Volume 19 — South Carolina Equity Reports

<p>The testimony of one witness, though in some degree supported by corroborating circumstances, held insufficient to disprove defendant’s answer.</p> <p>Where the testimony of one witness and corroborating circumstances are relied on to disprove an answer, the circumstances must, it seems, be such that, standing alone, a reasonable conclusion, as to the truth of the fact, might be deduced from them.</p> <p>Mere irregularities or omissions will not vitiate a sheriff’s sale. Where, therefore, a sheriff sold land which had not been advertised twenty-one days, held that the sale was valid.</p> <p>So also, where a sheriff, having a number of executions against a defendant, levied on all his property, consisting of a plantation, slaves, &c., but made no entry of the levy except on the oldest execution, and, at the proper time, sold, first, the slaves, the proceeds whereof amounted to more than sufficient to satisfy the oldest execution, and then the plantation; held that the sale of the plantation was valid, although there was no entry of the levy on the junior executions under which the sale was in fact made.</p>

<p>If a bill appear on its face to be prematurely filed, and advantage be taken of this by demurrer, the demurrer will be fatal. But where there is no demurrer, and at the hearing the bill appears to have been prematurely filed, the court is not bound to dismiss it, but may, if the plaintiff is then entitled to the relief he seeks, decree for him.</p>

<p>A surety, who obtains an assignment of the mortgage of a slave, given by his principal to secure the same debt on account of which he is surety, may file a bill against an innocent purchaser from the mortgagor for a specific delivery of the slave.</p> <p>If the innocent purchaser of a mortgaged slave should, on coming to a knowledge of the mortgage, send the slave out of the State, with a view to defeat the lien of the mortgage, qumre, would he be liable to account for the value of the slave to the parties whose interests the mortgage was intended to protect ?</p>

<p>Where one of several sureties to a joint obligation pays the debt, he has the same right to contribution from the representatives of a deceased co-surety, as from a surviving co-surety.</p> <p>A surety who has left the State is in the same condition as if he were insolvent, and the solvent sureties, or their representatives, who remain within the jurisdiction, are liable to contribute in equal proportions. Where, therefore, of six sureties to a sheriff’s bond, three left the State, and of the three who remained two died, and the survivor was compelled to pay a considerable sum on the bond; held, that he might compel the representatives of the other two, who remained, to contribute each one third.</p> <p>A surety may, before he has paid the debt, file a bill against his co-surety to compel him to contribute towards its payment.</p> <p>To a bill for contribution, co-sureties who have removed beyond the jurisdiction of the court need not be made parties.</p> <p>To a bill to compel co-sureties to contribute towards the payment of a judgment-recovered against the plaintiff, the judgment creditor should, it seems, be made -a party.</p> <p>Where the only surviving surety to a joint bond, (he being alone subject to an action at law,) issued, and defends the action bona fide, and thereby reduces the amount of the creditor’s demand, the representatives of the deceased co-sureties are liable to contribute towards payment of the costs and other expenses incurred in defending the action at law.</p> <p>Where a surety filed two separate bills against the representatives of his deceased co-sureties for contribution, he was ordered to pay the costs of one of them.</p>

The Chancellor. The complainant, and Wm. T. Woodward, the defendant’s testator, in contemplation of their marriage, entered into a contract, whereby the complainant conveyed and assigned to trustees one half of all her real and personal estate, estimated at about $30,000, in trust for her sole and separate use, and subject to her own control and disposition.

