Volume 21 — North Carolina Reports

<p>The owners of lost bank notes may in equity recover the amount upon offering bond and security to save the bank harmless from all claims for, or on account of such notes.</p> <p>Whether a recovery upon lost notes can be effected at law. Quere ?</p> <p>The cutting a bank note in two, for transmission by mail, is not a voluntary destruction of it; and if, in the course of transmission, one of the halves be lost, the owner upon producing the other half, and offering an indemnity, may recover the amount of the whole note.</p> <p>An objection to the irregularity of an affidavit annexed to a bill, cannot be made on the hearing, it should have come before filing the answer.</p> <p>An affidavit sworn to before a master in chancery in another state, who was not a commissioner appointed by this state is regular.</p> <p>The usage of a abnkin paying * a haíf" note only amount of the note, is tioned by law> a“d cannot be sustained.</p> <p>A biU filed two years after the loss of a bank note is not too late for relief.</p> <p>A neglect to offer an indemnity before filing a bill does not destroy the plaintiff’s right, but it will deprive him of a claim for damages and costs.</p>

The case made by the bill, answer and proofs was, that one Saekett sold a tract of land to the defendant Rutherford. The land was under mortgage, of which Rutherford was ignorant at the time of the purchase. To secure the purchase money, Rutherford gave four several promissory notes payable to Saekett or bearer, which the latter after-wards pledged to the plaintiff for money borrowed of him.

<p>The plaintiff set forth the will of James Whedbee, of which the following parts only need be stated. “ I give unto my beloved wife Jane J. Whedbee, all the property that came to me by her in marriage: that is to say, all the household and kitchen furniture, &c. (repeating the particulars at length.)</p> <p>“ I give unto my beloved wife for her year’s support, one hundred and fifty barrels of corn, &c. (repeating a variety of articles of ordinary household consumption.) I leave her the plantation and buildings either where I live, or where my son Lemuel Whedbee lived and deceased, for the full space of two years and three months, at the expiration of which time, my administrator is herein directed to pay out of my estate one thousand dollars, the one half cash, the other half in good and safe obligations then due, and no other. To raise that sum of money, he shall be at liberty to sell all the land which, &c. (describing it,) which he may sell as soon after his qualification as time will admit, upon the longest credit that can be given, so as to have the money ready for her use, immediately after the two years and three months is expired. Which said thousand dollars is to be to her a full satisfaction for, and in lieu of her taking thirds out of my land.” The testator then gave to his son, James P. Whedbee, property which he particularly described, and estimated to be worth nine thousand dollars, and proceeded as follows : “ all of which will include all, and every part of my estate, intended, meant, and allotted to him, as the whole of his portion thereof.”</p> <p>After making a provision for his grandson James N. Whedbee, the testator proceeded: “ all of which is to complete his share of my estate, unless the death of some one or more of his connexions should entitle him to heir from them.”</p> <p>The bill after setting forth these parts of the will, charged that there being no person appointed executor, administration with the will annexed had been committed to the plaintiff; that the plaintiff in the execution of his office had experienced great difficulty, and he prayed that his administration might be conducted under an order of the Court..</p> <p>In explanation of the difficulties he had encountered, the plaintiff stated that Jane J. Whedbee, the widow of the testator, died before the expiration of two years and three months after his death. That her administrator (who was a defendant,) claimed the legacy of one thousand dollars, but that the next of kin of the testator, insisted that the legacy was contingent, and had failed in conseqnence of her death before it fell due. Upon this subject the plaintiff prayed a declaration of the opinion of the Court.</p> <p>Another question which arose, was, how the surplus should be divided, there being no residuary clause in the will. The widow claimed to be entitled to a share of it, but her claim was denied by the next of kin, who insisted she was only entitled to that provision which the testator had made for her, as she had not' dissented from the will. Among the next of kin a question also occurred, there being six of them, four contended that it should be divided between them, as the testator had expressly excluded James P. and James N. Whedbee, while the latter, the two Whedbees, contended, that as the testator had not disposed of the residue, it was to be distributed by law, and that a distribution by law included them. The plaintiff also stated that he had been appointed guardian to Joseph Nauby, who had been the ward of the testator, and that difficulties had arisen in stating the account between the infant and the testator, and he prayed that it might be settled under a reference made by the Court.</p> <p>The several answers admitted the allegations of the bill to be true.</p>

The plaintiffs alleged that David Tate the elder, on the 16th of August, 1814, executed a deed of bargain and sale, by which he conveyed to his children all his land in fee; that the bargainees being infants, the deed was delivered to Hugh Tate, their uncle, to keep for them; that it remained in the custody of Hugh until his death, which happened in the year 1816, when the bargainor, having after its execution intermarried with Christian Tate, a defendant, went to the widow…

The case made by the bill, answer and proofs was, that in February, 1826, the plaintiff sold a tract of land in Warren, to Robert R. Johnson, for fifteen hundred dollars, and took from him three bonds payable at intervals of one year each, for the security of the purchase money: that Johnson died before the first bond became due: that his administrators paid that bond, but his estate being exhausted, the plaintiff had never received anything upon the others: that before the…

, The plaintiffs in their bill alleged, that Sampson Ethe-ridge, their father, by his will gave all his property to the defendant Elizabeth, his wife, for life, with remainder to them; that he died in 1822, and that the defendant, Elizabeth, being appointed executrix, proved the will, and had sold a slave, late the property of the testator, to Nathan Etheridge, also a defendant, who had removed him out of this state, and that she threatened, upon a claim of absolute…

The case made by the bill was, that Thomas Lanier, the husband of the plaintiff, having become insolvent, and his property being about to be sold under execution, the defendant agreed with the plaintiff to purchase a certain share for her separate use, and upon being secured in the purchase money to convey it to a trustee for such use.

