486 ; 5 Stat. So. Ca. 139,) for disfiguring the prosecutor’s mare. The words of the Act are, “ If any person or persons shall be lawfully convicted of wilfully and knowingly marking, branding or disfiguring of any horse, mare, &c.” The indictment did not set out the manner in which the disfiguring was accomplished, but followed the words of the Act, which, the presiding Judge thought sufficient. The mare’s mane had been shaved, and the hair of her tail cropped off close to the bone. Verdict, guilty.</p> <p>The defendant appealed, moving for a new trial, on the ground of certain exceptions to the evidence, which were not considered by the Court, — and in arrest of judgment,</p> <p>Because the indictment did not set out the manner of disfiguring; and,</p> <p>Because the case proved, did not amount to an indictable offence.</p>

<p>CASE XLIX.</p> <p>». a. p. 207.</p> <p>estate,ulv reserving1 funds Commission-</p> <p>No time fix-fm-^egacyto v,jst, mar-vartTit. Wal</p> <p> MARCH. 1790. </p> <p>a. b. p. 236.</p> <p>Orders for settlement ofestate, by rninor'1'1 °dk pensed with a\vife offoií age consent-amination by the court.</p>

The Commissioner in Equity had allowed to'Wm. R. Gibson, as receiver of the estate of John Massey, deceased, twb‘ per cent, commissions, on all monies received, and one per cent, on notes and bonds uncollected.

<p>CASE X.</p> <p>r. b.p. 289>„</p> <p>ysgue direct» fore 'a 5 pur» ch:lseF Ct,m pellea to 3.0^ ceptthetitlc,</p>

<p>CABE El,</p> <p>21, B. p. 19Í,</p> <p>Estate ordered to be sold,</p> <p>Life estate of iued by master.</p>

<p>case Eli.</p> <p>». b. p. 196.</p> <p>Interest of lowed where the contract, in°Nortl™Ca-rolina, had reference to lands in this state.</p>

<p>case mu.</p> <p>n.B.p.189-93.</p> <p>[To this action the executor accordingly resorted; but the jury did not see anything in the claim to justify the allowance of extraordinary compensation. — The verdict was against the executor’.] — Editor.</p> <p>Court refu sed to decree specific exe-entionof contract, in a hard case, and where the other party had not complied with terms.</p>

This was a case of partition. The Commissioner had been ordered, at a previous term, to pay the parties according to their respective rights. Mrs. Bell, the wife of George Bell, was ,one of the distributees, to whom the commissioner refused to pay her share without an order from the court; resting on the authority of Yeldell vs. Quarles, and Hallaway vs. Moore, (Dudley Ch. R., 55.)

<p>CASE LIV,</p> <p>n. b. p. 215.</p> <p>Court ordei,. ed new trial, a“s® dict was gi-Sue directed</p>

Before Gantt, .J. at. Columbia, Spring Term, 1840. Indictment for cruelly beating a slave, under A. A. 1740, (P. L. 173,) sec. 45, viz : “ And in case any person or persons shall wilfully cut out the tongue, put out the eye, castrate, or cruelly scald, burn, or deprive any slave of any limb or member, or shall inflict any other cruel punishment, other than by whipping, or beating with a horse-whip, cow-skin, switch or small stick, or by putting irons on, or confining, or…

<p>CASE LTI.</p> <p>n. b. p. 2S0,</p> <p>A person n1 ees the debt of a ¿pm.mices houscC1Citu partners sup, are^profitT divide some and^allot^to one partner a wl'iph ^he purchases a Tha^pianta-liabie*to\l>e guarantee on tiie^clcbt "'!!' his principals</p>

<p>CASE LV.</p> <p>n. i). p. 216.</p> <p>Court refused to exone-toys.</p>

<p>Before Richardson, J. at Union, Spring Term, 1840.</p> <p>Sum. Pro. on several distinct items, in all #66 70. Good prima facie evidence was given of nearly the whole amount, but was rebutted by the defendant, so as to reduce the plaintiff’s claim to $15 18|- and interest. As the plaintiff did not appear to have added merely fictitious items for the purpose of swelling his account to the sum. pro. jurisdiction, the Court decreed for the plaintiff the amount found due, as above.</p> <p>The defendant appealed, on the ground that the Court had no jurisdiction over a cause of action less than $20, and ought to have ordered a non-suit.</p>

<p>case eyii.</p> <p>a. b. p. 253.</p> <p>Injunction to restrain exe-committing11 waste or sel-Imp estate testator.</p> <p>See note of chancellor Mathews, on his brief.’</p>

On reading the register’s certificate that due notice has been given of filing this bill, and no appearance entered for defendant, on motion of Mr. Read, ordered, that the hill be taken pro confesso against H. M. Burke and John Baker, two of the defendants, named in complainant’s bill, and that a decree be prepared accordingly; on the complainant’s giving security to abide such order as may he made on the defendants’ appearing and paying such costs as the court shall order.

Heard before Johnston, CL, at Chester, June, 1837. Bill against Cuthbert Price, Jun, as executor and administrator of the deceased, his father, to compel a distribution. The defendant set up a claim, on his own part, of $200 a year, for personal services, for eight years, as overseer to the testator. Upon a reference, the commissioner reported against his demand.

<p>CASE BIX.</p> <p>b.b.p.262-3,</p> <p>Former de~ amemi»</p> <p>Lands order-^n^dered*** as money.</p>

Before Butler, J. at Edgefield, Spring Term, 1840. Sum. Pro. for the price of a coat lost bj the defendant, the' owner of a stage coach running from Edgefield to Abbeville.-The plaintiffs were merchant tailors, and had made a coat for one of their customers residing at Abbeville. When the coat was spoken for, the plaintiffs said they would send it by the stage.

. The bill of Eethune charges that he was applied to by Charles Ferguson, the factor or agent of Mr. and Mrs. Bcresford, to supply necessary articles from his store for their use, and assured him that he was employed for that purpose, and that he would be paid out of her settled estate: Upon which he furnished them with articles to a considerable amount; many of which were furnished on Mrs. Bcresford’s own application by letter, filed with the bill.

<p>CASE LX.</p> <p>jr. b. p. 265.</p> <p>Agent not liable for depreciated money which perished in his hands.</p> <p>Commissions to agent, two and a half per cent, on money received and paid, and one per cent, on delivering up bonds.</p>

Before Butler, J. at Abbeville, Spring Term, 1840. Sum. Pro. on a promissory note drawn payable to “Mrs.Earnest or bearer.” Jacob Lasséter having fought and beaten the son of Mrs. Earnest, (both were under age,) she demanded permission to' punish Lasseter, herself; and, as this was not allowed, she threatened to commence a prosecution, or some other legal proceeding against him.

Before Earle, J. at Laurens, Spring Term, 1840. This was an action against Austin, as security of one Campbell, upon a penal bond.

Heard before Ch. Johnson, at Lancaster, July, 1839. The details of the case are given, at length, in the following circuit decree: William Massey died intestate, and in 1836, administra-' tion of his estate was granted to Henry Massey, defendant’s testator, and Thomas C. Massey, both of whom have since departed this life.

This is a. cane arising out of the will of Thomas Law Elliott. He being seized and possessed a considerable real and personal estate, made and duly executed bis will em the Gsh of December, 1756, wherein, after giving ¡specific, legacy to 1ns wife, he bequeathed as follows: The ■use of ¡ill hereafter mentioned to his son Thomas EUiottj viz. two tracts of land, (which he describes:) also several negro slaves (by name)- — and the half of all the rest of his personal estate.

Before Richardson, J. at York, Spring Term, 1840. This was an action for money borrowed by Jennings, who' had been a partner in trade with Beatty. Beatty’s defence was, that it was ho partnership debt. On this point, the jury were instructed that the question was, did Jennings borrow the money for himself only, or for the firm.

Before O’Neall, J. at Columbia, March Extra Term, 1840. Action on the joint and several bond of Heise, Neuffer and Straus. The writ was sued out against them all, served on Heise and Straus, and returned, non est. as to Neuffer. The plaintiff entering on the. writ a discontinuance as to Neuffer and Straus, declared against Heise alone. Demurrer, for variance between the writ and declaration, was overruled by the Court.

Before O’Neall, J. at Kershaiv, Spring Term, 1840. Assumpsit on the warranty of a negro man, Ned, sold by defendant to the plaintiff. The bill of sale was in consideration of $700, described Ned as about forty years of age, and warranted him sound in body and mind.

Heard before Johnston, Cli., at Kershaw, June 1840, who delivered the following decree: The only question presented, relates to the jurisdiction of the Court over the case made by the bill.

<p>A warranty of soundness given after the completion of a sale, being undef éeaU could not be impeached for want of consideration.</p> <p>Some months after sale, the purchaser told the seller “he wished to give vp the negroes on account of unsoundness,’’ (the negroes not being present.) This was no sufficient tender to rescind the bargain and entitle thebhyer to the whole Jiurchase money as damages.</p> <p>A swelling in the abdomen of a negro woman, plainly visible, and known to the purchaser, it seems was no exception to the general scope of an express warranty of soundness ; though no ill consequences were shewn from the malformation, and the woman did full work;</p>

<p>case LXIrr-</p> <p>Bill for an account and settlement of estate. Under special circumstances depreciated balances during the war, not to be mingled with undeprecia-ted balances before the</p> <p>Executors not bound to put money out to interest, nor to pay interest.</p> <p>decjiee noox, P-8.</p> <p>a. b. p.286; 290,2.</p> <p>pFonbl.ch 7, § 6, p. 188, IstLoud. Ed-</p> <p>a. s. p. 292.</p>

<p>case EXIT.</p> <p>it. b. p. 300.</p> <p>Interest recoverable on bond debts due to British subjects during the</p> <p>DECftEE BOOK. p. 19.</p>

<p>*! A report has gone abroad, through the instrumentality of S. W. stating thaf |t. M. had a load or parcel of falsely packed or plated cotton bales; which report is a direct falsehood.” This, printed and published, with malice, was a libel»</p> <p>A copy of the newspaper in which a libel was published, with proof of defendant’s acknowledgement that he had handed it to the Editor for insertion, 1¡vas proper evidence of publication.</p> <p>Defendant, in libel, had charged fhe plaintiff with haying falsely accused him of ciime. On trial, defendant gave proof, in mitigation, of the falsehood of the accusation: plaintiff was entitled to reply with evidence of its truth.</p>

<p>case lxv.</p> <p>a husband intentimi 'to abandonólas sell ’all the property he Sage, and to carry oft the court will 1'est™1" compel him property 1 to trustees,_ for use*1 wiii^o-ther proper llllllhlllOHS.</p> <p>7> jj p 214,</p> <p>JUNE. 1790.</p> <p>„ It< 21. p.</p> <p>it. b. p. 246</p> <p>DECREE BOOK. p. 33.</p>

<p>Before O’Neall, J. at Sumter, Spring Term, 1840.</p> <p>The plaintiff, in this cáse, as security of one Long, paid #40 on his account. Long, being about to leave the State, addressed a letter to the plaintiff, making an assignment to him of all his goods as an indemnity. After the date of this letter, but before it reached the plaintiff, attachments had been levied, under which the goods were afterwards sold by the defendant, as sheriff This action was a sum. pro. to recover his #40 out of the proceeds of the sale.</p> <p>As the letter was not a deed, but a parol assignment, the Court thought it was good, and took effect from its date; and decreed for the plaintiff.</p> <p>The defendant appealed, on the ground that the letter conveyed no interest to the plaintiff till it was delivered and accepted by him.</p>

Before O’Neall, J. at Chester, Fall Term, 1839. These four cases were actions of trespass to try titles to a tract of land containing nine hundred and forty-two acres. The plaintiff Mrs. Williams, was the only surviving child of Samuel Lacey, who died in Mississippi, in August, 1814, She and her mother, who are residents of Mississippi, are entitled to his real estate in equal moieties.

<p>CASE EXVI.</p> <p>B. B.p.303-5.</p> <p>Specific execution of contract decreed against an infant heir, on clear proof of contract and part execution by the ancestor.</p> <p>Decree.</p>

<p>CASE IXVII.</p> <p>The appointment of apar-ticular finid for the payment of pecuniary legacies, does not necessarily restrict the payment out of that fund.</p> <p>unless a. an-ectPPe the ^p^e^ene-ral residuary “pf eis queathed) on thefparticular fund</p> <p>Decree,</p>

Heard, at Sumterville, first, before Ch. Johnston, in January 1839; afterwards, in January 1840,'before Dunkin, Ch., who delivered the following decree: This case was presented to the Court on… Held: but, before a report had been made, the complainants, on 20th September 1837, dismissed their bill. Prior to February term, 1836, the bill of the distributees of Joseph Durant, against the administrators, had been filed for a settlement and division of this estate.

Before Evans, J. at Sumter, Spring Term, 1840. This was an action of assumpsit, to which the defendant pleaded in discount, among other things, $41 72 for 149 lbs. yarn, at 28 cents per lb. The facts were these. Plaintiff had delivered 2520 lbs. cotton to defendant to be spun at his factory. The yarn produced was 149 lbs. less than the cotton. Defendant made up the deficiency and delivered the whole to plaintiff; the latter, however, knowing nothing about it.

<p>CASE LXVIII</p> <p>r. b. p. 287.</p> <p>The court husband ^of an executrix the^nonieso? the estatelk-same__.And neatreceived ney iec“Q^ bíconsSe? ed as a bond ven%oC'th¿ prejudice of tors? credl"</p> <p>a. u. p. >gfi.</p> <p>AUGUST. 1791.</p> <p>DECHr.K HOOIv p- 12.</p> <p>«• »■ p- 30&</p> <p>u. a.p. 317.</p>

<p>Before Richardson, J. at Laurens, Fall Term, 1839.</p> <p>This was an application for a prohibition to prevent the levying of a fine of $8, imposed opon the defendant, a Post Master, for failing to work on the roads. The court refused the prohibition, and the defendant, thereupon, appealed.</p>

<p>Heard, at Columbia, August 1838, before Johnson, Ch., who made following decree :</p> <p>The bill states that the complainant, Mrs. Dellet, and her brother, T. T. Willisson, were seized, as tenants in common, of a plantation in Edgefield district, on the Savannah river, opposite the city of Augusta, containing about 1000 acres; that on the 30th March, 1832, t'he said Willisson, for himself and the complainants, contracted with the defendant, Whit-ner, for the sale of the said lands, at the price of $10,000, and on the 20th July, 1833, made and executed titles, for himself, to the said defendant, Whitner. The complainants deny that the said Willisson had any authority from them to sell or convey the said lands, and pray for a writ of partition to make division and severance thereof; but they offer, in their bill, to affirm the said sale and the titles so made and executed, upon the condition that the defendants pay them one half of the said purchase money, the said Willisson being dead and his estate supposed to be insolvent.</p> <p>The defendant, Whitner, sold and conveyed the land to one Isaac Henry, and he to the defendant, Starke, who is now in possession.</p> <p>The defence mainly relied on is, that the complainant, Del-let, did authorize Willisson to sell the land and receive the purchase money, and that in pursuance of this authority, he did sell to Whitner and receive a great portion of the purchase money. Conceding that there was no authority from Mrs. Dellet, and that the Court could not compel her to make the titles, it is insisted that Dellet ought to be compelled to reimburse Whitner the amount of money which was paid to Wil-lisson under his authoiity.</p> <p>On the 22d January, 1832, Willisson wrote to Dellet, residing in Claibourn, Alabama, that the suit with Watkins had been terminated by his agreeing to pay $1,000, and that they were then the undisputed owners of the land; and that he had “ forthwith advertised the land for sale, on the 2d instant,” that the land had been accordingly offered for sale, and that no more than $11,000 being offered, on a credit of one, two, three and four years, he had declined taking it, “ the less reluctantly, because I was anxious to hear from you.” He then suggests the propriety of Dellet “ appointing an attorney in fact here, with a power to sell, with a view to the future execution of the title by yourself and your wife.”</p> <p>In answer to this letter, Dellet writes to Willisson, under date 30 th January, 1832; “You request my opinion respecting the disposition now to be made of the land, and in giving my opinion I have no difficulty. The only opinion I can give, and all that I can with propriety say, is, make such sale and such disposition of the land as your own judgment points out or sanctions, and I will be content. I will, howbver, in addition, make one or two suggestions; that is to say, would it not be better to sell for cash, or if the sale is on a credit, to require such securities, say notes of hand, with good security, as might' be cashed on such discount as might be agreed on 1 Would it not be proper to avoid a mortgage of the premises to secure the payment of the purchase money 1 Will not much difficulty, expense and trouble probably ensue, to sell on a credit of one, two, three and four years, in travelling to and fro in order to make the collections, together with the probability of suits to enforce said collections 1 Are not the above suggestions strengthened by the intention you say you have of leaving Carolina for Florida as soon as you can.make the necessary arrangements ? The above hints are, however, merely for your refection, and not thrown out for the purpose of impeding any arrangements you are disposed to make respecting the sale of the land. One other suggestion I will here make. If you sell on a credit, suppose you adjust the notes so as to enable you after retaining to yourself what will amount to your part and make you whole, let me have the disposition of the part, due to your sister, so that, if we see proper, we may make some arrangement to realize, at once, as much as that part would be fairly worth, in cash or property, say negroes. But here let me again say, the above hints are not for the purpose of advising or directing you, and act as you think proper.” He then speaks of another tract of land in which the family were interested, and adds — “Harriet and myself will, at any moment, aid you in the transfer of all our right and title to the Hamburg lands,” (the lands in question) “ but think it will be proper to make no warranty</p> <p>Acting on the authority supposed to be given by this letter, ^ Willisson, on the 13th March, 1832, entered into an agreement by and with the defendant, Whitner, wherein he covenanted .for himself and the complainants, to sell these lands to the said Whitner, as trustee of Eliza A. Whitner and her chiE dren, and to make and execute to him, good and sufficient titles, “ with a clause of warranty to be inserted therein;” and Whitner, on his part, covenanted to pay $10,000, of which $7,000 was to be paid in cash, and the remaining $3,000 in one and two years, with interest. Whitner paid the $7,000, in cash, to Willisson, and took possession of the land; after-wards, on the authority of Willisson, he paid $1,000 to' discharge Willisson’s obligation to Watkins, on account of the' compromise of the suit between them; and at another time he paid to Willisson $300 ; so that the whole payments amount to $8,300, leaving a balance due of $1,700.-</p> <p>It does not appear that Dellet ever Teceived a cent of the money, or that he ever knew of the sale until he received a letter from Whitner, on the subject of the titles, in 1834, after the death' of Willisson.</p> <p>In the construction of powers, the general rifle is that general powers are to be liberally construed, for the obvious reason that, when general powers are obviously intended, all the powers necessary to their execution will be implied; whilst, on the other hand, special limited powers are to be strictly interpreted, because, in terms, the power is limited to the particular object; and whether we interpret Dellet’s letter by one rule or the other, there can be no question that he authorized Willisson to sell the land to the extent of all his control over it, and that he contemplated disposing of Mrs. Dellet’s interest also. “Make such sale or such disposition of the land as your own judgment points out.” “ The above hints are, however, merely for your reflection, and not thrown out for the purpose of impeding any arrangements you are disposed to make respecting the sale of the land.” “Barriet and myself will, at any moment, aid you in transferring all our right and title,” is a language that cannot be misconstrued or misconceived. ' You are to sell the land on such terms as you think proper, and Harriet and myself will convey, according to the forms of law, our interest in it to the purchaser. This is not seriously controverted; but it is insisted, 1st, that it contains no authority to Willisson to receive the complainants’ portion of the purchase money. 2d. Conceding that it does, yet in' law, Dellet had no right to authorize Willisson to dispose of his wife’s interest; and Wliitner having purchased with d knowledge of all the facts, he is presumed to know the law, and therefore Dellet is not liable to reimburse any portion of the money paid, to Willisson, on that account.</p> <p>I have found some difficulty as to the first of these propositions, but from the best lights I have been able to bring to bear on the subject, I incline to think that the letter contains an authority to Willisson to receive the purchase money. A naked power to sell land does not necessarily impart a power to convey, or receive the purchase money. This position is sustained by the case of Minn vs. Jottife, (1st Moody & Robertson, 326,) citbd at the bar from one of the Digests; and although the book cannot be obtained here, I am satisfied with the correctness of the principle. Sales of real estates are frequently made through the agency of auctioneers, brokers and other agents, acting under mere verbal authority, and whether in that form or in writing, their power, according to the usage of the country, consists in making a treaty for the sale. The seller will not be supposed to have confided to them, in this loose way, the power of disposing of his estate without first ascertaining that they had acted in pursuance of his authority, nor would the purchaser part with his money without being first secure in his title. But there is no question that these powers may be superadded to the power to sell. The owner of an estate may, if he will, authorize another to sell and convey and receive the price. Now, in this case, the power to1 make title is expressly reserved to the complainants,- and-whether the power to receive the money was conferred, is the? ■ question.</p> <p>Such is the imperfection of language, that it is often very difficult to express the precise idea intended to be conveyed, and such the, incongruity which is frequently found in contracts drawn up in haste, or by inexperienced clerks, that the courts have been obliged to frame rules founded on experience, to ascertain their meaning ;• amongst these will be found the general rule, that the intention of the parties, to be collected from the whole instrument, shall prevail. The situation and relation of the parties, and the subject matter of the contract, are also frequently called in to aid in the interpretation; and these rules apply to all compacts, whether it be the constitution of a government, or a contract for the sale of a mouse trap.</p> <p>The complainants and Wiliisson were the joint owners of the land; the former resided in Alabama, at the distance of 400 or 500 miles, and Wiliisson here where the sale was to be made. Dellet’s instructions are to “sell for cash,” and, if they had stopped here, how was it possible for Wiliisson to make a sale without the power to receive the money? Del-let was not here to receive it — there was no intimation of.a wish or an intention to be present to receive the money, and if he thought proper to remain at home, any contract that Wiliisson, who was equally interested, might make, might have been rendered nugatory. That he did not contemplate being present is, 1 think, apparent from his further instructions: “ make such disposition of the land as your own judgment points out or sanctions, and 1 will be content;” sell for cash “if yon can;” if not, “take .notes, and take care so to adjust them that I may have the disposition of that part to which my wife is entitled,” is the language of the letter. Now this power, although limited to a particular object, is, under the authority to “ make such disposition of the land as your judgment shall point out,” as general, as to that particular object, as language can make it The only limitation to it is the reservation'of the right of the complainants to make the titles, and it .consequently includes the power to receive the money, for that is incident to the disposition of it.</p> <p>The second position is, I think, very fully sustained by the case of Owens vs. Hull, cited from (9 Peters,- 607, 627.) There, an executor authorized an agent to sell some slaves which belonged to his testator in Louisiana. According to the laws of that State, an executor could not dispose of this property without an order from the tribunal having jurisdiction over the subject. The agent sold, however, without such order, and the slaves were afterwards recovered from the purchaser by the persons entitled under the will, and this was an action by the purchaser, against the executor, to recover back the money paid for the slaves; and’ the Court held that he was not entitled to recover, on the ground that the authority to sell implies the power to sell only according to the forms of law where the sales were to be made; and presuming, as the law does, that the purchaser knew what the law was, he contracted to purchase no more than the agent was entitled to sell, and that the principal was not bound. Now, according to the laws of this State, Dellet had no right to dispose of his wife’s lands beyond the term of his own life, and one third part in fee, if he survived her; and if Whitner, knowing, as the law presumes, and as a lawyer of long standing he must have known, had paid the money to Willisson, on the agreement oí Dellet to make titles for himself, according to the rule before laid down, he would have no right to claim from Dellet a remuneration for the money paid to Willisson on account of his wife’s interest. He would have got all that he contracted to purchase, and it would have been his own folly to make a bad bargain. This case does not strike me, however, as falling within the principle. Dellet did more than authorize Wil-' lisson to dispose of bis own interest — “ mj wife and myself will, at any moment, aid yon in the transferring all our title pnd interest,” is the language of the letter. What is this but a guaranty that his wife would join him in making a title to the purchaser \ Say that he has no power to compel his wife to join him in a conveyance, yet she may voluntarily, or on sufficient consideration, do'so. If one will undertake to do an act, not in its nature impossible — if he fails he is clearly bound to refund the consideration paid.</p> <p>There is, however, another ground on which I think the complainant must prevail. The authority given by Dellet to Willisson was merely to sell, and it is very clear that, under this power, he was not authorized to covenant that Dellet and wife should make a conveyance with a covenant of warranty, In Gibson vs. Colt, (7 Johnson’s Rep. 390,) the owners of a ship authorized the master to sell the ship as' they themselves might or could sell her. At the time of the sale, the master represented to the purchaser that she was a registered ship, when in fact she only sailed under a coasting license, and it was held that the owners were not answerable for this false representation, Nixon vs. Hysirott, (5 Johnson, 58,) is more distinctly in point. There, the agent’s authority was to grant, sell, release, &c., in fee, pertain lots of land, and to execute, seal and deliver, in the name of his principal, such conveyance and assurance in law to the purchaser, as should be needful and necessary, according to the judgment of the attorney; — and it was held that a conveyance or assurance was. good without the usual covenants of seisin or other personal covenants, and that the principal was not bound by such covenants. vs. Harrison, (3 Term Rep., 757,) is to the same’ point. Besides, here there is an express negation of the authority to warrant — “Harriet and myself will, at any moment, aid you in the transferring of all our right and title,” b\it think it will be proper to make no warranty.” This, it is said, is controlled by the general discretionary powers so amply given, but it is impossible to regard it otherwise than as an express limitation oí’those general powers.</p> <p>In this contract there is an express covenant by Willison, in behalf of himself and the complainants, to make good and sufficient titles, with a clause of warranty to be inserted therein. This covenant was not binding on Dellet, nor was Whit-ner bound to accept a title without the warranty. Whitner has proposed, in his answer, to accept the title without the warranty, and it may be said that Dellet is bound by the act of his agent, to the extent of his authority, although it may be void for the excess. This is correct as regards executed contracts. There, the principal would be bound to the extent of the authority given, and the agent, for any thing that may have exceeded it. But this is an executory contract, and wants one of the essential constituents of such a contract— the aggregatio mentum of the civilians. Dellet says, I will not warrant, and Whitner says, I must have a warranty. Del-let has never received any part of the purchase money, nor done any other act affirmatory of the contract. On the contrary, he was not advised of its existence until some two years after, and after the death of Willisson, when he promptly refused to perform it.</p> <p>The counsel have suggested the propriety of an order, founded on the complainants’ proposition to make titles on the •receipt of one half of the price at which the land was sold— but, turning that matter through my niind since the argument, I am satisfiéd that it is a subject over which the Court has no power. Mrs, Dellet is not bound even by this offer, and for that reason, the Court would not compel Whitner to accept it. In addition, he might think proper to abandon the contract entirely, and in that event such an order might embarrass him. The parties are left to arrange this matter as. they please.</p> <p>Out of the cash paid by Whitner, #1,000 was appropriated to pay Willisson’s liability on account of the compromise of the suit with Watkins. That ought to be borne equally, and the counsel for the complainants say that they are authorized, in their behalf, to admit their liability to Whitner for one half. The expenses incurred by Willisson, in the prosecution of the bill to redeem the mortgage and in defence of the action at the suit of Watkins, ought also to be borne equally by the complainants and Willisson; and it is said that there are other mutual accounts between them. No application for a reference of these matters to the commissioner has been made, and perhaps it would be irregular, as Willisson’s representatives are not before the Court; and it is only noticed to leave this branch of the case open for .future proceedings, if the par-lies shall think proper to move in it.</p> <p>It is therefore ordered and decreed, that the complainant do pay to the defendant, Benjamin F. Whitner, the sum of five hundred dollars, with interest from the twenty-fourth day of October, 1833; and that a writ of partition do issue to divide the lands described in the pleadings, equally, between the complainants and the defendant, W. W. Starke. The complainants must pay their own costs, and Whitner must pay the costs of the defendant, W. W. Starke, and his own.</p> <p>The defendants moved the Court of Appeals to reform the foregoing decree, in the particulars and upon the' grounds following :</p> <p>1st. Because no writ of partition should have been ordered.</p> <p>2d. Because the complainant, James Dellet, should have been ordered to execute titles for said land, and to cause titles to be also executed by his wife.</p> <p>3d. Because the authority given, by Dellet to Willisson, to sell the land, did not restrain him from covenanting for a clause of warranty.</p> <p>4th. Because the agreement between Willisson and Whittier does not bind Dellet to insert a clause of warranty. „</p> <p>5th. Because, even if Willisson was restrained, by the authority from Dellet, from covenanting for a clause of warranty, and even if Dellet was bound, by the agreement between Willisson and Whitner, to insert such a clause, yet, as defendants have paid about three-fouiths of the purchase money, and have taken and held possession of the land, and have waived such a clause, Dellet is bound to execute titles and to cause his wife to execute the same.</p> <p>6th. Because the complainants should have been ordered to pay the entire costs of the case.</p>