<p>This case came up on appeal from the decision of the Circuit Court for Union District. The questions made and decided will sufficiently appear from the opinion delivered in the Court of Appeals.</p>

<p>'Where separate judgments were obtained, on the same demand, against a principal debtor and his two sureties, and one of the sureties paid the judgment against himself, under an understanding that the judgment against his principal should be assigned to him, and then the principal died; held, that the executor of the principal, whose estate was insolvent, might file a bill to have it decided whether the surety was entitled to rank as a judgment creditor.</p> <p>The executor of an insolvent estate may, when the creditors are numerous, file a bill against the creditors to enjoin them from proceeding at law, and to have the estate administered in equity; and he may, it seems, make the heirs and devisees defendants, in order to compel a sale of the real estate in aid of assets.</p> <p>Where the executor files such a bill, the practice is to select one or two of the principal creditors, as defendants, and to bring in the others by an order. None of them need answer except when specially required, ’ or ordered by the court: the rest appear and litigate orally. But all are enjoined, either by order or by injunction issued in conformity to an order, from suing elsewhere.</p> <p>Where such a bill is filed, the funds in the hands of the executor should be placed in the possession of the court to be administered; and if a sale be ordered, whether, it seems, of real or personal estate, the sale should be made by the master and the funds received by him.</p>

<p>Testator, who died in 1839, directed his executor, after a certain event, “to transport all of” his slaves “to the nearest non-slave-holding State in the United States, or to the free colony in Africa.” Before this provision of the will was executed, the Act of 1841, providing that any bequest, whereby the removal of any slaves, without the limits of this State, with a view to their emancipation, is secured or intended, shall be void, was passed. Held, that the Act avoided this provision of the will, and that the executor must account to the next of kin of the testator for the slaves.</p> <p>Ás a rule of construction, it shall be intended that an Act of the Legislature was intended to act prospectively and not retrospectively; but, if an Act be plainly intended to have a retrospective effect, it is valid, unless contrary to some provision of the constitution.</p> <p>Slaves are mere chattels, and are not protected by the constitution. A bequest, therefore, providing for the emancipation of slaves, which is valid at the time of the testator’s death, may be avoided, by an Act of the Legislature, at any time before it is carried into effect.</p> <p>If the bequests of a will are void, the next of kin of the testator are not excluded by a clause providing that the testator’s relations and kindred should enjoy no part of l .is property.</p>

<p>A principal is not a competent witness to diminish the amount of the demand against his surety.</p> <p>J. W. C. gave two bonds, for money loaned, to the same party, to one of which H. C. was surety, and afterwards paid the bond to which there was no surety. Held, m a suit in which the amount of H. C’s liability was in question, that J. W. C., though no party to the suit, was an incompetent witness to prove that the bond which he had paid was usurious, the object being to transfer the payments to the bond to which H. C. was surety. Held farther, that the testimony if received could not avail the surety, he having no interest in the bond paid and no right to question the payments.</p>

The bill in this case was filed for the recovery of the amount •of the note mentioned in the Chancellor’s decree, and the property specified in the following clause of the will of George Williams, deceased, viz; “I will and desire that the plantation whereon 1 now reside; also my negro woman Rose, my negro woman Pauline and her child Mariah, and all their future increase ; also my negro men George, Charles and Washington; also my household and kitchen furniture of every kind…

The Chancellor. The complainants claim a negro girl Clarissa, under a deed of gift from Dicy Caston, dated 3d Feb. 1834. By the terms of the deed a life estate is reserved to the donor. In Sept. 1843, Clarissa was sold by the sheriff under an execution against Dicy Caston, and purchased by the defendant for three hundred and ten dollars.

The Chancellor. The wife of Leroy Griffin was entitled to a tract of land in Ghester district, or to a proportional part thereof, as one of the heirs at law of Edward Mobley, deceased. For the purpose of making partition among the heirs of Edward Mobley, deceased, the land was sold by the commissioner in equity, and the proceeds are now in his hands.