William Gill died in the year 1797, having first duly made and published his will, in which, after providing for the payment of his debts he proceeded as follows. “ I bequeath to my wife all my personal and real estate, to have the sole use of until my youngest living child comes of age as is prescribed by law, provided she my wife lives.

After the decree made in this case at June Term, 1831, against the defendant Davidson, (vide 2 Dev. Eq. Ca. page 79,) the question between the plaintiff and the executors of Simonton and of Worke, were subsequently moved.

Asa. Rogerson owed the plaintiffs six thousand dollars, which was secured by a promissory note signed by him as the principal debtor, and the defendants Knox and M'Mo-rine as sureties. Rogerson also owed the plaintiffs another debt for about one thousand dollars, for which they had no security except his personal responsibility.

The facts were, that one John A. Chaffin, being indebted to the defendant in the sum of two hundred and twenty-five dollars, the latter called upon him to execute a bond, with surety, for the amount.

<p>A deed whereby a husband conveyed to his wife several slaves, without the . intervention of a trustee, will not be set up in equity, where the parties lived unhappily, whore there was no evidence of a delivery, except the production of the deed by the wife after the death of her husband, and where she had never claimed the slaves during the husband’s life, but had permitted them to be sold by his administrator, and had purchased some of them.</p> <p>Whether a gfftfrom a husband to wUl'be* aided in Quceref'</p> <p>Butcer-tamly it will not be, unless she shows merits, and aelearin-thehusby band to tlUeaud*8 hold for her benefit.</p> <p>The pre-sumptionof a delivery which arises from theexecution and attestation of a deed valid at law, does not take place as to one by a husband to his wife; there must be proof of a delivery in fact, or of acts or declarations of the parties, from which it may be inferred.</p>

<p>In a bequest of a slave to A., the words “but-should he die without an heir, the aforesaid slave to return to my family, and be equally divided amongst the rest of my children,” refer to an indefinite failure of issue, and consequently the limitation is too remote.</p> <p>A general ofa tarta" tor’s whole made'after several par-tioular legacies, is to be taken as being subject to them.</p> <p>The cases l Murph. 42, Deberry,'% Hay. 356, and Bailey v. Davis, 2 ® gW^’ proved.</p>

Joseph Speight died in the year 1792, possessed of certain slaves, which he bequeathed by will (the construction whereof has been settled in this Court, vide 2 Dev. Eq. Ca. 5), to his widow Ann, for life; remainder to his sons Francis and Henry forever. The widow received the slaves from the executors, and enjoyed them until her death in 1819; the two legatees in remainder died before.

The petitioners stated that in a case removed into this Court from Wake, between A. S. H. Burgess and Thomas Henderson, plaintiffs, and John Stewart and others, defendants, for the redemption of a lot of ground in Raleigh, which had been conveyed in mortgage to Stewart, an order was made for the sale, by the clerk, of the mortgaged premises; that at the sale they purchased two sub-divisions thereof; had paid the purchase money, and the sale had been confirmed; and that they’…

This was a case for the distribution of the property of the plaintiff’s intestate, originally commenced in Halifax Court of Equity. In the progress of the-cause a question occurred, whether the intestate of-the defendant, viz. Benjamin Bustin, was entitled to any part of the assets in the •hands of the plaintiff, it being admitted that he was the half brother of intestate, Patience, born ten months and a half after-her death.

The plaintiff, on the 24th January, 1832, filed his original bill against the defendant, Martin Read, and therein charged, that, being the proprietor in fee of a certain lot in the town of Halifax, subject to an estate for life in one undivided moiety thereof in Mrs. Mary Rhodes, he, on the 31st December, 1829, entered into a written agreement under seal with the said defendant for the sale of the said lot: that by the said contract it was stipulated and agreed that, in…

Joseph Speight died in the year 1792, having duly ■made his last will, and thereby bequeathed to his wife for the term of her life, five negroes, and other personal property ; and after various other bequests, by the last clause in his will, he declared it to be his desire, that all the remainder of his estate, of every nature and kind whatsoever, should be sold on a credit of nine months, and the money arising therefrom, to go to pay his just debts, and funeral charges ;…

This case came before the Court upon an appeal of the defendant from the decree of the Court of Equity of Camden County. The transcript showed the case made by the pleadings to be as follows.

At the last term of the Court a cause was heard between the parties, in which the principal question involved was one of fact, viz. whether a certain female slave called Anaka, was born before or after the death of William Love; it being admitted, that if it was born before, the slave was the property of the plaintiff; if afterwards, that she belonged to the widow of the testátor, the mother of the plaintiff, in whose possession she remained up to the commencement of the…

After the decree for a specific execution of the contract for the sale of the slaves, made at December Term, 1833, (Rule, 2 Dev. Eq. Cas. 467,) by an order in the cause the sheriff of Guilford was directed to take into his possession the slaves remaining in the hands of the defendant and hire them out, and account with the master for the hires received by him.

The bill stated, that the 'testatrix of the defendant Bright, a resident of Currituck County, by her will bequeathed as follows : — “ I give to John C. Simmons (a defendant) the following negroes, viz: Daniel, &c., but it is my request and desire, that the said John C. Simmons will admit said negroes to have the result of their own labour, but ever to be under his care and protection, and his heirs and and assigns forever.

