Volume 17 — North Carolina Reports

<p>This cause was removed from Rutherford. The plaintiffs were the residuary legatees of Joel Blackwell, who died in 1821, and the defendants were his executoi-s. The bill, filed in 1823,. charged that they had converted a considerable portion of the estate of their testator to their own use, denying that it was a part of the assets — particularly, that the defendant, Blackwell, claimed a valuable negro man, under a bill of sale from the testator, which the plaintiffs alleged was either fraudulently ■obtained, or fraudulently set up as title — that the defendant was the general agent of his father, the testator, who was old, infirm and intemperate — that when drunk, the testator had agreed to sell this slave to a neighbour, one Simmons, for a small price j and in order to avoid performance of the contract, the defendant, Blackwell, persuaded the testator to execute a bill of sale for the slave to him, and antedate it, so as to overrun the date of the sale to Simmons, and thereby induce the purchaser to refuse a compliance — that the testator being anxious to rescind the contract, complied, and that after his death, the defendant, Blackwell, claimed the negro under this bill of sale. Other omissions in rendering his accounts, were charged against the defendant Blackwell. There were no specific allegations of fraud or concealment against the defendant Byars.</p> <p>The defendant, Blackwell, in .hfs answer, denied all the charges in the bill, except that as to the negro. He admitted the agreement by the testator to sell the slave to Simmons, and his subsequent wish to avoid that sale, and averred, that the testator told him, if he would contrive to have the bargain rescinded, he would give him, the defendant, that slave — that as well to induce the purchaser to rescind the bargain, as to effect the gift, the bill of sale was executed. Ho denied the right of the plaintiffs to an account of the slave, and insisted that he had made a full return land account of all the assets in his hands.</p> <p>The defendant, Byars, denied ever having received any assets of the testator, and stated- that he had left the management of the estate to the defendant, Blackwell.</p> <p>A reference to the clerk was directed, who reported,, that the defendants had settled their accounts with the commissioners, appointed by the County Court; that after allowing them g 35 for commissions, there was a balance of g 29, 76 in the hands of the defendant, Blackwell ; that upon an examination of the testimony before. him,, he had charged the latter with $ 500 for the value of the negro mentioned in the pleadings, and also with other small omissions, amounting to g 19 ; and further, that upon the evidence, he had charged the defendant, Byars, with g 300 for the value of a female slave, which he, the clerk, supposed to belong to the testator.</p> <p>The defendants excepted, 1st. Because the clerk erred in undertaking to decide upon the title of the negro claimed by Blackwell, and also because his decision was erroneous.</p> <p>2d. Because- tbe clerk had erred in charging Blackwell g 19 for the small items mentioned in his report;</p> <p>3d. Because he had allowed the defendants no conn missions for settling the-estate.</p> <p>4th. Because he had erred in chaining, the defendant, Byars, with g 500, as. the value of a female slave.</p>

<p>This cause was removed from Gates. The plaintiff alleged, that Joseph Speight, died in the year 1792, leaving a will, whereby he devised as follows : “ I lend “ to my beloved wife, Jlnnc Speight, during her natural 4< life, one half of the land and plantation whereon I now -s live, also five negroes, viz. &c. also three horses, &c.” That after giving the bulk of his estate to his sons Francis and Henry, “ and their heirs and assigns forever,” he bequeathed twelve shillings to his grand-children Joseph Freeman, John Freeman and David Freeman, to “ them and their heirs forever, in full of their part of my estate.” He also gave a negro to his grand-daughter Jane Freeman, “ to her, her heirs and assigns forever,” with a similar declaration, that it should be in full of her share of his estate, and after bequeathing a riding-chair and harness to his wife, “ to her and her heirs forever,” he proceeded as follows : “ It is my will and desire, that “ all the remainder of my estate, of every nature and kind “ whatsoever, shall be sold, and nine months credit given “ to the purchasers ; the money arising therefrom to go to “ pay my just debts and funeral charges,and ifthcreshould “ be any remainder, for it to be equally divided be- “ tween my two sons, Francis Speight and Henry Speight, “ to them and their lieirs forever and appointed his sons, Francis and Henry, executors, who proved the will, paid all the debts of the testator, and both died intestate, ■before Anne Speight, the wife of the testator: that James ■Gatling took out letters of administration upon the estate of Henry Speight — and upon the death of Anne, the widow, received the property given her for life by the ■will of her husband, consisting of the original stock of negroes, together with a large increase: that William ■ Goodman administered upon the estate of Francis Speight, and died before Anne Speight — and that administration de bonis non upon the estate of Francis, issued to Henry Speight, the,younger: that .James Gatling died in 1823, and that the defendants liad administered on his estate. The bill then set forth the title of the plaintiff, as administrator de bonis non of Henry Speight, the elder, aud concluded with a prayer for an account of the profits oí' the Slaves, which the defendant’s intestate received after the death of Anne Speight, and that the plaintiff’s share of them might bo delivered to him. Henry Speight, administrator de bonis non of Francis Speight, was made defendant, and upon his el eath, the cause was revived against Thomas Sanders, who was also appointed administrator de bonis non of Francis Speight.</p> <p>The defendants, in their answer, admitted the principal allegations of the plaintiff. They stated, that their intestate not only administered upon the estate of Henry Speight, the elder, but that he also took out letters of administration de bonis non, et cum testamento an-nexo of the testator, Joseph Speight, under which he had, by the advice of counsel, and with the consent and approbation of the plaintiff, distributed the property given to Anne, the widow, for life, “ among the distributees of Joseph, the testator.’-’</p> <p>This division was made in 1819, under an order of the-County. Court, and the report of the commissioners was ■ hied with the answer, from which it appeared that they had divided the negroes left by Joseph Speight, to his wife for life, equally between all his grandchildren. per stirpes, excluding the Freemans„ who he had declared should receive no further part of his estate, The, several- acknowledgments of the receipt of their shares, signed, by the persons, among, whom this property was divided, were also filed with the answeiv. By consent, the clerk, was directed to take an- account of, the value of the ne-groes, and of tlicir annual profits.</p> <p>In his report, the clerk stated, that no evidence had' been filed with him as to the value of the slaves, or the amount of profits received from their labour. He there-. fore had been governed by. the valuation made by- the commissioners, who divided them in 1819, and had allowed nothing for the profits of their labour, but charged the-defendants witli interest upon that valuation, and. that he had rejected a claim.-madc by the defendants for-an allowance, on account of one of the. negroes, who died in 1820.</p> <p>contended, 1st, that by the* residuary clause, the property in dispute was given to Henry and Francis. (Roper on Legacies 488 Cambridge-v. Rous 8- Vesey 14 Blacldedge v. Singleton 3 Murp. 597).</p> <p>2d. That even if the plaintiff agreed to the division as made, it should be corrected, on account of- his igno,-. ranee of his rights.</p> <p>urged, that the property did not pass under the residuary clause ; and if it did, that the mistake committed in the division was a mutual mistake of law, and could not be rectified. (James v. Avis 4 T. R. 605. 4 Rae. Ah. 351 Havers v. Dewes 3 P. Wms.-40 ML Gen. v. Johnson 2 Rop. on Leg. 457. -Anib. 577).</p>

This bill was originally filed in Bertie. The case made by it was, that Miles Bayner died in the year 1819, having executed his will, Avhercby, after providing for his wife, he devised as follows : u I give and bequeath il the whole of my estate to my five children, Cynthia, e‘ Mary Jinn, Martha, John and William, to be and re- “ main as a joint estate, until one of them may marry, “ or arrive at the age of tAventy-five years, at Avhich “ time that one to take its full…

This bill was filed in Halifax, and alleged, that in the year 1825, the defendant offered to sell the plaintiff a tract of land, to which he represented that he had a good title in fee : that the plaintiff confiding in these representations, purchased the land at the price of §1240: shat the defendant executed to him a deed in fee, with a covenant for quiet enjoyment, and the plaintiff gave his bond to secure the purchase money ; that, in truth, the defendant had not an…

<p>The bill was filed in Caswell, in 1824, by the children of John Dameron, and of Wv.i -m Gold, who were the first and second husbands of the defendant, Mary Gold. It charged, that upon the death of Dame-ron, the defendant, Mary,. administered upon his estate; and that upon the subsequent death of Gold, Richard Atkinson, who was since dead, administered on his estate; tiiat Mary Gold had a number of slaves, or their increase, in her possession, which her father, Edward Clay, put, by way of advancement, into the possession of Dameron about the year 1800, upon his marriage. That the slaves were given to Dameron, and had ever since been held by him, or by his administratrix. The bill further charged, that Edward Clay died in 1819, leaving a number of children, besides Mary Gold ; all of whom, and his executor, were made defendants. It ivas alleged, that no division of those negroes had ever been made between the Avidow and children of Dameron; but that lately, the defendants, Mary and her brothers and sisters, denying the gift to Dameron, asserted a title in themselves, as derived by a subsequent gift from the father, Edward Clay, to them, in exclusion of the plaintiffs ,• and were about effecting a division among themselves, by petition filed in the County Court, against Mary Gold, for that purpose.</p> <p>The prayer Avas, for an injunction against further proceedings towards a division amongst the defendants ; that they might be compelled to set out their title, in order to have it litigated and determined in this cause ; and that the slaves might be declared a part of Vame-ron’s estate, and be distributed accordingly amongst the plaintiffs and the defendant Mary, Avitli the other parts of the estate, of Avhich a general account was sought.</p> <p>The bill was taken pro confesso, against Mary Gold.</p> <p>The executors and other children of Clay filed their answers, and denied the gift to Dameron, affirming that the negroes were expressly lent him by their father, who afterwards, and after the death of Dameron and Gold, disposed of them amongst all his children equally. They admitted, that the slaves Avere all in the possession of Mary Gold, and averred, that she asserted a title to them, as administratrix of Dameron, by virtue of the gift to him ; and that to enforce a division of those and other negroes, given by their father to all his children, they had instituted the suit in the County Court by petition.</p> <p>The cause was heard upon the proofs, at June term, 1830, when many depositions were read, which rendered it very doubtful whether there was, in fact, a gilt or a loan to Dameron. Under these circumstances, an issue upon that question was directed.</p> <p>This issue was tried on the last circuit, at Caswell, before SwaiN, Judge. His Honor instructed, the jury, that where a father, immediately upon the marriage of his daughter, or shortly thereafter, sent home with her a slave, who continued in the possession of her husband for a great length of time, the law, before the passage of the act of 1806 (Rev. c. 701) inferred, that a gift or advancement to the child was intended by the father— and that the burthen of proving there was no gift or advancement, was upon the party who denied it. The jury found, that the slaves were put into the possession of John and Mary Dameron, as an advancement or gift, and not as a loan.</p> <p>the children of Olay, moved for a new trial;</p> <p>moved for further directions. These motions were submitted without.argument.</p>

This cause was heard at Washington, on the spring circuit of 1830, before Man gum, Judge, when the following decree was pronounced by his Honor: “ This cause coming on to be heard on the bill, an- “ swer, proofs and exhibits, it is ordered and decreed, “ that the- bill be dismissed with costs.” From which the plaintiffs appealed. At June term, 1830, upon the opening of the cause.