<p>Plaintiffs, as sureties of one C. to a joint and several note, were sued in Laurens district, where they resided, and being-ignorant of the consideration of the note, and of any fust defence to it, suffered judgments to he taken against them. C., the principal, having died, his administrator was sued in Greenville. This suit was protracted until long after the judgments were recovered against the sureties; and the defence, of usury, being successfully made out, by means of a slip of paper, accidentally discovered among the intestate’s papers, a judgment was rendered against the administrator only for the amount really loaned, without interest or costs. The judgment against the administrator was paid in full by the administrator and the sureties ; and then this bill was filed by the sureties, praying that the judgments against them might be perpetually enjoined. Held, 1st, that the payment of the judgment against the administrator was not satisfaction in full of the judgments against the sureties: 2d, that the sureties were entitled to relief on the ground of usury, but only on condition of their paying the amount really loaned, with lawful interest.</p> <p>Mere ignorance that a party had a valid defence is not a sufficient ground for opening a judgment at law; hut where to ignorance is added the fact, that he had no means of discovering the defence by exercise of due diligence, or, if the evidence rested in the knowledge of the plaintiff at law, had no means of knowing it, so as put him upon filing a bill for discovery, he may, on discovering his defence, file ji bill in equity to be relieved against the judgment at law.</p> <p>1'f a party making a payment give no directions as to the application thereof, the right to make the application is with the party receiving it. If neither party has fixed the application, it devolves upon the court, and will be made pro rata, to the demands held by him who received the money against him who paid it; or, if one of the demands be less secured than the others, the application will be made to it, in the first instance.</p> <p>Where judgments on the same cause of action are identical in amount, satisfaction of one is satisfaction of all: 'where, however, they are not for the same amount, satisfaction of the one for the smallest sum, is only satisfaction pro tanto of the others.</p> <p>Relief from a usurious contract will not be granted in equity except on condition that the sum really due with lawful interest be paid.</p>

<p>Testator bequeathed as follows. “I give to my daughter Mary, at her marriage, or when she attains the full age of twenty-one years, two-thirds of my personal estate. But should she die before she marries, or attains tho iull age of twenty-one years, then, and in that case, I give” the same to my wife, &c. Held that, as long as Mary remained unmarried and under age, her guardian was not entitled to receive from the executor of the testator tho corpus of the said legacy, and, consequently, that the sureties to his guardianship bond were not liable therefor, the same having been wrongfully paid over to him ; but that, Mary being otherwise unprovided for, he was entitled to receive interest on the said legacy, by way of maintenance, and that for such interest his sureties were liable.</p> <p>As a general rule, a legacy payable at a future day, does not carry interest, until after it is payable. Whore, however, the legacy is to a child who is otherwise unprovided for, it carries interest immediately.</p>

The bill stated that W. S. Thompson, of Orangeburg, the uncle of the complainant, died, leaving a will, which, amongst other provisions, provided as follows, to wit, “ Also, I do direct that after the payment of the aforementioned expenses, debts and legacies, there shall be paid to . . .