The original bill charged, that in April, 1826, one Joseph Wier entered into recognizance to the state in a large sum' in the Superior Court of Lincoln, which he forfeited in October, 1826: that such proceedings were thereon had, that judgment was rendered in favour of the state; on which execution was sued out and a sale made by the sheriff of Lincoln, on the twenty-second day of October, 1827, of the lands in controversy in this suit, when the plaintiff became the…

<p>The jurisdiction in lunacy is strictly territorial; and a Court of Equity in this state can neither charge his land in another, nor its proceeds in the hands of his heir Aere, for his support.</p> <p>The estate of a lunatic subjected sup' process eith.er. him or his can onlybe administer-orderofthe p0”1 h.av-dictionln “sesof lunacy.</p>

This was a bill filed by the administrator cum testa-mento,an nexo of James Britt, Senr., to obtain the advice of the Court of Equity, as to the mode of distributing the residue of the estate of his testator, under the 14th clause of his will, which was as follows, to wit: “Item 14th.

<p>This case came before the Court by way of appeal from the Court of Equity for Caswell county. The bill was filed on the 13th day of March, 1834, and stated that the plaintiff- was in possession of a part of lot No. 12, in the town of Milton, and improving it, in the year 1818, under a purchase from some person not mentioned in the bill; and that one James Dix, then, through the defendant Thomas Dix, as his agent, set up a claim to the same: that the plaintiff became satisfied that said James was the owner, and thereupon agreed for the purchase of his title, at the price often hundred and fifty dollars, one half payable in ten days, and the other half in three years: that this agreement was made on the 9th day of October, 1818, with Thomas as the agent of the owner James; and that the plaintiff" then gave his two bonds, each for five hundred and twenty-five dollars, for the purchase money, payable to James Dix as aforesaid. The bill further stated, that the plaintiff" was informed during the treaty, that the lot was under an incumbrance of a deed of trust made by the said James to one Dabney to secure the payment of a debt to one Colquhoun of Virginia; and that it was a part of the agreement, that the said incumbrance should be discharged by the vendor, and a reconveyance obtained from the trustee; and that a title should then be made to the plaintiff, by James Dix, within six months from the day of sale.</p> <p>The bill then charged, that on the same day, the agent Thomas, (who is the defendant in this suit,) gave to the plaintiff his bond, in which he obliged himself to cause the said incumbrance to be removed, and the title made agreeably to those terms. The bond was exhibited with the bill, and was an obligation from the defendant to the plaintiff, in the sum of five thousand dollars, with a condition (after reciting the contract, as above stated, as being made with James Dix, by his agent Thomas,) that unless the obligor “ shall cause to be released the premises from the said incumbrance, and shall cause my brother James Dix, to make to him the said Oliver, on or before the expiration of six months, such title, as he, the said James, may have to the said premises, the said obligation shall be in full force;” which is under seal, and signed, “ Thomas Dix, acting for James Dix.” The bill further stated, that the plaintiff in confidence of getting a good title, made expensive improvements; and paid to the defendant the bond for the first instalment of the purchase money, some time after it became due, without objecting that the title had not been made: but that, not having received a deed, and finding that the defendant would not or could not procure one to be made to him, and that he had taken an assignment to himself, from the said James, of the other bond, he gave him notice that he would not pay the bond, unless the incumbrance was discharged, and a proper deed made to him, but that he was ready to make payment when that was done. The bill further charged, that in consequence of not having a perfect title, the plaintiff had been unable to sell the lot; and that then it had so depreciated in value, that notwithstanding he had expended several thousand dollars in buildings,it could not be sold fora sum equal to the first instalment already paid, and the interest on it. The bill.stated also, that the heirs of one George Samuel had set up title to the lot, which was unknown to the plaintiff until recently. That in fact, the deed of Thomas Dix would not give the plaintiff a good title; and that after the delay of fifteen years, the defendant ought not to insist on the contract, nor compel the payment of the last instalment : but that the defendant had put the bond in suit, and in January, 1834, obtained judgment for the balance of the purchase money, and the interest thereon. The prayer was for an injunction, and for general relief.</p> <p>The answer stated, that the defendant paid large sums of money for his brother James Dix, as his security ; and was bound for the debt to Colquhoun, to secure which the deed of trust was made: that to enable him to provide a fund to meet those debts, the said James executed to the defendant a letter of attorney, which was exhibited, and bore date the 4th August, 1818, authorizing him to sell and convey absolutely, several parcels of land, including the premises purchased by the plaintiff: that he accordingly made, on behalf of his principal, the contract with the plaintiff as stated in the bill, and gave, for the fulfilment of it, his Bond as exhibited: that he, in a short time, paid the debt to Colquhoun, four hundred and sixty-four pounds fourteen shillings, Virginia currency, and took an order to the trustee to reconvey; and that accordingly Dabney did reconvey to James Dix, by deed bearing date the 10th of 'March, 1819: that on the 27th of March, 1819, he, the defendant, under the said power of attorney, executed a deed to the plaintiff, and offered to deliver it, if the plaintiff would pay the first instalment, and secure the other; but learning that the plaintiff was much embarrassed, and fearing if he delivered the deed to him that the premises would be sold for other debts, he declined delivering it without such payment and security, but agreed that he would deliver it, whenever he should be paid or secured ; to which the plaintiff made no objection: that the first bond was sued on, in the name of James Dix, and judgment recovered ; but the defendant received the money and applied it withh is brother’s approbation, in part discharge of the debt, for his said advances, and took an assignment of the other bond in further discharge thereof: that the plaintiff had been in peaceable possession, ever since the contract, and made no objection to a want of title, when he paid the judgment for the first instalment, nor since, until the filing of the bill; but had repeatedly requested further time to make payment of the money then due: that He' had deposited the deed to the plaintiff, in Court to be taken out by him, when the payment should have, been made: that the possession of James Dix, and of the plaintiff under him, was a perfect bar to the pretended title of the heirs of Samuel, and that in fact jthey never had title.</p> <p>The defendant exhibited the acquittance óf Colquhoun for his debt, as having been paid by the defendant, and'also the deed from Dabney to James Dix ; both as stated in the answer. He also exhibited the deed to the plaintiffof the 27th of March, 1819 ; which ran throughout in the name of “ Thomas Dix, attorney in fact for James Dix,” and was sealed and signed by Thomas in the same way. The defendant also exhibited an original deed from James Dix to himself, bearing date the 2nd of April, 1819, for ground adjoining that sold to the plaintiff, and part of the same lot No. 12, in which he called for the lines and corners of those premises, as belonging to the plaintiff.</p> <p>Upon the coming in of the answer, there was a motion to dissolve the injunction which had been granted on the filing of the bill, which was refused, and the injunction continued to the hearing. The cause was then set down for hearing upon the bill and answer. At different days after-wards, it was, under several orders, referred to the master to inquire, whether the premises were discharged, and when, from the incumbrance of the deed of trust to Dab-ney ; and whether James Dix had at that time, the same title and interest in the lot that he had on the 9th of October, 1818, and what conveyance the defendant should offer or be able to make for the premises; and report any special matter touching the subject of the reference which the parties might require. It was ;further referred to the master to inquire what sum was paid by the plaintiff, on the judgment for the first instalment, and when; and to compute the interest thereon' from the-time of payment; and to inquire whether the same was received by the defendant, as the agent of James Dix, or in trust for his creditors, or in the defendant’s own'right, and for his individual benefit.</p> <p>The master made report, that in July, 1820, the plaintiff paid the sheriff on execution, for the principal, interest, and costs, due upon the judgment, the sum of $600 IS, and that the interest thereon up to the making of the report in November, 1835, was 1552; making together the sum of $1152 13: that the defendant received the sum of $577 for the debt and interest lo the time of payment, for his own benefit, and appropriated it to his own use,giving the said James credit on his debt therefor. The master also reported that the encumbrance of CoJqu-houn was released, and that Dabney did reconvey to James Dix, as stated in the answer: that James Dix died in 1822, having made his will, whereby he devised all his estate, after payment of his debts, to William Dix : that said William had since died intestate, and this land, sold to the plaintiff, descended to the heirs of said William, only one of whom had attended the master, and that he refused to convey : and that the defendant had not offered to make any conveyance before the master. The defendant excepted to the report, because it did not state that the heirs of Samuel had no title; and because it did not state that the title of the plaintiff would be good under the deed tendered to him and exhibited with the answer bearing date the 27th March, 1819.</p> <p>The case then came on upon the bill and answer, the report and exceptions, and a motion for further directions; and the court confirmed t,he reports, and decreed “ that the injunction before granted be made perpetual;” and, after declaring “ that the defendant had received the money collected on the first judgment for his own proper use, and that he could not rightfully retain the same, because it had been paid without consideration,” decreed further, “ that the defendant should pay to the plaintiff the said sum of $1152 13, with interest; and also the costs of this suit.” From the decree the defendant appealed.</p>