This bill was filed in Wayne, and alleged that the plaintiff in 1820, became surety for one John McKinnie, in a bond to one Fellow ; that the bond was assigned by Fellow to one William Bizxell — that when the bond was executed, McKinnie was solvent; but that the plaintiff being anxious to be relieved from his responsibility, applied to the holder either to commence suit on the bond, or procure McKinnie to renew it with another surety— that Bi&sell promised to do so, and in…

The plaintiff alleged, that Thomas While died'seised of a tract 01 laud in Virginia, on which he resided that he appointed the defendants executors of his will, and directed them to allot fifty acres of land to bis widow, in lieu of dower ; that these fifty acres did not include the dwelling-house paid outhouses, and was of less value than the dower in the whole tract would have been that, under a power in the will, the executors advertised the residue of the land for sale ;…

The bill was filed in Edgecomb. The facts charged and admitted, were, that one Joseph Belt and Robert Joyner, copartners in trade, becoming insolvent, by two deeds, made a general assignment of their effects to a trustee, in trust, to secure their endorsers, among whom was one Barnes.

This bill was originally filed in Bertie, and alleged that the plaintiff and his brother Augustine Pugh, being possessed of a term for years in a tract of land called the Briery Pocoson, contracted to sell it to William W, Johnston for $ 2400.

Tho bill, originally filed in Pitt, alleged that one Mooring had formerly erected a dam, and built a mill hear the house of the relator — that the mill-pond extended within eighty yards of the house — that while the mill was kept up, it rendered the adjoining country, and particularly the residence of the relator, unhealthy, insomuch as to be a nuisance, and that it was of no public convenience, and only worked during the wet season— that in the year 1820, it was much…

<p>As many executions, of any kind, as the plaintiff chooses, -may be sued out on the same judgment — but if executed wrongfully, or irregularly, it is at his peril.</p> <p>Tf a fi. fa and ter cannotbe executed until the former is returned.</p>

<p>No, decree can be pronounced for the-plaintiff, upon a bill suggesting fraud'in procuring a cleed- and praying to have it cancelled, and for a re-conveyance, where the answer and proofs do not support the allegations, but establish a case entitling the plaintiff, upon a proper bill, to a redemption.</p> <p>The wife is an aside a deed for lently'p’rocured |ier lws‘</p> <p>Proofs which lire not material to any issue between the parties cannot be read upon the bearing.</p> <p>The plaintiff Sometimes obtains a decree solely upon the admission in the answer, but the admission must have some reference to the case made by the bill and not be entirely in a-yoidance of it.</p> <p>Relief never can be ¡ywen which is directly contrary to the prayer of the bill —as if the player is, thata deed be cancelled, a decree in affirmance of it will not be made.</p> <p>Costs are not given against a married woman in a suit for matters occurring after the cover-ture, and to which she is an unnecessary party.</p>

The bill, which was originally filed in Edgecomb, ip the yeai* 1829; alleged, that Mary S. Blount' died in the year 1823, possessed of a large personal estate, which she bequeathed, in different proportions, to the plaintiffs, some of whom were infants ; that she appointed S-pencsr 1). Cotton, Benjamin F. Jackson, Moses Monlecai and 'Hutchins G. Burton, her executors, all of whom proved the will — and that Moses Monlecai died •soon after the probate.

The bill, which was filed in 1821, alleged, that in, the year 1816, the plaintiffs, together with the defendant Jeffmjs, and several other persons, were sureties for one Buko W. Davis, to the State Bank and the Bank of Newbern, in different notes, amounting in all to the sum of g 10,000.

After the decree for an account, made in this cause,, at the last term, (avíe mol. 1, 418) the clerk reported, that in December, 1817, the plaintiffs sold the land mentioned in the pleadings to the defendant Nekon, tvN received, among other notes, one made by Huntie and Henry Smith, for $1436 10, due November 6, 1318, “ which notes were in full payment for the land sold the defendant Nelson, and which when paid off, discharged the mortgage,” given by him to the plaintiffs.

After the decree made in this cause (ante vol. 1, 379) tor a reconveyance by the defendant to the plaintiffs, of the land conveyed to him by mistake, an order was made that the defendant should repay the plaintiffs the costs of the ejectment, and a reference as to those costs was directed. cited Keaton v. Cobb (unte vol. 1, 439).

After the decree made in this cause, and in that oí Benaein v. Lenoir (ante vol. 1, 255, 444) whereby payment Avas decreed of the mortgage made by Montgor mery, to the Unitas Fratrum, and the right of the' plain-j-^r, ,§f¡0¡tes anj] Wellborn to a re-conveyance of the residue of the mortgaged premises was established, an account was directed of the rents and profits received by the defendants, and also of the waste committed by them upon the land mentioned in the pleadings.

The bill alleged, that John Williams died intestate, possessed of a very large personal estate, and that administration upon his estate was.committed to the plaintiffs’ testator, who was his brother : That their testator found the affairs of his intestate, in much confusion, his estate incumbered with many debts, and to a large amount: That with a view of preventing the accumulation of costs, and from motives of kindness fo the family of his brother, and relying for his…

<p>Courts of equity in this State will not sustain a bill to enjoin a judgment at law upon a money demand, where the amount in controversy does not exceed fifty dollars. ■</p> <p>A receipt not under seal, is only evidence or satisfaction, and cd by paroHes" t'unony.</p>

This hill was originally filed in Rutherford, and sought to foreclose a mortgage of slaves. It charged that the intestate of the plaintiff lent to the defendant, on the 4th of June 1808, the sum of g260, and to secure it, took a hill of sale for the negroes mentioned in the bill, which had been limited to the defendant by-will after a life estate to two others.

This bill was originally filed in Iredell, in 1822, and was amended in the following year. It charged, that in the year 1817, the plaintiff entered into partnership with the defendant Davidson, and with Robert If'orkc and Robert Simonton, who were also defendants, for the purchase of slaves in this State, and the sale of them in the State of Mississippi — that each partner was' to advance S 4000, and that the profits were to be equal! v divided.

The original bill was for an account of the estate of tlie intestate Samuel Greer, and was filed in 1818, by Thomas Compton and his wife, a daughter of the intestate, and by him as administrator of two others of the children who were dead, against William Culberson a id Samuel Greer jun. the former of whom was administrator in conjunction with Margaret Greer, the widow of the intestate, and the latter the son of the intestate, and the executor of his mother Margaret.

<p>Where a testator devised personal estate to a child, “ to her and hex’ “ heirs forever,” and added “ it is my will and desire, that if my said “ daughter lives to arrive to the age of eighteen years, for her to re- “ ceive her said legacy, and take possession of it; and if she should “ die without a lawful heir begotten of her body, then the said pro- “ perty to revert back, and be equally divided” &c, it was held that the words “ receive and take possession” were equivalent to “ shall then be paid,” and that the legatee took a vested, and (the limitation over being too remote) an absolute interest.</p> <p>Where the time is not annexed to the legacy but to the payment of it» the legatee takes avestedinterest.</p>

This bill was hied in September 18-28. ít charged that the plaintiff gave his bond to James Jones, the defendant’s testator, for ¿244 3 6, in December 1811, payable in ten clays : that at three several days he made payments, the last of which Jones acknowledged to be in full; but excused himself from then delivering up the bond, by saying that he was too busy and was going from home, so that he could not look for it, but would surrender it, whenever called for.

The bill was filed in Wake, and the case made by it was, that one Barnes, being insolvent, conveyed all his property to the plaintiff, for the purpose of securing Ms debts ; that among other things there were five shares of stock in the State Bank ; that the plaintiffs under a power fr0Jn Barnes applied to have the stock transferred, upon the books of the bank, into their names which was refused. The bill prayed that the defendants might be compelled to transfer the stock.

The case made by tbebill answers and proofs was as follows: The legislature, by an act passed in the year 1832, incorporated the plaintiffs, and authorized them to build a bridge across the French Broad River in Buncombe, and to collect such an amount of tolls from persons passing it, as should in the opinion of Buncombe County Court be sufficient to keep it in repair.

The original bill was filed in 1818 by Brollen and his wife against Levi and Benjamin Batsman, the executors of John Ba teman deceased,- who had been the former husband of the feme plaintiff, for an account of the estate. It charged that she dissented from the will. The defendants filed a joint answer, and admitted their joint administration.

