Volume 16 — North Carolina Reports

<p>In a devise of personalty, “to be equally divided between my son P, tny daughters D, C, and E, and the heirs of my daughter P,” held, that the latter take hut one-fifth among them.</p> <p>A petition for a rehearing is the proper remedy against an interlocutory decree.</p>

From Wake The bill charged that the Defendant bad erected a mill-dam in the vicinity of the city of Raleigh, that the exhalations from the pond, hadwendeml the inhabitants unhealthy, and prayed a perpetual injunction.

<p>A delivery of a deed is a parting with the possession of it by the grantor in su.cn a manner, as to deprive him of the right to recall it.</p> <p>Where a deed was handed to the subscribing witness, as the agent of the grantor, for the purpose of being proved, and was by the agent delivered to the grantor without being proved, held that this was not a delivery.</p> <p>It seems where a claim is asserted on the part of infants, who have an appearance of right, each party must pay their own costs.</p>

From Franklin. Bide eor an injunction the material allegations of which were, that one Marmaduke Jeffreys had conveyed a tract of land to Richard H. Fenner, in trust to secure a d.ebt due Outerbridge by Jeffreys. That the deed was defective, first because it was a deed of bargain and sale, and no valuable consideration was recited in it, as having passed from Fenner to Jeffreys.

From Rowan. OrigiNAI Bill) the allegations of which were that the Plaintiff had purchased of the Defendant Booe a negro girl, belonging to the estate of his intestate. That the negro, at the time of the sale, was laboring under a mortal malady, of which she soon after died.

From Halifax. The birr charged, that the Plaintiff Susan, was cn-entitled to one-eighth of a tract of land in Northampton County, as tenant in common in fee-simple, with seven other persons.

From Rowan. The original bill was filed in 1803, and alleged that ono Jlndrew Cranston, in February, 1758, conveyed to Mary Montgomery, the daughter of Hugh Montgomery, a lot in the town of Salisbury.

From Rockingham. The bill alleged that Defendants purchased a tract of land lying in the County of Rockingham, on Dan River, on which they laid off a Town, to which they gave the name of Jackson, and divided the same into lots, that they advertised tl^| sale of the lots in the Lynchburg Press, and in other printed advertisements, both in North Carolina and Virginia, in the month of March 1818, in which they stated that said town was at the head of navigation, that it…

From Johnston. The allegations of the hill were, that the Plaintiff married the Defendant Bryan, in the year 1816 ; that she brought him a large property in slaves and money; that after the marriage, real property descended upon t-he Plaintiff as one of the heirs of her mother, which was sold under an order of the Court of Equity for the county of Johnston, for the purpose of partition ; that the Plaintiff’s share of the proceeds was received by the Defendant Bryan, her…

From Chatham The bill was filed in February, 1824, and set forth, that the Defendant in 1804, intermarried with a daughter of one James Paine, who, within a week after the marriage, put into his possession several negro slaves, expressly declaring at the time in the presence of the Defendant and of his wife, that he did not intend the ne-groes as a gift but merely lent them during his pleasure —that the wife of Defendant had issue the Plaintiff Elizabeth, and immediately…

From Wake This .was bill filed in the Court of Equity, on the 15th of September, 1823, for an account and distribution of the estate of the Defendant’s intestate.

From Wayne. The bill which was filed in August, 1819, charged, that Josiah Blackman, was the guardian of the Plaintiff Mary, and received of her property a large sum; that he died intestate, and that administration on his estate was committed to one William Blackman ; that after the intermarriage of the Plaintiffs, to-wit, on the 10th of June, 1816, the Plaintiff Hillary, and William Blackman, came to a settlement of the guardian accounts of the intestate, and that a balance…

From Chath. This was a petition in Equity filed in the County Court, at May term, 1816, in the common form, praying that the Defendants, administrators of Mrdham Harper, might render an account of their administrationship, and make distribution.

From Wake. The bill which was filed in August, 1823, alleged that Richard Putney died In Use year 1814, having made bis will, whereby lie devised his property equally, to his wife, the Plaintiff Tabitha, and his daughter, the Plaintiff Penelope.

From Wake. The original bill charged, that the Defendant Susan, was the mother of the Plaintiff, and that upon an agreement 0f nian'iage between lice and the Defendant John, the Plaintiff being then an infant, it was agreed that a negro girl, atul some other property, should be conveyed †]10 X>]aintilp, on his arrival at full age — witii an ulterior limitation, in case he should die without issue, to the children of the Defendants.

From Wake. The ORIGINAR Bixx, which was filed on the 3d of September, 1817, stated, that Sterling Fancy died intestate in January, 1815, seised of two lots in the city of Raleigh, on which he resided at the time of his death, leaving children his heirs of law, some of whom were of full age, and others infants, and the Defendant Elizabeth, his widow — that dower in the said lots was assigned to her, under which she entered, and became seised thereof as tenant in dower.

<p>From New-Hanove</p> <p>The Plaintiff’* in their bill spf forth the will of the De» fertd .nt’s testatrix, of which the following is a copy :</p> <p>“ When X am dead, I wMt my brother W. 11. B. to have my man Will, t» do as lie please s with him, during his natural life. After tiiai, I wish him to go to my brother H G W. to do as he pleases with forever. To the children of W. H B. Í leave lilt) Flnr'i old litr children, 10 be equ-diy divided among them To H Vt B. (lr, et and her child, to do as he pleases with. To A. I. W- dang le - r of H. (i. W. big Flora and her whole family that I own, I lesv" to her., T< 3 and J. P. one hundred dollars to each. To Darnel J White,- 9, likely negro ooy, between eight and ten years old T ■ Jinn J Col° vin, a likely negro girl, between lour and ibe years old. Tae grave" yard walled in, a tomb-stone put over my mother and self, See. &c. To E. W my clothes. To A. J. W my books. To M. A. H. the furniture of my room, say bed, drawers, &c. Pay all my just debts. * would rather you would buy negroes for David J While and Ann J. Colvin, than to separate families. 1 wish all this done at once, so as to save their being scattered.”</p> <p>The Plaintiff insisted that the legacies left them were specific, and in case of a deficiency of assets, ought not to abate in proportion to 'In* others. And that if they were not specific, that there were assets sufficient to satisfy them. The prayer of the bill was for an account, and payment of the legacies.</p> <p>The Defendant insisted, that the legacies to the Plaintiffs were general; that ail the property of his testatrix was specifically bequeathed, and that there were no slaves of the kind bequeathed to the Plaintiffs. Denied assets, and rendered an account, from which, after exhausting the assets, not specifically bequeathed, a balance appeared doe the estate.</p> <p>The cause was heard upon bill and answer. No Counsel appeared for either party in this Court.</p>

From Halifax. The case made by the bill was, that Harry Dawson,, the husband of the Defendant Sally, died, leaving a will,, by which he bequeathed his negroes to his wife and her sister, the Defendant Evelina, as tenants in.common- — * a moiety to each ; that letters of administration with the will annexed, issued to the Defendant George, a brother of the two legatees.

From Cumberland. The bill alleged, that Robert Donaldson, John McMillan and James Thorium, in the year Í803, entered into copartnership, under the name and style of Donaldson, McMillan & Company — that, in the course of their business, they acquired real estate, which was either purchased upon speculation with the partnership funds, or was taken as security for debts dee it.

From Washington. The papers in this canse were very voluminous; an abstract of the whole of them is unnecessary, as it is thought that the following statement is sufficient to place the points decided by the Court, before the profession. The Plaintiff alleged, that at the request of one Joel Thorp, he lent him 700 dollars, to secure which he took a mortgage at six months upon sundry negroes.