The plaintiff charged that his deceased wife, Charlotte, of whose estate he had been duly appointed administrator, was entitled, as one of the next of kin of Robert Graham, to a sixth part of the said Robert’s personal estate; that after his intermarriage with her, and some time in the year 1812, the plaintiff received from the administrators of Robert Graham the sum of twenty-eight dollars, her share of that part of the said personal estate which had been sold by the said…

The bill was filed the 20th of August, 1830, and stated that the defendants, Thomas Clancy and James Child, were partners and merchants in Hillsborough, trading under the name of Thomas Clancy & Co., and became largely indebted to sundry persons, and amongst them, to the defendants, Dwight, & Co. of Petersburgh, in Virginia, by bond in the sum of eleven hundred and ninty-eight dollars, ninety-seven cents; and to the defendants Bowers & Co. of Petersburg, by bond in the sum…

The plaintiffs and the defendant were the next of kin and the heirs at law of David Coble, deceased. This bill was originally filed for two purposes ; -the one to call the defendant, who was also administrator of the said David, to account with the plaintiffs for their distributive shares of the personal estate of the deceased; and the other, for the partition of three tracts of landi whereof it was averred that the deceased died seised in fee simple.

This bill was filed at the Pall term, 1826, of the Court of Equity for the County of Anson, by William Bailey, Junr., William Covington and Elijah Covington, plaintiffs, against William Bailey, the elder, Jacob Bailey, George Wilson, and Dempsey Fielding and Fanny his wife; and was subsequently amended by making John Bailey and Charles Gettings and Clara his wife also defendants thereto.

This case came before the Court upon an appeal from part of a decree pronounced in the Court of Equity for Bertie. From the transcript of the record, the following appear to have been the facts. John Rhodes died in 1826, having made his will, in which he appointed William S. Rhodes executor, and gave his whole estate, subject to the payment of his debts, to his wife for life; and after her death, to the said William S., and other persons in certain proportions.