This bill, which was filed in 1831, alleged that Mar-maduke Norfleet, being possessed of a large estate in money, slaves and other personal property, in the year 1802, made and published his will as follows : “ First, to my wife I lend the land See. during her life. Se- “ cowl, to Lucy Norfleet, otherwise Lucy Brew, for the (i purpose of preventing her from inheriting any part of “ my estate, I give tlie sum of five shillings, paper mo»-, “ ney.

This bill was filed in August 1827, in the court of equity of Chatham, by the plaintiffs, the widow and next of kin of Jklam Finch, for an account and settlement of the estate. It appeared upon the pleadings, that Finch died intestate in 1807, and administration was shortly after committed to the defendant Robert and to one Abraham Harper, who died in 1810 intestate, and upon whose estate the other defendants Henry Branson and Thomas Ragland administered.

David Barnes was the executor of WhitméU Bell, and upon a bill filed by the legatees against him for an account of his administration, the following facts appeared. The testator at his death owed the State Bank §1500, for which Barnes was surety.

The bill stated that in August 1820, the plaintiff White-sides purchased for a valuable consideration from the defendant Greenlee, eight lots in Morganton, and that Green-lee executed a bond with a condition reciting the contract, and providing for its execution — that afterwards, Whitesides assigned for value to Erwin and the other plaintiffs, all his interest in the lots, but that Greenlee, in order to defraud them, had conveyed the lots to the defendant Suddreth, who took…

The original bill was filed in Chowan, and charged that on the 8th of May, 1819, the plaintiff was indebted upon a settlement with the defendant, in the sum of $197S 50; for which he gave his bond, bearing interest from date; and to secure the same, mortgaged a house and lot in Edenton, and a plantation in Chowan county, called New Sweden. This mortgage was not in the usual form; but by way of an absolute conveyance in fee, with a defeasance from the defendant.

The bill was filed in the year 1826 in Caswell. The plaintiffs charged that their father Hezekiah VUlines was a resident of Nansemond county, in the State of Virginia; that hy his will he left several specific legacies, and all the residue to his wife and three children, to-wit: the plaintiff Mraham. a son Thomas who was dead, and whose administrator was a party, and a daughter Nancy, and appointed his wife and the defendant executors, and died in the year 1784; that a large…

John Washington in his life time subscribed for twenty five shares of stock in the Roanoke Navigation Company, upon which he paid $ 65 pev share, leaving $ 35 on each share unpaid at his death.

<p>Where a testator directed the interest of one third of the valuation of. his slaves to be paid to his son, and requested another son to lake the; slaves and pay the valuation to his executors, and appointed that son and another his executors — Held, upon the probate of the will by the son alone, and upon his electing- to take the negroes under the will, that he might retain the value of the negroes, and that they-were not bound as a security for the annuity.</p> <p>Where the answer sets up release as a^de-fence to the the^Mi^and^the plaintiff replies ffenerallv li© cannot at the heanng; read tes-ing the release as fraudulent.</p> <p>iíSsue^Svreen the parties ,• and factsTnot seated in the bill or answer is to be rejected. No interrogatories can be put to witnesses, which, do not re-</p>

The bill was filed in Lenoir, in 1826, and alleged that the plaintiff being old, infirm and poor, was falsely accused by the defendant, a man of wealth and influence, of stealing cotton, and afterwards burning the gin house to conceal it — that being arrested on this charge, and unable to find sureties for his appearance, he was confined in jail from the 10th of August 1835, until the commencement of the term of the Superior Court, in October ensuing — that during this…

The plaintiff in his bill, which was filed in Orange in 1826, sought to set aside the sale of a lot in the town of Hillsborough, made by the plaintiff to the defendant Mams, under circumstances of gross fraud. The relief as to Mams was clear, and the only doubt was, whether the defendant Blackwood was not unnecessarily made a party.