From Iredell. The Plaintiff in his bill alleged that the Defendant was indebted to him in a sum of money, secured by two notes, which were attested by two witnesses; that from ignorance that the act would affect the validity of the notes, he cut off the name of one of the subscribing witness ; that he had brought an action at law on the notes, in which he had failed, in consequence of this alteration ; that nothing had ever been paid by the Defend» ant on account of the debt…

From Currituck. From the petition and exhibits, it appeared that the lands of James Dossier had been ordered by the Court of Equity for the county of Currituck, to be sold for the purpose of partition j that one Dennis Dossier, the husband of one of the persons entitled to the proceeds, had purchased them, and that, upon the confirmation of the sale, the Master was directed to creditliis bond,given to secure the purchase-money, with the amount of his wife’s share thereof.

From Buncombe The case made by the bill was, that the Legislature in the year 1801, granted to Job Bernard and Philip IJood-enpile, the right of opening a turnpike from the house of William Hunter, in Buncombe county, to the Tennessee Une, and authorised them to erect gates on the road, and collect toll from persons travelling on it. That the grantees at great labor and expense,had opened the road ts they were thus authorised, and had rendered it passable to travellers.

From Rutherford. The bill was filed by ICexanah Picket and her trus« tees.

From Johnston. The bill alleged, that the Plaintiffs intestate, John Eleváis, Robert £L JIdrne & May Eelme, entered into co-partnership in the year 1816. That upon the death of Blerair,. and iho Plaintiff's intestate, the copartnership was dissolved, and a bill was filed in the Court of Equity for the County of Johnston, for a settlement of the partnership accounts. That the Master reported in that suit, i\i X ihe copartnership was indebted to Jt.

From Johnston. The Plaintiff in his bill alleged, that before the 27th of May, 1826. his intestate was bound as surety for the Defendant Helme, to a largo amount, and was also indebted to him on that day, in the sum of $1491,83, for which suit had been brought by Helme, returnable to the County Court, which sat on the said 27tli of May, 1826.

<p>From Franklin.</p> <p>The case made by the bill, answer, and the proofs in this cause, was, that the Plaintiff sold a tract of land to one Jeffreys, and took his bonds for the purchase-money; that Jeffreys never paid these bonds, but conveyed the land to one Outerbridge, to secure a prior debt, and that Outerbridge conveyed to the Defendant. The Defendant had notice of the non-payment of the purchase-money, and the only question was, whether the Plaintiff had a lien upon the land for its security.</p> <p>— The lteporter was not in Court when that argument was made, and has no note of it.</p> <p>At this term, Seawell, for the Plaintiff, discussed the question extensively, and cited Chapman v. Tanner, (1 Vern. 267.) Blackburn v. Gregson, (1 Bro. Ch. Hep. 424.) Fawell v. Heel (Jlmbler 726.) Nairn v. Browse (6 Ves. 759.) Smith v. Hibbard (Dickens 730.) Charles v. Andrews (9 Mod. 152.) Macreath v. Simmons (15 Ves. 354.) Hughs v. Kearney (1 Scho. & Lef. 132.) Garson v> Qreen (i Johns. Ch.Rep. 308. J Mills v. Grant (2 Ves. & Bea. 309.J Mx parte Peake (1 Mad. Rep. 346.)</p>

From Iredell. The bill alleged, that letters of administration upon the estate of Randolph Maberry, issued in May, 1824, to the Plaintiff- — that under them lie took possession of part of the personal estate of his intestate; but that a number of negroes belonging to the Plaintiff's intestate, were, at his death, in the possession of the Defendant Mraham, who claimed them for one year, under a contract of hire from the intestate.

<p>From Johnston.</p> <p>The bill charged that the Plaintiff’s intestate in March 1825, signed a note with one Robert II. Helme, payable to the Defendant for S8,9S1. That after signing the note, it, was delivered to Helme, who procured the Defendant to endorse it — that the signature of the Plaintiff’s intestate, and the endorsement of the Defendant, were both voluntary and for the accommodation of Helme. who procured the note to be discounted at the Slate Bank, solely for his own benefit — that Helme became insolvent, and the Plaintiff’s intestate had paid the whoj^amount of the debt. It was insisted that the Defendant was a co-surety with the Plaintiff’s intestate and liable to contribution, which was the prayer of the bill.</p> <p>The Defendant, in his answer, admitted that he endorsed the note at the request of Helme — lie averred, that at the time of his endorsement, he had no knowledge that the Plaintiff's intestate was a surety — but that he then believed the Plaintiff's intestate had a joint interest with Helme, in having, the note discounted. He denied that he would have endorsed the note for the accommodation of Helme, had he known that the latter was solely interested in the discount, and stated that when tiie note was handed to him, and his endorsement asked for, he hesitated, as the amount was large, but that Helme removed those doubts by informing him, that he, the Defendant, could not suffer until the Plaintiff’s intestate and himself had both failed, and upon this assurance, having confidence in the solvency of the former, he endorsed the note and handed it back to Helme.</p> <p>The deposition of Helme, was read upon the hearing —he swore that at the time when the Defendant endorsed the note, no communication was made to the Defendant, of the relation in which the Plaintiff’s intestate s tood to the note — that he had stated to the Defendant, that the Plaintiff’s intestate was bound to indemnify him, in case he, Helme, failed, but that this was given as the witness’s opinion upon the point of law, not as a fact touching the Plaintiff’s intestate’s connexion with the note. He further proved, that the Plaintiff’s intestate had no interest in the note, except as a surety, and that in his opinion, the Defendant would not have lent his name, unless that of the Plaintiff’s intestate, or some other as good, had been upon the face of the note.</p> <p>— The only difference between this case and that of Daniel v. McRae, (2, Hawks 590,) is that there, the obligation of the parties in law, rested upon the same event, viz. tij^ default of the maker — here the Defendant has undertaken to pay the debt of Helme, if both Helme and the Plaintiff’s intestate failed to do it, and if he had notice of their default If the legal effect of the contract is to govern, it must he admitted, that the bill should be dismissed ; in other words, if by law, the Defendant is a supplemental surety to the Plaintiff, and the contrary cannot be shown, the latter has no claim against the former.</p> <p>Sureties are made supplemental either by act of law, or by express contract. The relation of these parties to each other is of the first kind, th^ffi is no express contract between them, and that uiu^Hphich the Defendant seeks to protect himself is one i^rerred by law. It is therefore admitted, that at law, the Defendant is a supplemental surety to the Plaintiff’s intestate, and that the latter has, by the forms of law, no redress against the former. But the same thing occurred between Daniel and McRae ; there McRae had the legal title to sue, he was an endorser subsequent to Daniel, and at law had a fall redress against him — the forms of law therefore, made him supplemental to Daniel — but equity regarding the substance of the transaction, and seeing that in fact lie lent his name for the accommodation of the maker, took from him the legal advantage which made him supplemental, and held him to be a co-surety. The legal priority then which exists between a prior and subsequent endorser, was of no avail to McRae. To bold therefore, that the legal advantage existing in favor of the Defendant in the present case, makes him supplemental, is to hold that in one case the court is not bound by the forms of law, but that it is in another — for in what do the cases differ — in both the object was the accommodation of the principal debtor — the liability in both was incurred at his request — no benefit resulted to the litigant parties. The Plaintiff’s intestate in the present case, is in equity, as fully a surety, as the Defendant, or as Daniel or Mellas were. The only difference between the cases, is that pointed out above, viz. that McRae and Daniel were endorser?, the Plaintiff was as surety on the face, whereas the Defendant was an endorser. But a Court of Equity, in all cases, looks at the substance of the transaction, and universally, the only enquiry is, whether in point of fact the party against whom contribution is sought, is a co-surety, or whether he is supplemental; if he is in fact a co-surety, he is held to contribution, notwithstanding all forms, whether created by law, or by express contract.</p> <p>In Craythorn v. Swinburn (14 Ves. 160) John Swinburn gave a bond, c^Bfóoned to pay a Bank £1200, if Henry Swinburn debtor, and Craythorn, the Plaintiff, his surety, in a joint and several bond, did not do so — and upon a payment by either of them,then the bond was to be void. No rule of law, applicable to the present case, would more strongly put the Defendant's liability, upon the fact of a default by the Plaintiff’s intestate, than the express engagement of John Swinburn, in that case, put his, upon the default of Craythorn. The words are clear and explicit. At law, the bond was discharged, the condition being performed by the payment of the debt by Craythorn. Craythorn having paid the money, filed his bill for a contribution. At law, he was clearly without remedy — his suretyship being distinct from that of Swin-burn, and Swinburn clearly discharged by his payment. Lord Eldon does not decide the case upon the writing— upon the bond, nor dismiss the bill, because Swinburn was only bound upon the default of Craythorn ; but he hears testimony, and enquires whether, in point of fact, Swinburn was a supplemental, or a co-surety j and it is expressly proved, that by Swinburn’s contract with the Bank, he was a supplemental surety. Upon that en-quiry had, it turned out that he had made no communication to the Bank- — that ho lent his name for the use, and at the request of the principal debtor, the result would have been different. We must infer, that his Lordship’s object in hearing testimony was, to ascertain these facts, or others, which in his mind would make the Defendant a co-surety, notwithstanding the form of his obligation, and that this, if proved to his satisfaction, would have produced a decree for contribution, notwithstanding the form of the contract. To this we are driven, or to the absurd conclusion, that Lord Eldon did not understand the legal effect of the bond given by the Defendant. In dismissing the bill, he uses the words “ my opinion is wrong, if Sir John Swinburn is a co-surety.” Tills case then, as far as Lord Eldon is an authority, proves, beyond a doubt, that if ^ express contract, the liability of the Defendant was postponed to that of the Plaintiff’s intestate; in oilier words, if he wrote himself out of the character of a co-surety, and made himself expressly supplemental, yet, if in point of fact, he was a co-surety, he shall be held to contribution.</p> <p>The cases of Love v. Wall (1 Hawks 313) and oí Daniel v. MacRae, (2 do. 590) are express to prove, that a contract implied by law, may be varied by testimony; to these may be added, the case of Wright v. Latham, (3 Mur. 298.) In Daniel v. MacRae, Judge IIektjoek-soN says, “ I am at a loss to discover how the admission (of such testimony) could ever have been doubted — its admission contradicts no express written agreement, but repels an implication only.”</p> <p>If then, the form of the security does not prevent the prima facie supplemental character of the Defendant from being explained, but his relation to the Plaintiff may be shown by testimony, what is the character of that testimony ? Who w as the principal debtor ? At whose request, ami forwhose accommodationwere the liabilities ofthePlaintiff and Defendant incurred ? Who was accommodated by the discount? Was there any communication from either of the sureties to the Bank? If it he said, that the Defendant doubtless thought he made himself supplemental, it is answered so did McRae — so did Swinburn. But the rights of parties are not io he decided by their suppositions of the legal effects of their acts; if so, no person would ever think lie exposed himself to a loss by his own act. The same observation may be made, as to tbe argument Helms used to obtain tbe endorsement of the Defendant. Tbe law is to decide between the parties to this suit. The thoughts of Helms are not the rule for ascertaining* them.</p> <p>If it be objected that the Dank might have discharged the Defendant by not giving him notice, and thus have destroyed the Plaintiff’s right; it is answered 1st, that the same tiling might have been done in Daniel & McRae, the Bank might not baj^s notified McRae — but notwith' standing this incident to the form of the contract in that case, he was held to contribution. 2d, If the Defendant was discharged as to tbe Bank, it would not affect tbe Plaintiff’s right against him, as being res inter alios acta. But if it would, then clearly the Bank would have been bound to indemnify the Plaintiff’s intestate, flic being as to them a surety,) precisely as if they liad discharged a mortgage made by Helms for their security. (Hayes v. Ward, 2 Johns. Ch. Rep. 129.)</p>