<p>Before Earle, J. at Laurens, Spring Term, 1840;</p> <p>Sum. Pro. The style of the process was, simply, “ the petition of Martin & Cornwell.” The parties plaintiff were proved to be Drury Martin and William Cornwell, partners in trade.</p> <p>Defendant moved for a non-suit, because the plaintiffs’s Christian names were not set out, nor their partnership suggested. The motion was overruled, and the defendant now renewed it before the court of appeals, as well ior the reason above stated, as because the record in this case would not protect him from a second action on the same demand.</p>

Before Earle, J. at Edgefield, January Term, 1840. This was an issue on the return of Matthew Gray, a gar-, nishee, in whose hands certain assets had been attached as. the effects of Winding, the absent debtor. Mr. Gray claimed property in them for himself and other creditors to whom they had been assigned before the levy of the attachment.

<p>The complainant stated in her bill, that being about to he married to Archibald Baird, articles of agreement were entered into between theui,4sy which it was stipulated, that in case she should survive him, and there should be no children of the marriage, she should be entitled to receive during her life an annuity of TOOL sterling, out of his estate; but in case there should be issue of the mar» riagc, the annuity should be restricted to 250Í. sterling, which restriction should' continue during the existence of a£iC^ *3s;ic» 3iJd 1J0 longer — -That the marriage took effect en the 20th October, 1773;- and her husband Archibald bail'd died in the year 1777, having previously duly executed; his last will, by'which ho bequeathed her several specific legacies, confirmed her marriage settlement, and devised his whole real-and persona! estate to.his son Wil-Ham A. Baird, (the-issue of the marriage,) and-in case of bi,s death under twenty-one years of age, and without issue, then he devised all his estate to her and her heirs.— ^1<3 bill further charges, that some years afterwards, being about to marry John Wilson, the defendant, he Srce-d to settle to her sole and separate use, all the rights and interests shediad under the settlement and will of her ih’st husband; and1 on the 8th of May, 1781, .he executed a> b°n(h by condition of which he engaged, (in case the said-marriage should take effect,) to convey to John Saunders and Thomas Merrett, their heirs, &c. as trustees, for the complainant, the said Winifred, all .the estate, interest and property, which the said John Wilson might acquire by the marriage, in the annuity and also-in all-such real estate or other rights, to which the said W„ Baird might be or become entitled to under the settlement, or under the will aforesaid: Upon trust to permit the said Winifred to receive the said, annuity to which she was entitled under the- settlement of her first husband; and to receive and take the rents and profits of the real estate she might acquire to her sole and seperate use, independent of her said husband, and not spbject to Jjis debts; and that he would execute proper deeds, to give full effect to the agreement — That in .part performance the same agreement, the said John Wilson, after the intended marriage took effect, executed another agreement, on the 2d June, 1781-, by which, (after reciting the said bond,) be conveyed to John-Saunders hnd Thomas Morrott, their executors, administrators, &c. all the estate, right, title, &e. which the said John Wilson had acquired by his marriage, ,»f, in, and to the said annuity, in .trust for the complain^ aht, to her sole and .separate use, free from the control of her husband, and not subject to his debts — That her son 'No A. Baird died some time in the year 1788, under age .and without issue, by which event she became entitled, 'arder the will of her first-husband A. Baird, to his whole estate — That on the death or absence of the executors of her first husband Mr. Baird, administration witlrthe wilj annexe d was granted to the defendant John -Wilson-— That tfccz'gii it appears on the face of the bond, and of the instrument executed by the said John Wilson, that only the real estate, and the annuity secured by her marriage settlement (with Mr. Baird) are actually settled, (by said Wilson,) yet it was the. intention of said J. Wilson to settle on complainant the personal, as well as the real estate, to which she might be entitled on the death of her son; hut the same was emitted through error — -That complainant being dissatisfied with the conduct of said John Wilson, and desirous that the estate which he acquired by marriage with her, should be vested in trustees, con-formably to the agreement of the parties, she applied to her said husband for that purpose; but he has refused to comply with his stipulations, and marriage agreements; has possessed himself of the whole real and personal estate, and threatens-to sell the negroes, apply the proceeds to his own use, and to quit the United States — .That independently of these threats, he cannot long" remain in this state, as he was banished from Pennsylvania, of which he was a native, for bis adherence to the British, and he still remains under the penalty of the laws of that state,. The bill preys that the said John'Wilson may be decreed to come to a fair account, to pay over to complainant the arrears of annuity, and to convey the whole real and personal estate to trustees for complainant: And that in the mean time he may be restrained from selling any part of the property of the estate of Baird, claimed by complainant.</p> <p>The defendant by his answer admits the complainant’s marriage with Mr. Baird,. — Baird’s settlement on her, — . h'is will and his death — He asserts that in the spring of 1781, he paid his .addresses to his present wife, who accepted of them — Denies that previous to, or at the marriage, he offered to make any settlement, or that she hinted a wish to that purpose — .They lived affection-atcly, till his duty called him to New York, in 1782 — . During that time they had a daughter, who is now alive, and at school at his expense — Ho admits the execution of the bond, and the assignment of the annuity; but he denies that they were executed on the 8th of May, when they bear date; on the contrary, lie positively asserts that they were executed at New York, about 28th August, 1782— That in consequence of letters from her, in which she represents, “ that the whole of the estate to which he was en - titled in her right, was under confiscation, and advertised for sale/’ and requesting he would send her the bond and antidato it, he signed the papers, which are set forth in the bill — That he had then the precaution to get from the trustees a defeazance to the bond, which mentions the occasion of its having been given — He asserts that the property was not within the reach of the confiscation act— That it was a trick in her to obtain a settlement — .That not having time or opportunity to enquire into the business, he took the defeazance — That she availed herself of ills unquestionable affection, at a time when she knew that there was nothing in his power which he would not have done to make her quiet and happy — That he knew at the time, that the bond would he of little service — He admits the death of young Baird, under age and without issue, in 1788; and claims the personal estate as devolving on him: —-He also claims the lands during life as tenant by the courtesy — Admits his having obtained letters of administration on A. Baird's estate — Denies having ever proposed or intended to settle the personal estate of A. Baird on the complainant — Asserts that the whole affair was a contrivance on her part to get every thing out of his power, that she might throw him off, and act as she pleased: Denies that he ever intended to sell the negroes, or to quit the country; on the contrary, he is taking measures to become a citizen of the United States.</p> <p>He then inserts extracts of her lottcrs to prove that the settlement was made after marriage, and at her it-quest, to avoid the confiscation or rather the effects of the acts of confiscation.</p> <p>Upon the answer coming in, the complainant's counsel moved for an injunction to restrain the defendant from selling or removing the property in dispute; and also to obtain a conveyance of the property to trustees subject to the final decree: And that the defendant should in the mean time account before the master for the neat proceeds of the crop, and pay over the same to Messrs. Norris and White, to be subject to the future order of the court.</p> <p>For the complainant it was insisted, that the act of confiscation took in all the light of the defendant to Baird’s estate — That the deed of trust was good against Wilson himself, notwithstanding the defeazance- — That the defeazance was fraudulent as to his wife; and was so against the state, the object of th-c deeds being to elude forfeiture — And that like deed meant to include real as well as personal estate; the one being of little value in this country without the other, — .presumption that both were intended to be included — That such charges as are made in the bill, and not answered, are to he taken pro confcsso — That his banishment from Pennsylvania was charged and not answered, and as an alien he had no right to administer, nor to an estate, by courtesy — That the. deed, though voluntary, was good against himself, though not against creditors or subsequent purchasers — -That no man shall avail himself of his own fraud — That the defeazance was a fraud 011 the complainant: But it could not avail defendant, for a de-feazance must he made or agreed to by the person inte» rested in the estate; this defeazance was neither agreed to nor signed by Mrs. Wilson, for whose benefit the deed was made — That the trustees, giving the defeazance, was a breach of trust, they having no power from Mrs. Wilson, the cestui que trust, to do so — That the circumstance of Mrs. Baird’s interest in Mr. ’Baird’,” estate being chiefly contingent, was of no importance, as soon as it vested the agreement to settle attached upon it: That the court will carry into execution an agreement to settle an estate;, though a mem possibility. The counsel cited Shepherd’s Touchstone, 237. 2 Bla. 317. 2 P. Wms. 467. Ventr. 417, and Cro. James, 270.</p> <p>For the defendant it was contended, that a person applying for an injunction, must first shew an actual or pro - bable riglit to the estate. Viner, title injunction, p. 426. 1 Harr. 193,594. Com. Digest, 153 — That this right has not been shewn by the complainant, for upon her marriage With defendant all her rights vested in him — That a bill praying for an injunction must be sworn to, by the positive provision of oiir law — .That this bill is not sworn to# which defendant had a right to require; nor could the complainant safely swear to it: But the answer is sworn to, and must be taken for true, and must have more weight — That an alien coming to this country, and marrying a person possessing real estate, and having issue by her, is entitled to the courtesy in the land. The counsel cited 1 Bla. 372. 2 Bla. 327, 342. 2 Bac. 375, 376. 2 Vesey, 627.</p> <p>The court on the 18th March, 1789, stated that it would not give any opinion on the merits of the case — that whether the bond could be supported, or whether it should be defeated by the defeazance, must remain to be decided when the whole merits should be gone into: But that there did. appear upon the face of the bond from Wilson, a right in the complainant, and that to give an opportunity to go into the whole merits, it was necessary to grant an injunction to prevent in the mean time-any disposition of the property. — The court therefore, made the following order: That an injunction do issue to restrain the defendant from selling, removing, or in any other manner disposing of any part of the estate in bill mentioned: And that he do account before the master for all the profits of the said estate, which have or may come into his hands, and deposit the same with the master, to he subject to the future order of this court; except so much as may be necessary for the maintenance of the said defendant, Mr, Wilson, his wife Mrs. Wilson, and their child, and the customary expenses of the plantation; until a final decree 3hall be made in this cause: And that it be referred to the master to report what will be a reasonable allowance for the maintenance of Mr. and Mrs. Wilson and the child.</p> <p>Afterwards various orders were made by the court; particularly some for the payment of money by defendant to complainant to suppoi’t her during the litigation, and for- enlargement of publication. Meanwhile a number of witnesses were examined. The complainant endeavoured to prove that Frazer, the British town-major, (who was a subscribing witness to one of the deeds, executed by John Wilson in favour of his wife,) had not left Charleston in the summer of 1782; and thus to discredit that part of the defendant’s answ-er, in which he states that the deeds were not executed at the time and place the bill charged, but long after the marriage, and in New York. Three witnesses of credit swore they were in Charleston, and did not know or believe that Frazer went from Charleston at all in the summer of 1782 — three others swore they understood and believed that he did go to New York in that summex*. John Saunders and Thomas Mex’-ritt, the persons named in the deed as trustees for Mrs. W. Wilson, veere examined for defendant, but without prejudice to the complainant’s right to object to the competency of the witnesses. Saunders swore, that being in New York, captain Wilson, some time in May or June, 1782, informed him, that he had received a letter from his wife in Carolina, in which she was apprehensive that the state (of South Carolina) would seize the estate of her late husband Baird, aud therefore requested him to make-it over to her, to secure it from confiscation: And he believes the bond and assignment were executed for that purpose only; and that they were executed at the same time and place, viz. New York or Long Island, in the summer of 1782 — That a defeazance was also executed there, and that the paper produced to the witness is the defeaz-ánce, and bears date the 28th July, 1782, and Frazer is not a witness to that — He did not recollect if more than o.no defeazance was executed; if there W'as, it must have been executed at the same time and place — -That the complainant Mrs, Wilson was not present at the execution of the bond or defeazance, nor does he know' whether she. ever consented to it — He did not understand that any of her former husband’s estate was to be settled on her. Thomas Merrett swore, that the defendant gave him the information stated by Saunders, at New York, in the summer of 1782 — That the bond, assignment and defeazance were executed at the same time — That Frazer, M‘Leod, Campbell and Gamble were all present — That the assignment was made to prevent confiscation, and the defeaz-.' anee to disclaim any right or title in the trustees to the estate- — That he was the confidential friend' of Wilson,— Mrs. Wilson was then in Carolina — Thinks there were other defeazances at same time — There was no intention of making a real settlement. Two other witnesses, Hardy and Gamble, were also examined.</p> <p>At tire sitting of the court, on the 18th July, 1791, present chancellors Hutson and Mathews, Mr. Pringle moved, that the testimony of Hardy, Gamble, Merrett and Saunders, witnesses who had been examined in this case, should not bo read in the cause. This question was argued by Messrs. Pringle, Holmes and Pinckney for com- ■ plainant, and by Messrs. Desaussure, Parker and Read for defendant.</p> <p>For the complainant it was contended, that the evidence of Saunders and Merrett cannot be received, because they are trustees; and that of Hardy and Gamble cannot be received, because it is only hearsay, as to the intentions of the parties; the trustees ought to have been complainants with Mrs. Wilson to support the deeds, and not witnesses to defeat them. Confidential persons cannot be coerced to give evidence to betray the confidence reposed in them, such is the case of counsel, Raym. 733. 1 Domat. 429. Trustees are admitted to benefit the cestui qiic trust, not to injure him. 1 P. Wins. 290. 2 Vesey, 296. The bill charges a fraud, — the witnesses are not produced to prove the fraud, but to defeat the whole deed, which is not meant by the case in 2 Atk. 229 and 243. In the case ' under consideration, if the deeds are- set aside, the trustees run no l'isk of a suit for breach of trust and damages: They are therefore interested in defeating the deed. The deed imports to be in consideration of love and affection; but the defendant wants by parol evidence to prove, that it was to elude a forfeiture, which is a consideration different from that expressed in the deed. This would he contrary to the statute of frauds, which is a remedial law. Where parol evidence has been admitted, it is where it is consistent with the deed, used only to rebut a resulting trust, which is not comprehended within the statute of frauds. 1 P. Wms. 118. An agreement in part, executed, takes a. case out of the statute of frauds. Mrs. Wilson, by her letter to her husband, requested only the the settlement of her annuity, hut he settled also the real estate: This was voluntary on his part, and valid against him: for at all events, she used no fraudulent means to obtain that. The cases have decided, that trustees joining-to destroy a remainder, it is a breach of trust. Executors arc not allowed to be witnesses, because liable to pay-costs. This is the case of trustees, who are also liable to suits for breaches of -trust. The mile is, that parol evidence may explain but never contradict a deed. The trustees were not set up for the benefit of Mr. Wilson, but of Mrs. Wilson. There are three defeazances in this case, — some hear different dates, — in others there are erazures — no confidence can be placed in them. A man cannot aver any thing against his own deed; consequently he cannot produce evidence for that purpose. 2 Bla. 295. Plowden, 434. 1 Rep. 176. 8 Rep. 158. Fraudulent deeds 'are good against the parties themselves. A defeazance supposes the deed properly executed — but a defeazance repugnant to the deed is void. Co. Litt. 236, 7. Wood’s Conveyancing, 46, 321, 645, 785. There is no condition in the defeazance, which is essential to a defeazance. A fraud was intended against the state, — but Mr. Wilson is not the person to take advantage of it. It is true, that on a suggestion of fraud, parol evidence may be admitted; hut the admission of it depends upon circumstances: In admitting parol evidence here, it would to be sure go to prove a fraud in the first instance; hut it would also prove another fraud, and that by themselves as trustees. lit matters of account both parties are actors, as if there had been cross hills. 1 Atk. 410. The highest evidence that can be produced, ought to be had; the defeazance would he the highest evidence, and whilst that is tó he had, the' parol evidence is inadmissible. Wilson in all probability knew that he was included in the confiscation law — That act was passed in February, 1/82 — A commissioner of. forfeited estates visited the plantation early in 1/82,— • Wilson remained in Charleston till May, 1/82: Yet Wilson says in his answei’, he knew the «state was not a subject of confiscation — Defeazance bears a different date from the bond, — the subscribing witnesses to the bond are not produced, — others are brought to prove what they ought to have done; this is contrary to every rule of evidence. Wilson says it was a good-natured act of his to let her have her jointure: If he had the defeazance then, how had he given her the jointure? If he had the defeazance originally, why ask her (as he did in his letteTs) to raise money on the jointure for him? He admitted himself an alien in his supplementary answer. If a man is under attainder, and an estate accrues to his wife, she shall bo considered .a feme sole as to such estate. 3 P. Wms. 37. The cases relative, to trustees may all be reconciled on this principle, that trustees, having no interest, have been admitted to support the trust, but never to betray it. Buller, 284. 1 Raym. 733. Trustees liable for breach of trust. 1 Atk. 24S. The assignee of a trustee must he a party to the suit, as the decree must first be against him, and the original trustee to stand as a security. 2 Bro. ch. cas. Burt vs. Denhurst. Cestui que trust entitled to have the benefit of the privileges of the trustee in this court. 1 Atk. 450. Parol evidence, even to rebut an equity, is admitted now with caution, even in articles of agreement; and not at all in solemn deeds. 1 Bro. 92, Never to explain away the intent of a deed. 2 Bla. Rep. 1249. Evidence of testator’s intent never admitted. 1 Bro. ch. cas. 84. 7 Bro. P. C. 18.</p> <p>For the defendant it was argued, that the trustee may . . be a witness against the trust 2- Inals per ¡ñus, 388— The bond and defeazance are one entire deed, and ought to be taken together — The trustees hare .been cross examined, which admits their testimony. The legal estates were in Wilson when he executed the deeds — He could therefore annex what conditions he pleased- — the defeazance is entitled to its effect, as well as the deed. Defendant offers to settle 2501. per annum on the complainant, or he will take home a disobedient wife. Wilson is administrator of Baird with the will annexed — 'lie had the possession: Wilson is called upon to answer if the bond, and the deed confirming it, were not duly executed, and when, and upon what consideration — He answers that they were executed together wdth the defeazance, all at the same time; not when they bear date, but at a subsequent day-— antedated, and for thepurpose of eluding confiscation. This was the object pointed out by the wife, and ho accedes to it. The trustees are called in to support his answer in all this, though that stands on oath, uncontradicted; for her bill is not sworn to. They are competent to state the real truth of the facts — They have not done any act in breach of trust — They have neither sold nor wasted the trust estate: IIow can the disclosure of the truth, amount to a breach of trust? They state the object of the deeds, and that the defeazance accompanied the deed, to give effect to the real object; which was not to make a real settlement, but to elude a forfeiture: If that was wrong, she shared in the blame, as she suggested the pía» — and she is now complainant; and she is not more entitled to the protection of the court than defendant.</p> <p>For defendant were cited the following cases, 2 Atk. 288, 9, Man vs. Ward, where lord Hardwicke expressly lays it down, that though in general the rules of evidence are the same in equity as at law, the court of equity will admit trustees to be sworn, (though not admitted at law,) in order to come at fraud, or to know the true and real intention of a trust, or use, declared under* deeds. Also, 1 Vesey, 61, 2. 2 Vesey, 446. 2 Atk. 98, 9, 283, 524. 1 Vesey, 323. 2 Atk. 254. 3 Atk. 388. 1 Bro. C. C. 599. Cowper’s Rep. 340. 1 P. Wins. 300. 2 Atk. 40. 2 Vesey, 629. 17 Viner, Pl. 8. 2 Bla. 327. Cro. James, 469.</p>