<p>The bill charged, that on the 2nd clay of July, 1824, the complainant Boyd, being largely indebted (about g 34,000,) to the State Bank of North-Carolina, as surety for his brother Alexander Boyd, did, for the purpose of obtaining forbearance, and also securing the payment of that debt, convey to the defendants, Hawkins and Robarás, as trustees, eighty slaves, and sundry large tracts of land, including one on the Roanoke in Warren County, containing four thousand acres ; that lie had since paid the debts and received a discharge from the bank, and a declaration to that effect to the trustees, and had requested a re-cpnveyance according to the terms of the deed; but that the defendant Hawkins, alleged that the plaintiff was indebted to him for compensation for services rendered under the deed, and advances made in discharge of the debts, and refused to convey, but had in his name and that of his co-trustee, advertised the Warren land for sale, and instituted an action of detinue for the slaves. The bill denied any debt from the plain* tiff to Hawkins, and averred a willingness to make a. reasonable allowance for his services, or by way of commissions, (for which there was a provision in the deed, the amount to be determined by the bank); and insisted that Hawkins was largely indebted to Boyd upon his transactions as trustee in another deed, executed on the same day, and for the same purposes as the former, for certain property in Virginia, for the set* tlement of which a bill had been filed by Boyd in a court of chancery in that state — that Hawkins put in an answer, to that bill insisting upon sundry demands arising to him upon this last deed, and also for services rendered touching the estates in North-Carolina, conveyed by the deed first mentioned. The bill then stated a subsequent mortgage by Boyd to the other plaintiffs, Thornton and Davison. The bank and the trustees were made defendants, and a re-conveyance prayed, and in the mean time, an injunction against the sale and action at law, and general relief.</p> <p>The answer of the bank admitted the payment of the debt, and submitted to a re-conveyance, but not so as •to interfere with any just claims the trustees might have- , against the estates.</p> <p>The defendant Robanls. in his answer, set up no claim on his own behalf, and admitted that it was understood when the deeds were signed, that he was not to be active in the execution of the trusts, which were expected to be very troublesome, particularly in relation to the property in Virginia, but that the defendant Hawkins, was to undertake the sole management of it; that he did manage it successfully, and at much risk and trouble, and greatly to the advantage of Boyd, in many particulars, which were mentioned in the answer of Hawkins himself.</p> <p>That answer, upon which arose all the material questions in the cause, stated, that Alexander Boyd, of Meck-lenburg county in Virginia, owed the large debts, for which his brother, the plaintiff, Richard was surety, to the State Bank, and also, a further debt of about $ 9,000 to Richard himself and that becoming entirely insolvent, he, Alexander, conveyed by deed of trust to one Hainny and others, on the 11th of June 1824, as a secu-Tity to Richard Boyd, a very large estate consisting of many tracts of land in that county, about 140- slaves, the crops growing on sundry plantations, besides his stock, plantation waggons, tools, occ. ; that he had before conveyed to Henry Fitts of Warren county* as a counter security for Richard Boyd’s endorsements. several tracts of land and other property in this State. It further stated, that the Bank had a considerable part of its debt in judgment, and was about proceeding to a sale of R. Boyd’s estate in Warren : and that such was the prospect of his distress from those, and other debts which he owed, and the small sum which he expected to realise from Alexander Boyd’s conveyances, in consequence of previous incumbrances, that Richard Boyd himself apprehended insolvency,which it was generally supposed Avould be the case in the winding up; that it was of the last consequence to him to gain indulgence, and also to have his claims under Jl. Boyd’s assignment vigilantly attended to and pressed, and that the bank would not forbear, unless he made a deed of trust to persons in whom the directors had confidence ; that application was made to him, Hawkins, by Boyd and his friends, but he declined because he was aware, from the nature of the business, that it would occupy much of his time, and take his attention from his own affairs, and also because he doubted Boyd’s integrity from previous transactions, upon which a difference had arisen between them ; but that at length, upon a second application urgently made, he gave his assent, being the brother-in-law of R. Boyd, and wishing to serve him, as he seemed greatly distressed by his embarrassments and impending ruin ; that the parties came to Raleigh, and the deed mentioned in the bill was executed ; that but little was then expected by the bank or R. Boyd, to be received under the assignments of Jl. Boyd ; but that the president of the bank, after the execution of the former deed, proposed that R. Boyd should transfer the benefit thereof to the. same trustees, for the same purposes, which was immediately done; that Hawkins was to take on himself the active part of the trusts which all parties expected to be difficult, perplexing and troublesome, and probably leading to much litigation ; that he proposed to the bank to give him the liberty of drawing for money to discharge other incumbrances, but was refused, unless he would become personally responsible, because the debt was considered as large as could be safely trusted upon the personal security of Boyd, or that of his property conveyed, which was all, or nearly all he had; the answer farther stated, that all the property conveyed to Fitts by A. Boyd, had been sold under executions, and could only be recovered by suits; and Boyd engaged the defendant to recover that also — that II. B¡,yd himself, was indebted to other persons in several sums mentioned, amounting to f> 6,000, for which there were judgments or deeds of trust, on which sales were threatened, as he had no funds, and was incapable of action himself, or had given over exertion in despair. It was further stated, that Alexander Boyd owed a debt to one B. Burwell of about g 20,000, for securing which, there was a deed of trust for about ninety of the slaves mentioned in the deed to Rainny and others; that he was indebted to others by judgments in Virginia, on which executions had been sued, having a lien prior to the deed of 11th of June, and amongst them one in favor of Thos. Brown, for about g 8,000 and interest: which appeared from an exhibit to have been against R. Boyd and four others, as the sureties of A. Boyd. The answer proceeded, that on the 4th of July, the defendant heard that the executions of Brown and others, to the amount of g 10,000, were levied on the slaves, work-horses, and other effects, on the plantations, and that sales would be forced, which would prove destructive to the growing crops, and ruinous to R. Boyd ; that he went over to Mecklenburg, and urged the trustees there to assert their right, but found they could do nothing, because the executions had the preference; that the slaves conveyed for the security of Burwell, were also advertised to be sold, and if the sales had then been made, the executions alone would not have been satisfied ; that II. Boyd, who went to Virginia with the defendant, returned and left him there to contest the matter ; that he proposed to Rainny and the other trus-tees, in the deed of the 11th of June, to assign their legal title to him, Ilawkins, to which the two Boyds assented, and the conveyance was made on the 8th of July; that in this state of things, for the purpose of averting an immediate sale, he purchased from Brown, on the 11th of July, his judgment, and took an assignment to his own use, by giving his own bond for the amount; that this purchase was made without consultation with Boyd, and being without any understanding for an indemnity, or any funds in hand, belonging cither to Boyd or the trust, and when Boyd was believed to be insolvent, it was founded exclusively upon his own responsibility, and enured to his advantage. That under the executions a sale was made, at which Hawkins, acting by R. Boyd as his agent, purchased nearly all the property, to the amount of about $ 9,000 ; — that he refused to deliver the negroes conveyed to Burwcll, until tire crops were finished, and with those and his own purchases, he did finish (he crops, after guarantying to the overseers their wages ;'that he then surrendered the negroes to Burwell, for which he had a deed ; and that the property bought at execution sale, and the crops, upon a re-sale after-wards made, produced the sum of Sir,855 94, besides a quantity retained by Boyd, and never resold, to the value of $4,2.57 99, making together $22,113 93.</p> <p>The defendant insisted, that as the judgment was his, and the purchases his, he was entitled exclusively to all the profit; but admitted, that he told if. Boyd that altho’ he had not acted as trustee in the purchases, he did not mean to speculate on his difficulties, for which great gratitude was expressed. It was further stated that R. Boyd owed large debts to several persons, secured by deeds of trust or judgments ; among which was one to Fitts for §2,100: one to Palmer for $4,200: and one to Cannon for $800, and that Boyd was wholly unable to meet them and made no efforts to do so; that the last was satisfied by a bond of Boyd with Hawkins, as his surety ; the first by a sale of one of the tracts of land, conveyed in the deed of July 2nd, and a new bond of Boyd with Hawkins, as his surety: and that to Palmer by a sa]e 0f another tract of land conveyed in the same deed, which was not worth more than jS 1,500 but was taken in full satisfaction of the debt, from the apprehension of Boyd’s insolvency: that these responsibilities were dangerous in the situation of Boyd, at that time, before any part of the debt to the bank was paid, and made it necessary for him to indemnify the other trustee, before he would join in conveying to the purchasers. The answer then proceeded, that R. Boyd, being impressed with the value of the defendant’s services rendered, and those to be rendered, which would for a long time, cause the neglect of his own affairs ; and especially in consideration that the defendant, after making the profitable speculation on Brown’s judgment, had voluntarily given him the benefit of it, offered without persuasion and with a full knowledge of all the premises, to give to the defendant one-half of all the estates real and personal, which had been, or might be secured from Alexander Boyd’s property — that the defendant refused that offer, but that afterwards on the 13th of September, 1824, the plaintiff. Boyd, after free consultation with his own friends, and in the absence of the defendant, executed and then delivered to Hawkins a deed, which was exhibited, and which secured to Hawkins one-fourth part of those estates of every kind; thereby adding the inducement of interest to excite the defendant to the greater activity: that Boyd never had pretended to the defendant personally, that he was in any manner deceived intheexe-cution of the instrument; for he well knew that he had often offered more, and that under all the circumstance it was not moré than adequate, and that he confirmed it by another deed on the 28th of October following, which was also exhibited. That the defendant, altho’ entitled to retain one-fourth as the funds came in hand, yet, as R. Boyd was pressed by the Bank debt, had applied all his receipts to its satisfaction, and in so doing advanced what was his own, without even fully satisfying the. bond debt of Brown, on which there was a balance due of 8 1946 39. The answer proceeded to specify the lands and theii* value, amount of debts and effects obtained from A. Boyd, besides the chattels covered by the before mentioned executions, which amounted to the sum of g 17,950 in value; of which the defendant claimed one-fourth: being an amount realised from the assignments of A, Boyd of $ 35,805 94; altlio’ it was deemed worthless when the defendant’s trust commenced. It was further stated, that the defendant afterwards essentially served R. Boyd in effecting sales of portions of his lands in North-Carolina, by which he was enabled to discharge his debts, and save all his ne-groes, and one-half of his manor plantation, worth g 25-COO, altho’ Boyd himself in his distresses, had offered to take g 30,000 for the whole, which Hawkins refused to ratify, because he considered it far below the value, and believed he could himself get much more — that in making that sale and others, he was obliged to indemnify his co trustee, and also became responsible to other incumbrancers for sums, which had since been discharged by Boyd, or out of the trust funds. The answer proceeded to state, that after It. Boyd’s affairs were thus rendered prosperous, a difference arose between him and the defendant, about the claims of the latter for commissions, advances, &c. and that the defendant rendered an account and demanded a balance of g 8,494 34$, which Boyd refused to pay ; and that the defendant advertised the sale, and brought the suit as charged in the bill, for the purpose of satisfying himself. The answer admitted the pendency of the suit in Virginia; in which the transactions in this state were embraced ; but the defendant averred that he was not restrained by any order therein, from asserting his demands in this state, and insisted that the pendency of a suit in another state could not affect the jurisdiction here, be-, tween citizens of this state, and claimed the right of making a full defence, and setting up all his demands. The answer further stated that the first deed of the 2nd of July contained a clause allowing the trustees a reasonai ble compensation; ami that it was omitted in the other by accident, or because the interest was then thought too inconsiderable to require a stipulation. It was further stated that the defendant was prosecuting an action of ejectment in Warren, against William Hunt and John G. Goode, for a valuable tract of land, which those persons had purchased under execution, as the estate of Alexander Boyd, and which had been conveyed, as before mentioned, by A. Boyd to Fitts as trustee for ¡I. Boyd; of which if recovered, the defendant also claimed one-fourth: the expenses of prosecuting this suit were charged in the general account against R. Boyd. The whole concluded by insisting that the defendant’s attention had been faithfully bestowed for several years on the business of M Boyd, to the injury of his own fortune ; that ho was entitled to liberal compensation ; that the agreement for it was freely and fairly made j and that such an agreement to buy his efforts ought, upon their success, to be fully executed. To the answer were annexed detailed accounts, showing the plaintiff, Boyd, to be the debtor of the defendant for about the sum above mentioned, if the defendant was allowod credit fora share of the proceeds of A. Boyd’s estate; but if he was not so allowed, the balance was on the other side: and also a list of R. Boyd’s debts for his brother and on his own account, which in July 1824 amounted to $ 59,439. A general replication ■was put in to the answers.</p> <p>There were numerous exhibits, among them the executions in Virginia, on which the sheriff had frequent sales from the 27th August, to the 20th September, 1824, of which the principal ones were on the 13th and 15th of the latter month. The deed of 13th September, was in the following words:</p> <p>“ The undersigned, R. Boyd, is bound to the State Bank of North- “ Carolina, as security for his brother, Alexander Boyd, to the amount “ of thirty-two thousand six hundred dollars, or thereabouts, and Alex- “ an.ier Boyd is indebted beside to Richard Boyd nearly nine thousand “ dollars individually ; and to secure said Richard Boyd from the afore- “ said bank debt, as well as to pay him his private debt as aforesaid, “ Alexander Boyd has consented that a conveyance be made to John “ D. Jlawhins and his heirs in trust, and who is the assignee (by the “ consent of the parties concerned) of Philip Bainny and others, the “ original trustees, of sundry property, including the growing crops, &c. *e as will better appear by referring to the deeds themselves of record “ in Mecklenburg County. And whereas, by virtue of an execution at “ the instance of Thomas Brown, of Granville County, N. Carolina, of “ eight thousand dollars, or thereabouts, the negroes as well as other ££ property of Alexander Boyd, were taken by the sheriff of Mecklen- “ burg into his custody to pay said Brown’s debt, which would have “ destroyed the crops of the said Alexander Boyd, and been attended “ with great expense beside, in keeping the property at the sheriff’s “ house, and injury to said Richard Boyd, for whose benefit said pro- ££ perty was conveyed. And whereas, John D Hawkins, in order to ££ benefit said Richard Boyd, purchased said judgment and execution, “ and had the property to x-emain upon the plantations, but at the said “ Boyd’s risk, to advance the interest of the crops for the benefit of “ said Richard Boyd; and whereas, said Hawkins has moreover by his “ timely advances and exertions, in other respects prevented said ££ Richard Boyd’s own estate from being sacrificed by B. //. J. who ££ was about to sell as trustee, for the benefit of Henry Fills; and ££ whereas, said Hawkins has been at unusual trouble and disadvantage ££ in protecting the rights, credits and property of Alexander Boyd for ££ the benefit of said Richard Boyd, and also about the said Richard “ Boyd’s property generally, which was vitally exposed ; and whereas, ££ Alexander Boyd conveyed by deed to Henry Fitts, in trust for the “ benefit of Richard Boyd and Francis A. Thornton, to secure the pay- “ ment of the aforesaid debts to the bank, and to Richard Royd, a va- “ riety of property, as will appear by reference to said deed of record ££ in the county of Warren, North-Carolina; and Henry Fills, by the “ consent of the parties, has assigned his powers, rights and authority “ under the deed, to John V. Iluwhins and his heirs, also in trust for £i the same purpose ; and in as much as the execution of this latter “ trust will involve much litigation and trouble, all the property con- •£ veyed by it having been sold by execution, and all the other property ££ is more or less liable to legal difficulties and expense, which expense “ in all cases respecting the property in question, and the business “ attending it, said Richard Boyd is to pay, Now in consideration of “ the premises and as well as that said John I). Hawkins is yet to be at “ much trouble in executing the premises, I, Richard Boyd, do hereby '£ promise and agree to give said awkins twenty-five per cent upon !£ all the proceeds from the sales of said Alexander Boyd's property, “ which has been sold, and shall again be-sold, and upon all sales “ hereafter to be made for the benefit and protection of said Richard Boyd, to satisfy said bank debt, and said Richard Boyd’s private ,£ claims as aforesaid ; and said Hawkins, as trustee as aforesaid, is ££ hereby authorized to retain accordingly, for compensation in his own “ hands. In witness, &c.”</p> <p>Two other agreements between R. Boyd ami Hawkins, were also exhibited by the latter, dated the 25th of October, and the other the Tth day of December, 1824, whereby it was agreed, that all the property bought by II. Boyd as agent of Hawkins under the executions, and certain other of the estates of Jl. Boyd, which had been bought in, should be re-sold to the best advantage by Hawkins for the purpose of paying the debt to Brown, and then giving Boyd the surplus for the payment of his debt to the bank, Boyd being responsible for the forthcoming of the property for a re-sale.</p> <p>There were many depositions, which are not material to the points on which the case was decided, except three, One of them was that of J. W. Hawkins■ the brother-in-law of Boyd, and the brother of the defendant, taken by the latter, who proved Boyd’s extreme distress upon the failure of his brother Alexander, and his expectation of being reduced to utter poverty; that he was extremely anxious to gain the favor and services of the defendant, and intreated the witness to intercede for him, and that Boyd’s situation and wishes, were, by the witness, made known to the defendant, who was ultimately prevailed on to undertake the trust. This witness saw Boyd upon his return from his first visit with Hawkins to Mecklenburg, and learned from him, that he had lied to avoid being put in jail by his co-sureties, for the debt to Brown, and advised him to return, but he said he would not, for he thought nothing could be made of the wreck of Alexander Boyd’s estate, and that he could be of no service, but would leave it to the defendant; that he further said, that he did not know what to do, for he could not go home, because a ca. sa. against him was in the hands of the sheriff of his own county. ■ At a sale of A. Boyd’s property, at a plantation called Davis’, (which the return of the sheriff on Brown’s execution, showed was on the 1st of September,) II. Boyd told the witness, that his prospects brightened, and that the defendant would save him much more than he had expected, and talked of a re-sale. The witness said, that as he knew every thing rested on the defendant Hawkins, he en-quired the terms on which he was to manage the business; to which Boyd replied, that he should have his own asking, if it were half, for he could not do without him, and rea-flily agreed, «pon the suggestion that half was too much, to give one fourth. He shortly afterwards heard Boyd say, that J. Boyd’s property would yield but little, that he had come to the determination, to give up all chances of gain from it, to the defendant, and after satisfying some executions, sell his own property, and particularly his land, at B 25,000, pay his debts, and move away. This witness further proved, that the defendant was engaged the greater part of his time, until the latter part of 1826, in the execution of the trust, and that II Boyd declared his own embarrassments to be such, that he gave tip the entire management to the defendant, whose exertions had saved him from bankruptcy.</p> <p>The second deposition was that of P. R. Burwell, of Virginia, who stated, that the defendant had told him that he bad reconciled an old difference with R. Boyd, and had •agreed to manage his affairs, as he viewed himto beincom-petent and almost deranged, and that Jl. Boyd’s other creditors must not blame him for any thing he did, as he acted without fee or reward; the witness replied, that it was surmised otherwise, and that his object was said to be to get Boyd in bonds, and secure to himself-all the advantages of the wreck of Jl. Boyd’s property ; which the defendant desired him to contradict, as lie intended to make no charge, except for his expenses.</p> <p>- The deposition of Mr. Young, the subscribing witness to the deed of 13th September, stated, that R. Boyd brought the agreement to him, in the court-house yard, at Mecklenburg already signed, and requested him to wit-iiess it, which he did ; and that Boyd seemed not to be dissatisfied with it, and altho’ in private, expressed no reluctance in executing it, but seemed to do it freely. No particulars of the conversation were given.</p> <p>The agreement was admitted to have been drawn up by Hawkins himself, and appeared from the ink, to have been written at a different time from that of its execution. It was also admitted, that Mr. Young married the daughter of Hawkins, and the niece of Boyd.</p> <p>Upon the coming in of the answers, an order was made for a dissolution of the injunction, unless the plaintiff should pay certain sums alleged to be due to Brown, for which Hawkins continued responsible ; and under that order, he paid into court the sum of % 1,930 48 on the 19th of May, 1829, and g 79 67, on the 8th of July, 1829.</p> <p>By an order in the cause, the master was directed to take an account of all the transactions, upon the trusts in both states, and of Hawkins’ responsibilities for Boyd. A report was made, in which the master alloived the defendant Hawkins the full benefit of the agreement of September 13th, and also the sum of g 782 77 by vray of commissions at 3 per cent, on the sales of property in this state, and payments made to the bank ; the effect was to give to Hawkins, for the execution of all the trusts including interest, the sum of $ 10,036 10 and to leave a balance due to him of g 7,026 03. All the expenses of every kind, including those of finishing the crops, and getting them to market, and of law suits, amounting to about g 2,500, were, charged to Boyd: as was also the sums paid on the debt to Brown. So that the fourth part assigned to Hawkins was of the gross proceeds on a re-sale, or of the value of such parts as had not been re-sold, of all the estates obtained under the assignment of A. Boyd. If the claim of the defendant Hawkins under the deed of September 13th was not sustained, then by the accounts stated by the master he wouldhave in his hands, thesum of $2505 16, as a balance for receipts on re-sales of the property bought under the executions, and the crops in Virginia, after allowing all expenses and payments thereout to the bank and others, on account of R. Boyd, and also the further sum of g 400 for the price of negro Patty, and a surcharge in account making together, the sum of $2,905 16 besides interest thereon, due to R. Boyd. This did not include the sums paid under the interlocutory order, because they went in satisfaction of the balance due to Brown, which balance the master had no where charged in the accounts to the plaintiff.</p> <p>To the report the defendant Hawkins excepted, because the allowance of $782 77 as a commission of 3 per cent, on the payment to the bank was too small. The plaintiff also took numerous exceptions ; the first of which was against any allowance of credits to Hawkins, founded upon the deed of September 13th, and the others because, if any should be made, the allowances were too large, and extended to property to which it was contended, the deed did not relate.</p>