<p>From Edgecomb.</p> <p>The Plaintiff alleged, that in the year 1821, be purchased of the Defendant a tract of land, at a stipulated price, which was agreed to be paid in a bond of one W. J. Stanton and J. 8. Feel, payable to one 11. Feel, as guardian to the wife of the Plaintiff, and her brothers and sisters— that the bond exceeded the amount which the Plaintiff, in right of his wife, was entitled to receive from the guardian — and to obviate this, it was agreed, that the Plaintiff should give his bond to the guardian, for the balance, after deducting the sum which was due him, in right of his wife, and that the Defendant was to become surety for him — that to indemnify the Defendant in this suretyship, a mortgage on the bargained premises was to bo given him. That according to this contract, the bond of Stanton and Feel was assigned to the Defendant, a bond given by the Plaintiff ¡and Defendant to the guardian, and the Plaintiff put in possession of the land — that from ignorance of the manner in which the deed of bargain and sale, and the mortgage should be drawn, they never had been executed.</p> <p>The bill then charged, that tiic Defendant pretending the Plaintiff was bound to him as a guarantor of the bond of Stanton and Feel, who had proved insolvent, had refused to convey the land sold, and liad commenced an action of ejectment, against the Plaintiff to turn him out of possession.</p> <p>' The prayer of the bill was for an injunction and a specific performance of the contract of sale.</p> <p>The Defendant in his answer, relied upon the act of 1819, (Rev. ch. 1016.) He also denied the equity of the Plaintiff’s bill; but it is not necessary for the purposes of this report, to give his views of the contract of sale.</p> <p>The injunction had been dissolved, and it appeared from a copy of the record of the action of ejectment, which was filed as an exhibit, that the Plaintiff had been turned out of possession, and that the Defendant, had recovered for the mesne profits.</p> <p>— The Plaintiff is entitled to a specific performance. The bill is not founded on the contract, which is void in equity as well as at law, by the act of 1819. The Defendant is not obliged to convey bis lands on a parol contract, until he signs a written agreement. He has a loans joenitentia}, and lie may exercise it, provided be lias practised no fraud on the Plaintiff. The right to relief is not founded on the contract, nor even on the payment of the consideration. Neither is it founded upon any supposed right a Court of Equity has to set up a parol contract void at law; but the Plaintiff applies to the ancient jurisdk Lion of a Court of Equity, to redress a fraud for which a Court of Law cannot give adequate relief. Ho does not complain that the Defendant has refused to comply with his parol contracts but that by performing it in part,ho has induced tiie Plaintiff' to pay the consideration of the purchase, and to enter on the possession, and afterwards treated him as a trespasser, by ousting him by ejectment, and compelling him to pay the mesne profits in damages.</p> <p>The Defendant admitted the Plaintiff to possession in good faith, and meant to make him a deed j hue failing in his calculation to receive the money on the bond cf Stanton & Peel, he aims, by refusing the deed, to charge his ioss, arising from the insolvency of Stanton & Peel, to his innocent vendee, whey, in justice, it ought to be borne by himself, as the result of his own want of information, caution or diligence.</p> <p>If ijie Plaintiff had simply paid his money, without getting possession,he might be left to redress at law,by his action for money had and received; but by admitting the Plaintiffto the possession, and receiving ins money, theDe-fendant lias so committed himself by a part performance, that he cannot go back without fraud. Indeed lie meditates a fraud in going back, and the Court will apply themselves to.his conscience, and compel him to convey. In no other way can the Plaintiff be safe from the contrivance of the Defendant. He has advanced his money, and committed acts that will be trespasses at law, on the faith of possession delivered by the’ Defendant, and the law can afford him no adequate relief. The jurisdiction of a Court of Equity to decree a conveyance, where there has been a part performance, is established in England, notwithstanding the statute of frauds, from which our act of 1819 is substantially taken.</p> <p>Generally, the disputo is, what shall be deemed a part performance. It has been a vexed question, whether payment of the purchase-money is a part performance ; and it has been decided, that a part payment, by way of earnest, is not — and it is strongly intimated, that full payment will not entitle a purchaser to a specific performance ; but the admission of the vendee to the possession, is a part performance, and entitles the vendee per se to specific relief; and certainly, the payment of the whole purchase-money, and the possession, are strong circumstances in the equity of a vendee. There is, if is believed, not only no authority, but no dictum to the contrary. (Buckmaster v. Ilartop, 7 Ves. 345, 347. Butcher v. Slupely, 1 Vernon 363. Clenan v. Cooke, 1 Sell. Sf Lef. 22. Sugden’s Law of Vendors, 84, & cases cited. Newland on Contracts, 182 — 185.)</p> <p>contended, that the Plaintiff’s right to relief was founded solely upon the contract, He insisted ih at there ivas a matcrial'difference between the statute-of Frauds (29 Char. 2) and our actof 1819, that the first did not annul the contract, but simply forbid an action to he brought upon it, whereas m our act ol 1819, the Legislature had cautiously avoided the language of the 4th section of the statute of Frauds, that concerning contracts — and had adopted the words of the 5th section concerning wills. He observed that the English Judges had of late lamented the inconsistencies which the liberal construction of the 4th section of the statute, had generated, and that this liberality had never been applied to the 5th. By using the words of the latter, he argued that tiie Legislature had plainly intimated an intent to exclude the construction which the 4th section had received. He then commented upon the cases in which the 4th section had been construed, and endeavored to prove that the introduction of the principles which governed them, would introduce confusion into the jurisprudence of the State, and argued strenuously to enforce the propriety of a more simple rule of construction,</p> <p>observed, that the 5th section of the statute had, in England, received the construction he contended for; that their Courts of Equity had relieved in cases of frauds, upon devisees in unattested wills. For this he cited Newland on Contracts, 179.</p>