<p>The Chancellor. The late John Baxter Fraser, who died in 1820, by his last will, dated in 1819, made the following bequests. “Item, I give and bequeath my negro slaves Young Ben, Diana and child Xury, and her future increase, to my said son Samuel, for and during his natural life, and at his death, to the lawful issue of his body; and if he should die without lawful issue living at the time of his death, then, and' in that case, remainder to the surviving brothers and sisters or brother and sister of the said Samuel, equally to be divided between them, share and share alike,” (fee. “Item, I give to my said son Samuel, my negro slaves Toney and Affey, and their increase, and do expressly subject the said negro slaves Toney and Affey with her increase, to the said limitations with those just given to my said son Samuel, in all respects whatever.”</p> <p>In 1827 or ’8, Samuel the son, sold the said negroes, Toney and Affey, and Diana and her children, to one Richard Howard, for their full fee simple value, and there is no evidence that he had notice of the limitations of this will, or from whom Samuel Fraser had his title. Samuel Fraser died in the course of the last year, leaving issue, the complainants, his children, all of whom were minors at the time of the sale of the negroes to Howard, the oldest not being then more than fourteen years of age. The defendant married the daughter of Howard, who, in 1829, gave the negroes, including the issue of Diana, to the defendant as an advancement to his wife. The bill is brought for the specific delivery of Toney and Aifey, and the issue, children and grand children of Diana, eight in number, named in the pleadings, she herself having died.</p> <p>The answer raises the question whether the complainants were entitled to take under the limitations of the will, but that was abandoned at the hearing, and the defence was put wholly on the ground that the negroes, Diana and her child Xury, were not the property of the testator, at the time of the execution of the will, and that they had been before given by the testator, to his said son Samuel Fraser.</p> <p>The evidence on this question may be summed up in a few words, and it is a great relief to the court, that it is derived from witnesses of unquestioned veracity, and that there is no collision between them except as to a point of time dependant on memory, which is not regarded as at all material.</p> <p>James McPherson, sworn for the defendant, stated that Samuel Fraser, the son, married in 1813, much against the will of the testator, his father, who, on that account, declared he would give him nothing, — in consequence of which the son settled at some distance from him; but that the father at length relented and a reconciliation took place between them. That in the Spring of 1816, (and he states various circumstances which enable him to speak with precision of the time,) he saw the woman Diana, whom he knew to have belonged to the father, at the house of Samuel the son, who retained possession of and used her as his own, from that time to the time of the sale, to’ Howard. The fact of the possession, and the use, is sustained by the evidence of Robert Fraser and W. H. Fraser, two of the testator’s sons, sworn for the complainants; according to their recollection, however, the possession did not commence until 1817. This is the case on the part of the defendant. On the part.of the complainants, a small memorandum book, found amongst the papers of the testator after his death, which upon examination was found to have been appropriated exclusively to the purpose-of keeping accounts of advancements to his children, and his own cash receipts and disbursements, was offered in evidence. In the account with his son Samuel, the first items are for a mare and cash advanced, amounting to $143 19, under the, date day of — 181 , and immediately below this is the following entry : “March 15, 1817 : Lent to my son Samuel, a negro girl named Diana, and her child Nury, and her future increase — he having agreed to find, clothe, shoe, and pay their taxes, and all future expenses of her increase, if any.” Then follow other items under date 8th January, 1817, for cash, (fee., advanced, amounting to $196, and the names of two other negroes, Ben and Delia, lent. In the accounts with the testator’s sons, Thomas and William H., entered in the same book, all in the hand writing of the testator, they are charged also with negroes lent.</p> <p>The admission of this book in evidence was objected to by the defendant, on the ground that it amounted only to a declaration of the testator as to the terms of the gift. It was received, however, as proof of the existence of such a book, the entries being worth little, perhaps nothing, unless they should be connected, by other evidence, with the delivery of the negroes by the testator, to his said son, Samuel.