This was a bill originally filed in the court of equity for the county of Granville, for the purpose of having an account of a partnership business.

This was an appeal from a decree of Donnell, Judge, pronounced at Perquimans, on the last circuit. The facts were, that George B. Ncwlern made bis last will on tlie 20th of September, 1824, in which he bequeathed as follows: “ I give my negroes to be equally “ divided, when Sarah A, Fleetwood, arrives to sixteen “ years, between Parthenia Fleetwood’s children.” At the date of the will, Parthenia Fleetwood had four children, who are the plaintiffs.

The bill was filed in September 1820, and alleged that James Kerr on the 2d of May 1786, entered into a written contract with W. Bowma n for the sale, at the price oil£100, of 4500 acres of land, lying in what is now the state of Tennessee, and which was described as one half of an entry made by Isaac Taylor and Kerr, for 9,000 acres, situate on the third little Chickasaw bluff on the Mississippi river, and that the said Kerr thereby bound himself to convey the said land, as…

<p>For the benefit of trade, the captain of a ship is liable for her disbursements in a strange port; but if he consigns to the person making them, property of the owner sufficient to cover them, the consignee, by paying the funds in his hands to the owner, without deducting the disbursements, discharges him.</p> <p>The captain is liable as the surety has, as to him, all the rights of one.</p> <p>Tlie captain ditóhavgedfromh-ability to the con-se-neV, cannot af-lect. the relations tween him and tho a sabs-'quentpay^ menttotheformer can ho make, tho latter lus own debtor.</p> <p>A master cannot act upon facts which are within his own knowledge.</p> <p>A mortgagee who sells without a foreclosure is responsible fdr the value of the property sold.</p>

The plaintiffs alleged that they were the heirs of one John Jlrmsworthy, deceased ; that the defendant had recovered a judgment against bis executor, in which the plea of fulla administered was found for the defendant; 1 J , . , that by a subsequent agreement between him and the executor, he had agreed to receive an assignment of a debt duo the testator in South-Carolina, in satisfaction of his judgment j that he had, notwithstanding this agreement, caused writs of scire…

The bill recited.the several acts of Assembly incorporating the Cape-Fear Navigation Company, and stated that at their passage as a good natural navigation existed from Fayetteville to the ocean, it ivas the intention of the legislature, that the contemplated improvements should be made above that town, so as to enable the counties west of it, to carry their produce to market by water; that the Deep and Haw River Navigation Company had, before the incorporation of the…

Upon the marriage of the plaintiff Harriet with William, D. Freeman, he entered into articles, whereby he agreed to convey to Jones Cooke and Marmaduke Jef-freys, defendants, all her property in trust that they should “ suffer and permit the said W. D. F. to have the “ use and enjoy the profits accruing from said property, 4i during his natural life, and upon the death of the said “ W. D. F. that the aforesaid property shall be, and “ enure to the use and benefit of the…

The bill alleged, that the/erne plaintiff was one of the next of kin to William Perkins, deceased, that administration upon his estate had .been committed to Fre-derica, liis widow, and that the defendants were her sureties; that the administratrix refusing to make a distribution, the plaintiffs and one Burrows and his wife, who were also next of kin, put the administration bond in suit in Halifax County Court; that pending that suit, the plaintiffs being residents of the…