<p>Before O’Neall, J. at Darlington, Spring Term, 1840.</p> <p>Indictment for unlawfully retailing spirituous liquors. The facts were admitted, that defendant had retailed spirits in quantities less than three gallons; but that he was a tavern keeper, and had a license as such. The court thought that, as a tavern keeper, he might furnish his guests with drink, as a part of their entertainment, and make his charge large enough to cover it; but that he could not sell spirits, as a separate business, even to his lodgers and guests. The jury, under these instructions, found the defendant guilty.</p> <p>The defendant moved the court of appeals for a new trial, on the ground of error in the charge of the presiding judge.</p>

<p>Summary Process. Sumter, Spring Term, 1840.”</p> <p>“ The defendant obtained a license to keep a tavern. The commissioners, supposing they were entitled to demand $50 for such license, as including a license to retail, have brought this process to recover it.</p> <p>“ I have given the subject as deliberate a consideration as my situation will permit; and, notwithstanding the great respect which I have for the legal judgment of those who entertain the opinion that a license to keep a tavern includes a license to retail, I am constrained to say, that I regard the tavern license and the license to retail, as two distinct things.</p> <p>“ The oldest law to which I have had reference, is that of 5 and 6 Ed. 6, c. 25, (App. P. L. 24,) which, as its title purports, was “ for keepers of ale houses and tippling houses to be bound by recognizance.” After reciting the grievance, (which, unfortunately, still exists,) that “ intolerable hurts and troubles to the commonwealth of this realm doth daily grow and increase through such abuses and disorders as are had and used in common ale houses and other houses called tippling houses,” this law enacted that the justices of the peace shall have “ full power and authority to remove, discharge and put away common selling of ale and beer in the said common ale houses and tippling houses, when they shall think meet and convenient.” It then provides that no one shall be allowed to keep such houses except such as shall be admitted in the sessions, or by two justices of the peace, whereof one shall be of the quorum, who are directed to take bond and security by recognizance, against gaming, and for the maintainance of good order. This Act, passed by the British Parliament in 1522, is the fountain from which is derived the power of the commissioners of roads to grant licenses to retail. It may be remarked that its provisions are wholly applicable to ale houses and tippling houses; which are but other names iof our retail shops, now commonly called groggeries. Nothing is said about a tavern* In this Act, too, it will be remarked that the justices have, explicitly, the power to remove, discharge and put away the common selling of ále and beer ih the said common ale houses, when they shall think meet and convenient. This power, on examining the subsequent legislation, extended to every species of retailing, appears to be continued to the commissioners of roads.</p> <p>“ The stat. 1 J. I, c. 9, (App* P. L. 25,) to restrain “ the inordinate haunting and tippling in inns, ale houses and other victualling houses,” makes no mention of, or provision for, tippling houses, provided for in 5 and 6 Ed. 6, c. 25. The recitation of the preamble of that statute gives the true notion of the places which it purports to regulate, and shews that retailing does not appropriately belong to them. It states that “ the ancient, true and principal use of inns, ale houses and victualling houses, was for the receit, relief, and lodging of wayfaring people, travelling from place to place, and for such supply of such people as are not able to buy greater quantities, to make their provision of victuals, and not meant for entertainment and harbouring of lewd and idle people, to spend and to consume their money and time in lewd and drunken manner” The latter clause of the recitation, denying that ale houses and victualling houses were intended to be devoted to drunken purposes, is a most graphic description of the proper use of a retail shop at the present day.</p> <p>“ The stat 4 J. 1, c. 5, (1 App. P. L. 25,) “for repressing the odious and loathsome sin of drunkenness” relates to inns, victualling houses, or ale houses. The same may be remarked of stat. 2 J. 1, c. 7, and stat. I C. 1, c. 4. These statutes clearly shew that an inn, which is now commonly called a tavern, was, in the understanding of our ancient. lawgivers, a very different thing from a modern retail,shop.</p> <p>“ The Act of 1784, (P. L. 340,) empowered (outside of St Philip’s and St. Michael’s,) any two or more magistrates, for the respective districts of the State, to grant certificates to any person or persons who may apply for the same, if in their judgment they shall think such person or persons “fit and qualified to keep a tavern, inn, ordinary, punch, ale house or billiard table, or to retail strong liquors.” A certificate for one of the different establishments here described, would not, ex vi termini, include another. . For example ; a certificate to keep a tavern would not authorize the keeping of a billiard table. I should think, on the plain words of the Act, that a certificate to keep a tavern would not authorize the retailing of strong liquors; for this last is separated from the former, not only by one, but by two disjunctive conjunctions, shewing that it was not regarded as identical with any of the other matters provided for. It is true, the same sum was to be paid for each ; but, surely, the legislature were competent to make a distinction in this behalf whenever afterwards they thought proper so to do.</p> <p>“ The county court Act of 1785, (P. L. 384,) gave to the justices of the county court the power to hear “in open court all applications for licenses to keep taverns, or public houses, within their respective counties, and to reject such application, or grant such license, for one year, as to- them shall seem meet” In this Act, the use of the word 1 public houses’ might give great plausibility to the idea that a tavern license was a license to retail, were it not for the Act of 1788, (P, L. 454,) which shews that it was not supposed that the county courts had, by the Act of ’85, power to grant licenses to retail. It is therein provided, that the “authority and superintendence of the county courts over taverns and tavern keepers, shall extend to all persons who shall retail, within the jurisdiction of any county court, any wine, brandy, rum, gin, beer, cider, punch, or other spirituous liquors or strong drink, in quantities less than three gallons.” That Act probably made a tavern license equivalent to a license to retailbut it shews, nevertheless, that they had, before, been distinct. The Act of 1791, (1 Faust, 50,) however, again separated them; for it provided that the county courts should have power to grant licenses for retailing of spirituous liquors or keeping of taverns.”</p> <p>“ The Act of 1799, (2 Faust, 325,) standing by itself, might shew that a tavern license would include a retailer’s license; for it gives the commissioners of roads “ full power and authority to order licenses to be granted to proper persons to keep taverns and retail spirituous liquors.” But this Act, when read in connection with the Act of 17.91, must, notwithstanding the loose wording of it, be held to mean no more than that the commissioners of roads should have the power, heretofore belonging to the county courts, of granting licenses to tavern keepers, and to retailers.</p> <p>“ The Act of 1825, (p. 57,) which was a collection of all the laws in relation to the powers and duties of the commissioners of roads, of force in the State, and a re-enactment of the same, provided that “ the sole and exclusive power of granting licenses to retailers of spirituous liquors, tavern keepers, and keepers of billiard tables, shall be, and the same is hereby, vested in the commissioners of roads.” In this Act, it is plain that three classes to be licensed are contemplated; 1st. retailers, 2d. tavern keepers, and, 3d. keepers of billiard tables. It is plain that a license for one would not be a license for all these pursuits.</p> <p>“The Act of 1835, (p. 75,) has entirely separated retailing from the keeping of a tavern; for it is, by it, made a subject of distinct legislation, and the retailer is subjected, by name, to restrictions and conditions which do not apply to tavern keepers. The price of a license to retail spirituous liquors is fixed at $5U ; but no provision is made for a tavern keeper’s license to be changed, either in its nature, or in the price to be paid for it. It must therefore, stand as it did before.</p> <p>“ The decree must be for the defendant.”</p>

Before Butler, J: at Columbia, March Extra Term, 1840: Action on a joint and several note made by the defendant and his wife. The writ was against both; the declaration, against the husband aloné. Defendant moved for a nOü'-suit, which was overruled; and plaintiff took judgment against the husband.

<p>Before Richardson, J. at Lancaster.</p> <p>A justice of the peace had issued a writ of capias ad satis-faciendum, on a judgment awarded by himself; and the judge below granted a prohibition to restrain the execution. The plaintiff moved the court of appeals to reverse that decision.</p>

Before Earle, J. at Laurens, Spring Term, 1840. Action on the case for obstructing a private way. Plea, not guilty. The plaintiff had had a verdict against the defendant in a previous action, for the same obstruction, with five dollars damages; and, in a second action, had taken a similar verdict by consent.

<p>CASE LXIN.</p> <p>n‘B' p‘ °'J'“</p> <p>DECBEE 15Q0IX P- 37-</p> <p>Quesüo'n <v. sbluary ^¡J80 £ com.trucfiou efiHA to all ‘e</p> <p>BECKEX 11002T. p. Oía</p> <p>a. b. p. 311.</p>

Before O’Ñeall, J. at Camden, Spring Term, Í840. In this case, the defendant had applied for the benefit of the insolvent debtor’s Act.

(This case was omitted bu accident in its proper place.) The complainants by their bill charge, that Thomas Lynch, of the state of South Carolina, being seized and possessed of a considerable real a.nd personal estate, did ^7 his will, dated tlie eleventh day of May, 1779, direct that in case he should have no child, all his estate, both real and personal, should be sold by his executors, or a limjor^7 them, and the money arising therefrom be disposed of one-third to his…

<p>CASE xxsr.</p> <p>n' “• P-</p> <p>Exccutor ad-ney, and be-for sundry debts — the iupoFent — ~ the executor deductVOIthc amount for Hable for the legatee, shall be com-fhe le ac^to ihe afminis-ratee- 0Íand the executor Me dying,hL" co-executor ftr^hebene-t-tte*llÍS £S'</p> <p>Decree.</p>

Before Earle, J. at Laurens, Bpring Term, 1840. Trespass vi et armis, for taking certain household chattels, &c. The taking, in September, 1838, was proved, and a subsequent sale by the defendant, to the amount of about $150. On the general issue, the defendant was permitted by the plaintiff to justify. He relied on a distress warrant issued by one Kingman on the 26th April, 1838, for $110, claimed as rent for 1837.

<p>The complainant’s bill is filed to compel the defend - an^ 4 specific performance of a contract in writing for the sale of a tract of land on Santee to the complainant, Tlie bill sets foi'th that the complainant being desirous °*' Gaining a body of land to plant, he applied to Mr. Ogilvie the defendant for a lease of his lands on Santee. j„ the conversation held with him by the complainant . ^ * Clitherall, Mr. Ogilvie discovered an inclination to sell ^ie land, which ho valued at 35001. sterling. Afterwards and on the 4th September, 1789, complainant Clithcrall on behalf of himself and Mr. Deas offered to become the' purchasers, at the price he had mentioned, payable in four years, by annual instalments. Mr. Ogilvie said as ^ was a ma^cr importance he would consult his friends» On the 12th September, the complainant Clitherall wrote †0 Ogilvie, and enquired if lie would complete the contract. Mr. Ogilvie immediately Called on complain-aiv^ auci brought a plat of the land, and asked complainant if he would give 40001. for it, to which he answered he would not. He then asked for complainant’s proposals in writing which were given to him, and he went away. A few days after they met in the street, and agreed to proceed to Mr. Deas’s; on their way Mr. Ogilvie delivered the complainant Clithcrall, a letter, in answer to the propositions which he had received. On perusing the letter (a copy of which is filed) the complainant observed that .the sum of 40001. was to bo paid in specie; but agreed to pay 3500?. in London, with the interest of seven per cent, When they arrived at Mr. Dcas’s some discussion took place, and the parties drew up a written agreement, which was satisfactory, by which the complainant agreed to pay 3500?. by four equal annual instalments, with interest at seven per cent, the whole payable in England, to Mr. Ogilvie for his half of Aclicsou’s Island on Santee describing the same: he on his part agreeing to convey the said lands to the said Clitherall and Deas. At the same time a memorandum was drawn up of the deed of conveyance, bonds and mortgage proper to be prepared for execution, and the same was left with the privity and assent of Mr. Ogilvie with Mr. Henry Deas, (then a student of law) to draw the papers; the said J. A. Ogilvie saying there was no particular lawyer whom he wished to draw them. It was noted that Mr. Bee was to join in the titles as trustee. The papers were accordingly drawn,, and on the 17th September, the complainant Clitherall called on Mr. Ogilvie with them. He took them, in order (as he said) to have them examined by his lawyer; and appointed said Clitherall to. call on him the next morning. He accordingly did so, and found. that Mr. Ogilvie had gone out; but he wrote him a note the same day saying he woidd call on him the following Monday. He accordingly did so, accompanied by a friend, and they had a conversation the result of which was that Mi-; Ogilvie declined to complete the bargain by executing titles to. the complainant — complainant has since understood that Mi*. Ogilvie employed counsel, as early as the 17th September, in order to evade the said agreement, under pre-tence that he was unwarily drawn into the agreement, by artifices used by complainant, — and that the price was greatly inadequate; and that he had no right to sell the land, the legal title being in a trustee — though complainant alleges that the business was conducted with great openness and fairness on his.part, and with great apparent deliberation on the part of the defendant, who asked and obtained time to consult his friends, before he entered into the said agreement. The complainant charges that the true intent of the said parties was that the said Ogil-vie should convey said land in fee simple to complainant for the said price. The complainant insists that if the inadequacy of price were ever so great, (which however he denies) yet being attended with no fraud or deception, it ought not to vitiate so solemn and deliberate an agreement entered into by a person of competent years — and the complainant disavows any endeavours to depreciate the land, or to keep Mr. Ogilvie from the knowledge of the real value thereof — and though Mr. Deas did request Mr. Ogilvie to keep the sale a secret from Dr. Lynah, it was solely with a view that the surrender of his lease might be more easily obtained by Mr. Ogilvie, to whom he had once offered it — and this request was made after the agreement was signed.</p> <p>The bill prayed that the defendant or such other person as may have the, same, may bring into court the defendant’s mother’s marriage settlement, and all other deeds relative to his right or title to the said land, which are or may be in his power; and that ho may be compelled to make a specific performance of his said contract and agreement, according to the true intent and meaning thereof, and to execute proper deeds for conveying the same to the complainant; and that the complainant may have possession of the said estate and premises as soon as the said lease to Dr, Lynah shall be surrendered or ex-pirnl, and that the complainant may have such further relief as he is entitled to.</p> <p>The defendant John A. Ogilvie in Ms answer, states, that his mother inherited together with other estates a large body of lands on Acheson’s Island in Santee; — and on the intermarriage of his mother with his father, the said estates were settled on them, with limitations .over to their issue. That after the death of his mother in the year 1785, the defendant's father sent Mm from England to this country, and appointed Mr. Bee, and two other gentlemen his guardian,». These guardians (having a power ¡also from defendant’s brother Challes) leased, to Dr. Ly-sah on the 19th May, 1787, four hundred acres of their half of said Island, for five years, commencing on the 1st January, 1788.</p> <p>That the defendant arrived at the age of twenty-one years, some time in the year 1789, and he assumed the management of his property; soon after which to wit, in September, 1789, Dr. Clitherall, and the late J. Deas, jun. called on him, and requested a lease of the land on Acheson’s Island. He answered that he could not, as it was already leased. They then asked him if he ivoisld sell the land, and what he considered the value; to which he answered that he could not, as he owned only half (his brother owning the other moiety) and that it had never been divided — that he had never seen the lands, and did not know the value of them; except from the opinion of his father, who considered them worth 3500k; but that his cousin Mr. Ogilvic, he believed knew its value, and he would write to him on the subject if they wished to know it: To which one of the parties answered that would not answer their purpose as they wanted lands immediately. They then parted; but within three days after the complainant Dr. Clitherall, returned to the defendant, and said that he with Mr. Deas would give him 3500k for the purchase of the said land; to be paid by them in four equal annual instalments, and the payments to be secured by mortgage; but a stranger coming in put an end to the conversation. On the same day the defendant asked Mr. James Gairdncr, who lived in the same house with him, what he thought of the offer. He answered that he did not know the value of the land and advised him to write to his cousin on the subject. On the 12th September, the defendant received a letter from Dr. Clith-erall requesting to know if he really would sell the land. The defendant immediately called on Dr. Clitherall at Ills house; and requested him to put his proposition in writing which he accordingly did. Defendant asked Dx-. Clitherall if he would give 4000k for the land but he x*e-fused it. Defendant took home the px'oposals to reflect, and to consult his friends. He did consult Mr. Bee his former guardian, who finding that the defendant’s father bad estimated the value of the land (in 1785) at 35001. advised the defendant to accept that price; and agreed (as the defendant then understood him) that he would join in ^iC sa*c ^ie as the attorney of the defendant’s brother Charles. Under the influence of these circumstances, the defendant says he determined to sell the lands; and wrote to Dr. Clitherail to that effect, as stated in the bill. That meeting the Doctor in the street, he informed him of his determination, and they proceeded to Mr. Deas’s, where he entered into the contract for the sale of the land, containing 1,538 acres of swamp and marsh land, and defendant bound himself in a penalty of 35001. to make titles to the land — The other parties were not bound by any penalty. The complainant did ask the defendant if he had any desire that any particular gentleman of the bar should draw the papers and title deeds; but Mr. Deas expressing a wish that his brother might draw them, the defendant acquiesced. The contract was drawn up, and the memorandum stated in the bill, was left with Mr. Henry Deas to draw the conveyances, mortgage, &c. On the following Friday, Dr. Clitherail called on the defendant with the titles, and requested that they might be then executed; but the defendant objected to the immediate execution as he wished them examined by a gentleman of the bar. The Doctor endeavoured to remove the objection by assuring him that they had been already examined by a gentleman of the profession; — but finding that the defendant persisted he left the papers. Early the next day an intimate friend of defendant called on him and enquired of Mm if he had sold Acheson’s Island to complainant, and at what price. Defendant disclosed to him all that had passed. His friend then told him that the land consisting of 600 acres of prime tide land, was worth three times as much as the price offered for it, and that defendant had no right to sell more than his own moiety. But defendant informed Mm that Mr. Bee was to join in the titles; — on examining the conveyances brought by Dr. Clitherail, it was found that Mr. Bee’s name was not inserted in them. Reflecting on these things, the defendant resolved not to proceed till lie bad made further enquiries; and he wrote to Dr. Clitlic-rall that he would call on him on Monday. In the mean time he set on foot enquiries by which he learnt that the land was worth at least 15,0001. — .and knowing that his title alone would not be a good one for all the land, and conceiving that Mr. Bee when he learnt the real value of the land would not execute the titles, and believing that the complainant would not endeavor to bind him to a contract founded entirely in mistake, he went with a friend to Dr. Clitherall and Mr. Deas, and he explained to them how he had acted in ignorance, and pressed to be released from his contract: — But finding that they insisted on his executing the titles, he withdrew.</p> <p>The defendant denies that he had any idea of selling the land until the offer was made to him by the complainant — That he consulted no friend at first but Mr. Gar-diner, who accidentally lived in the house with him, and who was quite ignorant of the land as above stated; and he afterwards consulted no other person but Mr. Bee. The defendant admits that counsel were retained for him on Friday, with a view to get rid of the agreement, hut it was done by a friend without the defendant’s knowledge. The defendant, did state to complainant, that Mr. Bee would join him in the execution of the conveyances, and it was expressly agreed between them that Mr. Bee was to be a party to the titles, as the trustee of Charles Ogil-vie; yet Mr. Bee’s name was omitted in the deeds prepared under the complainant’s directions. That the complainant Dr. Clitherall some days before the signing, and Mr. Deas at the time of signing the agreement, requested defendant not to mention any tiling of the matter to Dr. Lynah; which the defendant promised, — and he kept his word. The defendant claims the land under his mother’s marriage settlement; and he does not know of any other papers relative to said land. Defendant prays to be released from his said contract, ahd that the complainant’s hill may be dismissed;</p> <p>The cause came to a hearing, and it was fully proved that the land was worth more than three times the stipulated price.</p> <p>For the complainant it was insisted that this was u. £.u-r conft.ac^ The defendant was of full age and compt-tent to act. There was no surprize, no circumvention, no importunity, no unfairness of any kind; and there is no case where the court has gone so far, as to refuse to carry the contract into execution, on the ground of inadequacy of price alone. See 2 Powell, p. 1. This court is not the guardian to watch over and control the contracts of adults. Nor does this court possess an arbitrary discretion to set aside, or to refuse to enforce contracts; there must be strong and reasonable grounds. See 3 Atk. 187. If an agreement is certain and fair, this court will enforce it. See 1 Powell, 139. 2 Powell, 263. 2 Atk. 587. 2 P. Wms. 191. 3 P. Wms. 290. Bacon, Title Trust.</p> <p>For the defendant it was argued that Mr. Bee was to have been a party to the deeds according to the agreement; hut in the deeds prepared by complainant his name was not mentioned. See 1 Eq. Cas. abr. 16, 17. 3 Atk. 386. 2 Atk. 18, Talbot’s Cases, 236. It is discretionary witli this court to enforce the execution of agreements or not. Where the consideration is grossly inadequate the court will not enforce agreement. 1. Vesey, 279. In this case the price agreed to bo given was three or four times less than the value of the land. There is a distinction between contracts executed and executory. 1 Levins. Mosely, 364. 2 Vesey, 17, 566. 3 P. Wms, 129. The penalty was all on one side. The complainant was not bound by any penalty. The estate in question was a trust estate; the legal title was in the trustees of the marriage settlement; consequently Mr. Ogilvie’s titles would not have been good. 1 P. Wms. 121, 496. To induce the court to carry an agreement into execution, it must be fair, certain and just in all its parts. 3 Atk. 386. Watching for an heir as soon as he comes of age, to get a bargain out of him, is a catching bargain and will he discountenanced by the court. See Pope & Roots. 7 Bro. P. C, 148. 1 P. Wms. 277. 2 Powell on Contracts, 36, 77, 8, 9. Young lieirs even when of age, are under the care and protection of the court. 1 P. Wms. 310, 318. 3 P. Wms. 131. See 2 Eq. Cas. abr. 18. It is the constant rule of the court not to enforce hard'bargains, hut to leave the party to his remedy at law. 2 Atk. 134. This was a hard bargain obtained by an experienced man, from a young man just of age, ignorant of the value of the estate, and rather too much urged. It would he against conscience to compel the defendant to take 3500l. for property worth more than 10,000Z. — After briefly stating the case, the court delivered the following decree;</p>

<p>Before O’Neall, J. at Darlington, Spring Term, 1840.</p> <p>Trespass quare clausum fregit. The close was, originally, the property of one Stephenson. As such, it was sold, by the sheriff of Darlington, Richard Ingram, to John Ingram: by John, it was conveyed to Bryant Ingram;, by him, to Richard Ingram, and, by him, to Pleasant R. Gee, who sold to the defendant, Muldrow, executed a bond for titles, and died. The heirs oí Gee, for Muldrow, brought suit (by a previous action, Gee vs. Jones, Ricé R. 64,) against this plaintiff, Jones, and his son, James, for the recovery of the land, Jones’s defence was, that he was in possession under Stephenson, and that the sheriff’s sale was fraudulent; blit it was proved by the plaintiffs in that case, that Jones had gone into possession as the tenant of Richard Ingram. Jones was ejected by a writ of habere facias possessionem, and Muldrow was put in possession.</p> <p>About a year afterwards, while Muldrow’s tenant was removing from the land, Jones entered and retained possession under Stephenson.</p> <p>The defendants now contended that the plaintiff was concluded by the former recovery, and could not set up Stephenson’s title. But the court thought that Stephenson’s title had not been legally in issue on that trial; for Jones had been estopped, by his tenancy to Ingram, from relying on it.</p>

<p>Law of Navigable Rivers considered.</p> <p>Quere, whether the Catawba, in Chester district, is a navigable river.</p> <p>Quere, whether an unnavigable channel, severed by an island from the main stream of a navigable river, be subject to grant.</p> <p>Occupation of a spot for (we or six weeks annually, as a fishing place, is not possession sufficient fot the statute of limitations.</p> <p>Defendant, in trespass for a fishery, under the plea of liberum tenemenlwm shewed a title in common with G.: but plaintiff provedan elder title. G’s. testimony was then offered to prove defendant’s right by prescription to fish — objected to for interest, as tenant in common, but held competent.</p>

<p>CASE 1XXI1I,</p> <p>R. B. 324, 7.</p> <p>BEO“E5|°OK'</p> <p>, wm 0 order! j®^o" 0f the wife, on anew acfortune; tho*1 opposed by the creditors of the hus-^re1 hi danger of not</p> <p>Decree,</p>

<p>The District Election Act of 1815 is not absolutely repealed by that of 1839, and was the proper law to 'govern an election held, after the passage df the netv Act, to fill a vacancy which had occUred before it.</p> <p>Minute irregularities, not affecting the fairness of an election, will not invalidate it.</p> <p>A clerk of court appointed to fill a vacancy by death, resignation, &c., holds only till the expiration of the term of the original incumbent.</p> <p>The da'y prescribed, by the Act of 1839, for the managers to meet and declare the election, iá misprinted’in the published Acts, Monday. It should be Wednesday.</p>

<p>CASE 1XXIV.</p> <p>n. 11.310,346.</p> <p>DEC^^”OOK*</p> <p>a^rson and issue living then^a^liiS* tation over to ^n1 the llmi' tation over is g0üd*</p>

Before Evans, J. at Greenville, Fall Term, 1838. This was an action of trespass to try title. Plaintiff traced his title through a deed from Robert Cochran, Marshall of the United States, for the District of South Carolina. , This deed was without any subscribing witness, and the only proof of it offered was evidence to the hand writing of Cochrane Therd had been no possession under it.