</p> <p>The receipt book of the testator was also given in evidence. This contains a receipt to the testator for taxes, from the tax-collector, for the year 1816 : it is dated 21st May, 1817, and by comparing the amount paid with a list of the testator’s negroes, for that year, contained in the same book, it is clearly shown that the testator paid the taxes for Diana and her child Xury, for the year 1816,</p> <p>Robert Fraser and William H. Fraser, the witnesses before named, both stated that, according to their recollection and belief, the testator delivered, or lent, the negroes Diana and Xury to his son Samuel, in 1817, and that he had lent, instead of given, the negroes charged to his sons Thomas and William H. The latter, William H. Fraser, testified that between 1818 and the time of the death of the testator in 1820, he had frequently heard the said Samuel Fraser speak complainingly of the terms on which the testator had given him the negroes, remarking, that if he had any thing to give his children, he ought to do it at once ; and when, after the death of the testator, his will was read to him, he expressed great dissatisfaction with the manner in which the testator had left him the negroes.</p> <p>If the time of the delivery of the negroes was at all important, I should not hesitate to conclude that it was in 1817, and that the witness, McPherson, was mistaken in supposing that it was in the Spring of 1816. The recolle.cfion of Robert and W. H. Fraser, is, that it was in 1817. The tax receipt shows that the testator paid their taxes for 1816, and he was not liable for them unless he had possession of them on the 1st of October of that year ; and, above all, the entry in the memorandum book proves it. The testator could not then have had any motive to misrepresent the time of the delivery, and the neatness and regularity with which all the entries in it are made, show that it was not the work of a dullard but a man of business. But the time is not material, for the declarations of Samuel Fraser, made not long after the entry, and frequently repeated, show that the terms on which the negroes were delivered, are correctly stated in that entry, and that it was a loan at will and not a gift in fee simple. In answer to a question put to the witness, McPherson, on his cross examination, he stated that he had heard Samuel Fraser say that his father had given him Diana and her child Xury ; and that was relied on as proof of an unconditional gift. That there was a gift was true, but the occasion did not appear to call for an exposition of all the terms and qualifications of the gift. Give it the effect contended for, and it is greatly outweighed by the evidence on the other side.</p> <p>Evidence was introduced to show that Samuel Fraser was an improvident man, and constantly embarrassed with debt, and the evidence very clearly shows that he was always pressed for money, although he was supposed to be well able to pay all his debts, up to the year 1821, and the witness, McPherson, proved that the negroes were sold to pay off a debt which Samuel Fraser had contracted with him, even before he had possession of the negroes, and hence it is attempted to be inferred that the testator had a motive to limit the negroes over in the will, notwithstanding he might have before given them absolutely. Such an inference is clearly rebutted by the facts before stated; and besides, the improvidence and embarrassment of the son might have been a motive with the father not to give absolutely.</p> <p>The defendant states in his answer, that two of the descendants of Diana have died since the filing of the bill; and it is insisted for the complainants, that the defendant is liable to account for their value. I think not, — the manner in which the defendant came into their possession, and the circumstances of the case, well warranted him in retaining possession of them, until the right was tried. And if they have died without any neglect or default on his part, he is not answerable.</p> <p>It is therefore ordered and decreed, that the defendant do deliver to the complainants such of the negroes named in the pleadings as are alive, and in the possession of the defendant, and that he do account before the commissioner for th.e hire of the said negroes, since the death of the said Samuel Fraser. It is not a case, I think, for costs ; each party must pay their own.</p> <p>The defendant appealed, and now moved this court to reverse the decree of the Chancellor, on the following grounds.</p> <p>Because it being proved that John B. Fraser, the father, in his life time, put his son Samuel Fraser in possession of the negroes Diana and Xury, unaccompanied with any explanation at the time, the law under the circumstances raised the presumption of a gift —which was not rebutted by any sufficient legal testimony : and, as the defendant claimed under Samuel Fraser, his Honor should have decreed in favor oí the gift, and for the defendant.</p> <p>And failing in the foregoing motion : then the defendant moved the court to direct an issue, to try the fact, whether John B. Fraser, the father, made a gift or not, to his son Samuel Fraser, of the negroes Diana and Xury.</p> <p>The complainants also appealed, and moved the court to reform the decree so that the complainants recover,</p> <p>First. — For the negroes that have died in the defendant’s possession, since the termination of the life estate of Samuel Fraser.</p> <p>Second. — For the negroes that have died since the demand made and since the filing of the bill.</p>