Samuel Ralston, the younger, a native of Ireland, died in the county of Pitt, without issue, having by his will devised as follows: “It is my will and desire, that my “ notes and bond amounting to between eight and ten “ thousand dollars, should remain in the custody of “ Ghurchwell Perkins, who has them now in possession, il and that he. should collect them as speedily as possible, “ and to pay the debts, and the remainder to be paid to “ the executors, to dispose of as…

The bill charged, that Arthur Crawford, the intestate of the defendant, at the request of his father Robert, the testator of the plaintiff, became the bail of one of his brothers in a criminal prosecution, and that the father agreed to indemnify him, and to give him a bond to that effect; that the defendant’s intestate drew the bond, and taking advantage of the age, infirmities and confidence of his father, wrote a bond for g 500, payable absolutely to himself, at the death…

The case made out by the bill was, that the plaintiff was appointed administrator of John Sanders, by the County Court of Johnston; that he found among the papers of his intestate, evidences of debt to the amount of $ 8400, against Reuben Sanders, who was perfectly solvent; that this sum was subject to a legal set-off on the part of the debtor, which reduced it to the sum of $5317, which was assets in the hands of the plaintiff, and for which he was charged in suits brought…

<p>This bill prayed an account of the issues and profits of land, of which the plaintiff and defendant were tenants in common. The defence by plea and answer was the statute of limitations.</p> <p>Upon the proof, it turned out, that the bill was filed in the court, of Equity for Granville, in February, 1829, and a partition had been made of the land held in common in November, 1826.</p>

The bill'charged, that the plaintiff in the year 1819, being a resident of Moore County, and about to remove to Scotland, appointed one William Merlin Ills agent, to collect sundry debts due him, including one from Martin himself, and to sell several articles of personal property, and make remittances to the plaintiff; that Martin under this agency, collected money, the particulars of which were specified, but made no remittances ; that he was dead, having appointed…

The plaintiffs claimed under the following clause in the will of James Lapslie: “X give and bequeath to my “ executors, hereinafter named, my tract of pineyland “ on the head waters of Enoe and Back creek, to be “ sold, together with my stock of every description, and “ after the payment of all my just debts, the residue of the monies arising from the sale, to my said two supposed “ daughters, (plaintiffs,) to be laid out in their education “ and support/’ &c. There was no…

The bill was filled in Sept. 1830, and charged, that in August, 1829. the plaintiff became surety for the defendant Roderick Jlmason, in a note to one Barnes, for j§400, and that Jhnason becoming soon afterwards embarrassed, the plaintiff applied to him to be counter-secured, and thereupon, Amasan agreed to transfer, and did verbally transfer, to him a claim, which Jlmason then had in suit against the defendant Lilile, in Edge-combe County Court, for $600 ; that the…

This was a bill filed by the plaintiffs as executors and residuary legatees of Ralph Potts, deceased, against the defendant, also an executor, praying an account of monies received by the defendant under an assignment by one Scoli, of three vessels and their cargoes, upon trust to pay a debt due him, and after the satisfaction of that, a debt due the testator.

The bill which was filed in Craven, charged, that writs of scire facias, returnable to the August sessions, 1829, of Craven County Court, issued against the heirs of John Harvey, upon two judgments obtained by the plaintiffs against Mary Harvey, a defendant, his administratrix, in which the issue of fully administered had been found for the defendant,rwhcreby the plaintiffs sought to subject the real assets of the intestate in the hands or his heirs ; that at the same term,…

<p>The case made by the bill, answers, and proofs, was, that the plaintiff, having been appointed the administrator of Coffield Bass, a half-brother of the defendants Edwin and Gideon Bass, whose mother he had married, had given the defendant Gideon and Matthew Sykes, also a defendant, as his sureties ; that he had received of the assets of his intestate, about §800. Soon after his marriage, he discovered that his wife had, by a settlement made before it took place, but without his knowledge, conveyed three negroes to her children by her first bus-band, of which the intestate was one. The plaintiff filed a bill to set aside that settlement, and by the advice of his counsel, procured his letters of administration to be revoked, and one Hammonds to be appointed administrator. The next of kin of the intestate were his brothers and sisters of the whole and half-blood, among the latter of which, were the defendants, Edwin and Gideon Bass. Before the letters to the plaintiff were revoked, he had made payments which reduced the amount due from him to the next of kin. At February term, 1828, of Nash County Court, the plaintiff came to the court-house, where he got very much intoxicated, and lost a large -sum of money at cards. The defendants Sykes and Gideon Bass, hearing of tins, demanded counter-security, which the plaintiff gave them by conveying his land and personal property, including the three slaves in dispute between him and the next of kin of Coffield Bass, to the defendant Edwin, in trustto indemnify them. Before the plaintiff consented to do this, his sureties threatened to take instant measures to have his accounts closed, and the balance collected. A sale of the property conveyed to the defendant Edwin, was by him advertised for the 15th of March following, at the plaintiff’s house, but was not known to either the plaintiff or to Sykes, until within a few days of that time. On that day, the plaintiff requested that the sale might be postponed to the next court-week, which being refused, he asked that his administration account might be settled, in order to prevent the trustee from selling for an amount exceeding the balance; this was also refused, and the sale proceeded, when two negroes which had cost the plaintiff $800, were sold to Edmund and Isaac Bass, brothers oí!Edwin and Gideon, for $477. After this, the plaintiff told the trustee that the amount raised, was sufficient to pay the balance due by him to the next of kin of Gqffield Bass, and begged that any further sale might be postponed until he could settle with Hammonds, who was present; which was refused, and the negroes in dispute between the plaintiffs and the next of kin, were then offered. The plaintiff earnestly requested that they might not be sold,' as thé doubt respecting the title to them would prevent them from bringing their value, and in lieu of selling them, he asked that other property, the title of which -was. clear, might be sold. But while the plaintiff and a friend were endeavoring to effect a settlement with Ham-monds, these slaves were sold at about one tenth of their value, and purchased by one Moore, with whom the Bass’s quarrelled for bidding, and who, in the course of a few days transferred his purchase to the defendant Edwin. All the negroes purchased, were held on the joint account of the defendants Edwin and Gideon, and such others of the next of kin, as chose to claim an interest in them, rather than to receive their share of the surplus in money.</p> <p>The bill charged, that the deed of trust had been obtained by duress, and prayed to have the sale declared to be void, and the defendant Edwin to be a trustee for the plaintiff, and for an account of the hires of the slaves since the sale.</p> <p>declined arguing the question between the plaintiff and the defendants Edwin and Gideon, as to the prayer for a re-conveyance ; but insisted, that the sureties were entitled to have the deed stand as a security for them, and that Sykes was entitled to his costs as he had not in any wTay acted unconscien-tiously.</p>

<p>This bill was filed to set aside two deeds of gift which purported to have been executed by the plaintiff to the-defendant, whereby sundry slaves were conveyed to her,, with a reservation of a life estate to the donor.</p> <p>The deeds were impeached as forgeries, and if in the proof of this fact the plaintiff failed, then he. contended that they had been obtained by practising upon his great age, and weakness of mind.</p> <p>There is no need of stating the proofs, which were very voluminous, as the case of the plaintiff was made out to the entire satisfaction of the court on both grounds; the only question being how it was proper to proceed in the cause upon the supposition that the deeds were forged.</p>

After the decree pronounced at June term, 1831, (ante p. 51,) this case came on for further directions upon the report of the master stating, that by the fifteenth clause of her will, the testatrix devised as follows: “ I give to “ Martha Barrow, daughter of Beunet Barrow, Esq. “ four hundred dollars.” By the twenty-ninth clause, she gave to Elizabeth Hunter five hundred dollars.

The defendant purchased of the plaintiff a house and lot in Granville, for which he was to pay, g5,100, part in cash and the residue in property,among which were two tracts of land in Tennessee, one containing 357 and the other 274 acres, which were to be of the value of three dollars per acre according to the locator’s valuation, and were estimated in making up the purchase money at St,500.

This bill was filed by the executor of Daniel Gould, sen. to have a construction put upon the will of his testator.

William Bullock, late of Granville county, duly made and published his will, whereby he devised as follows: '“I give my daughter Susan Jig gits, the 12 negroes, “and stock of horses and cattle, household goods, &c. “put in her possession on her marriage with Dr. Win. “Dams, also one thousand dollars, which was appropria- “ tecl to the payment of Dr. Davis’ debts as executor to “ his estate after his death, which money was credited “ said estate in settlement of account. “ I…

This bill was filed in 1824, and charged that a suit was instituted for alimony by his wife against the defendant Ilussey, who then had a large real and personal estate, and that a decree was made in October, 1819, in favor of the wife, on which a sequestration and writ of ji. fa. issued to the sheriff of Guilford, under which he sold four tracts of lands, of which the plaintiff purchased two and took a deed from the sheriff.

After the decree pronounced in this case at last December term, (vide ante p. 195) the defendant filed a petition for a rehearing.