<p>A post-nuptial agreement, made upon sufficient consideration, between husband and wife, will be enforced in Equity.-</p> <p>Where thine was an agreement to settle property upon tile wife, and the husband, by will, bequeathed that property to a stranger, it was be!d, liie \i ife having dissented from the will, that her right to a child’s part of the personalty, could be defeated only by a satisfaction in express words, or one resulting from a necessary implication, and there being neither, that she was entitled both to the settled property and to her child’s part.</p>

From Tyrrell. This cause was ¡¡card iu the Court below, bv his honor Judge Martin, on the Fall Circui^^íp^TN’líen the facts were, that Charlen Spruil dwy^nfette fnfrN&ijl, ,. and appointed the Defendant Benjamin his brother, one. of his executors.

From Chatham. The Plaintiffs in their bill, which was filed in 1824, alleged that William Billiard died in the year 1781, leaving the Plaintiff Lavinia, his only child, an infant of only three weeks — that administration upon his estate was committed to Kez>iah his widow, who afterwards intermarried with the Defendant — that Billiard at his death was possessed of a female slave and of other personal estate — that the Defendant in right of bis wife, administered bis estate,…

From Rowan. The Plaintiff in his bill alleged, that his testator, in his lifetime, sold a valuable tract of land to one Jonathan Dalton, for the sum of six thousand dollars; that no title was given to Dalton — but the testator executed a bond to convey upon the payment of the purchase-money; that Dalton had made sundry payments on account of the purchase-money, and that a balance thereof was still due.

From Wake. The petition, which was filed in the County Court, at February term, 1824, set forth, that the Defendant Winifred, with several others, who were distributees of William Simms, filed their petition at November term, 1820, against the Plaintiff, as administrator of said William, for distribution of his estate; that at February term, 1821, of the said Court, tiie Clerk was ordered to take an account of the administration of the Plaintiff —that according to this…

From Cumberland. The pleadings and proofs In this cause were exceedingly voluminous ; it is believed that the following is a correct statement of the facts, which were either admitted or proved : Jacob Levy, a resident of Fayetteville, in this State, in April, 1819, procured the Plaintiff, a Commission Merchant in New-York, with whom he was in habits of business, to accept his bill of exchange for g5000, payable to one Clark, whose endorsement, as well as the PlaintiiPs…

From TSiis cause., while!» bar, in Hu various stagi-s been ire quently before the Court, (vide Conference Reports, Si?’-, 3 Law Sep. 504,) was argued at last term, upon the order for rehearing’, made… Held: and devised the whole thereof to the Plaintiff Benzoin, in fee sim pie, in trust that the devisee and his heirs would main tain toe said Ünited Brethren tn posc.u.»iuu of the said tracts and pareéis oiTand.

From Halifax. The case made by the bill, answer and proofs in this cause was that the Plaintiff and Defendant were executors of one Bedding Jones ; that the, Plaintiff resided in Halifax County, and the Defendant in Wake, near the residence of their testator ; that most of the business connected with the estate of Jones, was performed by the Defendant, although the Plaintiff gave all the aid in his power $ that the sum of $692 67 was allowed the Plaintiff and Defendant for…

<p>The word Heirs, in a will, Where the testator recognizes the existence of the ancestor, means heirs apparent. In a bequest to J P and the heirs of S J, J P takes a moiety.</p> <p>In such a bequest to heirs, if it be of a present interest, those onlj-take who were born at the date of the will, and perhaps at the death of the testator. But if the interest is expectant upon a life estate^ those take who are born before the expiration of the particular estate.</p>

From Wayne. The alienations of the bill were, that the Plaintiff in the year 1810, bought, of one Robert Fellow a negro wo-ssian, who continued in his possession for nanny years, during which time she had several children j that, in the year 1821, the Defendant privately procured the slave and her children, to leave the premises of the Plaintiff, and took them into his possession.

From Nash. • The Plaintiff in her bill alleged, that she was the mo» ther of Samuel Winstead ,* that S. W. purchased a valuable tract of land, at the price of $2260, but being unable to make payment for it, he applied to the Plaintiff for aid ; that S. W. being the Plaintiff’s only child, she, with the view of aiding him in making payment for the land he had bought, gave up to him six slaves, valued at $1800; that in consideration of the surrender by the Plaintiff of the…

From Mecklenburg. The Plaintiffs McJlnley and Beard, as e The tract of land that I now live on, lying on the Catawba River, containing throe hundred acres, and also fisheries;, its my will and pi .asme that my executors hereafter named, do within six months after my decease, cause the afori-s del tract of land to be sold to the highest, bidder, Jie their directs the notice of the sale, and the terms, and the security to be taken) and my will is, that the money accruing from…

From Warren. The bill was filed in the year 1817. The original parties to it were Charles G. Field and Harriet his wife, Plaintiffs, and William and Thomas B. Eaton, executors of their father Thomas Eaton, Defendants. During the pendency of the suit, the original Plaintiffs died, and it was prosecuted in this Court by the Plaintiff Alexander S. Field, as administrator de bonis non, of Charles 6?. Field.

r, ... From Dr&imlJe. The bill alleged, that administration upon the estate of one Frances Chaves, was roiimsiUed to the Defendant Smith, who gave the Defendant Nailing and one Pope, as sureties for t he due administration thereof-dhat the estate was sold Sty the administrator on the 24th of Feb. A. U, 1785 — tisAt two negroes were then purchased by one Jo/m Dickinson, for .5132 10s, who gave bond to the administrator for the purchase-money, which bore date the 24th of…

From Johnston. This was a petition for an account of the personal estate, ami a division of the negroes of one Zadock Stal-lings, who had died intestate.