The Chancellor. These cases have been taken tip together. The contest is in relation to the rights of the plaintiffs in these suits respectively, to be satisfied for certain claims held by them,out of some lots or parcels of land, belonging to A. W. Dubois, one of the defendants in the first case. The plaintiffs in the first case claim relief under a mortgage of the premises, executed by Dubois, which has been assigned to them, and which they seek to foreclose.

The Chancellor. The complainants are execution creditors of Thomas Burrows. The execution was entered on the 28th January, 1842, the cause of action having originated in 1841. The sheriff, being about to levy on three slaves in the possession of the defendant, Thomas Burrows, was forbid by the other defendant, George S. Burrows, on the ground that the slaves were his property, under a bill of sale from Thomas Burrows.

The Chancellor. In this case, certain negroes, the descendants of a wench named Daphna,, are claimed by the children of Mrs. Amelia Griffin, afterwards Cowan, from Mr. and Mrs. Frazier, who on the other hand lay claim to them, under the circumstances which shall hereafter be stated.

<p>The marital rights of the husband will attach on money arising from the sale of personalty in the hands of the guardian of his wife; and the guardian will be discharged from liability to account to her, if, by the direction of the husband, he apply the money to a debt of the husband.</p> <p>The proceeds of a ward’s real estate, sold by order of the court, cannot properly be paid by the commissioner, either to her guardian or her husband, without leave of the court.</p> <p>The right of a husband’s assignee for valuable consideration to the proceeds of the wife’s real estate in the. custody of the court, is subordinate to the right of the wife to a settlement.</p>

<p>Where a minor knows of his title to property and permits another to purchase it without stating his title, he will be barred by the fraud from recovering the property from the purchaser; semble.</p> <p>A party who claims that he is exempt from the operation of the statute of limitations by reason of his disability, is bound to prove it strictly.</p> <p>Bill for the specific delivery of a slave, filed on the 26th April, 1842. Defendant had had adverse possession of the slave for ten years. Plaintiff’s father testified that plaintiff was about fifteen years of age in February, 1832, Held, that the bill was barred by the statute of limitations.</p>

The Chancellor. The bill is brought by the distributees of the late William Taylor, to charge the defendant, John Taylor, who is his administrator, and the defendants, McCarley and Parks, as sureties for his administration, with the amount of certain debts due by one Richard Cottrel to said deceased; 1st, upon the ground of fraudulent connivance on the part of the administrator with the debtor, by which he escaped from the process of law, and eluded the payment of said…

The Chancellor. Anthony Albergottie, by his will, executed in 1815, devised as follows: !í I give, devise, and bequeath, to my three grandsons, William J. Albergottie, Anthony Albergottie, and Thomas Albergottie, my two plantations, Mount Pleasant and Mulberry Hill, share and share alike, and to the heirs of their body, lawfully begotten, from thenceforth and forever ; and should my grandson, William J. Albergottie, die, leaving no issue, then and in that case, to be be…

<p>Though the dismissal of a bill may not abrogate or set aside matters finally adjudicated and determined in the progress of the cause, yet all matters merely interlocutory and unexecuted, certainly go with it when it is dismissed.</p> <p>A party conveyed certain slaves, and, after his death, his administrator, being in possession of the slaves, filed his bill to avoid the conveyance, on the ground of fraud. The conveyance was declared valid, and the administrator delivered up the slaves, and was ordered to account fcr their hire. On the report for the hire coming in, his bill was, on his own motion, dismissed; whereupon, the defendant filed this bill for an account of the hire. The administrator pleaded the statute of limitations, and more than four years having elapsed since his possession ceased, held, that he could avail himself of it, and that the proceedings in the first suit did not suspend its operation.</p>

<p>Where an administrator misapplied the funds of his intestate by applying them to the payment of simple contract debts, when there were specialty debts unpaid, and afterwards, on a bill for partition of the realty, to which the administrator was a party, a part of the proceeds of the realty was reserved, in the hands of the master, for the payment of the specialty debts; held, on the fund thus reserved, falling short of paying the specialty debts, that the administrator was guilty of a devastavit, and that his sureties were liable, although the sum reserved out of the proceeds of the realty was larger than the sum misapplied by the administrator.</p> <p>In a suit by distributees against an administrator for partition and account, it is the duty of the administrator to represent the creditors, and see that their debts are provided for; and the court will never order distribution when it is brought to their notice that the fund is necessary for the payment of debts.</p>

The bill filed in the case first stated, presents a very full history of the complicated transactions which have given rise to these proceedings. The fund in the custody of the court is from the sales of lands, which, prior to the Revolution, belonged to Rowland Rugeley. By his will, dated, in December, 1775, a moiety of these lands was devised to his brother, Henry Rugeley, and the other moiety to his other brothers and sisters.