<p>A widow whose husband made a provision for her out of his personal estate, is not entitled to dower unless she dissent from the will within six months.</p> <p>The acts of 1784 and 1791, (Rev. ch. 304 and 351,) construed by Gastón, Judge.</p> <p>The cag0 f Miller v Cham-cript,) ítataTby J.toes-dowls cntiiiaUo <]owor wllcn her n^provisSÍfor her, although she traedhor dissent from the wi!1-</p> <p>A widow is entitled to a provis-real and personal estate of he^hns-ever’liberally he may have provided for her out of one, she may, díssenTtoMswill obtain her legal tlie'other °Ut °f</p>

The bill stated that the plaintiff having been requested by Sarah Carson to draft her will complied and drew it as follow's : “In the name of God, Amen, &c. and as to whatworld- “ ly estate it has pleased God to bless me with, I dispose “ of in the following manner : Item, first : It is my will “ that all my property, consisting of lands, stock of ev- “ ery kind, household and kitchen furniture, wagon and “ farming tools, be sold at public sale, and the money “thence arising…

This bill was filed by J. II. Drake and J. J. Wiliams executors of Nicholas J. Brake deceased against Hennj Blount, and J. Emerson, and set forth in substance that the defendant Emerson,and the deceased N.J.Drake had been concerned together in the practice of medicine as copart-ners under an agreement that Emerson should receive otic fourth of the profits,, and his copartner the other three, fourths; that the defendant Blount became indebted to. the firm, that the firm was…

<p>The facts in this case were, that on the 22(1 of January 1822, the plaintiff gave to the defendant Conner, two promissory notes for the sum of g l 1,15 each, payable on the first of January, 1825 and 1826. That in the year 1823, the defendant Cowen, in the State of Georgia, became the surety of Conner, for a debt due in that Slate, and that the latter, on the 12th of January 1824, endorsed to him the notes above mentioned to indemnify, him against his responsibility. On the 9th of August 1825, Cowen was compelled to pay the debt for which he had thus become Conner's surety, amounting to $1900 44. On the 26th of November following, lie received from Conner, $900, and on the 4th of May 1827, he collected from the plaintiff $1167 68, the nett amount of the first note after deducting the costs of collection. On the 12th of August, 1823, the plaintiff became the surety of Conner, in a replevy bond in this State, and afterwards was compelled to pay a large sum of money on that account, and also, other sums, as the surety of Conner, amounting to more than was due on the second note. From a letter of the defendant Cowen, dated in June 1825, which was produced by the defendant Conner, it distinctly appeared,that he then had notice of these payments of the plaintiff, and of the fact that he looked to the notes which he had given Conner, for reimbursement. On the 12th of January 1824, Conner sold to Cowen by deed of bargain and sale, with covenants of general warranty, a tract of land in Georgia. Upon this land.the taxes for the preceding year were due, amounting to $9 18, which Cowen had been compelled to pay. He had also been compelled, March 4th 1824, to satisfy an execution against- Conner, which was a lien upon the land at the time lie purchased, and which ¡amounted to gl85. On the 2fth of August 1825, Cowen took an assignment of a note of Conner’s for §200 dated August 15th, 1824, payable to Jackson Fitzpatrick or bearer, and due December 25th 1825. He also held ,Conner’s note for $5217", payable to himself, dated October 22d 1825, and payable 1st of January ensuing. On these two notes Cowen had obtained judgment in Alabama, where Conner had removed, executions upon which were returned nulla bona.</p> <p>An action having been brought by Cowen, on the note of the 'plaintiff, duo 1st of January 1826, this bill was filed. The plaintiff insisted that ■ the defend-" ant Cowen had no right to collect that note, except in satisfaction of the debt for which it was pledged, to wit: that of $1900 44, which he alleged was paid. Ho prayed for an injunction, and that the money he fiad paid, as the surety of Conner, might be so arranged as to discharge the judgment; and for general relief.</p> <p>The defendant Conner admitted all the allegations of the bill. Cowen insisted that he had a right to collect both notes, and apply the money received to all claims which he had against Conner.</p>

The pleadings in this case were very intricate, and the proofs exceedingly voluminous. They all resulted in the following facts. The plaintiff as the administrator of Josiah & Esther Blackman, at November term, 1826, of .Johnston County Court, obtained a decree against the defendant Bryan, who had been guardian of his intestates, for $6097 98.

This ivas a bill filed in the Court of Equity for Onl-ange county, by Thomas Clancy, James Child and John W. Norwood, the material allegations of which were that Thomas Clancy and James Child, being connected together, as co-partners in trade,_ under the firm and style of Thomas Clanty & Company, agreed with Thomas D. Craine-, the defendant, who at that time, was the owner of certain grist add saw mills and a distillery, with land and fixtures annexed,to become his partners…

The defendant’s testator, by his will, bequeathed as follows: — > “ I give and bequeath to my two grand-daughters, “ Sally Jinn and Barsheba Miller, when they arrive at u age, one thousand dollars, to be paid them out of my “ estate, or whenever my executors can afford to pay it “ out of my estate.

The plaintiff averred in this bill, that one Radford Gooch, on whose estate he lias taken out letters of administration, was, in his life-time, guardian to the children of one Wheeler and of one Matierson, and has given ■bonds for the faithful discharge of the office — that the defendant Bullock was the surety to those bonds given for •the benefit of the Wheelers, and the defendant Jones to those for the benefit of'the Mattersons — that process on these bonds was sued out…

William Guilford made his will,executed so as to pass real estate in 1829, which he began by saying, “I dispose of m3'worldly goods as follows,” and then thus pro-ceded: “I lend to my wife Elizabeth the use of all my “lands during her life, and if at her death she should “leave an heir or heirs,lawfully begotten of her body by “me, the whole of my land to descend to said heir or “heirs in equal quantities, but for want of such heir or “heirs, all my lands, at my wife’s…

The plaintiffs alleged that John F. (Wilkinson the elder, the father of the plaintiffs and the defendant, died intestate, seised of land which had been sold tinder an order of the Court of Equity, for partition — that the proceeds of this sale had been equally divided between them and the defendant, and that this division was erroneous, as the defendant had been fully advanced in the life-time of their father — that the land advanced to the defendant had been eonveyed to him…

<p>An equity case cannot be removed to the Supreme Court, under the act of 1818, fRev. ch. 962) when it is only set for argument upon a plea.— In such ease, it can come up no otherwise than by appeal.</p>

<p>One who purchases at execution sale, land which has been entered, but not paid for, must at his peril complete the title, and if the entry is forfeited, he has no equity to claim the iand of the defendant in the execution upon a subsequent entry of it by the latter.</p>

The petitioner, while the widow of Josiah Byrd, filed her bill against the defendant, her brother, who was the executor of her father, claiming a part of his residuary estate. Pending that suit she married Graven Lassiter, her present husband, who became a party to it. A final decree was bad in favor of the plaintiffs, ami the sum of jg484$ was ordered to be paid into court, subject to a further order for settling it on the petitioner.

The plaintiff by petition, applied to have the cause remanded to Mecklenburg, for the purpose of enabling him to have the order for the hearing set aside, so that he might take further testimony.

John Sherran, having a wife and one daughter, an only child, in September, 1831, made his will as follows: “First. I give and bequeath unto my beloved wife M-“sey Sherran, fourteen negroes, to wit: Jack, ICeziah, “Jim, Lewis, Msey, Sally, George, Owen, Sally, Ear-“riet, Gamy, Candis and Henderson — four beds and fur“niture, three chests and tables, with all the rest of my “ household and kitchen furniture, stock of horses, cat“tle, hogs and sheep.

The ca«e, upon the bill, answer and proofs was, that one William Uunl filed his bill against John 1). Hawkins, Richard Boyd.Francis Jl.

The allegations of the bill were, that the plaintiff ICornegay, conveyed five slaves to the defendant Susan-nah, his mother-in-law, upon an agreement that she should reconvey them to several members of his family. That the defendant Susannah conveyed one of them named Lucy to' Mary, the daughter of the plaintiff ICor-negay, and the wife of the plaintiff Bryant.

The bill was filed .in 1828, .and charged that Henry Selby gave his estate, by his will, ioihis widow Sully#.ml his children, -who were the defendants, and died in 1812 —that his widow administered with the will annexed and conveyed all her share to the other defendants, and had since died — that there was now no administrator upon iter estate, or her late husband’s; but that the defendants were in possession of the estate both real and personal, to a considerable value,…

<p>A purchaser at execution sale, succeeds to all the rights of the defendant, and where the latter, before the test of the execution, had received a deed for land, which by the fraud of a third person, had before its registration been destroyed, and the legal estate conveyed by the bargainor to that person, the purchaser is entitled to a conveyance from him.</p> <p>An unregistered deed vests in the bargainee an inchoate legal estate, which was liable to seizure uuder an execution, before the passage of tho act subjecting equitable interest to execution sales,</p>

The plaintiffs were some of the legatees in remainder, of the residue bequeathed in the will of John Barham, deceased, and filed their bill against the executors, atul the other residuary legatees, for an account and satisfaction.

Zenas Alexander■ by bis will declared as follows:— “I will and bequeath to my beloved wife, Margaret “ Alexander, my dwelling bouse where I now live,with all “ the out houses and barns, during her life or widowhood, “together with an absolute right to two.beds and furni“ture, &c.-which latter, I will at her whole disposal. 411 will and bequeath to my daughter, Abigail, M. “ Hudisell, one black woman slave, Peggy, and one “ black girl called Petty, together with her two beds…

The plaintiff in her bill averred that she was the sole next of kin of the testator of (hedefendant — that lie died in the year 1816, possessed of a number of slaves, and by his v,ill devised as follows: “I give anti bequeath u them (.the slaves) unto the Society of Friends of New “ Monthly Meeting.or their agents and their successors. “I afso give and bequeath all the personal property of “my estate to the above named black people, to be sold “ aiid equally divided amongst…

<p>An answer which is responsivo to the bill, and contains a clear, precise and positive denial of it, must bo disproved by more evidence than the testimony of one witness, to entitle the plaintiff to a decree.</p> <p>An issue should H.ot 5)8 directed ^answeriscon-tradicted t>y one</p> <p>Nor where the **¡^1 -stances which, ^"^credit the denial of the</p> <p>Bntoneispro-theWwitnessWand the answer, eir-evjaence create an 'nc35"the^for1 m®r, without e*ti. maingfeemterest or the defendant,</p>

The bill was for a specific performance of a contract, for the sale of certain slaves, which was stated to have been to this effect: that the defendant owned a female slave, who had then six children, and was expected shortly to have another, and agreed, if allowed to select at liis choice, three of the children to be kept by himself» to sell the mother and the remaining four children, including the unborn one, to the plaintiff, at the price of g 1000 ; whereof, g 100 was to…