<p>«¡ASE SXSV.</p> <p>BEGKEE HOOK. p. 58.</p> <p>Payment to a creditors wife is void but may be made good by the husband’s confirmation.</p> <p>v</p>

This case was briefly as follows: — G. Howell, a merchant of London, fitted out the brig Favorite, placed a cargo on board, and put Capt. John Mflver in command of her, with instructions to pursue a particular voyage, Capt. M‘Iver accordingly went to Madeira, where he obtained a cargo of wine from certain merchants — He delivered them portions of his outward cargo in part payment for the wines, and bills were drawn on Howell for the balances.

<p>The term of office of Ordinaries, is subject to be limited by Act of the Legislature, and is now limited, by A. A. 1833, to four years.</p>

<p>CA3E 1.XXY1I,</p> <p>dechee hook, P- 6S-</p> <p>a person a-laud for ¡mo-jjpjgaie^htil be bound and hold intrust though he ties inC his the statute of bauds mban had tender-h?™hfch']"e charged his th™damount of the pur-cllascm0I'-°>-</p> <p>decree.</p> <p>JULY, 1792.</p>

<p>CASE LXXVIII.</p> <p>bechee book. p. 87.</p> <p>Demurrer tortoabMfi" led fbranac-e-tSebyiie gatee (whose legacy was not yet due) was overruled. The court said that on a charge of wasting the asset?! this w’d. require anac-count and oblige executor to secure the legacy.</p>

<p>CASE EXXIX.</p> <p>Executor’s estate made liable for the value of the estate of testator sold by him without authority — & also made liable for the securities which might prove defective.</p> <p>DECREE.</p>

<p>CASE LXXX,</p> <p>n. e. 330,341.</p> <p>LECHEE BOOK, p. 91,</p> <p>The act for recording marriage settlements is so obscurely worded "that the court would not enlarge its application but restricted it to the very terms used in the law, and pronounced that part of the act was unintelligible. and inop. erivtive,</p>

This was a bill filed by the complainant to compel the specific performance of a contract whereby defendant agreed to purchase two houses in Charleston from the complainant at a valuation.

<p>«ase assesnr.</p> <p>BEbE.EE BOOK, P. 109.</p> <p>A father he. qu.eaths legacies to tl'.s children of a deceasedsonr This shall not be con-r.trued to be in salis&c* tion of a debt due by tin; father to the son’s estate,</p>

<p>Theco e l;';: ants’ bill --'ated that Abraham Livings- , . . ion, together with Stacey Hepburn, now deceased, and J. Dorsius, were jointly bound unto complainants’ testator* Thomas Shubrick, by their two several bonds, bearing date the 30th July 1779, in the penal sum of 29,000?. of the then currency, conditioned for the payment of 145,000k. like money, on the first day of January 1780, with in-Merest from the date. That before the said bonds became payable, to wit, in August 1779, their testator died, having first duly executed his will, whereof he appointed the complainants’ executors, who qualified on the said will. That Stacey Hepburn died some years since in the state of Pennsylvania or New-York insolvent; and that the said Abraham Livingston died in 1780, in affluent circumstances, and of his will appointed Nathaniel Russell executor, who has alone qualified thereon, and possessed himself of property belonging to the said Abraham Livingston more than sufficient to pay all his debts. That John Dorsius is and has been for many years past insolvent — that as the said bonds with interest thereon remain unpaid, your orators applied to the said Nathaniel Russell to discharge iliesamc, hut he having refused to doso, they applied to the attorney at law to compel the payment thereof. That the said attorney discovering that the bonds were joint bonds, and not joint and several, applied to the attorney of said N. Russell, informed him thereof, and requested to know whether he would waive the objection which in strictness of law he might insist on from the said bonds being joint, or whether he would compel complainants to seek their remedy in the court of equity; but the said N. Russell insisted that complainants should pursue their remedy in equity, alleging that it appears from indorsements on the bonds that a bond of John McQueen was received by your orators, which if paid was to go to the exoneration of Abraham Livingston’s bond, and charging moreover the complainants with having neglected to recover the amount of the said J. McQueen’s bond, and inferring from thence that the loss should fall on the estate of complainants’ testator, and that Abraham Livingston’s estate should be freed from the debt — -whereas, the complainants insist that the bonds of the said John M‘Queen was intended by the parties to be received as a collateral security, and not a? an absolute payment. That very shortly after the ssüd bond was given, the said J. Mc Queen withdrew to the state of Georgia, from thence he went to Europe, returned again to Georgia, and there remained until he withdre w with his property to Saint Augustine. That frequent applications were made to the said John M‘Queen for payment whilst he was in Georgia, but from the disturbed state of all money transactions from the time the said bond was given until the said John M‘Queen went off to East Florida, it was impracticable to enforce the payment, and the complainants insist that they used more diligence for the receipt of the money than they were hound to do.- — . The complainants therefore pray that the said N. Russell may true answer make to all and singular the matters and things in bill charged; that he may admit assets, and be compelled by decree of the court of equity to pay what may appear to be justly due them.</p> <p>The defendant admits that his testator the said Abraham Livingston, deceased, did join with one John Bor-sius as the securities of Stacey Hepburn in the bonds in bill mentioned, which said bonds were given to secure the purchase money of a certain plantation or tract of land situate on Santee river, sold by the said Thomas Shu-brick, deceased, to the said Stacey Hepburn, and that the complainants are the qualified and acting executors of the said Thomas Shubrick, deceased, whom he believes to liave died at the time, and made the will in bill mentioned. That this defendant is the qualified and acting executor of the said Abraham Livingston, and is possessed of the assets belonging to his testator’s estate. That John Borsius is at present generally thought to be insolvent, hut the defendant positively asserts that he has been informed, and believes that Stacey Hepburn in hill mentioned, is still alive and resident in the state of Pennsylvania or New-York. Defendant admits that application was made to his attorney to prevent an action to be instituted against him as executor aforesaid at common law, and that the same has been refused, founded on a conviction that complainants’ demand is illegal, and that their conduct had long since discharged his testator’s estate from all responsibility as joint obligor or security to the bonds in bill mentioned: for defendant swears that he was not only ignorant of the negociation entered into between Mr. Hepburn and the complainants with respect to John M'Quecn’s bond, but never knew or heard of the existence of Livingston’s bond, now attempted to be set up, until some time in the month of June last, when he received a letter from Thomas Shubrick, one of the complainants, a c opy whereof is filed with the bill. The defendant admits that he refuses to pay any part of the bond in bill mentioned, and trusts that .the honourable court will discharge his testator’s estate from all demands on account thereof; for that independently of complainants’ neglect to use diligence to recover the debt in the first instance of Stacey Hepburn, (instead of accepting of John M‘Queen’s bonds, and afterwards neglecting to pursue like measures with due diligence to recover the money due by John M‘Queen, by which the same is said to be lost) if application had been made to his testator in his life time after the said bonds became due, it was always in his power cither to have discharged the same, or to have indemnified himself by retaining the amount; for that in March 1780, near three months after the said bonds were due, Mr. Livingston paid to Stacey Hepburn for the purchase of the very land bought by him of Mr. Shubrick 500,000i. of the then currency: And that even at the time that the complainants took upon themselves to accept of John M‘Q,ueen’s bond, as is in bill set forth, Mr. Hepburn was in good circumstances, and fully adequate to tlic payment of his debt: or had the complainant then made known to defendant the existence of the said bonds, it was in his power to have secured 1ns testator’s estate against the same, as at the time John McQueen’s bonds were received from Mr. Hepburn, the estate of Mr. Livingston was still indebted to the latter in a sum nearly, if not equal to the amount of his securityship: And which, for want of information on the subject, this defendant lias since paid or assumed to pay, as will appear by the testimony of several persons: or this defendant might have prevailed on Hepburn, who was then competent thereto, to give more Certain and effectual means of indemnifying his testator’s estate, than what John M*'Queen’s bonds proved. That Dorsius (although he believes he is now insolvent) had resources soon after the war, ho thinks to have answered the debt, if he had been timely resorted to, or might have contributed in part. The defendant submits to the decree that may be made, but prays that the estate of Livingston may be discharged.</p> <p>This cause came to a hearing. John Price was examined as a witness: He stated that he went to Georgia in the year 1788, to settle some affairs with John Queen, and he offered him lands and negroes in payment.</p> <p>Mr. Stick proved that he forwarded to Mr. M‘Queen in East Florida a statement of debts to the amount of 20,000i. without including the interest; and that was not one half of his debts. M‘Queen left Georgia for Florida in February 1791. The whole of his property was not nearly sufficient to pay his debts. The tender law of Georgia expired on the 14th August 1790.</p> <p>argued, that a person signing his name as security to a bond, makes no difference in his responsibility: He is as liable as the principal. The only use of a security so distinguishing himself on the bond is, that if he should be obliged to pay the debt, he may more easily shew his real character, and recover over from the principal. This was the opinion of the court of law in the case of Rivers •os. Kennedy. The court said that either principal or security might be sued as they could bo got at; tine holder of the bond taking a collateral security, as was done in this case by taking M‘Queen’s bond, does not extinguish the original debt, or diminish the liability of the security. It is not aprejudicetohim, but a benefit; and the renewal of that collateral bond, or taking a new for an old one, did not diminish the value of that collateral security.</p> <p>insisted, that Mr .Livingston, the security for Hepburn, was discharged by the conduct of the creditor. Livingston became largely indebted by a purchase to Hepburn, and great payments were made by lúm, and afterwards by his executors down to 1784. If the executors had been apprised of this de-maud, they could have protected Livingston’s estate by reserving funds, instead of paying them away to Hepburn and his assignee Mr. Hazlehurst.</p> <p>No resort has been had to the pi’incipal Hepburn — but the principal ought to be first resorted to. See 2 P. Wms. 542. 1 Vern. 196. 2 Vernon, 393, 688, 3 Atk. 91. Dyer, 56. 2 Bro. C. C, 579, Nisbet vs. Smith and others, which is a strong case to this point.</p> <p>If twopersons are jointly bound in a bond, and one dies, you cannot sue the executor of the deceased obligor, but. must have recourse to the surviving obligor. 2 Bacon, 697. 2 Vern. 99.</p> <p>Again, a person taking a collateral security, and it fails, he cannot come on a security in the original contract, having varied the nature of the debt. 2 Atk. 341. At all events, when the collateral security was taken in, 1783, it should have been strictly pursued, and the money recovered. The bond debt of McQueen might have been recovered, and Livingston the security exonerated. Instead of which, the old bond was given up to him, a new one taken, and the time of payment extended to 1785. In May 1784, Bose sold McQueen’s negroes to the amount of 50001. sterling, and other property; land was also sold. In 1785, he had still a large estate in lands and slaves, yet no steps were taken to recover the debt on bond which had been taken as a collateral security. In 1791, Mr. Shubrick saw him at Savannah, and still took no steps against him. It was the fault therefore of the executors of Shubrick that the debt from M‘Queen was finally lost, and Livingston’s estate ought to be exonerated.</p> <p>argued, that joint obligors (as in this case) could not be made to pay more than their respective proportions, pari passu. 2 Ventris, 348. If time join in a bond, and one or two die, the obligation survives in the nature of joint tenants, and the surviving obligor only is liable. 2 Comyn’s Digest, 318, 324. 1 Eq. Cas. abr. 93. 1 Vernon, 196. In the case of Bivers and Kennedy, (quoted on the other side) the bond was joint and several. Where a person has taken the bond of another foi’, or as collateral to, a bond due to himself, he cannot sue the bond duo him till he has shewn that ho has used due diligence to recover the money from the collateral bond and lias failed. See Domat. 377.</p> <p>said, no substantial objection can be made for want of parties to tbe bili, because the- proper mode of objection would have been by demurrer or plea. But neither demurrer or plea codd have had any effect, ao the bill charges that one of the parties is without the limits of the statej and the complainant has a right to have recourse-to those within the jurisdiction of the court, You may also take oat a joint execution against several persons,' bet you may order the sheriff to levy on the property of either. See 2 Comyn’s, 323.</p> <p>It is the duty of the obligor to make payment on the day the bond is due, and not of the obligee to demand payment. 3 Bacon, 693, 713. The obligee besides, could not demand payment of the principal when the bond foil due. Tbe state was then in the hands of the enemy, and the (Courts of justice were shut up. Tins accounts for some of the delay in pursuing Hepburn. Afterwards he went away. 2 Atk, 31. 2 Ves. 371. Mr. Shubrick was not bound to take payment from McQueen (on the collateral bond) in lands and negroes, as it seems his other creditors were obliged to do, which shews how difficult It was to get payments from him, and how little reliance could he placed on that collateral security.*</p>

<p>CASE LVXVII.</p> <p>A father de-queaths certain estate., real and personal, to Ids son John, and directs tli.it incase oftii * death of t'n,it son John under age, or without lawful issue, those csruTs should ¡¿o to the testator’s four sun i-ring- sons, or the survivor of them. After testator’s death, one of his sons, William Henry, diei, leaving-children.— Then the sou John dies under af^o, and wi'hout issue. The survivorship construed to relate to the de'.tlt of die testator, and thus to íe¡ in tlio children of Will, ih'ii-ry, i.i enter to ¡rive ell eet to tin- ini out.</p> <p>BucitBE book. p. 93.</p>

<p>case ixxxv.</p> <p>DECREE BOOK. p. 109.</p> <p>Bond given hísa father’s debt, volun-without any fraud prac-teed on^™> Court cor-error in the “co;.mt, but open the ac-8’ene‘</p>

<p>The bill states that Alexander Inglis, by intermarrying with Mary Deas,became entitled to a considerable personal estate, and also seized in right of said wife of a considerable real estate. That said Alexander inglis being desirous of havmg said real estate of said wife vested in himself, in order that he might thereby divide the same, or an equivalent thereto, amongst the children of the said Inglis and wife in such manner as he might think proper, (some of their children being already partially provided for) said Inglis applied to his wife, requesting her to execute conveyances to vest said estate in himself, for the purpose aforesaid. That said Mary Inglis assenting, did accordingly send to Lambert Lance, attorney at law, to draw the aforesaid conveyances, and in giving instructions for the same, informed him that she intended vesting said real estate so far only in her said husband as to enable him to dispose thereof in such manner and to such children as he should think proper; but not to enable him to convey the same to a stranger, nor to be liable to his debts, unless he would settle an equivalent thereto upon said children; to which said Inglis, present, assented. That the said Lance did accordingly draw certain conveyances from the said Inglis and wife to John Lloyd of said state, and from him back again to said Inglis, for vesting said real estate of said wife in him; but by some mistake, owing to the great haste with which said conveyances were drawn, in consequence of Mrs. Inglis’ situation, omitted inserting the necessary trusts, whereby said real estate became absolutely vested in said Inglis at law. That some very short time after the execution of the said conveyances, said Mary Inglis died; and Alexander Inglis some time after, mindful of the trust on which said real estate was conveyed to him, did, by lease and i-elea.se, dated 22d and 23d day of August, 1785, convey to John Lloyd and Isaac Motte, and George Inglis, their heirs, &c, certain lands and slaves in said, indenture specified, in trust for tlie children of the said Alexander Inglis, and Mary his wife, and their heirs forever, in such manner, upon such conditions, and in such shares and proportions, as the said Alexander Inglis should afterwards by will or otherwise direct, limit and appoint. That some time after the execution of said conveyances, the said Alexander Inglis died, having first made a will, and appointed sundry executors thereof, of whom only William Marshall and Alexander Inglis, jun. have qualified; in which said will he devised and bequeathed all the real and personal estate so conveyed to the complainants in trust as aforesaid, to and amongst the children of the said Alexander Inglis, on the said Mary Inglis begotten. That after the death of said Inglis, the said William Marshall and Alexander Inglis, jun. executors as aforesaid, possessed themselves of the aforesaid real and personal estate so conveyed to complainants in trust, and have received the profits thereof. That complainants have since the death of said In-glis, applied to William Marshall and Alexander Inglis, jun. for possession of said real and personal estate, and for an account of the profits thereof received by them since the death of said Alexander Inglis. But that they conceiving that the said conveyance of real and personal estate by the said Alexander Inglis to complainants, is void against the creditors of the said Inglis, and that the estate of said Inglis, exclusive of the estate so conveyed, is insufficient to discharge his debts, refuse to deliver to your .orators possession of the estate so conveyed to them as ' aKírcsa'id, and to account for the profits thereof received by thtérn since the death of the said Alexander Inglis.— The hill therefore prays that possession of the aforesaid mit'ánd personal estate may be delivered to the complain-sluts, and that the defendants maybe compelled to account for the profits thereof which have been received by them since the death of the said Alexander Inglis; and that such further and other relief may be given to complainants as the court shall think fit.</p> <p>Answer admits that testator Alexander Inglis intermarried with Mary Deas, whereby he became entitled to a considerable personal estate; and also to a qualified right of a real estate. That his wife joined, with him in conveying to John Lloyd, one of the complainants, her real estate; and that said John Lloyd re-conveyed the same to the testator of defendants; but defendants were not privy to any agreement or conversation between said Mary and their testator relative to the objects of said complainants, or the conditions on which the same wras made; nor do iiey know that the consideration and condition in bill mentioned were terms stipulated by the parties, or the motives which gave rise to the conveyance, being ignorant of said business, otherwise than as they heard from Mrs. Inglis herself. That said Alexander Inglis did snake conveyance in bill mentioned, dated in August 1785, ■ vherehy he conveyed the property mentioned in complainants’ bill, to complainants and Mr. George Inglis; and that defendants have possessed themselves of said property, conceiving the same liable to their testator’s debts, wdiich they believe will not be satisfied out of the remainder of his estate, if the property claimed by complainants in behalf of the children should be adjudged them. The answer then concludes praying dismission with costs, Ac. Ac.</p> <p>Mr. Lance was examined as a witness without prejudice to any objection which might be made to the admissibility of such parol evidence. lie stated that it was intended the land should be held in trust lor the children of Mrs. Inglis. He understood from Mrs. Inglis that she. wished the estate to be placed in the hands of her husband in sucha manner as would enable him to divide it amor such of her children as were most deserving of that one child should not take the whole, dering Mr. Inglis a rich man, he (the witness titles in such a manner as merely to divest Mrs the estate, and put it in Mr. Inglis’s power to fd intentions. Mrs. Inglis was then in a very bad s health, and she died before the execution of the trusf from Inglis to Lloyd and Motte. It was objected at the-hearing that this parol evidence was inadmissible, being io vary a deed which would be contrary to the statute of Ira uds.</p> <p>contended that the doctrine of trusts is entirely with this court, and the common law has no cognizance of it. The statute of frauds would apply at common law, but not here. Trusts respecting personal estates are not included in the statute of frauds; and parol evidence is admitted respecting personalty, even in contradiction to a deed. Mr. Parker produced the deed executed by Inglis, after the death of his wife, as evidence of the parol trust, to which it was to give effect and operation. As this court would have compelled Mr. Inglis to do what had been agreed to be done, a for-tiori, it will support the execution of the trust which has been made by Inglis. 3 P. Wins. 337. If Lance’s evidence is admitted, it establishes the parol trust. The statute of frauds relates only to transactions between the parties themselves, and not to creditors; and an executor is not. obliged to plead the statute in favor of creditors. 2 Atk. 155, 417. Burr, 2628, If defendant waives the statute of frauds, no one else has a right to set it up for him, not even the court. 1 Atk. 526. 2 Vesey, 631, 3. The ere. ditor can have no more equity than his debtor. Inglis did not record the deed of trust; if he had, he Avould have brought all his creditors upon him. 3 Co. Rep. 80, 89. The deed is bona fide, and for valuable consideration. Parol evidence may be produced to prove a parol trust. See 3 Wilson, 275.</p> <p>insisted that the creditors of Inglis could never have trusted him on this property, because all his debts were contracted previous to the execution of the deed, Avhich divested the property out of Mrs. Inglis. The deed from Mr. and Mrs. Inglis to Lloyd, was dated the 23d July, 1785. The deed of trust from Inglis to Motte and Lloyd for the benefit of his children, as he might direct by will or othenvise, was dated 23d August, 1785. Cited 2 Ves. 377. 2 Vern. 380. 1 Eq. Cas. abr. 19. 2 Eq. Cas. abr. 749, 310, 260.</p> <p>said, the court is obliged to take notice of the Statute of frauds, though not pleaded; and that statute prevents the admission of parol evidence in such a case; and without the parol evidence, the complainant has not made out any case for the court to decree upon. Cited 2 Vern. 98, 621. Cases Temp. Talbot, 240. 2 Atk. 372, 172, 383.</p> <p>said, the doctrine is settled, that even in cases between the parties, and no third persons or creditors interested, the court will not admit pa-rol evidence to shew what was the intention of the parties by the deed, and that there was something omitted. See Comyn’s, title chancery, 171, 175. 1 P. Wms. 618, 620; and if the parol evidence be rejected, the complainants have no ground to stand upon.</p> <p>said, where a statute declares a debt to be void ah initio, an executor is hound to plead it, or he is liable to he charged with a devastavit. Powel, 430, 276, 294, 5. The statute of frauds is a remedial law, and the court will give it that construction which will advance the remedy, and prevent the mischief,</p> <p>said, the statute of frauds forbids the admission of parol evidence to establish a declaration of trust. If a deed is not executed agreeably to the statute, you cannot bring a third person, who was standing by and saw the execution, as a supplementary evidence; for, as he did not sign his name as a witness, he cannot bo admitted as such by parol. Cited 2 Ves. Lord Townsend vs. Windham. 3 Atk. 8.2 Bla. Rep. 1249.</p>

<p>CASE LXXXCVII.</p> <p>,. The court will not ad-Aratparol eri-shewfliat an absolute bill of sale i<s merely conditional and a security. It might be anotlierquestion as to creditors. — ■ Award of arbitrators supported. Captain of ship not entitled to the freight of money. Sale of vessel fairly made is valid, though sold very low.</p> <p>Decree.</p>

<p>caseixjexviu</p> <p>MCllEE HOOK, p. 115.</p> <p>If possession does not accompany bill of sale, and the same be notrecorded, it shall be void as'to tlie creditors, though no doubt of the fairness of the transaction.</p> <p>Decsee.</p>

<p>cast, rsxxjs.</p> <p>DECREE BOOK, p. 12Í).</p> <p>tpeed by a fa-lie^rives'dh rectiy to his married without tras, ^yé/tobcr only use and beIl??f{ Tbe rights attach,. ble to the liebts^Tho’ thedeed w;is band’s hand bequeathed ^^shew’' edUisviewof his</p> <p>Decree,</p>

<p>CASE MJ.-</p> <p>BECIIEE HOOK, p. 123.</p> <p>Rill for spe-eifieperformance of a pa-rol agreement respecting lands.— The defendant pleaded tile statute of frauds, and also answered. In his answer lie admitted the parol agreement as slated in the bill; and that lie had taken possession of and held the land under the agreement. The court was of opinion, that the admission in the answer of the. agreement, takes the case out of the statute;</p>

<p>CAGG *xr.£u</p> <p>bbciiee imoi.„ p. 117.</p> <p>Decree.</p> <p>Bequest of the use of ce tilín pro-pejfiy to :i 1 i-dy iluilng her life, and at her denUi to the bobs amistoJ<uS heirs and as*» signs, is a good bequest, md gives her a life ostnf e, and upon her death the property will fipuJen, not subject to band’s debts, piewasdead before any division.) her into lo^tlir intent of tes-tat0in</p>

<p>case xcíí.</p> <p>decree book, p. 141.</p> <p>A bequest <o them at six-agí-; one of ti.iu,n FiF“ legacy i'jpaid b°mde¡ e^v in*; bond® to ^ is-iic. sue vdiich died6 and then she wasd’a vested legacy, and ccc”® o1 possession by he is entitled to keep Jt, bound to revise of^reai estate to but'if'aii'hís children leaving' *no lawful issue, over r o-The good.</p> <p>Deerce.</p>

On the marriage of the defendant’s father, major Benjamin Huger, to defendant’s mother, he became possessed in her right of a plantation on the Horse Shoe? and at her death he held the.same as tenant by courtesy? ■and for her children in fee.