<p>From Mecklcnbure.</p> <p>The Master to whom the accounts of the Defendant' were referred by an order made in this cause at December Term last, (Jhiie 276,) reported at this term that the sum of 7,440 dollars had been raised by a sals of the land devised by the testator to be sold. But whether this sum passed under the residuary clause of William Henderson’s will, or to his heirs at law', or to Isis next of kin, was submitted for the decision of the Court. The following is a copy of those parts of the will which are considered important:</p> <p>“I William, Henderson being &c. being possessed of a considerable ptoperty both real and persona], and desirous of directing a disposal of the same after my death, do the 9th clay of January, 1818, mate and publish this my last will :</p> <p>“ That is to say, the tract of land that I now live on, lying on the Catawba River, containing three hundred acres, and also fisheries, it is my last will and pleasure, that my executors, hereafter to be named, do within six mouths after nay decease, cause the aforesaid tract of land to be publicly sold to the highest bidder, after giving three mouths public notice, terms of sale to be one-third yearly until the amount is paid, the purchaser to give good and sufficient security, with mortgage on the premises. And my will is, that the money arising from said sale shall be disposed of as follows, that is to say, the money arising from the sale of said land shall be laid out in purchasing shares in the State Bank of North-Carolina, or in purchasing shares of the United States Bank, and the profits arising to go towards paying a minister of the gospel, who shall preach at the Seceding M cling House called Gilead, in said County, being on the great road leading from Charlotte to Beattie’s Ford, (the party called the Associate Seceding party.)</p> <p>(Here follow several trifling legacies.)</p> <p>“The rest of my negroes, viz, Betty. Jerry, Frank, Jim, Alele, five in number, with all horses, cattle, hogs, sheep, farming utensils, household furniture, and any other thing not mentioned in this my 'ast 1 direct mY executors to sell at public sale, and the monies arising to be laid out in the manner following : first, all my just debts to be paid, and funeral expenses to be paid. I give and bequeath Hugh Lvcas one dollar. Also give and bequeath to John Henderson one dollar (sen of Viilliam'). I also give and bequeath to William II. Lucas forty dollars. Then the remainder or balance to be divided equally among the following persons : I give and bequeath to my sister Jane and family, I give and bequeath to my brother Archy’s son, James Henderson, í give and bequeath to my brother James and family, each one to share and share alike.”</p> <p>The Court took time to advise, and this term their judgment was pronounced by</p>

From Craven This was an appeal from a decree made by his honor Judge Martin, on the Fall Circuit of 1828.

From Johnston. The bill charged that the Plaintiff’s intestate being surety for one Robert H. Helme to a large amount, and Helme being anxious to indemnify him, conveyed to the Plaintiff, in trust for the intestate, by deed dated November 17th, 1825, a decree for a sum of money which be, Helme, had obtained against the firm of John Williams and Company, of which he was a member.

From New-Hanover This cause was heard again at the present term, upon the petition of the Defendant to set aside the interlocutory order, made at December Term 1827, and reported ante page 87. It is proper to explain an apparent difference between the statement of that case, and the opinion of the Chief-Justice, in respect to the accounts of the Defendant.

From Montgomery. The bill charged that the Plaintiff being a young and inexperienced man, had been induced to play at cards with the Defendants, who, by means of a combination between themselves, had won a large sum from him— that nearly all of the winnings of the Defendants had, by an arrangement between themselves, been thrown into the hands of the Defendants Holloway and Cannon, to whom several bonds, executed by the Plaintiff for the money thus won, had been assigned —…

From Wake. The Plaintiff in his bill, whichwas filed in September, 1826, alleged ttiat Juhn Streator was indebted to him, and on the 26th of April, 1806, executed a bond to secure the debt, payable on the 1st June thereafter — that soon after the execution of the bond, Streator died insolvent :«¡d intrátate, that letters of administration upon the es-tale had never issued — bul that at the lime of his death, a suit iu the Court of Equity was pending by which the said…

From Wayne. This was a bill of review for matter of fact, filed in the Court below. The cause sought to be reviewed was decided in this Court, and is reported ante 273. The bill charged, that since the trial at law, between the same parties, (Law casesr i voL 346,) the Plaintiff had discover'd that the witness Rebecca Hicks had been bribed by the Defendant, and had on that trial been guilty of perjury.

From Granville. From the pleadings, proofs, and exhibits the case was, that John Hester died having made a will, and appointed the Defendants his executors, having devised all his property as follows, viz. “I wish my tract of land in Granville sold, and out of the proceeds of the sale, together with the money due me, I wish my executors to purchase a piece of land somewhere most agreeable to my wife Manj J. Hester, for her aud my children to live on, the balance of my…

From Bertie. The case as it appeared upon the pleadings ar.d the report of the Master, was that Henry Johnston died intestate, and that administration upon his estate was committed to one Alexander 8.

From Franklin. From Use pleadings ii appeared, fasti o»e Benjamin Hill dies! its the year 1790, bavkg: giver* to his wife Mary Hill, m life estate in sand?; slaves, with a remainder to his ri.i’dms. That the executor of the husband assented ia the legacy to the wife, and put tbs slaves into her pot/vssio», and soon afterwards she Intermarried with the Befemlani’s intestate.

From Perquimons. In this case the bill was filed for an account of the estate of one Granberry Sutton, the father of the Plaintiff Martha. It appeared from the pleadings, that Granberry Sut-fyn died in the year 1794, having made a will, whereof lie appointed the immediate testator of the Defendant, executor.

<p>From Edgecomb.</p> <p>This cause came a .second time before (he Court, upon the petition of the Defendant to rehear the interlocutory decree made at June Term, 1828. The case as then reported is found in this volume, (ante 180,) and it is only necessary to state further, that by the answer of the Defendant, the contract as alleged by the, Plaintiff, was denied; but the Defendant admitted he had contracted to sell to the Plaintiff, and averred the. terms of the contract to be, that the Plaintiff should give a note of Stanton’s with good security for 55700, his own notes for the residue, and a deed of trust upon the land to secure the payment of the purchase money. Upon this contract the answer averred that the Plaintiff was led into possession, and (he Defendant submitted to perform the contract so stated by him, and pleaded the act of 1819, ch. 1016, in bar of relief upon the contract alleged by the Plaintiff and denied by the answer.</p> <p>Proofs had been taken before the hearing, and the contract resting entirely in parol, there was great diversity in the testimony of the different witnesses.</p> <p>Upon the petition for re-hearing, the case was very elaborately discussed by Gaston and Badger, in support of the petition, and by Hogg, in support of the decree, hut the Reporter is unable to present to the profession a full view of the argument, and is unwilling to attempt an abridgment.</p>

From Orange. The petition slated (hat James Flintham died intestate without leaving any widow, child or other issue surviving, and possessed of a considerable personal estate, which had come to the hands of the Defendant Holder, as his administrator — that the intestate was the illegitimate child of the petitioner Ailsey, and that the petitioners Thomas, Catherine and Nancy, were the brother and sisters of the intestate ; and the petitioners prayed that the Defendant might…

From Orange. Petition for Divorce. The Petitioner stated that he intermarried with the Defendant in the year 1824, and that about a year afterwards, she yielded to illicit solicitations, and had adulterous intercourse with several persons — that the Petitioner unwilling to abandon his wife, had removed from the village in which they first resided into the country, and had used every affectionate method to reclaim her, but the petition charged that she continued her former…

From Jones. Upon the opening of this cause, it appeared by a copy of the order of the Court of Pleas and Quarter Sessions for the County of Jones, that pending this suit, the Plaintiff has been appointed the guardian of the Defendant.

From Rutherford. Upon the opening of this cause it appeared to the Court, that all the residuary legatees are not parties to the suit.

From Franklin. The, Plaintiff alleged, that the Befeaters téstalo*; ;;ad in his \vt-5 ttoiursitíicd as folien ' Whereas I have fifty shares in the State B ink of North-Carolina,, “ &c. (setting' forth sitares in other batiks, amounting in all to seventy, “ six) it is my will, that my daughter Sarah M Fenner shall have. “ die prufus arising therefrom during her natural life, or until the te charters of said banks may expire.