<p>A memorandum given by tlíé bargainee at the time of receiving an absolute deed, whereby lie stipulated that if the land was sold with-in two years, he would refund to the bargainor the excess received over the purchase money,- and interest, together with the costs of repairs, unexplained and without evidence to the contrary, makes-the deed a mortgage; i</p> <p>On an appeal j« equity .the Supreme Court is confined to the proofs uponwhich the decree sought .to he reversed was founded.</p> <p>An answer replied to, is evidence for the defendant only when it is respon. siv.e to the bill*</p> <p>The case of Poindexter v. JKc Cannon (ante 1 vol. p. 373) approved.</p> <p>An agreement at the execution of a mortgage,that in default of the debtor it should become absolute, is never a bar to redemption.</p> <p>A mortgagee in possession is entitled to the costs of repairs and interest thereon.</p> <p>But generally it is otherwise as to improvements, because by allowing for their cost, the difficulty of redemption is increased.</p> <p>But where the mortgagor, thinking himself to be the owner, bona fide makes irn-provemenlswhich .exhausts the rent, he is allowed for their costs.</p> <p>J3lsseH vman, ante,p.%%9 approvod. The case of</p> <p>redemption, a sale unhTT orderedt’ It is otherwise when a forocio-sure is sought.</p>

<p>Tliis was a bill originally filed against the testator of the defendant, for an account of the assets of John C. Russell, who had appointed him executor of his will, and guardian of the plaintiffs, his children. Pending the suit Washington died, and the present defendant wag made a party by scire facias.</p> <p>At a former term of the court, there liad been a refer-, etico directed, and the master had.reported. Both parties excepted to the report for matters purely of fact, and a decree was passed.</p> <p>At this term the defendant filed a petition to rehear that decree, and assigned two errors as existing in, it:— 1st. That the master had charged him with compound interest from the death of his testator up to the time off entering the decree.</p> <p>2d. That by the decree execution was awarded of the goods and chattels of his testator in his hands, when he never had been charged with the receipt of any thing, and never had an opportunity of answering as to the receipt and disbursement of the assets by him, and when no account of his administration had been taken.</p> <p>The petitioner stated that he never had notice of the objeetionable parts of the decree, until after the close of the term in which it was made, as the final decree, upon the order overruling some exceptions and sustaining others, was drawn up upon a report of the master, upon directions to him to amend his first report according to the order upon the exception, and that this last report, "as well as the final decree, "was drawn up after his counsel had left the court to attend the circuit.</p>

The plaintiff alleged that in September, 1815, one Hicks and Pilkington, the intestate, entered into copart-nership, and did business at Lynchburg in Virginia ; that Hicks advanced 8000 dollars, and Pilkington 2-000 dollars, which constituted the capital. That the profits were to be divided in the proportion of three fifths to Hicks, and the residue to Pilkington, who was to be the managing partner.

Stephen Outerbridge died in the year 1.824, having made and published his will which was proved by the plaintiff and by the testator of the defendant Mary,i\io executors therein appointed. This will was as follows : “First of all, it is my will and desire that all my just * ‘debts be paid.

Nathan Ford, by his will, devised and bequeathed as follows : ■ “ I give and bequeath to my brother, John Ford, two H hundred acres of land, including where the said John “ now lives, during his natural life, and at his death, “ the said'land to fall to his, the said John Ford’s children. “ I give and bequeath to my nephew, Levi Ward, my u sorrel horse called Merlin, and my negro boy, named “ Biel:, to him and his heirs forever. “ It is my will, and I do allow that all the…

This was a petition originally filed in the County Court of Onslow, to recover a legacy left by Edward Franks, the testator of the defendant, to the plaintiff.— The will at length was not certified with the record, but was as stated in the petition, and admitted in the answer to be as follows: “I give to Edward S. Giles one horse, saddle and bri- “ die, worth 80 dollars, when he shall arrive at the age “ of twenty-one.” It was admitted that the defendant had paid the legacy…

The plaintiff alledged, that being indebted to the defendants, the President and Directors of the Bank of Newbern, a suit was instituted and judgment obtained against him at February term of the County Court of Wayne, 1828, for the sum of $1040 88 cents ; thatan execution issued thereon, and came to the hands of Galvin II.

<p>William Green, the father of the plaintiff, by his will among other things, provided as follows:</p> <p>“The balancc;sof my estate, both real and personal, Í “ absolutely order that it shall be kept together on my “lands, under the directions of my executors that I “ shall hereafter name, and also that it ho equally divided “between my children, Harriet, Bryan, and William Jl. “ Green; this estate to -be divided between my three “ children named, when my daughter Harriet arrives to “the age of twenty-one years or marries j the balance “ of my estate to be given up to my sons at the age of “ twenty-one years.”</p> <p>This will was not executed so as to pass the land of which the testator died seised.</p> <p>The testator of the defendants was appointed guar-ió the infant legatees, and kept their negroes together on their land, and made the expenses for their nurture and education, a joint charge upon the profits as a common fund.</p> <p>This bill was filed by the plaintiff for an account of his estate in the hands of the the guardian, and upon the usual reference, the master charged the plaintiff with one third of the whole expenses. He excepted to this charge, and insisted that his undivided third of the profits should be charged with the expenses of his nurture and education only.</p> <p>. Other exceptions were taken; but the above presented-the sole question in the cause.</p>

•This bill was filed in the Coart of Equity for Gran-ville county, for an account and distribution of the estate of Samuel Smith the elder,- which lie had bequeathed to liis widow during her life, and afterwards to be divided among all his children. Samuel Smith, the elder, died in the .year 1800, leaving ten children, all of whom, or their representatives,were either parties, plaintiffs or defendants.

The bill, which was filed in the Court of Equity for Onslow county in 1827, charged that John Thompson, the first husband of th a feme plaintiff, died in the year 1800, having by his will, which was admitted to probate upon the oath of Nathan Jlskew, the only subscribing witness thereto, devised and bequeathed as follows:— “ Item, f lend to my wife Sarah Thompson all the property that I possess, during her life or widowhood; “and if she should marry, the property shall be…

The plaintiff alleged that soon after he proved the will of his testator, he understood and believed that the debts due from the estate were few and of small amount, and that the assets not bequeathed in specific legacies, were amply sufficient for their discharge — that under this impression he delivered over to the legatees their respective legacies, without taking any refunding bonds from them — that he afterwards proceeded in administering the residue of the estate, and…

The plaintiff being entitled to a separate estate under a marriage settlement, filed her bill, by permission of the court, in forma pauperis against her husband Seth Ward, Henry G. Montford, the trustee, and-Edward Williams, which last named defendant was charged with having in his possession, claiming as his own, some of the property belonging to the plaintiff under the marriage settlement, he having notice of the plaintiff’s title, at the time he purchased it.

<p>Upon the pleadings and proofs in this case, it appeared that on the 18th day of April, 1827, the plaintiff, by an absolute deed of bargain and sale, in which the sum of one hundred and ninety-six dollars was recited as a consideration paid to him by James Stanton, convoyed to the said Stanton in fee the tract of land on which he resided, and that at the same time Stanton executed to the plaintiff a written declaration, setting forth that the object of the conveyance ivas to secure the re-payment of that sum, with interest,and promising on the part of Stanton to recon-vey the land whenever such re-payment should take place. The deed was shortly thereafter registered ; hut the de-feazance had never been registered. The tract of land ivas proved to have been worth about six hundred dollars, and the plaintiff retained the possession of the whole of it until the year 1830, and of a part of it until this time. On or about the 10th of July, 1829, a sale was made of this land by the sheriff, upon an execution against the plaintiff, at the instance of a creditorj and at that sale, Stanton became the purchaser at the price of seventy-five dollars, ga-ve his note to the creditor in discharge of the judgment, and took a deed for the land from the sheriff, in which it is described as the same land heretofore conveyed by Jackson to Stanton. It was in proof also, that on the day of the sheriff’s sale, Stanton iuformed the execution creditor that he had a lien on the land, but had no objection to a sale, provided ho could become the purchaser, and hold his title under such sale, as he did that under his deed, as a security for his advances ; that thereupon they proceeded together to the place of sale, where Stanton .bought, the plaintiff not being present and that on the land being bid off, he quieted the plaintiff’s wife, who seemed uneasy, by declaring that all he Svanted was to secure the re-payment of what he had advanced,or might advance. There was a satisfactory proof also, that after this sale, Stanton and Jackson recognised each other as still standing in the relation of creditor and debtor, and the sheriff’s convey-anee,and Jackson’s conveyance as securities for the payment of the debt. Messages were sent to Jackson to liquidate and pay off the debt. An arrangement was made by him for letting out the land, to take up the notes given by Stanton at the Sheriff’s sale, and on Stanton being apprised of it, he told the plaintiff that he could afford to pay as good a rent for the land as any body, that he would be satisfied with an arrangement which would pay off all his demands, but he did not approve of one which was to discharge his last lien only, for lie looked upon that as his best title. In the next year, (1830,)Stanton occupied accordingly a part of the land, Jackson retaining possession of the residence_ Before the close of that year Stanton died. The guardian of his infant heirs at law then instituted an ejectment in their names, and prosecuted it to judgment against Jackson, who filed this bill to enjoin their further proceedings, and to redeem the mortgaged premises.</p>

The material allegations contained in tlie bill and supplemental bill of tlie original plaintiff, Frederick ICiin-lorough,v>e,ve, that on or about tlie 1st January, 1803, being greatly pressed to raise the sum of g300, which ha owed in part of the price of the tract of land upon which he resided, he applied to the defendant, his son-in-law, to assist him in this difficulty — that the defendant agreed to advance this sum,ami to take for security a bond from the plaintiff to…