The bill states that Mary Faucheraud, the complainant’s grand mother, was seized and possessed of a considerable estate, and made her last will on the srtli May, 1763, wherein, amongst other things, she bequeathed 600i. of the then currency, to her son-in-law, J. P. Grimke, to be put to interest, and improved by him, and finally to be paid to her three grand children; 400Í. thereof, with tlie increase, to John F. Grimke the complainant, and the other 200Í. to her two grand…

The bill was filed for the specific performance of an agreement for the sale of a house and lot in Charleston, *-> The bill charged that Thomas Bourke executed deeds on tho lltp an¿ 12tli of August, 1789, by which he convey-_ ed a bouse and lot of land on East Bay-street to John Williamson, his heirs and assigns.

<p>The bill states that after the death of John Wilson, the complainant administered on the estate, and possessed himself of the personal estate of the said intestate, except certain slaves named in a deed of settlement, a copy of which is filed with bill; which said slaves the complainant understood were secured by said deed to the sole use of Eleanor Simons, the widow of the said John deceased; hut who, since liis decease, hath intermarried with Mr. Keating Simons. ThattKc complainant hath not only exhausted all the credits of said intestate’s estate in discharge of the debts, but hath advanced considerable sums above tbe assets which have come into his possess*on* r^1£l* notwithstanding bis said advances, lie is still pressed for the payment of several other largo debts of equal degree with those which lie hath already satisfied, and which hy the rules of law and equity, ho will be bound PaJ ln average and proportion to the relative value of the estate of the said John Wilson at the time of his de-ceasc» an^ which will be greatly distressing to the complainant, as he will have no means of indemnity in his hands. That the said John Wilson also died, seized of certain lands, a list of which is filed with bill, over which P-nd the complainant hath no control, although he hath fJcen constantly obliged to pay largo sums for taxes; that he hath applied to Leighton Wilson, the nephew and heir Rj- ]aw- 0f the said John Wilson, deceased, stating the premises, and requesting that he would consent to the sale and apply the proceeds of said lands to the payment of the said intestate’s debts; and also to tbe said Keating and Eleanor since their intermarriage, to deliver up the said negroes claimed by them under the deed aforesaid, and which your orator is advised does not in law, and cannot in equity protect the said negroes from the payment of the said John Wilson’s debts, inasmuch as it is stated not tobare been recorded within the time prescribed by law; and he well hoped that they would have complied, as in justice and equity they ought to have done. The bill prays that the said lands may be ordered to be-sold for the benefit of the creditors of the said John Wil - son’s estate, and that the said Keating and Eleanor Sim - ons may be ordered to deliver up the said negroes with the issue of the females, ami that they may be sold and' disposed of Cor the benefit of the estate of the said John Wilson, deceased; and that the complainant may be relieved in tbe premises.</p> <p>Defendant Leighton Wilson’s answer. Tbe defendant admits that the late John Wilson died intestate, and that the complainant obtained letters of administration on his estate; but lie neither admits or denies that the complainant has fully administered the estate and eSects oí his said intestate, and humbly «rays that the master «¡ay be direeled to eiupiire. lliereinto. The defendant also admito that the said John Wilson did die possessed of the lands described in complainant’s exhibit D; and that he hath been applied to by complainant to hare the same sold, hut being informed that the proceeds would be entirely and wholly applied to the payment of said John Wilson’.; debts, this defendant refused to intermeddle with the business. That he is ignorant of the nature of the deed mad 3 by the said John Wilson «in his marriage with the defendant Eleanor, now Eleanor Sinibus, or whether the. ne-groes named therein arc thereby protected from the payment of the late husband’s death. That he admits himself lobe the heir at law of the said John Wilson, deceased, and humbly prays that his interest in the lands may lie protected; or should it be deemed expedient to sell and dispose of said lands, or any part of them for the payment of said John Wilson’s debts, that the same may be sold on a reasonable credit, and the surplus money, if any should remain, be paid over to him.</p> <p>The answer of Keating Simons and wife admits that the, said John Wilson died intestate, and that the complainant obtained letters of administration on his estate, and possessed himself of the personal estate, but not of the, negro slaves named in the deed of settlement, a copy of which is with the bill filed, which was in fact a settlement made of the defendant Eleanor’s own properly on her, previous to her intermarriage with the said John Wilson, and which secured the said negroes to her, on the event of her surviving the said John without iss ;c, which event has happened; and the. said deed did not comprehend anj part of the property of the said J ohn W ¡¡¡¡son, but contained a renunciation from her of all right to don er in his lands; and these defendants admit that the complainant always understood, as he in bill sets forth, that there slaves were secured by the said deed to the sole use anil behoof of the said Eleanor on the event above moni toned , and they humbly submit that fhoy were so scftuvd. That this was also the belief of the defendants, and in confer-iriity thereto they were never appraised as the property of the estate of the said John Wilson, and never were in the possession of his administrator the complainant. The defendant Eleanor for herself says, that she took posses-®on the said negroes shortly after the death of the said J. Wilson, and they continued uninterruptedly in her possession till her intermarriage with her present husband. Mr. Keating Simons, when they went into the possession of John Ball, appointed her trustee on her second marriage, and now remain in his possession. She denies that the complainant ever made any application to her during her widowhood for the delivery of the slaves, nor did she know that he had any idea of claiming them till after her marriage with the present husband; that she does not know positively when the settlement which was made previous to her marriage with the said John Wilson was recorded, but is informed it was about the 16th of August, 1P90. The defendant Keating Simons for himself says, that previous to his intermarriage with the defendant Eleanor, he know that the slaves in question had been secured to her by a marriage settlement, made previous to .her intermarriage with the said John Wilson, and that they remained in her possession; that he knew of no claim that existed against them, nor did he know or believe that they were liable to the payment of the said John Wilson’s debts; that under this impression this defendant by a deed made previous to his intermarriage with the defendant Eleanor, did make a marriage settlement, conveying the said negroes to certain uses contained therein, and which settlement lias been duly recorded; that he considers himself and humbly submits that lie is in fact a bona fide purchaser of those negroes for the most valuable consideration, and he humbly prays that he shall be protected in bis rights to them, and more particularly because all tbe debts duo by the said John Wilson were contracted long previous to his the'said John Wilson’s intermarriage with the said Eleanor, and not on the credit of the said negroes, and the said settlement- was not a secret one, but was no-ferious to the. said complainant and many others. They contend that in equity the said negroes cannot be made liable for the said John Wilson’s debts, as well for the reasons above mentioned, as because it appears by the exhibit A. that at the time the said John Wilson contracted with the said Eleanor before her marriage, that this property should he reserved to her in case of her surviving him without issue, he obliged her to contract on her part that she should have no dower in his lands, which, without she had entered into such contract, she would have been (notwithstanding his previous debts) entitled to; reserving thereby to Ms creditors all the property he. had, on the credit of which they trusted, and reserving to the said Eleanor on the event above mentioned only her own property; which contract these defendants submit is replete with equity, and should be carried into effect. And these defendants answering, say they know nothing of the accounts contained in the exhibit B. or with the particulars of the lands contained in the exhibit D. both with bill filed, and pray that they may be quieted in their right to said negroes; and the answer concludes in usual form.</p> <p>The cause came to a hearing, and it appeared in evidence that the deed of settlement in question between John Wilson and his intended wife, previous to their marriage, of her property, was executed on the 1st of January, 1789, and was recorded on the 16th of August, 1790. That John Wilson was dead at the time it was recorded. The debts of Wilson were contracted chiefly before the settlement. Those after contracted did not exceed 1601.</p> <p>Mr. John Ward contended that the deed of settlement not having been recorded within the time prescribed by our statute on that subject, was void as to creditors, and the property included in it liable to their demands against the husband. The law is peremptory in requiring the deed to be recorded within a limited time, and no excuse is receivable for the delay. Marriage settlements are not to be favored; they are. not adapted to our institutions and republican form of government.</p> <p>contended that as the pro-pei'ty included in the settlement was wholly the wile’s, and as she actually agreed therein to renounce all claims (¡ower 0i. 0t}m. interests in her intended husband's es-bate. she stood in the most favorable point of view; and the com t would, if possible, protect her, though the deed was not recorded in the prescribed time. She \\ as in reality a purchaser for the benefit of the creditors, who would obtain the benefit of the sale of Mr. Wilson’s lands, without any diminution by dower. The creditors in question never gave a credit to Mr. Wilson on the faith of this property, for they were all creditors before the marriage, except to a small amount. The settlement was generally known, and neither the administrator or creditors took any measures to question it for several years. The administrator did not even include the ne-groes in the appraisement of the estate. Tisis was an acquiescence which ought to be conclusive, as she has since married Mr. Simons, who, upon the faith of the property being in her possession, has made a new settlement thereof on his marriage with her, y hicli ought not to he disturbed. If the property included in the settlement is taken from her, it will be a peculiarly hard case on her, because in consideration of such settlement of all her property, she renounced all claims on her husband’s estate, and being of full age at the time, she will be bound by her agreement. It is a mistake to suppose that settlements arc anti-republican; they are quite the reverse, and ought to be- foe ored. Settlements take care that the property shall go equally among all the children; they prevent partiality, and bring back to that fairness and equah'ty the property Yhich, by the legal polity of a monarchy, was v csied in one child to the prejudice of the rest. Settlements produce a conformity to the laws of Home and others, where women had rights: not as according to the- English laws where, the woman’s existence is supposed to be annihilated. The counsel cited 3 Co. Rep. 59. Cro. Eliz. 473. 2 Bac. 140. 3 Atk. 8. 2 P. Wms. 243. 1 Atk. 439. 2 Vern. 274. 4 Bacon, 645.</p>

The bill charges that the complainants, together with Robert Forsyth, Patrick Carnes and Joseph Brown, became bound as securities for John Banks, the principal, in and by a certain bond or obligation bearing date the 4th December 1785, in the penal sum of 9,800k conditioned for the payment of 4,9091. That a warrant of atfcor-ney being contained and inserted m said bond, James Warrington immediately entered up judgment against all the obligors.

<p>vase xevirr:</p> <p>DECREE ROOKV p. 174.</p> <p>A legacy is given to a lady during' her own life and that of her husband, and to the heirs of her body: but if shchadnonc, then the property was limited over to others. The legacy was to* take effect after 10001 was raised out of the estate for another legatee. The husband was a subscribing witness to the will, but he died before it was proved, and another ¿¡ubscri-binsy 'Ailncrr, proved it. — . This pre. vented his. taking suck ail interiml in the legacy as would make it. void undev* the statuti „ on account of Iiir. being a. subscribing vitneus. Tim vi"c aurvi. ving is entitled to the leg,try.</p>

<p>CASE XCIX,.</p> <p>DECREE BOOK, p.169.</p> <p>Creditor may ]“ndU0f i!is debtor, in the iie¡rs^ after a |ffia* eiap„® the failure of Pers0111tl ?s-seis; peculiar circumstun-¿ne* ^'opcl ration of the Stations! or tlie usual ef-0fC j,ip."eo* tate liable for sl“pPa Compound gf^enllfe mutual deal-Merest eduring the war atoppLd"</p> <p>Dqcree.</p>

<p>CASE C.</p> <p>BECHET BOOK, P-182.</p> <p>A creditor taking colla-ter.d securities from his debtor, without stipulating to give tol'theT original debtor, lease^the sc-curity to the bond^éven though such collateral security should £ditfratnl^i or ’liens1 on j4’ cord.</p> <p>Decree,</p>

<p>case c¿.</p> <p>»echt.siwíou» p. 190,</p> <p>Purchase! entitled to have his con-tracti'escind-ed, where, there is a great deficiency in the quantity Tif land.</p> <p>Decree-</p>

The complainant being about to marry Melcher Garner, and being possessed of twelve negro slaves, a marriage settlement was executed by said Melcher Garner, on the 14th July, 1768, by which he agreed, in considera-tio,n of the intended marriage, that the trustees should hold the said slaves, in trust; that Melcher Garner should receive the rents and profits of the hire and labor of the said slaves, during the complainant’s life, without any account; “ and then, upon the trust…

John Robertson and Ann his wife lived together many years in Charleston. He carried on business, and acquired real and personal property, for which he took the iitles and bills of sale in his own name. His wife also carried on a separate business, bought and sold properly in her own name; and took the titles to the real estate, and the bills of sale for the personal estate, in her own name.

<p>CASE CIV.</p> <p>Df.crki: hook, vol. ii. p. 7.</p> <p>A treasurer spvcr, bond to 1rllC »*tídC fOf the * faithful performance or his dunes: His teem of office expires suiu ne is re-cleo’od, bat ?’¡xhh1 — His'" first bond vefk’dshcts iiidneion. The state gative to be prad out of the effects oí its debtor in any'oftheri” ñarais who have iuder-incnts, inert--ages or o-And die act °f 1789, prescribing the order for pay-ddits of dif ceiu>ed per-recto/”'1 tile debts'due to befirst paid/ Is merely diexecutors & administrators,and. does not alter the tom 'to'the rights of the creffitora^of the deceased</p>

<p>CASE CV.</p> <p>TJBCtTKE BOOK*vul.iLp.il.</p> <p>Parol evidence received to prove the existence and loss of a deed of marriage settlement; corroborated by otli er deeds referring to and speaking of the deed of settlement. The contents of the deed ascertained also, by reference to other deeds. Construe', ion of the deed of settlement.</p>

<p>CASE cvfc</p> <p>decree book. ’u1'u'p' ^</p> <p>"?s covei,y. The dddidddadxe charges, and ids books of jdssud(!°[.d'^-“o^piidminf produced on-jfess0,£ port of his clies?hnoiw was positn-e cip;xi chii^u, ^ tradiction; and llis te‘JT!" supported by court held it-take^ihe'ini swer as true, IxcoEdinM".</p>

<p>case evil.</p> <p>decree book, vol. n. p. 13.</p> <p>A creditor priority of payment out nndcr an*1act of the leg-is-lectslnd receives in payment a bond growing out of die sales of and after-sbíiíit to^á third person, fiinL of^tiie estate arc loathe? ere-doubt’ S°m-e sing whether ^obo-emer^ tioned would assigneeSied a bill to get the benefit oí fuuds of the egtate T,]e court was of °P11U<® ü.iaí the election having been mp^jc°í.,.,a fund, and the remainder transferred to other creditors, they could not now be disturbed.</p>

<p>This was a bill filed on behalf of the state, to recover a debt originally due by Hugh Rose. The bill charged that Hugh Rose wa3 bound, together with J. B. Ton, as his security, in a bond bearing date the 17th December, 1783, in the penal sum o" 49,2001. 10s. with condition for the payment of the sum of 24,600i. 5s. in specie or indents, With interest, to the commissioners of the treasury, for the. use of the state, on or before the 17th day of December, 1788: and that the said Hugh Rose to secure the payment thereof, mortgaged several tracts of land to the said commissioners. That the said debt being unpaid, the. said bond was placed sometime in April, 1789, in the hands of A. Moultrie, the attorney general, to sue for and recover the principal and interest due on said bond, according to the condition thereof $ but that Ite did not pursue any measures at law or in equity to recover the said debt. That the commissioners requiring an account from him, he rendered in an account, by which he debited hhuseüf in the cum of 26,0001. on account of the said bond, and as assumed by him. That the commissioners required and obtained from the said A. Moultrie, according to the custom of the office, the original bond and mortgage, but the seals and signatures of the parties were torn off, and the following receipts endorsed. “ Received 9th June, 1790, 6,4001. in indents in part of this bond, (signed) A., Moultrie.” “ Received 26th July, 1790, 13,0001. in indents in part of the within bond, (signed) A. Moultrie.” That not being satisfied on this subject, the commissioners questioned the said A. Moultrie as to the mode of settlement of said bond, and of the cancelling thereof; and he candidly disclosed to them such particulars, as satisfied them, upon the advice of the present attorney general, that the cancelling the said bond, and the entry of satisfaction on the mortgage, would not under the circumstances attending the transaction, be deemed sufficient in a court of equity to release the parties therefrom, or bar the state of its right to revive and set up the same in full force. The MU charges that the defendant Hugh Rose, employed A. and W. Tunno as his agents, and supplied them with funds, to purchase indents, then in a state of depreciation, and to apply the same to the payment of his said bond, and that the said agents in pursuance thereof purchased large sums in indents (said to be to the amount of 31,0001.) on account of the said Hugh Rose, to be applied to pay said bond. But that indents rising in value rapidly on the assumption of the state debts by congress, the said agents were induced to fund or dispose af the said indents, at a great profit, and to resort to some other method of settling said bond. That no paid; of the payment of 6,4001. expressed in the receipt of the Dth June, 1790, was actually paid in indents; but was made up by discounting debts of the said A. Moultrie, or some other way. That of the sum of 13,000, expressed iu the receipt of the 25th July, 1790, no part was paid in indents. But that two houses in Charleston were accepted by the said A. Moultrie, in lieu of the said indents, nt a certain rate and valuation; and the agents paid 5,5481. in unfundable indents; and finally gave their bond for 13,0001. the computed balance due on said bond of Hugh Rose, to the said A. Moultrie; and prevailed on the said A. Moultrie to give them a written receipt in full discharge of the said H. Rose, against his said bond, which was cancelled, and to enter satisfaction on the mortgage. That the said agents in their account with the said H. Rose charged him with the amount, as paid in indents at a certain rate. And the said agents aftcr-wards took up their said bond of 12,0001. by paying some indents, and by settling sundry debts due by the said A. Moultrie, at a discount; and by delivering him sundry-goods, wares and merchandizes, which were applied to his own uses, and of which the said agents could not be ignorant, as they well knew he was in a state of embarrassment. That the commissioners of public accounts not considering such a mode of settlement at all binding or obligatory on the state, applied to the said H. Rose and A. Tunno, to satisfy and settle the said bond debt, according to law. But they having refused to do so, the complainants pray relief on behalf of the state: and that the said bond and mortgage should be revived and set up, and the defendants obliged to satisfy the same.</p> <p>The defendant Hugh Rose in his answer admitted the execution of the bond and mortgage as stated in'the bill; and that he appointed A. and W. Tunno, merchants in Charleston, to purchase indents for him, in order to pay off the said debt, for which he was to furnish funds. That some time after, A. Tunno, after various previous communications, informed the defendant that he had purchased indents for him to the amount of 31,000Z. and hoped shortly to procure the balance, They were then selling at seven or eight for one. After some time he de~ delivered to the defendant, Ms own and his surety’s names taken from the bond, and the attorney general’s receipt, dated 18th July, 1790, for 35,936l. 17s. 2d. in principal indents, in full of Mr. Hugh Rose’s and J. B. I’on’s bond to the state, and satisfaction was also entered on the mortgage. That soon after A. Tunno furnished this defendant with his indent account, in which he charges him for 35,936l. 17s. 2d. in indents, purchased on account s»f the defendant; 4,5591. 1 Os. sterling (payable in paper medium,) and the defendant solemnly declared that lie believed that the attorney general had actually received in satisfaction That he had no information that indents had not been paid him, and that he never knew that Ms indents to the amount of 35,9361. 17s. 2d, « . ¶ , 7 , ^ SSid tuebt: bond had not been paid off in indents, till he received a letter from the commissioners informing him of it. The defendant submitted that he could not be implicated in the transactions that took place between the said Adam Tunno, and the attorney general, and he pleads his discharge, fairly obtained by him.</p> <p>The answer of Adam Tunno admits that Hugh Rose gave the bond stated in the bill: which was put in suit by A. Moultrie the attorney general, and upon payment of the principal and interest, the said bond was cancelled, and satisfaction entered on the mortgage, by A. Moul-trie the attorney general, acting on behalf of the state. That this defendant made the payments to the said A. Moultrie with good faith; and they could as well have been made in indents as in any other way: and that the said A. Moultrie, having received the payments, was alone accountable to the state; and the legislature directed suit to be brought against said Moultrie, on which he confessed judgment and is accountable. That defendant meant no fraud against the state, but supposed that the said A. Moultrie was fully authorised to make the settlement he did. That the defendant Hugh Rose was entirely unacquainted with the mode of settlement made by this defendant with A. Moultrie, and this defendant admits that the said A. Moultrie took off the seals and signatures of the debtors, and gave the receipts and entered the satisfaction stated; which the defendant relies upon as a full and sufficient discharge. That defendant was employed by Hugh Rose to purchase indents to pay off his bond, and advanced some funds for that purpose, hut not sufficient to enable him to pay off the bond. That he settled the debt partly in indents, and partly in other ways satisfactory to the said Moultrie; and he sold part of the indents, but never funded any. That he settled with said Á. Moultrie by paying some of his debts, at bis particular request, at the current rate of indents, and without any gain to defendant; being satisfied that the said A. Moultrie had full power to represent the state, and give sufficient .discharges. That some of the other payments were made by goods furnished said A. Moul-trie at his desire, at fair cash prices, and receipts given for indents at the current price of eight for one. That the settlement for the other sums receipted took place by the sale of houses in the same way; the houses being worth the sums allowed for them in indents, at the instance of the said A. Moultrie. This defendant admits that he and his brother William gave their bond to the said Alexander on account of the state for the balance due on H. Nose’s bond, which he thought was perfectly fair and just; and he afterwards took up the said bond, by payments according to law; and never paid by taking up any of said Moultrie’s debts at a discount. Defendant denies that he knew that it was not in A. Moultrie’s power to settle the amount of this debt to the public; and this defendant never informed said H. Nose of his mode of settling with A. Moultrie; and this defendant avers he made no profit by these transactions, but was an actual loser, as appears by his statement. That the state would not have been benefited by the payment of the whole debt in indents, as the sums actually paid the attorney general • in indents were applied by him to his own use, and not accounted for.</p> <p>The defendant A. Moultrie admitted that A. Tunno, acting as the agent of Mr. H. Rose, settled with him the debt due on bond by H. Nose to the public, which he held as attorney general, by various arrangements, partly by the purchase of houses, some merchandizes, &c. and this defendant assumed to pay the debt to the state* according to the tenor of the bond. That all the settlements were with Mr. Tunno, and not at all with Mr. H. Nose. He was much pressed and urged by Mr. Tunno, and finally yielded and made the arrangements desired of him: being fully convinced that his resources would enable him to settle the debt to the public which he had assumed, and in which he has been unhappily disappointed.</p> <p>At the hearing of this cause Mr. Trezevant argued for the state, that the attorney of the state had no right to settle the debt, and give discharges in the manner he did. That trie principle is a broad and general one. An attorney cannot withdraw the action of his client, but it must be by a retraxit by the client himself. A factor*' cannot pledge the goods of his principal for his own debt. See Wood’s Institutes, 55, 6. 2 Strange, 1164. See 3 Bacon, 562. Salk. 442. Raym. 928. 2 Shower, 139. 8 Co. 58. It was decided in the case of Sarrazin vs. Nelson that neither the plaintiff’s attorney, nor the sheriff have a right to discharge the debtor, unless the money is actually paid to one or the other. Tunno must have known the situation of Moultrie, as there were many judgments and mortgages on his property; and Moultrie must be considered the agent of Tunno, for as he paid Moultrie no indents, he trusted to him to procure them and satisfy the public demand, which could be satisfied in no other way, and the discharge was of no validity, till the debt was effectually paid.</p> <p>insisted that the court could not set aside such a release, unless shewn to have been obtained by fraud, and there was no proof of that, He cited 4 Burr. 2046. Strange, 1182, Cowp. 255.</p> <p>The legislature having directed a suit to be instituted against Moultrie for his default, and having recovered a verdict against him, cannot have a double remedy; especially against Mr. Rose, who has had no share in these transactions, and who furnished the funds necessary to purchase the indents to pay the bond. Tunno might have sold his houses for indents, and paid them to Moultrie; If he had done so there would have been an end of the business, as tp Tunno and Rose, even-jf Moultrie had never paid over the indents to the state* His transferring the houses and other articles direct to Moultrie cannot make any difference. Moultrie assumed the debt on himself, cancelled the bond and mortgage, and made himself debtor to the state; which should look to Mm. If .the bond was illegally cancelled there was a remo-dy at law, according to a decision of lord Mansfield, reported in Durnford and East; and the suit should have been brought at law. Cases quoted, 3 Bacon, 698. 3 Wilson, 345. 2 Bla. rep. 866. 3 Wilson, 374. 1 Salk. 86.</p> <p>When the bond and mortgage were cancelled, not a cent of money or indents had been paid on the bond. The payments were in merchandizes and houses, delivered and conveyed to Moultrie himself, who applied them to his own use. For the balance Tunno gave his bond,, and that had been settled and taken up chiefly in the same way. Tunno could not be allowed the benefit of the commutation act: for whoever claimed that, was required by law to take an oath that he had not the indents previous to the passing the law: and Tunno admits by his answer that he had purchased indents for Rose to pay the bond to the amount of 21,000/. Had Tunno paid money to Moultrie equivalent to the current price of indents, this might have answered, and the release of the bond might have been supported. But having paid neither money nor indents, according to the tenor of the bond, but lands and goods, it must he considered as no payment. If Tuuno trusted to Moultrie to satisfy the public, and he has not done so, he must look to Moultrie, but the public must he paid by their original debtors: For as attorney for the state, Moultrie had no more right to release the public debt, but in consideration of actual payment, than a common attorney had to release the debt of his client without payment. Tunno must have known that Moultrie was deeply involved; It was notorious: and that the kind of settlements he was making with him put the public debt in jeopardy. What is done by the agent is virtually the. act of the principal, and he is liable: If therefore Tunno has acted improperly as the agent of Rose, the latter must be accountable At the time the state ordered a suit against Moultrie and recovered a verdict against him, the legislature and its public officers knew nothing of the mode in which this debt had been settled; but it was supposed that the debt of Rosé liad been paid in indents, as it ought to have bee»?. and as it was represented by Moultrie, who debited himself-in his account for indents. Therefore no inference can be drawn of the state intending to waive its claim against Bose and Tunno. Quoted 1 Burr. 128. 3 Viner, 303. 1 Durnford and East, 757.</p>