From Perquimons. This was an appeal from a decree dismissing the bill, pronounced in the Court below, by his Honor Judge Man*um„ The hill charged that the Defendant heigk intermarried with Charlotte Spruill, in 1794, and that 1795, her father Hezekiah Spruill placed in Leigh's ¡tes-session a female slave, named Esther, in trust, for such of Leigh’s children, as Spruill should afterwards nomi-cate as donees by his will — that Mrs. Leigh died before her father, who made his…

From Franklin. The Plaintiffs alleged, that William Person, the elder, died in the year 1778, leaving a widow and five children, of whom the Plaintiff Martha was the eldest.: that by his will, he gave the residue of his estate, after the payment of his debts, to his widow for life, but charged it with the maintenance and education of his four younger children, viz. the Defendants and two others, Mary and Beniamin, who were dead without issue — that the widow of William, the…

From Iredell. This was a bill filed by the residuary legatees of Wtr^ Linnet}, who died in the year 1821, against the De-fetid» ant, his executor, for an account of his estafe and pay» saeut of their legacies. The Defendant submitted ta an account ; but in his answer, did not give mic, but merely referred to his vouchers, which were filed.

From Chowan. This was a bill for an account of profits of lands, which the Plaintiff and Defendant jointly cultivated.— The issue between the parties involved matters of fact only.

From Surry. This bill was filed its October, 1823, to redeem a negro man slave, which the Plaintiff alleged he mortgaged io the Defendant, Me,Cannon, on the 15th Sep-ember,» 1.810, and which MeCaimon sold to the other Defendant on I4(h September, 1811.

<p>vje.ty yelfeveis ¡«T!t-í! isiriakos, r.-¡ well as agaimt fraud m .. dc-.ü U1' «'jr.tr.-iot in «'iling ; and pvnl cvMenso is ;.Jrn iss'ble to the w: fnioi, thouph it is denied in the answer ; ami this, when tl«o ísíiii;iiiff-x'oíes ' % .iiii,-msti?ely o’i the ground of ¡.’.istarc-.</p> <p>As where tlie owner oí tvro adjoiníiiij iiv.eis of hind, Iinniig .sold oat-oi'theuij in d- íerionig the ii'etes ami bounds in a deed executed to the purcli;-. .or, by mistake included ooth tracts. Tae proof oí the; tnisiake be,in|r ¡./.i'.' .-s’y satisfaclcry, the miik-e was dea.’e.eu to re-convey «o the .’eu-ior the tract offend not intended to be can . eyed.</p>

From Bertie. The Plaintiff in his bill alleged, that David Ryan, his father, had died in the year 1802, having made a will •.vhcreby lie boquea! bed the whole of bis personal estate ■Jo the Plaintiff and another son, and appointed his wife Man] 3. llijan, executrix — -that the executrix never in any way manage* the said estate, lint confided (he whole-ther* of to her brother John Beasley, the testator of the ^Defendants, who had also prora red himself 1o be appointed…

From Orange. The Plaintiffs in this bill averred, tiiat Thomas Lynch duly made and published his last will — whereby, after devising three hundred acres of land to his brother Jesse Lynch, he proceeded as follows: “ I give all the balance « of my laud, with the appurtenances thereof to my bro- “ ther Moses. I also give, him my negro man Jim, with “ all my stock of all kinds, with tiie balance of ail my « property, to my brother Moses.

Fpom Chowan. The Plaintiffs alleged that their testator was the exe-outor of Stephen Cabarrus — that John Charrier was a legatee of the said Cabarrus, and made large purchases at ** sale of his effects, to secure which, he executed two Swíifh to íb-lv testator for gg,OüO ere:» — -sí!-.' Gabarras, |i>y hss ■w¡!5, also gave legacies lo John P, hulJúsUm Charrier, children h«* '■ k of Equity- — tb.-st, after deducting costs atuí diurun-d., there remained d-ie of the original…

From Halifax. After the ¡demurrer to this bill had been overruled f ante p. 93) the Defendants filed their answers, in which they admitted that the commissioners were requested by them, in making a division, to allot to the Defendant, Sally, the negroes which had belonged to her before her marriage — and (hat out of twenty eight slaves, which were assigned her in the division, eight only had been the property of her deceased husband.

From Edgecombe. After the decree made in this case, at June term, 1829, Cante f. 348) reversing the decree made for the Plaintiff, at Juno term, 1828 fantc p. 180) the Plaintiff moved for further directions-to the Master, as to the purchase money paid by him to the Defendant — contend-sng, that although the Court would not decree a specific performance of the contract, yet it would preven* the injury which would result to the Plaintiff from the fact, that bo could not…

<p>From Craven</p> <p>Thin was a bill filed by the. Plaintiffs to reform si settlement, made by them its contemplation of their maF Hago $ whereby the property of the P!ai»fifi', Susan» then Srliss Eornegay, was conveyed lo the Defendant, in trust to permit the Plaintiff to have the ase of it during the joint lives of himself and his wife, without being subject to his debts ; am! from the death of (he husband, in case his wife should survive him, then, in trust for lie? use 1 and a! her death, in trust for the .issue of ihe mar-ria~;---a~d iu d~f~ui1t o~ ~urI~ i~;&~uc~ then to the s~ittr~ ot the ~~IIe, of ~1miu th~ ~f' i~f the Defendaui w~s one.</p> <p>The case, both upon the hill and answer, and the proof'-' is fully stated by his Honor Judge Rratw</p> <p>cited Osmond v. Fiforoy (S 131) C’OÍ® '• GU>son (1 Ves. sen. 503) llugamin v. Basely (14 Ves. %73).</p> <p>cited Griffiths v. Wood (1 Swanst. 43) Brooks v. Brooks (Free, in Oh. 24) Lordlrnham v. Childs (1 Brown’s Ch. C. 92).</p>

<p>From Orange</p> <p>The Plaintiff alleged, that in July, A D. 1819, being at a tax-gathering, a traci of land belonging ¡o the Defendants, as tenants in common, was by them exposed at auction, the Defendant, Hall, being the auctioneer — that the land was represented to be fertile, and well adapted to the culture of tobacco — that there was a never foiling spring on it, and that it was, in all respects, an eligible situation for a settlement. That being anxious to locate one of his sons for life on land of the kind thus described* ?*e mentioned his views to the Defendant, the Plaintiff knew nothing of the land, and became desirous to i,urc*,lise> so¡°ty from the description given of it by Hall — that the sale was opened late in the day, at which ^¡me< iu>, the Plaintiff, was drunk — that the Defendant, Hall, perceiving his situation, after describing the land, as above, cried it at 25 500 — that the Plaintiff asked whose bid that was, and was informed by Hall, ¡hat one John Jordan was the bidder — that the said Jordan was present and did not deny it — that believing Jordan knew the land, and confiding in his judgment, the Plaintiff was induced thereby to yield implicit confidence to the representations of Hall, and thereupon bid one dollar more, when the land was struck down to h>m — tliar believing Jordan to be an aciual bidder, and fully confiding in the description of the land, be executed two bonds for §250 50 each, payable, in one and two years, according to the conditions of the sale, and received a covenant for a title. That soon after, he ascertained tiie land not to be of the. quality usually called tobacco land, and that there was no spring upon it, except one which regularly failed in thesummer. Ami further, thatseveral months after the execution of his bonds, he had discovered that Jordan was nota real bidder, but had been employed by the Defendants to run up the price, of the land which bad fallen upon the Plaintiff — that upon all these grounds, the Plaintiff liad determined not to pay his bonds, and had notified the Defendants thereof, who had brought an action, and recovered a judgment. The prayer was, that the contract might be vacated, and the Defendants enjoined from suing out execution upon their judgment.</p> <p>The Defendants, in their answers, denied any intention of defrauding the Plaintiff, or any body else — averred, that the laud and spring answred the description given of the n • and although they admitted the employment of Jordan to hid for them, they urged that being 'tenants in comino», they had determined to soli for the purpose of partition, and that the Defendant, Hall, intending to take the land in severalty, unless it, went for $500, authorized Jordan to bid for him up to that price,</p> <p>Much testimony was taken, which it is not neoessniy to stale, as all that is important will be found in the opinion of Isis Honor Judge Hall»</p> <p>riled Parsley v. Freeman (3 T. It. 51) Eyre v. BumJ'nrd (1 East 318) Evans v. Bieknedl (6 Ves. 174) Burrows v. Lock (10 ditto 4TO) Clijjord v. Brooke {IS ditto 131) Hillv. Buckley (17 ditto 395) Cadman v. Horner (18 ditto 10) Deverell \ .Ld Bolton (ditto ¿OS') Drewe v.Corp (9 ditto 368) Wall v. Stubbs (1 .Had. II. 80) Uitkeof JSTorjblk v. Worthy i^l Camp. 337) Bacon v. Bronson (7 Johns. Oh IL -¿01) Oldfield v Bound* (5 Ves. :-08) Higginson v. Clowes (15 Ves. 523).</p> <p>riled Bromley v Ml (3 Ves. 630) Conolly v. Parsons (ditto 625 n.) Smith v.Clark (12 do. 477) Calverly v. Williams (t Ves, Jr. 210) Calcraft *. Jloebuck (do. 221) Grant \. Brunt (Cowp. 177) Lesse v. Crocker (1 ii. & B. 515) Twining v. MoHsons (2 Uro. C. C. 326).</p>