<p>The probate of a will, and qualifying as executor thereto, is an acceptance of a trust of personally, declared therein, and the executor cannot after-wards refuse to perform the trust. ~ ' .</p> <p>Whether an executor can, at,the time of qualifying,'by some solemn and authentic act, renounce the office of trustee, for a trust of personalty declared in the will. Qu. 1 It seems, that he cannot.</p> <p>Whether the acceptance of the office of executor, necessarily carries with it the acceptance of trusts in relation to really, which the testator authorised and directed his executors to perform. Qu. ?</p> <p>A joint trustee is to be charged with the funds belonging to his cestui^que trusts, which ought to have come, to his hands, or which did come to his hands, or which passed through them, or which have been wasted or misapplied by his co-trustee, by and with his concurrence. But mere passive-ness in not withdrawing money out of the hands of his co-trustee, which had never been in his own, is not such a concurrence as to make him chargeable.</p> <p>Where a testator devised lands to two of his sons, and the survivor of them, in trust to be sold, and by a subsequent elapse appointed them executors, and provided that, in case both his said spns should die before a sale and conveyance of the lands, another person should sell and convey and execute all the trusts of the will, and, by a codicil, appointed that other also executor, it was held, that neither the substitution in the will, nor the appointment as executor in the codicil, authorised the other person to interfere in the sale of the land during the life of ,the sons, or of either of them.</p> <p>One who is trastee for thechudren of another, as well as lor his own, owes the same duty to each set of cestui que trusts ; and cannot make any arrangement by which his own children are to he benefited in preference to those of the other.</p> <p>The sale of negroes belonging to . an estate without a previous order of Court is irregular, and any losses occurring under such sale, are prima facie chargeable on all the executors who concurred in making it. But if the sales ought to have been made, the mere neglect to procure an order of Court, does not impose this liability.</p> <p>In taking an account against an executor, who, without any actual fraud onhis part is-chargeable because of the devas-tavit of his coexecutor, no further evidence of credits for disbursements oi-advancements made by such co-■ executor is to be required, than can reasonably be demanded of one who was not personally cognizant of them, and cannot be supposed to possess regular vouchers therefor.</p>

Edward Cooper, by deed conveyed a certain slave and her increase to Nathaniel Harrison, in trust, for the use and benefit of Frances Cooper, (who was the wife of John D. Cooper,) during her natural life; and at her death, the said Harrison was to convey the said slave,- with her increase, to any person or persons that the said Frances might direct. Frances Cooper, after surviving her said husband, died without making any appointment under the power given in the deed of trust.

This was an information filed by the Attorney General, in the Court of Equity for Wake County, on behalf of the State, against the President and Directors of the Bank of Newbern, to recover from the individual stockholders of the said bank, a certain amount of taxes, which it was alleged were due from the said stockholders to the state.

In 1817, the plaintiff, Kqonce, by way of provision for his then wife, Holland, executed to the defendant, Bryan, a settlement of four slaves, named Violet, and her three children, Norris, Betty and Sukey, upon the following trusts: for the husband during his life; and if his wife should survive him, in trust for her and her executors absolutely; with power to the wife, at any time during her coverture, notwithstanding the same, to appoint, by any writing under her hand, the…