<p>The Act of 1791 gives a lien, to secure the purchase money, on property sold, under the provisions of the Act, for distribution: But where a sale is made under the lien which the Act gives, the lien is divested, as in the case of a sale under an ordinary mortgage.</p> <p>Real property was sold by the commissioner for distribution. One of the distributees purchased the property, and, under a power of attorney from some of the distributees, gave receipts to the commissioner for their shares. He procured himself to be appointed guardian of one of the distributees who was a minor, giving A as security to his guardianship bond, and then gave the commissioner a receipt for the minor’s share. He was at the time largely indebted to A. who know of these proceedings, and that he was unable to pay either the purchase money of the property or the debt to A. Titles were made to him by the commissioner, and he immediately mortgaged, and af-terwards conveyed the property to A, the consideration being his indebtedness to A. Held that the transaction was fraudulent, and the property was subjected in the possession of A to the claims of the-distributees, (for whom receipts had been given) for the amount of their shares.</p> <p>In deciding upon the bona or mala fides of such a transaction, much importance is always attached to the fact, that the security was taken, not as a pledge for money borrowed at the time, but for an antecedent debt.</p> <p>A verbal agreement to purchase land at sheriffs sale for the benefit of another, is void under the statute of frauds, and cannot be enforced against the purchaser.</p>

In order fully to understand these cases, reference should be made to the case of Robert Wotherspoon, James Rose, William A. Carson, Henry Gourdin and Richard W. ^Cogdell against The Bank of the State of South Carolina, reported in Speers’ Eq. 48S. Before that case was heard in the Court of Appeals, the bill in the case first above stated was filed.

The Chancellor. By his will, dated in 1735, Robert Ure, of John’s Island, supposed to have been a native of Scotland, bequeathed as follows : “As to one moiety of my estate, unto Joseph Stanyafn, Wm.

<p>Testator devised a plantation and the slaves thereon, m trust, and gave to his wife “the use of the mansion house and furniture, and the usual family accommodations” at the plantation, “during the continuance of the trust estate.” Held, that while residing on the plantation, she, the wife, would he entitled, as in the life time of the testator, for herself, her servants and horses, to the use of whatever supplies the plantation afforded, and was usually consumed by the family.</p> <p>Where a party on his marriage, consented to a settlement of his wife’s property, and afterwards made a voluntary settlement of property on her, including in it a considerable portion of the property embraced in the first settlement — held, that the last was no satisfaction of the first deed, andt that the wife, after the husband’s death, was not bound to elect between them, it not appearing on the face of the last deed, that it was intended as a substitute for the first.</p> <p>The doctrine of satisfaction applies, it seems, only to executory, and not to executed contracts.</p> <p>Where a party is put to his election, whether to take under or against an instrument, he is not bound to elect, until all the circumstances necessary to enable him to make a deliberate and discriminating choice, are ascertained ; and, it seems, if he make an election without it, he is not bound by it.</p> <p>Where a testator disposed of, by his will, a considerable estate, leaving, however, some residuary property, and provided that his debts should be paid from the income of a certain plantation and slaves ; held, that it was inadmissible to receive evidence of the amount of the debts, as compared with th'e fund provided for paying them and with the undisposed of property, in order to shew that the testator must have intended that the residuary property should be first applied towards paying the debts, and that the fund specially provided for satisfying them, should only be used in case the residuary property should be insufficient for that purpose.</p> <p>Where a testator provides that his debts and legacies shall be satisfied out of particular property, or a particular fund,' such property or fund, even though it be real estate, or the income derived from real estate, must be first used for that purpose, even in exoneration of residuary Or intestate personal property.</p> <p>The order in which assets, real and personal, are to be administered in this State, as laid down in' Warley vs. Warley, Bail. Eq. 397, approved of by the court.</p>

The complainant is the administrator of the estate of John M. Kinard, deceased; the defendants are creditors of John En-low, deceased. Enlow was the son-ih-law of Kinard, and was employed as his overseer, for the year in which he (Enlow) died ; and Kinard became executor in his own wrong, of Enlow, by intermeddling with the property which he left.

The Chancellor. The late George Martin, by his last will and testament, devised and bequeathed to his widow, Charity Martin, amongst other things, the tract of land on which he then lived, and eighteen slaves by name, during her natural life, and at her death, to be equally divided between all the surviving children of his daughter, Temperance Gunnels, then the wife, and now the widow, of the late William C. Gunnels.