<p>To a bill against the executors of an executor, by the legatees of the first testator, a plea of the act of 1715 {Rev. c. 2) barring claims against dead men's estates unless made within seven years, is not available, without an averment that the residue of the estate had been paid to the Trustees of the University.</p>

From Pitt. This was a bill filed to foreclose a mortgage, which the Defendant, Nelson, gave to the Plaintiffs to seour the sumí of §3,000 — the purchase money of the mortgaged premises. Payment of the purchase money was originally made by an assignment of bonds, which the Defendant guarantied, and the mortgage was given to secure that guarantee. The decree was resisted upon two grounds. 1.

From Surry. The case made by the bill, answers and proofs, was., that the Plaintiff being indebted to the Defendant, Cowles, in the sum of §590, and to other persons to the amount of §400, made a conveyance of all his property to the Defendant, Hough, upon trust, to secure the debt due the Defendant, Cowles, with a power of sale, in case of a default of payment by the, Plaintiff — that after a default, the Defendant, Hough, by the directions of Cowles., and wilh the consent…

From Pitt. The Plaintiffs, who were the legatees of Willie Canonnn, alleged, that the said Cannon died, having published his will, which was pioved by the intestate Charles Jenkins, to whom letters of administration with the annexed, issued, the executor therein appointed having renounced : That directly after the issuing of the letters of administration, the administrator, under the pretence of executing the will, hut with an intention offraudulcutly making a profit to…

From Stokosc The Plaintiff uiiVíyoi!. íbat hi the month of January., iP.30, lit; pmT.imse.il of one Levi Loyd, Use agent of the Defendant, Chamblis, ü stallion.- — that Loyd gave a cer-'•iíjcüííi of the pedigree of the horse, and also of his age, which was; stated to be. eight years — that the price given was .'5400, foe which the Plaintiff executed Ids hondy which was dilheml by Loyd to Chamblis — that so'>i The Defendant, Chamblis, in his answer, admitted the sale of the…

From Wayne. The allegations of the hill wore, that in the year 1816, the Plaintiff, Elizabeth, and the Defendant, Mary, being sisters and unmarried, purchased jointly a lot of ground In the town of Waynesborough, and contributed equally to the payment of the purchase money — that on account of the nonage of the Plaintiff, Elizabeth, the deed for the lot was made to the Defendant, Mary, who was of full age — that at the time of the purchase, the lot was unimproved, and the…

From Wilkes. This cause was a branch of that of the same Plaintiffs against William .Lenoir (reported ante p. 225). It sef forth the same title and the same facts. The two infant children of Montgomery, who pending the former suit had married, were, with their husbands, Montfort Stokes and James Wellborn, made Plaintiffs. The Defendants claimed under Mary Gordon, who was a Defen~ dant to the original suit, as to whom it had abated.

<p>A bill, the allegations of which are directly denied by the answer, and supported by one witness only, without corroborating circumslan ces, will be dismissed.</p> <p>After a failure at Laiv, the party cast cannot come into a Court of Equity, merely because the verdict is unjust ; unless the matters alleged in Equity do not constitute a defence at Law.</p> <p>Where a discovery in aid of a defence at Law is sought from the conscience of the Defendant, it ought to be obtained pending the sural Law.</p> <p>Discovery and relief are never given after a trial at Law, where the matter averred was available at Law, unless the party seeking it, avers and proves, that he was ignorant of the defence or evidence, at the time of the trial.</p>

From Rowan. The bill charged, that in 1786, one Lutrie Sejfret executed a deed of conveyance, for a valuable consideration, “ to the elders and trustees, and their successors in office, of the Lutheran Congregation belonging to the second Creek Organ Meeting-House,” for a tract of land on which a meeting-house was afterwards erected : That under the said conveyance, the predecessors of the Plaintiffs liad entered and enjoyed peaceable and uninterrupted possession of the…

From Wayne. The Plaintiff alleged, that his father, the Defendant, being willing to advance him in life, as well as to repay him for services rendered, in February, 1821, coin ey ed to him in fee-simple 100 acres of land, and also six slaves — that the deed was delivered by the Defendant to the Plaintiff, and was hy the latter deposited for safekeeping with one Iloplon Coor — that the Defendant after-wards, by some contrivance, got. possession of it, and destroyed it.

From Wayne* The bill charged, that the Defendant, in the year 1807= made an entry with the entry-taker of Wayne county ; that before a grant issued tiiereon, he agreed to convey the, land thus entered to his father John Applewhite, and executed a bond, by which he bound himself to have the entry surveyed, and after obtaining a grant, to convey ittuhis father; that the Defendant had perfected his title to the land, but in consequence of the father’s death, the Defendant never…

From Lincoln. The bill was filed by three of the infant children of fñ,Ilium Mason. It stated, that their father, by his will, devised as follows: “ Í will that my wife, Mary Mason, The will of Mason Huson was filed as an exhibit, and it appeared from it, that he left six children, and his wife enceint with another, to five of whom, and the one unborn, he had bequeathed the residue of his estate, as a, daughter, Elizabeth, had been provided for by her grandfather.

From Wake. The case made by the bill was, that the Plaintiff, a resident of Virginia, in the year 1819, sold to a copart-nership, which lie then thought consisted of Leonard Merriman, John Merriman, and David Gillet, a quantity of goods — -that being ignorant of the rule of law, that one partner could i¡«» bind She copartnership by deed, be took from Leonard Merriman, who made the purchase, an in-strumení signed and oeab'd in ího copartnership name; that being ad* wed that…

From Mecklenburg. The facts stated in the bill and answer were the same, as those reported in the cause at Law between the same parties (2 vol. Law Cases, p. 533).

<p>An agreement by parol, nuule before the act of 1319 c. 1016/ by a father, in consideration of the marriage of his illegitimate . daughter, to settle all his estate upon her husband, herself, and the issue of her marriage, is binding; and although it does not attach speeificall upon any portion of the father’s property, so as to defeat a purchaser with notice, yet it will be enforced against volunteers claiming under him. For though the relation between the father and the illegitimate daughter is not a sufficient consideration to raise a use, yet the intervention of the husband extends to the wife and the issue.</p> <p>In executing such an agreement, care will be taken of the interest of the issue — and the husband submitting, the estate was limited to him for life, with a power to make advancement? upon the marriage or full age of the children ; with remainder to the issue, as tenants in common, and cross remainders between them, upontlieir death under age and unmarried.</p>

From Burke, '¿'ho biil was filed in Uto year Í820, ant! the Plaintiff alleged, that in October» 1811, he made an entry of 648 acras wills, the entry-taker of Burke County, “ adjoining Jiis own line, and Jacob Bastion, and the Iredell County line.5’ That on the 8th iff January, 1812, a warranto!' ‘survey issued to tly.» Surveyor of Burke County, wSiícá was returned, and on the 24th of November, ISIS, a grant of the land, thus entered and surveyed, was usado to’hítalo That the…