<p>Mr. Aaron Loocock being in possession of a considerable estate, real as well as personal, made his last will and testament on the 14th day of April, 1791, Wherein amongst other things, he directed his just debts to be paid;, and then, he bequeathed to his wife Mary Loocock, the annual sum of 5001. during her natural life, in order that she might live in quiet, and easy circumstances. He also bequeathed to her, sundry negro slaves, about 23 in number, and his plate, furniture, carriages, horses, liquors, &c. And he devised to her the use of, his plantation, in St James’s parish; and the use, and occupation of his house in Charleston, for life. All which was to be in lieu and bar of dower. And the testator bequeathed, as a mark of his affection for his wife, l,000h lo ho paid ¿o whomever sbe.shoulrt appoint, if she died before the-testator, He also bequeathed, 1000k apiece, to his tWS sisters, to be remitted to them as soon as possible. The testator then devised to his nephew, William Clarkson, his plantation, called Middleborough, near the Great. Taft, on the Wateree river, and he bequeathed his said nephew the remainder of his slaves, with some stipulated exceptions; and he bequeathed to his nephew A. L. Clarkson, sundry slaves by name, and a plantation, and 1,000k The testator bequeathed to two nieces in England, 1,000k apiece, with directions to his executor to be very particular in securing these legacies. And he bequeathed other pecuniary legacies to several persons. The surplus of his estate, real and personal, he directed to be sold, and the proceeds, after payment of his debts, he bequea-^ie(* nePk°ws Clarkson and A. L. Clarkson, his residuary legatees. And he appointed his said nc-p]iews ids brother in law, A. Brown and others, to he his 1 ’ executors. The testator made a codicil to his will, on ^10 13^a ^a)' of November, 1793, being then at Now-York, by which after confirming the legacies to his wife, he bc~ qQcapfiQtj her some additional slaves. The testator also gave Ms said wife an order on W. Height, of New-York, for 100k to hear her expenses home, which she delivered †0 Mr. W. Clarkson, soon after the death of her husband; and which she believes has been paid to him. The tes-^01' a^°-1^ the 11th February, 1794, leaving the said will and codicil in force, and the defendant Wr Clarkson proved and qualified thereon as executor, and A. Brown and Á. L. Clarkson also qualified thereon; and they possessed themselves of the estate, and particularly of the estates bequeathed to the two Clarksons. But they have not made any provision for the regular payment of ths annuity to the said Mrs. Loocock, the widow. The widow claimed a preference, over all the legatees, as a purchaser, because what was bequeathed her, was in lieu and bar of dower, in great landed estate; which provision she was willing to accept if the annuity was secured to her, and the other legacies paid, and delivered to her. But the executors met corch vrtog her ciabas entitled to a preference, she filed her Mil for relief.</p> <p>The executors contended, that as the debts were much larger than had been anticipated, and would exhaust the the funds intended for the payment of the debts; and as none of the pecuniary legacies could be paid; and the specific legatees would be obliged to abate, that the widow was bound to abate proportionality with them. That in all events the specific legacies to the defendant W. Clarkson, ought not to be obliged to contribute to the annuity, as the testator had brought him up as his child, (being a favorite nephew,) and had promised to provide for him, as his child; and he had devoted the best part of his life to bis uncle’s service, in bis counting house, unrewarded. His uncle feeling his services to be so indispensable to him in the management of his affairs, would not permit him to-go into any kind of business; as he had abundant opportunities to do, with advantage. And he remained in his uncle’s service, devoted exclusively to his business, without any reward but a maintenance, till his death, when his nephew was 30 years of age. And tiie nephew under these circumstances considered himself not less a purchaser for valuable consideration than the complainant.</p> <p>It was insisted that the annuity of the complainant stood legally on the footing of the pecuniary legacies, and must abate with them — and that at all events she could not be on a better footing than the specific legatees. And that the lands devised specifically could not be touched to pay debts, till the whole personal estate should be exhausted.</p> <p>The defendant stated that he never received the payment of the order on Mr. Laight, having destroyed it when delivered to him by the complainant, as he had carried abundant funds to New York for the use of his uncle: and he paid the expenses at New York and supplied the complainant with money there.</p> <p>that a woman is entitled to dower even against the claim of creditors, previous to her marriage. See 1 Eq. Cases abr. 218. 1-2. 220, 8. 1 P. Wms. 693, 730. Wives are preferred. See Cooper vs. Williams, Prec. in Chanc. 71. In all case# where a devise to the wife is in lieu of dower, it is preferred to all otlicr claims. See Burridge vs. Bradyll, 1 P. Wms. 127. 2 Eq. Cas. abr. 552. pl. 5. This case is not shaken by Hinton and Finite, so far as relates to the wife being a' purchaser of the annuity by releasing her dowei’, but only so far as the decree related to the annuity being a pecuniary legacy. See also Lewin vs. Lewin, 2 Ves. senior 415. Blower vs. Morret, 2 Ves. senior 420. Davenhill vs. Fletcher, Ambler, 244. Swinburne, 277,8. 2 Vern. 477. 3 Atk. 369. 2 P. Wms. 701. When a legacy is given in lieu of dower it is not liable to abate as the other legacies are. The gift of the 100Í. was a uonatio causa mortis. And tisis can only be avoided by creditors, or by a wife, or by-those, who have such an interest in his estate as he cannot dispose of. It takes effect before a legacy. In devising to Clarkson the testator does not say it is in lieu of what he owed him; though it would he a satisfaction, if he o'Wed him any thing, Lands arc liable in this country for simple contract debts. By Stat. 5. Geo. ii. And the act for the abolition of the rights of primogeniture has placed real and personal estate nearly on a footing. And equitas sequitur legem: There is no reason now for saying that real estate is less a fund for payment of debts than the personal estate. The liares factus is not favored. See 4 Burns, 244,5,6. 282, Talb. 53. The annuity is not an absolute gift to complainant. It is only for life — 'Yet is in lieu of dower.</p> <p>that even if the wife’s annuity was entitled to a preference over ‘lie pecuniary legacies, it does not follow that she is entitled to such preference over the specific. And in this case, the fund will he so exhausted that the specific legatees will be obliged to abate. And there are no decisions that the annuity to the wife has ever been decreed to be paid in preference to specific, legacies. The cases shew that an annuitant is not considered as a specific, but as a pecuniary legatee. 3 Atk. 698. 2 Comyns 190, 259, 235. 2 Eq. Cas. abr. 555. Sec 1 P. Wms. 544. The annuitv is not bound to b« made good at all events; it is not charged on any particular fund, and therefore «omes out of the general estate: and is liable to abate, by the very words of lord Hardwicke, in 3 Atk. 693. So in Blower vs. Morret, 2 Vesey, 420. So in Lewin vs. Lewin, 2 Vesey. 415. If an annuity is not specific, but pecuniary, then it abates even with pecuniary legacies; and is postponed to specific legacies. 2 Vern. 683. 2 Vesey, 623. 1 Vern. 31. See 1 P. Wms 540.</p> <p>Mr. Clarkson is a specific legatee as to the personal estate, and a specific devisee of the real estate devised him. 2 Yern. 688, and 1 Eq. Cas. abr. 298. Fonb. on Eq. 374. 2 Eq. Cas. aim. 555, note. Indeed any devisee of land is a specific devisee. See l P. Wma. 678. 2. Eq. Cas. abr. 556. 2 Com. 190. Mr. Clarkson’s equity is as strong as Mrs. Loocock’:;. The will of the testator treats him as his favored nephew and his adopted son. Mi’s. Loocock has elected the annuity and legacies in preference to her dower — and she takes them with their precise legal qualities and characteristics, as any other legatee would do. Mr. Clarkson is not a volunteer. lie states his equity to the provision made for him by the will, upon oath in his answer, and the facts are conceded to him. The devises to him then are a recompense, and ought not to be postponed to any other legatee. If the complainant loses part of her annuity, he v ill lose part of his legacies by the debts. Their equity is equal and their claims at least on an equal footing.</p>

<p>„„ lx*</p> <p>HECUKi: HOOK, vol. ii. p. 33.</p> <p>The complainant filed his bill for specific performance of an agreement with the defendant for tiie sale of certain lands and negroes, at stipulated prices, to be paid at certain fixed periods. The agreements "were very loose and informal; and there were two memo-randa stating different in-stalments.— The defendant in his answer swears positively that the memorandum fixing the longest periods for payment, was the basis of the agreement actually made. The answer connected with that memorandum and not contradicted by proofs, is to be relied-upon, and the payments decreed to be made accordingly. The land and the negroes being-proved to be as good as any in that part of the country; and there being no proof of any misrepresentation or unfairness on tlie part of the complainant; and the defendant being well acquainted with the property, and having time and opportunity to examine and deliberate; the full prico stipulated in the memorandum of agreement, decreed to be paid, and the securities given, notwithstanding the alleged cíete-vioration.</p>

<p>CASE CXI.</p> <p>vol. ii. p. 33. DECEBE BOOK,</p> <p>The complainant sold cek of land each other ^ public aúc-tiom and the became the them thouglf eacli tract separately.— The com-Fayedseveral years in exe-conveyances? tho"5?h the defend-awardsAtfie defendant that°tire title of one of the cipalon^was not in the he"efusedto complete the ieging- that this tract was the principal object of the purchase.— The court decreed that as the tracts were put up to sale separately, and there was no proof of the purchaser’s buying chief-ly with a view to that particular tract, there was no ground to vacate the contract. Also that the delay in executing the conveyances, should not prevent a specific performance.— The court decreed a specific performance, deducting interest on account of the delay of the complainant.</p>

<p>The bill stated that John Drayton being seised and posscssed of a large real and personal estate, made and executed his last will on the 31st day of May, 1779, in and by which he, amongst other things gave and bequeathed to his daughter, Susannah Drayton, the sum of 3000L sterling money to he paid her by his executors out of his estate, on or at the day of her marriage, or when she should attain the age of twenty-one years, and that the lawful interest of the said sum should be annually paid and applied for her use, behoof, maintenance and education — That ■ shortly after, the said testator died, leaving his said will in full force, and leaving the said legatee alive, then an infant of two years — That Charles, Thomas and Glen Drayton, the sons, executors, and principal devisees and legatees of the testator, proved the will and qualified thereon as executors, and took possession of the estate, to the amount of 100,0001. sterling, That on the 10th of March, 1795, the said Susannah Drayton being of the age of eighteen years, intermarried with the. complainant, T. Bowles, and a marriage settlement was executed, securing her property to their use, ° *• . * v ' and the use of their issue, if any. That on or about the 20th of March, 1785, the court of chancery, on application math1, ordered and decreed that the sum of 60f. sterling should be paid out of the interest of the said legacy (to commence from the 22d June, 1779) for the maintenance of the said Susannah, which, allowance was ini-creased on the day of September, 1790, to 150Í. p<§* annum. That there is due to the complainants the sum of 5687l. calculating interest on said legacy according to the usage of the court of chancery. That demands have been frequently made for the payment of said legacy and interest, without success. The hill prays relief.</p> <p>The defendants admitted all the material facts charged in the bill, but denied that so large a sum as 56871. was due to the complainants on account of the legacy; for they insisted that compound interest was not demand-able on principle, or on the usage of the court. They admitted that the complainants had applied for payment of the legacy, and they averred that they had offered in. payment, property to a considerable amount at a fair valuation. The defendants pray the court to grant them k reasonable time to raise the portion of the complainant, Susannah, as one of the contingencies on which it was to be raised, to wit, the day of marriage was in itself so uncertain, as to leave the defendants unprepared to meet the demand; and the other contingency, to wit, her attaining 21 years of age has not yet happened: and the defendants said they were induced to hope for this indulgence, as in the event of her dying under age and with-out issue, the said legacy is, by a limitation in the testator’s will, to revert to and be equally divided among the defendants.</p> <p>There wei'e several questions raised in this case, but; the only two fully discussed and decided upon, and material to notice were the two following:</p> <p>1. Whether the -arrears of the interest, on the legacy of 3000Í. directed by the will of the testator to be paid annually, should he calculated and paid with interest thereon, for the detention of the money.</p> <p>2. Whether the complainants are entitled to have the legacy raised immediately.</p> <p>argued that on the former applications to the court for an allowance for the maintenance of Miss Susannah Drayton, the master had reported whht was due? as interest on the legacy; and that wherever the master states an account, interest is allowed by-the law and the usage of the court, on the balance stated, at least from that time. See 2 Eq. Cases abr. 529, 530. 14 Yin. 457, 1 P. Wms. 453, 652, 478, 480. 1 Bro. P. C. 202, 566. 2 Powell on mortg. 227. 2 Fonb. 188,9, 423. But independent of the master’s report, interest ought to be allowed on the ari’ears of interest due on the legacy. The intention of the testator is explicit, that the interest of the legacy should be paid annually, and applied to the. use, behoof, maintenance and support of his daughter Susannah, the legatee. Those are the very words of the will, which cannot be otherwise satisfied. If less than the amount of the annual interest was: suffi-. cient to maintain Susannah, then the balance of the an*, nual interest ought to have been placed out to interest or vested beneficially for her use and behoof. The tes.-fator must have known that the interest on 30001. sterling must have far exceeded the wants of an infant, and would for many years. He therefore intended an accumulation. The executors were bound to obtain that, and in doing so, run no risk, on taking proper securities. But if they were apprehensive of any risk, they should have applied to the court for instructions and authority, at the time when the application was made to the court for an annual-allowance out of the interest for the support of Misa Susannah Drayton. That allowance was always considerably below the amount of the annual interest of the legacy, expressly directed to be paid annually. And they were bound by the will to.putsuch balance out. to accumulate for the advantage of the legatee. If the executors have not done so, they are bound themselves to make it good to the legatee. But this case is much stronger than the common case of executors without any property in the estate: for here the executors are the devisees and. legatees of the great bnlk of a very large estate, out of which this very moderateHegacy is carved for the benefit of their sister. If they have not raised and put out the interest for the benefit of their sister, they have had personally the benefit of it, and are more strongly bound to make it good to her. The court in allowing 60L per annum at first, and afterwards 150i. per annum out at the interest on the legacy of 3000Í. well knew that there would he a balance of interest due annually on the legacy. And it must have perceived by the will of the testator, that the whole of the interest was to he paid annually, or improved for the use of the legatee. By leaving the balance of the interest in the hands of the executors, who were also the devisees and legatees of the great bulk of the estate; (to whom it was a convenience) the court must have considered them liable to pay interest on it, else it Was giving a great advantage to the executors and owners of the estate, to the prejudice of the minor, which cannot be decorously attributed to the court; especially when it is recollected that it is the peculiar province of this court io protect and guard the interest of minors. The court therefore when it ordered no more than a part of the annual interest on the legacy to be raised and applied to the support of Miss Susannah Drayton, must have relied upon the executors pursuing the will of the testator, and putting the balance of such annual interest to the use of the legatee, by obtaining or by allowing interest upon it, if they retained it in then own hands. If this expectation of the court has not been attended to, the court will feel itself bound to compel the executors to perform the will and do justice, by paying interest themselves on the arrears» Even in cases not so strong as this the court has made executors pay interest, for money retained in their hands without absolute necessity. Seo 6Bi’o. P. C. 319. 3 Bro» C. C. 73, 433, 107. 1 BTo. C. C. 359, 430. 2 Fonb. 184 to 188, 376,7, 1 Eq, Cas. abr. 238, 287. 2 Ero. 430.-2 Eq. Cas. abr. 740. 1 P. Wins. 783, 2 P. Wins. 21, 252» 3 P. Wms. 126. See 1 Vera. 251. 2 Yesey sen. 170, Talbot 2. Indeed compound interest is allowed in many cases where it is reasonable, without coining under any particular head or class of cases. Sec 1 Bro. C. C. 440,3» and the circumstances of this case make it most X’easonable, to be allowed. The testator having directed, the interest to be paid annually, though the payment of the principal is postponed to a distant and even an uncertain period mid event, this may. be properly considered ars annuity; and an annuity bears interest. See 1 Salk. 15G. 1 P. ¥ms. 542. 3 Atk. 579. 1 Brown’s P. C. 202, 556, 1 Yes. 428,9. It is also an established equity that indulgence entitles the party at whose expense it is given, to remuneration. 2 Pow. on Mort. 220. Now the permitting the executors to retain the money in their own hands, was a great indulgence. Money was then scarce an.’ difficult to be raised; and even now at the end of Seventeen years, they ask in their answer, for time to raise the money. The complainant’s counsel contended that the troubles and calamities the war, »»ught not to bar the claim of interest; as was insisted bv the N -Pa counsel. There is no such general i wv ,r ■■ ■ , La the contrary tliis court had in many cases s i- ■ •' t Lu i rf during the wax*, on legacies; and made executors au ->. aide, for crops, where no accounts were rendered, by charging them 10Z. per annum, for the working slaves, See Mayrant’s case vs. executors of Nelson, and other cases. Under very extraordinary circumstances of national calamity, extending to all, by which estates are made wholly unproductive, the- court of equity may possibly he induced to qualify or restrict the payment of interest; but such circumstances should be proved to have existed, and to have produced that effect. No proof had been given in the cause, to shew that the great estate in the executors and devisees hands had been made wholly unproductive by the war, or in what degree: and the court would not presume it, to the prejudice of a minor daughter and legatee. The complainant’s counsel contended that they are entitled to have the money raised immediately. They grounded this on the very words of the will. That directs that the legacy of 30001. sterling, should be paid to his daughter Susannah, by his executors, on the day of her marriage, or when she should arrive at the age of twenty-one years. The testator had a right to prescribe the time, and he lias done so. His daughter is married, and is entitled to payment of her legacy, according to the will. It was objected that the executors ought not to be bound to raise the legacy until the daughter attained twenty-ope years of age; because in the event of her dying under age, and without issue, there is a limitation» over of the legacy to others: or that at any rate a reason* able time ought to be allowed to raise so large a sum of money. To this the counsel for complainants replied that the testator knew very well that he had made a limitation over °f the legacy, in case his daughter should die under age, and without issue: nevertheless he chose to direct the payment to her on her marriage, which has taken place; and his will is the law on this point. See 1 Wilson 140.-Besides there are cases which shew that such, a legacy is sufficiently vested, notwithstanding such subsequent limitation. See 1 Vern. 462. 2 P. Wms. 612. 2 Yesey sen. 263. 1 Bro. C. C. 105, 300. 2 Bro. C. C. 3. With respect to the demand for time to raise the legacy, there-is no just ground for it: the executors knew that they were to pay the legacy when the daughter married, or attained twenty-one years of age. She was married on the 10th March, 1795; and it was the duty of the executors to have prepared to pay the legacy, in sterling money, as the testator directed; instead of which the executors have offered to pay in unproductive property at a valuation. For the time when portions are to be raised, see 2 P. Wms. 612. 2 Yesey, sen. 263. 2 Bro.. C. C. 3. 2 Eq. Cas. abr. 638. 1 Bro. C. C. 103.</p> <p>that the claim of com* pound interest was not supported by the decided cases. None of them went so far as this demand, which went on (according to the calculation filed with the bill) adding the annual interest to the principal and forming a new principal every year, bearing interest, and thus forming a most enormous accumulation. That interest is a matter of discretion with the court; and it has been refused in times of public calamity. Sec 2 Eq. Cas. abr. 611. 1 Bro. P. C. 526. That the testator had carved out large portions for his two daughters, 3000k apiece, amounting to 6000k and the debts were 6000k That during and for some years after the war the estate though large could not meet its exigencies, and raise the annuity, or amount of annual interest on the legacies; therefore compound siiterest ought not to be allowed. That the executors bad offered to deposit bonds with Mrs. Drayton, the mother of the legatees to pay for those legacies, but she refused} and indeed the court refused to allow it, and obliged the defendants to keep the legacies in their own hands. All the cases for the allowance of compound interest go upon the executors occasioning improper delays. But here they were willing to pay in bonds. The executors could not invest the legacy. There were no banks, no public funds at that time. Besides the cases in which compound interest has been allowed are where maintenance was given as the means of subsistence to the children. But in the case under consideration, enough was paid out of the interest to maintain the legatee. The circumstances of the estate would not permit more to be raised for a long time. Again, to whom was the money to be paid ? Not surely to the minor legatees. Money could not have been put out to interest, and the interest regularly obtained, so as to be put out again an-nually, and thus produce a compound interest. If compound interest is allowed, it must be on the ground that tlie executors have not done tlieir duty, according to thé will. Yet it is not proved that they could have done better. As to the other point, the raising the legacy immediately, the counsel contended that would be improper; because Mrs. Bowles, the legatee, will not be of age till December, 1797} and if she dies before that period without issue, there is a limitation over in the will, which will carry the legacy to the defendants themselves. They ought not therefore to be obliged to raise so large a sum,at a great sacrifice, when ultimately it may not be paya* ble to the complainants. Again the time of marriage was uncertain. The executors therefore could not be expected to be prepared to pay the legacy- so immediately after the happening of an uncertain event. A reasonable time ought therefore to be allow«d the executors to raise the -money.</p>

<p>«ase cxin*</p> <p>DKCRF.K HOOK, vol. ii. p. 45.</p> <p>A testator bequeathed to ins wife the enjoyment of his estate, will power »o dispose thereof by deed or will; and that wh.it she left undisposed of, at her death, should be sold, and the money divided a-xnong all his children.— Two of the daughters died in the testator’s life time, leaving children.— The widow of testator made a gift of part of the estate to one of the daughters (who is the complainant) for life, with remainder to lier children. She died, leaving the rest of the estate undis-posed of.— The complainant claimed a share of the undisposed property, as well as what they received by gift. It was decreed that she was not entitled to bo'h; but must make her election. The children •of the two daughters who died in their father’s lifetime, were let in to shares of the undispos-ed estate</p>