The Chancellor. The questions to be decided between the parties still before the court, depend upon the following circumstances : On the 17th of September, 1840, the defendants, John Meetze, Caleb Bouknight and Edwin J. Scott, executed their sealed note, whereby they jointly and severally bound themselves to pay to the defendant, Mrs. Addison, the sum of $1260.64, one day after the date thereof.

■ In obedience to the order of reference heretofore made in this case, (see Sp. Eq. 312,) the commissioner proceeded to take the account, of the defendant, J. H. Smoot, for the hire of the slaves. At the reference, one, Morris Murphy was offered as a witness in behalf of Smoot.

The complainant brought trover against the defendant, Neil-son, for the conversion of slaves. At Spring term, 1846, the cause was tried and the plaintiff recovered judgment for about i$800. Neither at the commencement, nor at any time pending the action, was the defendant required to enter into bond for the forthcoming of the property, according to the Acts of the Legislature.

The complainant in the case first stated, filed his bill against the defendant, Walker, sheriff of Barnwell district, A. F. Al-drich, assignee of Allen M. Odum, and others, creditors of George R. Odum, praying an injunction to restrain the defendant, Walker, from selling certain slaves which had been levied on as the property of George R. Odum, under executions.

The principal object of this bill was to set aside the sales of a plantation and nine slaves, sold, in January, 1842, by the sheriff of Sumter district, under executions, as the property of James R. Law.

<p>The facts of this case will be sufficiently understood from the decree of the Court of Appeals.</p>

In December, 1843, the defendant, who is a citizen of Kentucky, recovered judgment against the complainants, on.a promissory note, in the court of the United States for South Carolina. In February, 1845, the complainants filed this bill, praying an injunction to restrain the Marshal from collecting the execution issued on the-judgment.

'The Chancellor. This is a bill for the perpetual injunction of a judgment and execution at law, obtained by the defendant, Mary Farr, upon certain obligations given by plaintiff to her co-defendant, and assigned to her : and that the said obligations be surrendered and cancelled; and for general relief upon the case stated in the bill.

To the Bank of Charleston, S. C. $19,450 00 To Edward North, administrator of Arabella North, 17,887 50 $49,767 50 With this agreement, the knowledge of which was confined to the parties, the sale took place. It was known to the attorney of Barbara Barguet, that the parlies were to bid for the property to cover the mortgage of Arabella North, and relying on that knowledge, he did not attend the sale, neither did the attorney of Isaac Telfair attend.

The facts of this case will be sufficiently understood from the decree of the circuit court, which is as follows: Dunkin, Ch. This suit is on behalf of the creditors of Thomas Evans, Sr. The sheriff testified that he had exhausted all the property of Thomas Evans, Sr., and that there remained in his office unsatisfied executions to the amount of about twenty thousand dollars, and that he had Thomas Evans now in his custody, applying for the benefit of the insolvent debtor’s…

Johnson, Ch. The following articles of association', entered into by and between the defendants, will, themselves, sufficiently show their nature and object, — viz: “We, the subscribers, agree to… Held: that although the Act of incorporation might operate as a dissolution of the company, yet the members were liable as partners, when dealing with persons having no notice of the dissolution.

Harper, Ch. In September, 1838, the complainant was married to Isabella C. Shannon. She was seized and possessed of some r-eal estate in the village of-Marion and two slaves.

<p>The sheriff sold property of P. under executions, and, after satisfying the executions, there remained a balance in his hands of the proceeds of the sale. P. being absent from the State, one of his creditors filed a petition praying that the sheriff be ordered to satisfy his demand out of the balance in his hands due P. Held, that the plaintiff had plain and adequate remedy at law by process of foreign attachment, and the petition was dismissed.</p>

On the 26th of August, 1825, Robert Martin sued out a writ of foreign attachment against Samuel H. Lothrop, a wharfinger and warehouse man, then absent from the State, and afterwards, on the 20th of July, 1827, recovered and duly entered judgment on the same, for $6,522 49.