From Franklin. The Plaintiff alleged that a tract of land, hold in common by a number of persons, was, under an order of the Court of Equity for the county of Franklin, sold by the Clerk and Master, for the purpose of dividing the proceeds among the tenants, instead of making a partition thereof — That at the sale, he, and the Defendant, Jeffreys, purchased it, and executed their joint bonds to secure the purchase money — that the sale was, upon the report of the Master,…

From Beaufort. The Plaintiff alleged, that his testatrix, intending to «mancípale her slaves, consisting' of a woman and Iter children, conveyed them to the Defendant, in considera-{.Son of £5, *’ i» trust, that the said Ely, his heirs, &c. “ shall, from time to time, permit the said negroes and their increase, io live together, upon his, the said Ely’s “ land, and to be industriously employed, and continue (i to exercise a controlling power over their moral condi ti.m, and…

Pitt. The bill charged, that the Plaintiff’s father, Samuel Branton, died in 1800, leaving four children, William, Samuel, Elizabeth, then intermarried with Matthias Holstein, nf Pennsylvania, and the Plaintiff, then intermarried with George Green : That the father died seised in. fee of the land in dispute, and intestate : That his two sobs administered, and received personal assets more than sufficient to pay all his debts ; which consisted in part, of a debt to one…

<p>From Franklin.</p> <p>This was a sc;re eacias issuing from this Court. The case made by it. and the decree upon which it was founded, was, that Charles Yarborough made his will, and bequeathed a legacy to the Plaintiff, and appointed James Yarborough his executor, who received the assets, wasted, them and died : That James also made his will, and ap pointed Henry Yarborough his executor, and left a considerable personal estate, which came to the hands of Henry, who wasted it and died : That Thomas Yarborough was the administrator of Henry, and had assets only to the value of $74 14 : And that David M. Lewis was the admiustrator de bonis non of James, and bed no assets» Upon a bill against all these parties^ the accounts of the several esletos, and of the Plaintiff’s legary. were taken and confirmed, and a decree made, declaring what ■was due to the Plaintiff, and that there were no assets in the Iss.nds of Tintinas Yarborough and Lewis. The Plaintiff sought satisfaction out of the real estate, of Henry arid James Farborougk", and to obtain it, issued the present 4irire facias against «heir respective heirs and devisees.</p>

From Chatham. The original bill was filed in 1800, by Ebenezcr McNair i» bis own right, and as the executor of Ralph McNair, deceased, against the Defendants, as the administrator, of Richard Kennon, deceaeedj having abated,it wai; revived by die present Plaintiff, who is the administrator de Imds ■noof Ralph, and the administrator of Ebenezet McNair.

<p>An administrator, who has revived a suit of his intestate, nerd not produce his h-lters of administration at the hearing of the cause ; it is sufficient, if he ptoduce tiiem when the order to revive wan made.</p> <p>It seems, that if a UeiVudant in Equity intends to rely upon the statute of limitations, it must be pleaded.</p> <p>VYhc-ther accounts between copartners are in any case barred by tito statute of liuiit'Jiions-— Qu ?</p> <p>I’ill where there is an agreement between copartners, under sea!, to account, a bill for an account is not barred, before an action on the covenant would be.</p> <p>Any delay in suing', which can be satisfactorily accounted for by the course of public evt ms, will not be construed into an abandonment or satisfacti ¡n of the Plaintiff’s demand.</p> <p>In Equity, an admission in the plea may be used by the Plaintiff against the Defendant,.</p>

<p>From Franklin.</p> <p>The Plaintiff alleged, that he was the surety of the ^Defendant Hunt, in a note for about g2,600, discounted aljthe Bank of Newbern $ that Hunt being in failing circumstances, the Plaintiff had procured an action to be brought by the bank, in which judgment was recovered by the Plaintiffs at Law, at September Term, 1828, of the County Court of Franklin. That pending the action, viz : on the 6th of September, 1828, the Defendant Hunt had conveyed to the Defendant Battle, all his property, which could be seized under an execution, in trust to pay certain debts due by him, Hunt, which were mentioned in.the deed — with a trust as to the residue, after paying those debts, to Hunt — that the property thus conveyed, was much more in value than the debts secured by the deed — that execution upon the judgment obtained by the Bank of Newbern, issued, which the Plaintiff procured to be levied upon the property thus conveyed, sub. ject to the claim of the Defendant, Battle, — and that if the Defendant, Battle, sold only so much of the property conveyed as was necessary to pay all the debts secured by the deed to him, that there would be a large surplus, amply sufficient to satisfy the execution in fa vox1 üí tbe bank ; but that the Defendant, Hunt, had given sundry orders upon the Defendant, Battle, for the surplus, over and above the sum due on the debts thus secured, and threatened to exhaust the same by similar orders, and that if the Defendant, Battle, should sell, in consequence of these orders, and pay over accordingly the wnole of the proceeds in his hands, there would be nothing from which the Plaintiff could be indemnified, against his liability as the surety of the Defendant, Hunt, who was insolvent.</p> <p>The Plaintiff then averred, that lie had made the Bank of Newbcrn secure, in the ultímate satisfaction of their judgment, and had taken an assignment thereof-</p> <p>The prayer was for an injunction, restraining the De® Cendant, Battle, from selling more of the property conveyed to him, than was necessary to satisfy the debts secured by the deed of trust, and that the residue in his hands might be subjected to the satisfaction of the execution in favor of the President and Directors of the Bank of Newborn, who were also made Defendants.</p> <p>Tbe Defendant, Battle, in his answer, admitted the execution of the deed of trust to him, by the Defendant, Hunt — -that before the sale of any property under the deed, ami on the 23d of October, 1828, he received notice of an assignment of the residue in his bands, made by the Defendant., Hunt, on the 16th of that month, t© Thomas T„ Ilmscll and George W. Freeman, to secare them, as the sureties of Hunt, in two notes for $!00& and gSOO, held by the Bank of the United States ; That on the 1st of January, 1829, a similar assignment of the residue, after satisfying ilussdl and Freeman, was made by the Defendant, Hunt, to .secure Peter Arrington, in the sum of §1400, and on that day notice thereof was given to him, the Defendant Battle s And that also, oh the 12i.h of February, 3829. a similar assignment of 'he surplus, after satisfying Russell, Freeman and Arrington, was mad a by Hunt, in favor of James Hilliard, to severe the sum of 8424, notice of which was also given hint. That he, the D.fendant, not Relieving he bad power to sell under the deed of trust, made by Hunt to him had, (¡Dne ri0 whereby he in anyway sanctioned those assignments, and had jmerely acknowledged notice of them : That the personal effects of the Defendant, Hunt, had been sold, to the amount of g10,456, with which all the debts, secured by the deed of trust, had been paid, and that a valuable real estate, and several slaves, and other minor articles of personal estate, were yet unsold, the legal title of which was still in him. The Defendant disclaimed to hold any thing beneficially, and submitted to any decree which would indemnify him.</p> <p>The Defendant, Hunt’s answer corresponded, in every respect, with that of the Defendant Battle.</p> <p>The assignment of the judgment and execution, by the President and Directors of the Bank of Newbern, to the Plaintiff, was admitted by them, and not denied by the other Defendants. Mussell, Freeman, Arrington and Hil - liard were made Defendants, and by their answers, only set up the several assignments made to them, as stated in the answer of the Defendant, Battle.</p> <p>By an order made in the cause, Battle was directed to sell all the property of the Defendant, Hunt, remaining unsold, aud hold the proceeds subject to the decision of the Court.</p> <p>By another order, all the execution creditors of the Defendant, Hunt, were allowed to make themselves parties j and a number of them availing themselves of this liberty, a reference to the M ister was made, to ascertain the amount of their-judgments, and the time when executions issued upon them, together with the return thereof.</p> <p>The cause was heard upon these facts, and the reports of the Master on the above reference, and of the commissioner Battle, as to the sale of the residue in his hands, after paying the debts secured by the deed of trust.</p> <p>Cur. víjxt. An v.</p>