<p>The original plaintiff, Falls, purchased in February 1823, from the defendant, Frederick Carpenter, the elder, two adjoining tracts of land in the pleadings described, and executed his bonds for the purchase-money, and took a covenant for a conveyance upon the payment of the price. He took possession, but failed to make the payments; and there was on the 6th day of November, 1826, the sum of eighty-three dollars, forty-three and three quarter cents due for interest in arrear. He then applied to Carpenter to modify the contract by giving further time, and by agreeing to accept payment in grain or country produce, in lieu of money, if he should be unable to raise the money; to which the other acceded. On this day accordingly, that covenant and the bonds were destroyed; and Falls gave three new bonds — two for three hundred and seventy-five dollars each, payable at one and two years with interest from the date, for the purchase-money; and the third, for the balance of interest, eighty-three dollars forty-three and three quarter cents, due on the old contract; .which last instrument provided, that it might be paid in grain at specified prices, and' that any excess of the grain delivered, after discharging that bond, should be applied to the other two. At the same time, Carpenter entered into a bond, in the penalty of fifteen hundred dollars to Falls, with condition to be void if Carpenter should “ at the payment of the two notes for three hundred and seventy-five dollars each, with the interest thereon, convey to said Falls, the said two tracts of land,” in fee simple, with general .warranty as to one, and special warranty as to the other.</p> <p>The original bill, filed the Ilth September, 1829, by Falls, charged the contract of November, 1826, and that he was in possession under it, and made payments which satisfied the small bond, and left the sum of one hundred and thirty-one dollars, besides interest, applicable to one of the bonds for three hundred and seventy-five dollars ; and that in August, 1829, while the contract was in full force, a valuable gold mine was discovered on the land, which he and other persons under him began to work: that the defendants, Birchett and Ormond were on the land, and saw the plaintiff and his tenants collecting gold, and knew that he had purchased the land, and then claimed it, and was in actual possession; • and that with knowledge of these facts, they, on the 22d August, 1829, without informing Falls of their purpose, went to Carpenter (whoresided seventeen or eighteen miles off), and proposed to purchase the same lands- for themselves: that Carpenter refused to sell to them, unless with Falls’ consent, or unless he could get up his bond to Falls; upon which .they represented to him, that the bond was not obligatory, because the purchase-money had not been punctually paid; and also, that Falls was yet unable to pay it, and wished to rescind his contract; and pretended that they wished to purchase that the one might build a mill, and the other set up a store, which he wished to do immediately, as his goods were already purchased: that Carpenter did not wish to keep the land himself, but to sell it; and believing those false representations, agreed to sell to themat the price of seven hundred and fifty dollars, which was immediately executed by their giving their bonds for that sum, and taking a deed from Carpenter in fee: that during the treaty, they concealed from Carpenter the fact, that gold had been found on the land, and in answer to an inquiry by him on that point, denied it. The bill further charged, that Birchett and Ormond entered into a part of the land, and collected some gold, of which an account was prayed, and threatened to bring an action of ejectment, or otherwise expel Falls from the land which he had under cultivation, or was working for gold. It also charged, that between the 22d August and the filing of the bill, the plaintiff had come to a settlement with Carpenter, and ascertained the balance due on his bonds, and that he had fully paid the same, and taken up the bonds. The prayer was, for a conveyance by Carpenter, Birchett and Ormond, or those of them in whom the legal title was; and for an injunction and general relief. - ,</p> <p>Carpenter died intestate, after service of the bill, and before answer; and by a bill of revivor, and supplemental and amended bill, the suit was revived against his administrators, widow and heirs. And it was further charged, that tlm defendants Birchett and Ormond, had sold and conveyed shares of the land to certain other persons, who had notice of the plaintiff’s rights, and were made defendants ; and that Falls, before the filing of the original bill, had also assigned undivided shares to certain persons who were made plaintiffs with him.</p> <p>The administrators were P. Manney and Frederick Carpenter, the younger, who was a son and one of the heirs F. Carpenter, deceased. They answered, and admitted the contract of Nov. 1826; the póssession of Falls under it; the payment of grain to the quantity and value charged in the bill; the sale and conveyance to Ormond and Birchett, and the subsequent payment by Falte of the balance due on his bonds, all as charged in the billthat thereupon the intestate informed Falls, that Birchett and Ormond had obtained a conveyance from him by inducing him to believe that Falls was unable to pay for the land, and that the contract with him was void; and offered then to make Falls a deed, which Falls declined accepting, unless" that to Birchett and Ormond were first surrendered and cancelled : that the intestate then sent the bond of Birchett and Ormond to them, by one Adderholt as his agent, with instructions to tender it to them and demand the deed, which was done, but they refused. These defendants then submitted to any decree between the other parties, and to repay the plaintiff his money, or to surrender to Birchett and Ormond their bond, as the Court might decree the land to belong to the one or to the other.</p> <p>By an amended answer, the administrators said, that they had no personal knowledge of the transaction; and had before answered upon information, which they have since discovered to be untrue, and to have been imposed on them by the plaintiff and those interested with him: and they and the other heirs, and the widow of Carpenter, then stated the contract of February, 1823, and that of November, 1826; and that although some grain was delivered, they did not know how much, and believed not more than discharged the note for eighty-three dollars forty-three and three quarter cents, or certainly that and the interest on the other bonds — so that the whole principal purchase money remained due in November, 1828, when the last bond became payable; and that no payment was made thereafter, until the last of August, 1829, when Carpenter had sold to Birchett and Ormond. They stated, that through the winter of 1828, and in the spring of 1829, Carpenter applied to Falls for payments, and insisted on them; and that Falls was unable, or alleged that he was unable, to malte any, and proposed to Carpenter to rescind the contract; which was then agreed to by Carpenter, and the contract considered to He rescinded: that it was thereupon understood between these parties, that Carpenter should make sale of the land for his own benefit, but that he should keep the notes of Falls,' a'nd the latter keep possession of the land until a new sale; and when such should take place, that a settlement should be made, and the notes and possession mutually surrendered: that, accordingly, Carpenter -made several efforts, with the knowledge of Falls, to sell, and could not, until August; 1829: that on the 22d of that month, Birchett and Ormond, and one Robert Dixon, having ascertained that