<p>The hills in these cases w:ere filed to obtain settlements and accounts of the estate of the late Dr. James Carson, who has devised and bequeathed considerable legacies to the complainants.. As the bill filed by James Stuart Ismiglit out the whole case, it is unnecessary to give a full statement of both cases.</p> <p>The bill filed by Janies Stuart charged, that complainant's mother was possessed of considerable estates, and intermarried with Dr. James Carson, who thereby acquired the property which she possessed. That during the coverture he acquired in her right considerable property under the will of her deceased brother, Lewis Reeves. No part was ever settled on her. That Dr. Carson being possessed of a large estate, real and personal, made his will on the 22d of August, 1777, which is set forth in the bill, That the executrix and executors thereof qualified in the following order: William Ladson on the Sd October, 1777, Ann Carson (complainant's mother) 1 Ith September, 1773, William Carson, the defendant on the 9th August, 1730, under the board of police, and complainant on the 1st day of March, 1783. That during the war the complainant (then of tender years) Is not informed of the particulars of William Lad-son and Ann Carson’s administration,* but believes they did little, more than keep tbe estate together as well as they could, except selling the lands on Lady’s Island called St. Quiistm’s, which was sold by William Lad-son., and a considerable part of the purchase money paid in depreciated currency. Complainant charges, that some pas t of the purchase, money came to the hands of Use de-defendant. That during the joint lives ol‘ Mr. Ladson and Mrs. Carson, Iks chiefly acted — after his death she acted solely till her death, being about nine months. That upon, or soon after the surrender of Charleston to the British, William Carson took into possession all the real and personal estate, and during the British usurpation {between two and three years) continued to hold, manage, and dispose thereof — sold most of the personal rs-i.tv, consisting of furniture and plate, both in Charleston and on Joint's Island. That lie. also made and sold considerable crops and proceeds of the estate, of all which lie has not rendered proper accounts. That he sold the household furniture, although one half thereof was specifically bequeathed > o Ana Carson, oh whose personal estate, dc-. fendant took out letters of administration,* and be on gin ' to have sold the same (one half) as her property; but he-acted irregularly, making no discrimination between the es“a^es* That he never made or returned any inventory or appraisement of cither estate, by reason whereof com-pl&inant is necessarily in the dark, as well as to the particulars of Mr. Ladson and Mrs. Carson’s administration, ai|d of that of the defendant under the board of police, as 0f the particulars-, value and amount of the estate, and the sales thereof. That though complainant’s said mother was entitled to one third of the negroes, to be elected by her out of the house negroes, she made no such election, owing to the troubles of the times; and no division was made. And complainant contends that the right still remains in her representatives unimpaired. That she died on the 18th May, 1780, leaving her son, the complainant, and her daughter, Eliza Gibbs Carson, her legal representatives, who were entitled to divide Mrs, Carson’s interest between them. That about the time of the evacuation of Charleston, the defendant went to England, and took Miss Carson, then very young, along with him; and returned to this state, with Miss Carson in the year 1790; and she died in the month of July, 1794, under age, intestate and unmarried. By reason whereof and under the act of the legislaure of 19th February, 1791, the complainant is entitled to the whole property of his said half sister, and to the whole property of Mrs. Carson his mother. That in consequence also of the-' death of Miss Carson, “ unmarried and before arriving to the age of 21 years,” the limitation over of the personal estate bequeathed to her by her father the testator, has taken effect, whereby one third of the residue of the personal estate was to go to Mrs.i( Ann Carson, her executors, administrators and assigns forever” — and complainant submits that he is entitled to the same'. By these-various means complainant, as he contends and submits, is entitled to one third of the negroes of the estate, with the right of choosing from amongst the house servants, together with the rents and profits, from the year 1780. Also to one half of the furniture, plate, and kitchen furniture, with interest on the sales thereof. And lastly, one third of the residuary estate bequeathed to Miss Carson, with the rents and profits from the time of her death. Of all which complainant hath given notice to defendant, and requested a discovery and account of the estate, and a settlement, as well of that of Dr. Carson as of Mrs. Carson — And that he Mill discover all papers, documents and vouchers of each estate, which came to his hands after the death of Mr. Ladson and Mrs. Carson, and disclose the particulars of their administration; and that he would co-operate with complainant in hastening the affairs of the estate to a final close — All which he refuses^ and will not agree to have a division made.</p> <p>The bill prays that defendant may come to a full account, discovery and settlement of both estates. That complainant may have delivered over to him whatever he is entitled to in his own right, in that of his mother, and in that of his sister, Miss Carson. That the funds which the testator intended for the payment of his debts may be ascertained, and applied thereto. That defendant may be restrained in the mean time from selling the estate.* That complainant may have such further and other relief as the court shall judge proper and equitable.</p> <p>To this hill the defendant, William Carson put in the following answer:</p> <p>The answer of William Carson, one of the executors of Doctor James Carson, (deceased, defendant to the bill of complaint of Doctor James Stuart) stated, that the defendant denied that the testator, Dr. James Carson obtained a considerable property by his intermarriage with the complainant’s mother, Mrs. Stuart; — . Eut admits, that on the death of her brother, Lewis Beeves, he acquired some beneficiary interest by his will in favor of his sister. Defendant admits that his brother, the testator was possessed of a considerable real and personal estate, and made such last will and testament, as is set forth in the complainant’s bill, whereby he gave to the complainant a far more considerable estate than that which lie acquired by the will of Mr. Reeves, in favor of Mrs. Cai’son. Defendant admits that lie left this state, on political considerations, soon after the death of his brother, the testator, without having’ intermeddled with the estate, and leaving the whole in the possession of the executrix and the executor, Mi*. William Ladson, recommending to them not to sell the plantation on Lady’s-island for less than 30001. sterling, having himself offered ^ gjve that sum for it. That the defendant returned to. this state in the year 1780; and that Mi*. Ladson was the» dead; and Mrs. Carson, the cxecuti*ix soon after died; and Dr. Janies Stuart w*as then under age. That under these circumstances, defendant qualified on the will of his brother, Dr. James Carson, before the officer appointed by the existing powers, to grant probates, whereby he was enabled to protect the property of the estate; and ho con. sidcred the oath as obligatory as if taken under the best, authority. That to the best of his recollection defendant administered on Mrs. Carson’s estate (the widow of Dr, James Carson) and took possession of some paper money, furniture and plate — «old the same to the best advantage, and credited the estate therewith in his accounts. But he denies that he possessed himself of all the papers of Mrs. Carson; but avers that some of the titles of the lands, and lie, believes most of her valuable papers were carried off on her death, and are now, to the best of defendant’s belief in complainant’s possession. Defendant admits that till the close of the year I78¿, he managed the estate of the, testator, of which he kept as accurate an account as the nature and circumstances of the times could admit. That of these transactions and all others respecting Ids brother's estate, subsequent thereto, (down to the month of last) he has rendered an account to the ordinary, and filed a copy with his answer to a bill already filed against him, in this court, to which lie prays leave to refer the court: and prays leave to postpone the exhibiting his subsequent accounts until he can properly arrange them and submit them to the ordinary; after which they may be made part of Ms answer. That defendant about Ilic year 1782. transmitted to complainant an account of ail his transactions respecting the estate, from the death of Mrs. Carson, to the close of the said year. And also from time to time whilst in Europe, this defendant transmitted to complainant the accounts of monies expended on the education of defendant’s niece, and of monies reCeived from the estate of the testator, as remittances. Defendant admits that his niece departed this life at the time mentioned in the bill, under age, and unmarried. That complainant is her brother of the half-blood, and would be entitled to a share of the residue of the personal estate, if such estate be more than sufficient to pay the debts due therefrom, which this defendant does not believe to bo the case. That with regard to the various claims of the complainant, defendant submits them to the decision of the court, confident that it will protect him in Ms rights. Defendant refers to exhibit A. for an account of the negroes, and other personal estate in Ms possession, belonging to the estate. Defendant begs leave to require on his part, that complainant, while he seeks a discovery of accounts from the defendant, will himself Tender an account of all his own transactions, and of those of his agents during the túne that he managed the estate, and also an account of all his mother’s transactions as far as the same ever came to his knowledge. That he Will moreover produce all the titles and papers in his possession and control, belonging to said estate. And that he will set forth the profits which were made by the negroes bequeathed to him by the testator on the event of his arriving at the ago of twenty-one; and which this defendant has been informed and believes were separated and worked apart as distinct property for a considerable time previous to his coming of age. And defendant prays to be dismissed.</p> <p>The provisions and dispositions of Dr. James Carson’s will were as follows: He directed all his debts to be paid as soon as might he, after his decease. For which purpose he directed the plantation on St. Qintin’s to be sold; and if it proved insufficient, then the remainder of his debts to be paid oot of the rest of his estate, not specifically devised. The testator bequeathed to bis wife, Ann Carson, his carriage and horses, one half of all his furiu-ture, plate, &c. one third of all his negroes, with a right of electing some of them from among his house servants. Also the use of his town-house, and of his plantation dur-|ng widowhood, in lieu of dower. He directed his step-soil, James ■ Stuart to be educated at his expense until he attained twenty-one years of age. Then he devises to him the plantation on Lady’s Island, Cain Island, and Farrington’s Neck; and he bequeathed to him thirty enumerated negroes, with cattle, sheep, &c. &c. Then followed a clause making void all the above devises to his wife and James Stuart, in case they should set up any claim upon the estate in right of his grandmother or uncle; or for dower or jointui’e; and in that case orders their portions to sink into the residuum of the estate. All the rest and residue of Ms estate, the testator devised and bequeathed to his daughter, Eliza Gibbes Carson, at twenty-one years of age, nr on her day of marriage, which should first happen. But if she died before, he devised all his lands not before specifically bequeathed to his brother, William Carson, and the residue of his personal estate to be divided into three equal parts; one third of which he bequeathed to hiS brother, William Carson; another third to his wife, Mrs. Ann Carson; and the remaining third (in moieties) to William Ladson and Thomas Ladson. St. Quintines was sold, but proved to be insufficient to pay the debts. Miss Eliza Gibbes Carson, having died under age, and unmarried, the limitations over took effect.</p> <p>Doctor James Stuart claimed under the will as follows: The lands devised to him by the will; the negroes bequeathed specifically to him; the third part of the testator’s negro slaves bequeathed to Dr Stuart’s mother, Mrs. Carson; with the rents, issues and profits, since her death in the year 1780. Also one half of the furniture and plate, with interest from the time when these were sold. And finally, in right of his half sister, Miss Carson, (under the devise over to his mother) one third of the residue of the personal estate, with rents and profits from the death of Miss Carson. Dr. Stuart contends that none of these several interests- are liable to be affected by the debts of the testator; but that some other portion of the estate should be applied to that purpose.</p> <p>Mr. William Carson contended that he had a right to have his lands protected by the personal estate against the payment of debts.</p> <p>The complainant, James Hartly, who had married the only daughter of Thomas Ladson, (one of the contingent legatees) claimed the legacy to which his wife’s-father was entitled under the will.</p> <p>The principal question in this case being out of what ftmd the debts were to be paid, it was contended by Mr. Ford, Mr. Desaussure and general Pinckney, for the complainant, Dr. Stuart, that the lands and negroes devised and bequeathed to Dr. Stuart, were not bound to contribute to the payment of debts, until all other funds had failed; because they were specific devises; and specific devises are not liable by law to contribute; and because the testator expressly designated St. Quintin’s plantation as the first fund to pay debts; and on failure of that (as had happened) then the rest of Ms estate not specifically devised. Thus the rule of law, and tile-testator’s intention- unite to exempt the property given to Dr. Stuart. It was also contended that the property bequeathed to Mrs. Carson,, the widow was not bound to contribute to the payment of debts* because part of it-was specific, to wit, the carriage, horses, furniture, plate, &c¿ and because it was given her in lieu of dower, which assimilated it to Mrs. Loocock’s case, lately decided by this court; and placed her on the footing of a purchaser. But her case, as well-as Dr. Stuart’s, was stronger, on this ground; for they had claims on Mr. Carson, the, testator’s estate, derived from Mr. Lewis Reeves, the brother of Mrs, Carson, which the testator refers to in Ms will, and requires to be give» up, to entitle them to take under Ms-will. This they have done, and therefore stand emphatically on the footing of purchasers. And this is the stronger with regard to the legacy of negroes bequeathed to Dr. Stuart; the greater part of whom were negroes which had been bequeathed to Mm by his uncle, M'p.</p> <p>Reeves, which came into the hands of Dr. Carson, on his marrying Dr. Stuart’s mother, and were retained till his death. The debts then remaining unpaid, after the sa^e St. Quintin’s, must be paid out of the residuary estate. That was devised and bequeathed to Miss Carson? and upon the event of her death under age and unmarried, the real estate was devised to.the defendant, William Carson; and the personal estate to be divided jn<;o three equal parts; one third to William Carson, one third to Mrs. Carson, to which Dr. Stuart is entitled, and the remaining third to Mr. William Ladson and Mr. Thomas Ladson. With respect to the third of the personal estate bequeathed to Mrs. Carson, in the event of the death of the testator’s daughter, that ought not to be made to contribute to the payment of the debts; because all that was given to her by the will directly, or by way of i’emainder, was in bar of dower, and as a substitute for her claims on her brother’s estate, she having survived her husband. That the debts therefore ought to be paid out of the real and personal estate devised and bequeathed to Mr. William Carson, and to the two Ladsons, who were volunteers, unless the court should be of opinion that the testator meant that the land devised to William Carson should bear the whole debts, as he expressly directs the residue of his debts should be paid out of the estate not specifically devised. That these words, estate and devise, are technical words which apply to land. And that at all events the land so devised was bound to bear its proportion of the debts, together with W. Carson’s third of the personal estate, and the third bequeathed to the Ladsons; for that seems to have been the intention of the testator, whose bequests in favor of some of the legatees might and would probably be defeated, unless the land was made to bear its proportion of the debts. And that the court would have less difficulty in giving this construction, since the act abolishing the rights of primogeniture had placed lands on the same footing with personal estate. That the old doctrine in favor of heirs could not now be supported: and if it could Mr. William Carson was a mere devisee, and could claim only in that character; for lie was only half brother of Dr. William Carson, and could not be his heir at law. The cases cited for the complainant were from 2 Eq. Cas. abr. 370, 555, (in a note) 556. 1 Atk. 416. 2 Fonbl. 374. 1 Eq. Cas. abr. 298. 2 Yern. 688. 1 P. Wins. 127. 2 Yesey 415, 420. Ambler, 244. 2 Comyns, 208. 1 Eq. Cas. abr. 197. 3 Atk. 525. 2 Atk. 624. 1 P. Wins. 403. 2 P. Wins. 336. 2 Yern. 718. Ambler, 581. Talbot’s cases, 202, and Loo-cock’s case decided in this court.</p> <p>Hartley, that the defendant, William Carson being only half brother of Dr. James Carson, was not the hseres natus; nor was he luercs factus under the will; for the devise is not of a particular tract of land hut of his lands generally. The act of George II. passed in 1732 made lands liable for payment of debts in this country. And the statute of Win. III. against fraudulent devises made lands liable to specialty debts, the heir being thereby expressly hound. The testator manifestly intended to benefit bis wife and the other legatees under the contingent bequests, as well as his half brother. And where there appears an intention to exonerate the personal estate, or put it on an equal footing with the real, the land must be liable. The cases cited were from 2 Eq. Cas. abr. 497, 493. 2 P. Wins. 664, 233. 1 P. Wins. 730. 2 Atk. 624. 2 Yern. 477. Talbot, 53. 3 P. Wins. 326.</p> <p>William Carson, contended that the personal estate was the proper fund for the payment of debts, unless the real estate is expressly charged therewith, or W'ords are used in the will strongly implying such intent. And the statute of George II. makes lands liable only on the failure of personal estate. And that Miss Carson wras entitled to have her maintenance out of that part of the estate given to her mother, one half of which came to her on the death of her mother. The cases cited were 2 P. Wins. 366. IP. Wins. 264. 2 Yesey, 313. 1 Wilson, 82. 1 Brown’s Par. Cases, 132. 1 Bro, O. C. f 54.</p>

The complainants filed a bill against the executors of their father’s estate, for an account and settlement of the samej and for the recovery of their legacies under his will.