a very valuable gold mine (which has since turned out to be worth, probably, one million of dollars,) hád been just before discovered on the land, formed the design to purchase it on speculation, and applied to him for that purpose: that Carpenter wished time to consider of it; and that he was an old, weak and intemperate man, at no time well able to attend to business, and then sick imbed: that they represented to him that they were anxious to get the land for the, purpose of building a mill and a store; and-if they could not get it immediately, they would not purchase at all; and both concealed and denied that gold had been found on the'place: that thereupon, Carpenter contracted with them, and conveyed the land to Birchett and Ormond, as charged in the bill: that he was induced to make the contract by the urgency bf those persons, in the belief that they really wanted the land for the purposes mentioned by them, and that they hurried him into the completion of it then, before a rumour of the existence of the gold mine could reach his ears, or he might-have any other reason to suspect their motives. ’</p> <p>The answer then stated, that a few-days thereafter, Falls and the plaihtiff Wilson, (who, with others had formed an association to get a -title and work the mines,) offered to pay. off the notes of Falls, and demanded a deed : that he was confounded at discovering the fraud that had been practised on him by Birchett and Ormond, and also at the demand of Falls and Wilson; and disclóséd to the latter his true situation and embarrasment,' and asked Wilson’s advice what he should do: that they insisted on Falls’s claim, and repeated the tender of the money, and advised .him to take it, as that could not make the matter worse for him; and that intimidated By their menaces, and at their suggestion, Carpenter appointed Adderholt,, his agent, to take advice and act for him, who attempted to get the contract with Birchett and Ormond rescinded, but failed ; and thereupon received from Falls and Wilson in cash, a part of the sum due on Falls’s bonds, and took the bond of Wilson for what they admitted to be. the residue; but that Carpenter refused to accept from-Adderholt', either the money or Wilson’s bond, or to. make a deed to Falls; and overwhelmed with the perplexities of his condition, soon after died', before he could answer the bill. '</p> <p>The'defendants, Birchett, Ormond and Dixon, answered, and admitted the purchase and conveyance from Carpenter, for' which they, gave, their bonds for seven hundred and fifty dollars. They stated, that two or. three days before, they had seen persons digging and washing for gold' on a piece of land, which they were informed and believed was vacant; that Dixon, who lived on-an adjoining tract, so-believed ; that it was, on the 22nd of .August, 1829, agreed between the three, that they would enter the land they supposed vacant; and as they expected the. vein of ore to run also into the Carpenter land, the line ofwhich, as they believed, ran Very near the ■ spot at which the gold was found; it was further agreed by them to buy that land also: that Dixon went to the entry-takers, to make an entry, in his own name, on the joint account; and Birchett and Ormond proceeded to Carpenter’s, to make the purchase from him,- and did so, taking the deed in their names, also on the joint account. They stated that they knew Falls had agreed for the land, but had understood and believed that he was unable to pay for it, and had before abandoned it; which belief was founded upon the facts, that Falls was notoriously an imprudent and insolvent man; that Carpenter had repeatedly offered the land for sale to Ormond and others, from the autumn of 1828, up to that time, declaring that he was absolved from the contract with Falls, by his non-compliance, and that, although this was generally known, they never had' heard that Falls forbade Carpenter to sell: that they did not use any suasion to induce Carpenter to sell to'them; that they considered him to be the absolute owner, and knew that he was desirous to sell, to raise money; and that, as soon as they made known their wish, Carpenter agreed to make the sale ': that the remarks about Falls’s claim came from Carpenter, who mentioned that he had a long time before agreed to sell to Falls, but he was no longer bound, and “ his bond was dead,” because Falls had made no payment, and never would be able; and because he, Carpenter, had sent to him tjie spring before, to come,and settle with him, as he was about to sell the land to other persons, and Falls neither paid any thing, nor came to see him: they admitted that Birchett and Ormond did not mention to Carpenter that gold had been found, and said, that the reason was, that they were not then certain that it was on.bis land, although they expected that if would extend into it: they denied that they made any false representations touching the gold; and stated that Carpenter made no inquiries, but voluntarily said, during the treaty, that he hoped they might find gold in abundance: that Dixon also came to Carpenter’s in the evening, when they were writing the deed, and upon being' informed by Carpenter of the contract, remarked to him “ that he had better take care what he was about — perhaps there’s gold on your landto which the other replied, “ that he wished they might find the best mine in the country — he did not want gold mines, as he was too old to work them, and wahted nothing but the value of his land, or the money for his land.” The answers then stated, that these defendants entered into the lands immediately, and began to work the mines, but were in a few days, evicted under colour of a summary process, for a forcible entry and detainer, by means of which, Falls, Wilson, and the other plaintiffs, got info exclusive possession : and, further, that on the 4th of September, 1829, the defendant Ormond, had sold and conveyed to the other defendant, Dixon, his third; and that Birchett and Dixon had since associated with themselves the other persons named, who were made defendants by the supplemental bill j who also put in answers, in which nothing material was set forth.</p> <p>By a subsequent answer, Robert Dixon disclaimed, and the defendants, Birchett and Co., exhibited a deed from him to themselves, dated the 3rd day of May, 1832, with special warranty for all his share and interest.</p> <p>Birchett and Ormond instituted an action of ejectment against Falls and others, to recover the possession which was thus lost by them; and the trial of the same being delayed, Birchett and the assignees, in May, 1832, filed their cross-bill against Falls and his partners, in which they charged the two contracts between Falls and Carpenter ; and that the latter was merely an extension of the time, by reason of his inability to pay the purchase money, and sought a discovery as to that fact, and as to the particulars of those contracts. The bill also charged, that Birchett and Ormond had heard various reports, which were in common circulation, that Falls had wholly failed to comply with his contract, and had abandoned it; and that they then became desirous of purchasing from Carpenter, as was generally known, and particularly by Falls: that on the 22nd of August; 1829, or the day before, Birchett and Falls were on the land together; and that the latter, then knowing of the intention of the former to purchase, made no sort of objection thereto, but expressed his satisfaction therewith: that, in fact, Falls had told Carpenter that he could not pay for the land, and directed him to sell to any other person who could pay for it, to whom, he, Falls, would surrender all claim ; and that Carpenter so declared to them, Birchett and Ormond, at the time that he sold to them. The bill further charged, that no person was in actual possession of any portion of the land, but one Arrowood^ who attorned to the plaintiffs; and that they entered into the peaceable possession, and continued it for a few days, until turned out in the manner stated in their former answer; and that Falls and the other defendants, got into possession, and were making great profits, and committing irreparable waste. The prayer was for a discovery of all the matters charged; for an account of the gold already made; and for an injunction against further waste or working.