<p>The bill states that Henry Perronneau, formerly of Charleston, being seized and possessed of a considerable estate, real and personal, in Carolina and England, and having no issue, did on the 9th day of July, 1786, make his will, which is set forth at length in the bill; by which after all his debts and funeral expenses were paid, he devised his estate as follows : — He gave to his wife Ami, all his household furniture, &c. plate, books, beds, bed and table linen, &c. He also gave lier an annuity of 30CZ. during her natural life, and charged his whole estate with the payment of it, in lieu of dower. He also directed all his Carolina debts to be collected by liis executors there, and remitted to his executors in England to be invested in government securities. He gave to his brother-in-law, Hr. Alexander Garden, 2,5001. to he paid on the death of his wife; but if he should die first, then the said legacy to go to his nephew Alexander Garden, his niece Juliett, and his niece Harriott Benson, to be equally divided. He gave to Robert Cooper 2,500i. to be paid on the death of his wife; hut if R. C. should die before his wife, then he gives the legacy to Cooper’s children: If there should be default of cliild, then he gives it to Ann and Eliza Cooper. He gave to his servant John Champneys 3001. to he paid on the death of his wife. He also gives him his wearing ap-pare!. He gives to each oí his executors 1001. Then follows this clause — .«All the rest and residue of my worldly estate, whatsoever and wheresoever I do hereby give, devise and bequeath unto my nephew William Per-ronneau, son of my brother Arthur Perronneau, deceas-cd, immediately after the death of my said wife; but in case of his death before her, then on such event or contingency, I do hereby give devise, and bequeath the same and every part thereof to the child or children of my said nephew William Perronneau, lawfully to be begotten, as shall be living at the time of his death, to be equally divide(j between them as tenants in common — if more than one, as soon as possible after the decease of my wife: andm casemy said nephew shall happen to depart this life without leaving any children or child lawfully begotten living ^ the time °f his death, then and on such event or contingency, I do hereby give, devise, and bequeath the said surplus and residue of my said worldly estate after the death of my said wife unto the other children of my said deceased brother Arthur Perronneau, as tenants in common of like equality of estate; but if there shall be no children or child of my said brother living at the time of the death of my said wife, then and on such event and contingency, I do hereby give, devise and bequeath the same an<^ every Par* thereof unto such of their children lawfully begotten as may he living at the death of my sa^ 'wife, to he equally divided between them as tenants in common, if more than one.” Lastly, he appointed Dr. Alexander Garden, Robert Cooper, Robert W. Powell, and John Hopton, of Westminster; John Savage, of Brompton; Benjamin Savage, of London; Rawlins Lowndes, Isaac Motto, and Edward Penman, of South-Carolina, executors of his said will. — That the testator died on the day of November, 1786, leaving the will of force, and without issue. That Messrs. Lowndes, Motte, aud Penman, proved the will, and qualified as executors, and took possession of the Carolina estate— That the estate was very large; being much more than adequate to raising and securing the annuity to the widow — That the testator at the time of making his will was under strong impressions of the instability of the American governments, and the insecurity of property from the then unfortunate and unsettled state of public affairs — it was the reason of his directing the funds of his estate to be remitted to England. Complainant is well assured that Ms uncle was actuated by the strongest de» sire to secure the legacies to the objects of his bounty, and particularly complainant who was the favored object. But complainant submits that great changes have taken place in public affairs since his death; since which the present government hath been erected, and has happily secured peace abroad and security at home; while wars and revolutions new in their principles and boundless in their extent, disturb the nations of Europe, and threaten the funds of Great-Britain; that it would therefore be more likely to effect the chief views of testator, if after remitting as much as would secure the annuity, the residue were retained in this country, and placed out under the directions of this court for the benefit of complainant and his family, who are chiefly interested, and are anxious it should remain in this country under the jurisdiction of the court. That at the time testator died, complainant was a youth, and lived at no expense to himself in the household of his mother; but since, hath intermarried and become burthened with a numerous family, which. hath become exceedingly distressed in consequence of the failure of some of those resources of his mother upon which he had in a great measure depended, whilst the large residuary estate of the testator is locked up from, him. The executors not deeming themselves at liberty to extend any relief to complainant, either by the payment of interest, annuity, maintenance or in any other way without the sanction of court. Whereas complainant humbly submits he is entitled to demand the interest on the residuary estate, as well as to have the amount of the same secured to Mm, after securing the said pecuniary legacies and the annuity prior to the same being transposed into a foreign country beyond the reach and jurisdiction of the court. That complainant hath applied to the executors of said estate to have the residuary estate and the interest thereon secured to him in manner aforesaid, after securing the legacies and annuity aforesaid; but the said executors have hitherto refused him his reasonable request; alleging that complainant is not enti-tied to any maintenance out of the said estate; nor to have the same secured or l’etained in this country. The bill therefore prays a discovery and statement of the estate, of the monies remitted to England, of the debts duo, and that after remitting to England so much as will pay the widow’s annuity, and secure the legatees residing there, that complainant may receive the residue of the interest in whole or in part, and that the residuary estate may be secured for the benefit of complainant and his children, by placing the same at interest in this country, and within the jurisdiction of this court, or otherwise, as this court may direct; and that the remittance of the estate into a foreign country may be suspended: and that the complainant may have such further relief as the nature of the case may require.</p> <p>The answer of the defendants admits all the facts alleged in the bill; hut submits that the legacy to Mr. W. Perronneau not being vested, he is not entitled to any allowance for maintenance out of the estate; and submits that point to the court. Also, that the testator having directed the debts due to him to be collected and remitted to England, the executors are bound to obey his will; and that the court has no power to control the performance of his will.</p> <p>The brother and two of the sisters of Mr. William Per-ronneau, to whom the estate was devised and bequeathed over on the event of his dying before Mrs. Ann Perron-neau, the wife of the testator, and without issue, delivered a written declaration that they had no objection to his success in the application to the court for relief in the. case stated by his will; and they also stated that they knew that to be the wish of their sister Mrs. Wm. Hayne, and her husband, who were absent, and did not sign the declaration. At the hearing of the cause, Mr. Ford and Mr. Dcsaussure, argued for the complainant. They fitated that there v/ere two objects in the bill r</p> <p>1st. To obtain an allowance out of the interest of the estate, by way of maintenance for an infant family, enti-tied to a large estate hereafter, but in danger of suffering at present.</p> <p>2d. To obtain the detention of the estate in this country within the jurisdiction of the court, for the benefit of the persons chiefly interested in it; or if it must be remitted according to the directions of the will, to require security from the executors abroad, to whose care the estate is to be committed.</p> <p>The application is opposed on the grounds, that the legacy to Mr. Perronncau is not vested, but devised over to his children, on his dying before the testator’s wife; and to his brothers and sisters, if he died without leaving children. Also, that a father is not entitled to maintenance for his children out of their fortunes; and that the will of the testator directing the estate to be remitted to England, must be obeyed; and the executors are not bound to give security.</p> <p>It was contended for the complainant that the sole object of the testator, in postponing the legatees to his wife’s death, was to keep his estate together, to secure his wife her annuity at all events; and not to make a distinction between a vested and contingent legacy. But she can be made safe without such a hardship on the complainant, his nephew, and the favorite object of his bounty, next to his wife. And the court will be anxious under such circumstances to give relief. 1 Wilson. 140. 4 Burr. 2246, 3 Bro. C. C. 404. 1 Bro. P. C. 288. 3 Bro. P. C. 337. Wherever the court can find a slender twig to take hold of, they will do so to give relief in such hard cases. Few of the decided cases form exact precedents. Lord Chancellor Hardwicke said, that when and to whom interest was to be allowed, depended so much on particular circumstances; on the relation of pai’ties; on the penning of wills; that hardly one case could be cited that would be a precedent for another, and the court has found means to escape from the operation of harsh and strict cases on small circumstances. 1 P. Wms, 783. 2 P, Wms. 21, 2, 2 Vera. 152. 2 Bro. C. C. 75. 1 Bro. C. C. 119, 298. 3 Bro. C. C. 4/1, 90. 3 Bro. P. C. 33/.</p> <p>Tn many cases it has been decided that the devise over does not make any objection to such a claim as the present. 2 P. Wms. 21. 2. 419. 504. 1 Bro. C. C. 82. 104.</p> <p>I» general, where the court refuses to give aid, it is where the contest is between the immediate legatee and remainder men. But here the application is by the first legatee, for maintenance for his children, who are the first in remainder; and the remoter remainder men com sent to the measure. The complainant has no estate of his own, out of which he can maintain and educate his children. He depends on his mother, and her means have been greatly impaired by fire, by insolvency of debtors and other circumstances. No injury can result to others from granting the application — 'not to the widow-because the court can and will order remittances sufficient to raise her annuity of 300k per annum during her life— not to the pecuniary legatees in England, because after remitting enough to secure them, there remains a very large estate, out of which the application of the complainant may be granted; and indeed there are funds enough of the estate already in England to secure them.</p> <p>The case in 2 Atkins, 41, was of the administrator of the party applying for intermediate interest after the death had happened, and the limitation over, vested. So in 3 Atk. 508. and in 1 Atk. 505. The court looks at the spirit and equity of the cases and doctrines; not the letter of them. In Loocock and Clarkson, the court protected the annuity of the widow against specific devisees and legatees, though no case had ever gone so far before. The distinction between a legacy at 21, or payable at 21, on which many ofthe cases have been founded, has been questioned by eminent judges. Lord Chancellor King said, the distinction does not deserve tobe countenanced, 2 P. Wms. 612: and Lord Keeper Wright said it was a distinction without a difference. 2 Vcrn.41Z, 424. There are two strong cases in favor of the complainant. In the case of Clax-tón v. Claxton, 2 Vera. 152, the court suffered the devi-see to perform the condition, even out of the properly do-vised, before the estate in contingent remainders, was to vest. In 2 P. Wins it was declared by the master of the rolls to have been the practice to allow maintenance even in the case of legacies that were not vested.</p> <p>Another objection has been made, to wit, that the court does not usually allow a father to have maintenance fpr his children, out of an estate devised to them aliunde; yet this depends upon the ability of the parent to maintain them.</p> <p>In Hughs v. Hughs, 1 Bro. C. C. 387, the Lord Chancellor ordered maintenance on the ground of the inability of the parent; though he thought the fund was intended to accumulate.</p> <p>See too 3 Bro. C. C. 416, 4 Bro. C. C. 223. maintenance is so much regarded, that the principal is sometimes allowed to be broken in upon. 1 Yernon, 255. 2 P. Wms. 22.</p> <p>We come now to the consideration of the second great point made in the case.</p> <p>It is contended for the complainant that the estate should be detained' in the hands of the executors in this country; or that the executors resident in England, who require the money to be remitted to them, should give security for the repayment of it to the legatee here on the death of the widow of the testator.</p> <p>It is true that the will of the testator directs that Ms-whole estate should be converted into money, and remitted to his executors in England, to be invested in government stock, for the benefit of his legatees.</p> <p>Now it is manifest that this regulation was founded on peculiar circumstances. The testator was a man of sense and probity, but he had adhered to the cause of the mo - ther country, in the struggle which terminated in the independence of the colonies. He wras obliged to leave his country, and he was amerced for his political error. — ■ This soured his mind — .the distresses brought upon this country hy the war; the total want of a national government; the derangement of the finances of the state governments; the interference between debtor and creditor, by state laws, and the consequent breach of contracts, and depreciation of property, ail tended to induce a be. lief in many, and an apprehension in all, that the new re<* publics were about to become scenes of discord and anarchy. In the minds of those who had been hostile to the revolution, this belief was deeply fixed.</p> <p>&1 this frame of mind, the testator sat down to draw his will in the year 1786; and it is not to be wondered that he was desirous to withdraw all his property from a country devoted to ruin in his estimation; not only for the benefit of his wife and his English legatees, but his favorite nephew and residuary legatee, though he resided in this country. The testator died soon after without one circumstance in the political situation of this country being altered. It is now ten years since his death. The United States have formed a strong national government; public and private credit are re-established; internal tran-quillity is firmly settled, and peace is maintained with all the belligerents during the arduous struggle which is desolating and exhausting the European nations. England has taken an active part in this wide spreading war; and she has incurred a vast debt in addition to her former bur-thens; and the revolutionary fervor has spread among her people, and threatens internal convulsions. Under these circumstances, so totally different from those which existed at the time that the testator made his will, there can he little doubt that the testator, if living, would have altered his will; and would have directed that at least so much of his estate should have been left in this country as was intended for the legatees residing here: and what he would probably have done, it seems reasonable for the court to do. It is not asking the court to vary the rights of a single party. It is merely to make such a variation in the arrangement of the funds as will be most beneficial and secure for those interested: which the court is in the habit of doing, even to the sale of real estates, where it is beneficial to the devisees and legatees.</p> <p>There is already considerable property in England.— Let so much be remitted in addition as will secure the annuity to the widow; and as will pay the legacies to Dr. Garden and Mr. Cooper, who reside in England, amount-íng to 5000Í. The remainder of the estate, which is very large, is bequeathed to the complainant, and on his death to his children: they arc natives, and permanent residents in this country. There is no good reason for obliging them to seek their legacies hereafter in a foreign country, where they are strangers, and might have great difficulties, and be put to great expense in the recovery of their rights, if the executors in England should resist their • claims, or even put them to the proof of them. And it should be remembered that interest is two per cent, higher in this country than in England. But if the court should feel itself so bound by the positive direction of the will, as to be obliged to permit the removal of the funds of the estate out of this country into a foreign country, it would be quite reasonable to direct that before the removal took place, the executors residing abroad, who insist on the exact fulfilment of the will, and require the remittances to be made to them, should be directed to give security for the repayment of the money to the legatees in this country, on the event happening, which shall entitle them to it. There are many cases in which the court requires security of executors, even without absolute proof of waste or insolvency. See 2 Eq. Cas. abr. 552, 7. 3 P. Wms. 300. 1 Vesey, 282. Ambl. 273, 2 Atk. 58. 1 Bro. C. C. 181, 2. 3 Bro. C. C. 45, 337. Now the removal of the fund out of the jurisdiction of the court, which may he of the greatest prejudice and delay to the complainant, when all the causes which induced the testator to make such an arrangement are totally changed, is surely a reasonable ground to require security.</p> <p>stated, that the executors of the testator Mr. Henry Perronneau, residing in this country, wei’e very sensible of the hard situation in which the complainant was placed, and were willing to do every thing favorable to him which was in their power, or which the court should feel itself at liberty to authorise. But it was their duty to bring to the view of the court the legal grounds of objection to the complainants application 5 especially as the executor in England had been consulted, and had positively required that the application should be resisted, and the estate remitted to them in England, according to the will of the testator. It is admitted that the interest and income of the estate greatly exceed the annuity of 300L bequeathed to Mrs. Perronneau. This surplus income must accumulate for the benefit of the residuary legatee in remainder, unless the court should feel itself free to allow some portion of it to the complainant. This is not a vested legacy — the rule is that where the time is annexed to the legacy itself, and not to the payment of it, it is not a vested but a contingent legacy. The devise over to Mr. Perronneau’s children, on the event of his dying before the widow of the testator, prevents the legacy vesting in him, and the devise over to his brothers and sisters, in the event of his dying before the widow, and without leaving any children, prevents the legacy vesting in them. It is a contingent legacy. See 3 Bacon, 478, 486, on vested and contingent legacies. It must he a vested legacy, or the devise over must take effect.-*-2 Atk. 41. See 3 Atk. 114. 1 Ycsey, 111. Where a real estate is devised over, on a contingency, the intermediate rents and profits go to the heir at law. And where there is a bequest of the residue of personal estate, on a contingency, the interest accumulates till the event happens, and the estate becomes vested for the benefit of the ultimate legatee who happens to take. 1 Atk. 505. 2 Atk. 41. 3 Atk. 58. Atk. 473. Green vs. Elkins, 1 Yesey, 490. 2 Ycsey, 521. The cases cited by the complainant’s counsel, are cases of vested legacies. But even if it had been vested, the court will notallow maintenance, unless where the legacy is the gift of the parent. For if the parent ho living, it is his duty to maintain his child, and to allow any legacy derived aliunde to accumulate for the benefit of the. child. Ón the other point, for retaining ihe«funds of the estate in this country, the defendant’s counsel said, that the defendants residing here were willing to acquiesce in any decree of the court on the subject: but the executors abroad opposed it, and they were hound to state to the court, that the will of the testator gave express directions to remit his whole estate to England, and vest it there. That whatever were the induce-meats to the testator's making such a provision, when his principal legatee, the residuary legatee of a large estate resided here, his will should be obeyed. It was conceded indeed that the circumstances of a country might be so altered as to induce the court to restrict the transmission of funds to it in such a case as this. Such as a desperate civil war, or a foreign war, during which the enemy mastered tiie country. But there must be extreme circumstances to justify a departure from the will of the testator. Who can say that the change of circumstances, justly described by the complainant’s counsel, would have induced a change in the testator’s mind, attached as he was to Great Britain, and doubtful as lie was of any good issues from American Independence? Great Britain was engaged in foreign war, and has greatly increased her national debt; but she pays her interest regularly, and raises new loans at her pleasure; and many politicians have already been deceived in predicting the downfall of her financial system, from the accumulation of her debts. This hardly made out a case for the interference of the court. It was not an extreme one.</p>

<p>CASE cxvir</p> <p>voi^p0 59</p> <p>íowed^on a& stated . at¡« the day it is going-abroad, ?’’d for a debt of nersffp"Pcan affect only £ite°properI ty. An as-tl^^o^partf nership funds partners, knowledge °¿ec°p^ine.«' at home, » Illegal and void. But such assignment (tho’ he also took the private bond of the as-sig-nee) may other1 cred? tors pari pasSpartnersidp" effects, for hisdd>t!C'in-terest stop-theVar^hiu pttice.eaty °</p>

<p>CASE ‘CiSVIII.</p> <p>DECREE BOOK, vol. ii.</p> <p>Travelling expenses and wages not lowed to an Specific lega-^contribute0 proporciona-payment ^of testator^s ure of other auest offree" dom to a1 female slave and her issue, after ten ^testator’s™ death — the freef tho’ tiie mother died ten years. ™</p>

<p>CASE CXI*.</p> <p>decree book, vol. ii. p. 45.</p> <p>A native of Scotland, enjoying some estate there, being about to come to Carolina, to take posses, sion of an estate there, executed a paper, which charactci-L tics ofa deed, á will, which was recorded in Scotland by his proc-rence to his intended Seafckents it exposed the* fcduce-ments to its in-order0'to prevent disS&SSE He arm ed safe m Carolina, lived a number ot ried a lady °tunem<and" died without TitPnScourt was of opi-eveu if the jjePc'n--idei° ed as a wdi, the a.sposi-tions 01 it were merely aPcTVco" dn-gent; cud the (to'vrf^hls death beil’-e eLSna) not having- hap-P 6H Ctl t.1'1 S dispositions of the estate cannot take effect, at th?prej'udic* of the wife Tights. lieí</p>

<p>This was a bill filed by the complainants under the following circumstances. John Drayton being possessed of very large real and personal estates, made and executed liis last will and testament, wherein after giving several legacies to his wife and daughters, he devised and bequeathed certain estates and property to his son John, and on his death, under age, and without issue, to ids sons William Henry, Charles, Thomas and Glen. He also devised and bequeathed the remainder of his estates, real and personal to Ids said last named sons. They all * survived the father: William Henry died soon after, leaving issue. John died under age, and unmarried; — and the property bequeathed to him fell to the sons, according to the will. The sons Charles, Thomas and Glen, qualified as executors on their lather’s will, and possess-eil themselves of the whole estate, real and personal.— Knowing that the estate was very large, amply sufficient to pay the debts and legacies, and to leave a considerable estate to them, they divided a good deal of the property among themselves, and sold some of the unproductive lands, of most of which they became purchasers. Glen Drayton, one of the sons and executors, held his share 0<? ^ es^a^e maT1y years, (as the other sons did,) treated it as his own property; sold some of it to third persons; contracted debts, &c. Some of his creditors brought suits aSaif,st him, obtained judgments, issued executions, and in some instances levies were made oh the property which came him from his father’s estate. His brothers and co-executors being alarmed lest his private creditors should sweep away all the property, and leave nothing to pay his proportion of the father’s debts and legacies, (which were considerable,) the payment of which would then devolve on them, filed their bill against him, and several of his judgment creditors, to subject the property to the payment of the debts and legacies of the father, in the first instance. The creditors of Glen Drayton contended that the property had vested in him, and that some of them having obtained judgments against him, and caused levies to he made on the property, have acquired a lien, which cannot be taken away : and that they were all entitled to be paid.</p> <p>The cause came to a hearing in September, 1797, and was argued by Mr. E. Rutledge, and Mr. J. Parker, for the complainants. They contended that the creditoi’s and legatees of a testator have more than apersonal demand on the executors; they have an equitable lien on the very assets of the testator. And this lien, or equitable right, yields only to purchasers who have an equity to i’ehut such equity. And this right or Ken is stronger where the executor is also residuary legatee. His assent to his own legacy cannot prejudice the creditors of the testator, or his other legatees. A creditor may follow the assets into the hands of a legatee, though vested in him by the assent of the executor.— The court will follow the assets as far as possible, unless mischief results to third persons. If the executors are solvent, the court relying on their liability, might not pursue the assets. But here, Glen Drayton, one of the executors, is insolvent, and his effects cannot pay the whole of his share of his father’s and testator’s debts.— Where an executor sells assets of his testator to pay his own debts, the creditors of the estate may follow the assets into the hands of the purchaser; especially if he knew that testator’s debts wore unpaid. 2 Yernon, 616. 1 Atk. 463, 4. All assignments, or sales by an executor, fraudulently made, are void. 3 Atk. 240. And however the court may favor bona fide purchasers from executors or legatees, yet whilst the legacy remains in the hands of the legatee, it is liable to creditors of the testator. See 1 yol. of Cas. in Chanc. 257. To sanction tlie misconduct and sales and assents to legacies by executors, and to make them liable as on a devastavit, which is a mere personal claim, would be very mischievous to the creditors of the testator. Glen Drayton’s own assent would have yested the property bequeathed to him, as much as the assent of the other executors. Their assent therefore was of no importance. If he stood sole executor, would his assent in his own favor as legatee, vest the property in 1dm to the prejudice of the creditors of the estate ? Surely not yet this is substantially the case under consideration. A person taking by operation of law, stands on the same footing with the person from whom he takes by such operation. See 1 Yesey, 239, West vs. Skip. The ere-ditors then of Glen Drayton, who claim a lien by operation of law, stand in his place; and in his hands the assets of his testator might be followed to pay his debts. The funds of the testator are legally and rightfully bound to pay his debts first; and this right of his creditors to be paid, ought not to he shaken but on the strongest grounds. So in cases of partnership, the joint funds are first liable to pay the joint debts. The conversion or change of them by one partner, shall not deprive the copartnership creditors of the benefit of this rule. The case of Laurens vs. the executors of Hawkins, decided in this court, shews the extent of this doctrine. It would be very hard on the executors, that they might be ruined by the act of a «o-executor, without any fault on their part. They knew their testator’s estate was large, and could not refuse their brother and co-executor to take his share of it; but surely subject to the testator’s debts. What could they have ,}one with the estate ? If they had kept it together uxxdi- ^ might have been wasted in that way by the operations of the wax’, by neglect, by various accidents. — ■ The creditox’s of Glen Di’ayton must have known that he got his estate from his father, axxd that it was liable to his father’s debts. If they ci’edited him, it was at their own l’isk. Executors are liable only for their own misconduct, not for that of others. The complainants come before the coux’t as legatees as well as executors; and legatees may como and oblige other legatees to x’efund or abate. See 3 Eq. Cas. 554. 3 P. Wms. 446. But they come in also for the benefit of the cx’editoi’s of the testa, tor. If Glen Drayton’s creditors ai’e entitled to be paid before the testatoi’’s, because his co-exeeutoi’s assented to the legacy, the same may he said as to Charles and Thomas Drayton’s ci’editox’s, and the father’s debts and pecuniary legacies may go wholly unpaid. As to Glen. Drayton’s return of the property to the tax office, it was unavoidable. A division had been made, and he was in possession. He could not make a special x’eturn and say, that lie obtained the pi’opex’ty from his father, and it remained liable to his debts. This is never done by legatees, or ever by mox’tgagors or mox’tgagees. The case of the «’editors of Glen Drayton, is not so strong as tliat of purchasei's: a «’editor must always take the property of his debtor subject to its equity. Glen Drayton had other property acquired by his wife, to which they nxiglii have trusted in ci’editing him. The equity set up by the creditox’s of Glen Drayton, who are defendants, is ideal •and unfounded. They ax’e xxeither pui’chasers nor mortgagees, who would he too strong for the complainants' but mere creditors, who trusted to the character and pex’-•sor. of Glen Di’ayton.</p> <p>The negx’oes pui'chased at the sale by Glen Drayton, are still liable — foe did not pay for them. His creditoi's ipust therefore pay for the property, if they take it.</p> <p>Executors cannot make a legatee refund, unless the payment to the legatee was compulsory. 2 Yern. 205. — . On a voluntary payment to a legatee, the executors will be personally liable to the creditors. Yinter vs. Pix, X Chan. Reports, 71, 133. Tilsy vs. Throckmorton, 2 Cha. Cas. 132. 1 Yernon, 90, 453, 460. If the deficiency arises from the executor’s wasting the assets, the legatee who has recovered his legacy, shall not be compelled to refund. 1 P. Wms. 495. See also Sadler vs. Hobbs, 2 Bro. C. C. 114. Scarfield vs. Howes, 3 Bro. C. C. 90. And though the rule is, that creditors who are unpaid, and the assets fall short, may compel legatees who have been paid to refund; (1 Yern. 162,) yet executors cannot, if they paid the legacy voluntarily. 2 P. Wms. 296, Coppin vs. Coppin; and 2 Yesey, 194, Oit vs. Kaimes. Where a party has lain by for a great length of time, and suffered an estate to be distributed, he shall not have an account. See 4 Bro. C. C. 257, and the cases cited. A fortiori, the executors who made the distribution cannot. The executors are liable to the creditors of the testator for the assets, and there is no pre-tence that they are insolvent. They are men of large property, derived entirely from the testator’s estate. Even if the executors had a right to call on the legatees, to whom they made a voluntary payment or delivery to repay, they would stand only as simple contract creditors. But they desire in this case, to be preferred, even to the judgment creditors of Glen Drayton: nay, they even sold and delivered some property of the estate to Glen Dray-ton, for which they neither took bond nor mortgage; yet they expect to be allowed a priority over his judgment creditors. It is admitted that the executors have abundant assets to pay the creditors, yet they have not paid them: but they ask the court to aid them to compel the application of the estate of a legatee, to whom they voluntarily delivered it, to refund at the expense of his creditors, even of his judgment creditors who have liens.</p> <p>By the common law, which was the law applicable t» this case, at the time it arose, the executor could sell the assets, and the bona fide purchaser would he protected even against creditors; and even if the executors wasted the money received on the sale. The executors having assented to the legacy, and divided the estate, and delivered Glen Drayton his share, he held it as his property; and third persons, his creditors, have become interested in it. These would be injured, if the assets could be followed. But some of the decided cases say, that the assets can be followed where third persons have obtained an interest in them by purchase, or by obtaining liens on them by way of mortgage or executions.</p> <p>The parties have slept too long on their rights, if' they had any. It is nearly twenty years since testator’s death. See 4 Bro. C. C. 125, respecting purchasers from executors. The cases quoted from l Atk. 463, 4, and from 3 Atk. 240, for the complainants, are more favorable for the defendants.</p>

<p>case wesi-'</p> <p>vol. ii. p. 59. DECREE ROOK",</p> <p>A matl mal._ *ics a girl of age' without consent ot her ffuar-aian. ‘pre-executed a (¡^h he a^ gi-eed that her estate should beA-to his heirs, dcath of his wife and him-children'*°of the marriage, ^lic ivas executed ividrnt the privity of his intended friends1 The executor of never issem ed to the le-lusbanddied without is-enq without over having reduced tlie property to ScT too*01'"— distnbutive' slume she was entitled to, of a de-thcr’s^cstate" The deed is imd^tíie^vffe surviving is the1 whole against tiie tires'andcre-hiíbancf tlle</p>

<p>case cxxir.</p> <p>DECREE BOOK, vol. ii. p. 1U6.</p> <p>.. , Testator bequeathed several slaves to ins grand-Mary-^but' if she died be-tainecf16 21 years, the le-Sited over to otlicrs. The married,r but t'ünecl0t 21 years. Be-üi^iooofbe paid, and the veredto complainant, and j” "on "his -giving secu-fund, in case of his wife’s 21 years, Testator devised the residue of his son!a™eswte to his daugh-if*” ditched Hvithout leaving a son narne(:i j. c0i-lips, he de-^¿see same™ theeldestsmi daughter Marj^ w|^ named .T.Col-^X must ac" cumulate far who should take'^The executors to ^ interest, un-rectionofthe master,</p>

The case was as follows. The estate of Gideon Du-pont was confiscated by an act of the legislature for his adherence to the British government during the revolution. Asale of his lands was made at public auction, at Charleston, on the 18th October, 1784, by the commissioners of confiscated estates; to be paid for by instal-ments in specie. The lands were situated on Deer Creel:, and consisted of two tracts, one of swamp, and one of high land.

<p>0AgE CSXIV¡</p> <p>Th® master f01. charies^t^s a{£ his office in of 1778, was wffich aU judicial offi-'ve their commissions behavior.— Upon a new modification of the districts of the courts of equity in 1799 the governor supposing that the right of the master to his office was extinct, appointed another person to the office. The chancellors cer holding ^ cXu'ine good behá- ’ he°Uso displaced, polntmcn^' voiA</p>

<p>CAMS cxxV.</p> <p>Hrroiin hook, page 114.</p> <p>The court of law has no in'casesone-gacies. The answer, "tat-ing that he has paid ale- ^ not establish the tor must payment *by other evi-executor is ” trustee for †1, a lfifftLlCC* andifhepays a legacy prematurely, when direct-N ^h*it in his certain event*' he is liable to¿ep0ayll|^eti' over, if the not^had the foil benefit</p>

<p>case cxxvi.</p> <p>record rfoox , page 115.</p> <p>A^beques^of slaves under feaesF6 must be complied choice made lor the lega-number out ‘of tie whole estate, the^testatrix iiad original-she acquired on the death thér.lei bl°"</p>

<p>CASE CXXVII,</p> <p>KF.ronn boob, page 116.</p> <p>A married man cannot convey property of which he wa« the absolute owner, in trust for hir. wife, to the prejudice of a creditor, to whom he was indebted before he executed the deed. There was no evidence that she was a sole dealer, and that the property was purchased with her earnings. The pretence of a small debt to the wife would not support the conveyance of a large property in trust for her, to the prejudice oí creditors-</p>

<p>'Sase cxxtiit.</p> <p>decree hook, voLÜ. p.117.</p> <p>A posthu-mou» child for'pl'byldthe father’s will, is^entitfedto share with children, in proportion to then* respective propor-fliTv'ilfndei</p>

<p>OA3B CXXÍ.V</p> <p>3ttEC2i.EE BOOK», V0o iL po 117,</p> <p>T1 cou... will presumí e^oi^a chiw" on slight tu^iipsu thirty xxx death of th! 11' ”</p>

<p>cate cxxsf.</p> <p>BECR.EE HOOK, vol.ii.p. 119.</p> <p>A devise of lands to the does not pass a toll causey ""running63’ ih1’°ug'h part but held" by grant of the for a term of years; espe-cually as the testator dithetS income from die toll to be support bis wife, a Siund 1Sby °a ^pyrthase. advanta-fho,Uhe°hm’ hold a bend salemadeuif dec an order arj^ivhich líe had previous-Vo?dTOkecl’1S</p>