</p> <p>All the defendants put in answers, but that of Falls was the only material one in the present state of the case, and none of the others were contradictory of it. That admitted the two contracts of 1823 and 1826, and that the last was substituted for the former at his instance, because it was more convenient to pay in grain than money.- He denied that he was unable to pay for the land, and said he could always have done .so, if. pressed, but that Carpenter promised not to press him. That in the winter of 1826-7, he paid two hundred bushels of corn, and in 1828, more corn and rye, arftounting altogether to two hundred and forty dollars; and in the spring, of 1829, Carpenter applied to him for twenty-five dollars, which he had not by him, and he requested Carpenter to borrow,, and he would take' up his note; and that he did pay Carpenter’s note to John Falls for about twenty-six dollars', which was satisfactory to Carpenter. The answer denied positively any, agreement with Carpenter to rescind the contract of any abandonment, or any act or omission from which it could be inferred, or that he ever agreed that Carpenter' should sell to any other person; and, on. the contrary, stated that he was- in actual possession of the land, claiming it under his purchase,' cultivating and improving it, and digging for gold, both h'é, and his hirelings and tenants; and that Arro- . wood was 'one of his tenants, and had continued to work under him ever since. That it is true, that on the 21st of August, 1829, both Birchett and Ormond, (the former .of whom was a stranger to this defendant,) -were on the premises, and saw Falls and his hands collecting ore, and became fully aware of its richness, and the great probable value of the miné'; and, no doubt, formed the design then of purchasing from Carpenter, and .may. have thought they would hold the land, if thfey could, get-his deed, notwithstanding the contract with Falls; ¡is they, after getting the deed, insisted on it as-a good title,, because .it was. the first, and a warranty deed, and said that Carpenter and Falls ■ might settle the dispute upon their contract betwéen themselves. But the answer denied positively that this defendant assented to, or had the least knowledge of their intention to purchase, or even suspected it, until he heard in the evening of the next day, the 22d, that they had gone to Carpenter’s for that purpose. The answer stated, that both Birchett and Ormond conversed with this defendant, and neither of them intimated such an intention; but, that on the contrary Birchett applied to him for a lease; and denied that he subsequently expressed his satisfaction at their purchase, but so far from it, that upon hearing that such was their business, he set off early on Sunday morning, the 23d of August, to Carpenter’s, to put him on his guard, and prevent him from making a contract: that upon getting there, he heard for the first time, that they had obtained a deed ; and was also told by Carpenter of the misrepresentations (as charged in Falls’s original bill,) made to him by those persons, as to gold being on the land, and also that this defendant was willing to give up his contract, and would have come with them, and brought up the bond, had he not been confined at home by sickness; and that, upon Carpenter’s expressing a desire to postpone a contract, until he could consult this defendant, who was, as he considered, entitled, Birchett and Ormond assured him, that he, Falls, had agreed with them to give up the land, and all claim on Carpenter for his improvements; all which representations the answer affirmed to have been false. The answer then stated, that, upon hearing the truth from this defendant, Carpenter declared that he had been imposed upon, and that he would never receive the money from Birchett and Ormond ; and in a few days sent their bonds to them by his agent Adderholt, and demanded his deed : that he, Falls, returned to the land, and went the next day to work the mine, when he was prevented by Dixon, who claimed it under Carpenter’s deed ; and that thereupon he associated himself with Wilson, and the other defendants as a co-partnership, to receive the title and work the mines: that on the last day of August, Falls and Wilson offered to settle with and pay. Carpenter, who expressed a perfect conviction that he had been imposed on respecting Falls’s giving up or abandoning the contract, and a readiness on his part to comply with it; but desired time to send to Birchett and Ormond for his deed, which he wished to get up; and that on their refusal, he said that he would accept the payment from Falls, and did so, as stated in the bill, on the 2d of September, 1829; it being then understood, that Falls, Wilson and others would file a bill against Carpenter; Birchett and Ormond, to have their deed surrendered, or' obtain a conveyance. The answer then asserted that Falls was never out. of possession of the land; but admitted that Ormond, Birchett and Dixon were in possession of a part of the gold mine for a few days, until they were evicted as alleged in the bill. ■The answer then set forth a statement of the number of hands engaged in the service of the defendants in working the mines, the gold collected, and the mode of working it.</p> <p>At Fall term, 1832, the heirs of Carpenter also filed their cross-hill against Falls, and those claiming with him, and against Birchett, and those claiming with him, to rescind the contract with Falls, and also for a reconveyance from Birchett and Ormónd and others; upon the ground, as to the first, that it'had been abandoned, by Falls not making the payments stipulated, and by reason of his insolvency, being unable to make them, except from the great and sudden increase in the value of the land; and that it had been rescinded by express verbal agreement ; and that Carpenter had been surprised into receiving the payment on the 2d of September, 1829, he being incapable of business from age, infirmity, ignorance and weakness; and that at, any rate, as he had not made a deed to Falls, he ought not to be held obliged to do so, since the value of the lands had accidentally 'increased so immensely : and as to the latter, for the causes of fraudulent concealment and misrepresentations, and, hurrying into the bargain and conveyance before set- forth in the bill of Falls and others, and in' the. answers of the Carpenters thereto.</p> <p>To this bill, Falls put in'an answer substantially the same with that to the cross-bill filed by Birchett and others against him, adding, that when he went to Carpenter’s in August, 1829, he carried and showed to him one of the best specimens of ore found in the mine, and made a full disclosure of its extent and richness, as far as then discovered; and that Carpenter was dissatisfied only with Birchett and Ormond for their deception practised on him, but was perfectly satisfied with his conduct, and expressed his willingness to make him the title as far as he could ; and that he received the payment on the-2d of September, without the least influence or menace from any person; and voluntarily, because he thought it right that the deed to Birchett and Ormond should be cancelled, and a conveyance made to Falls, and that he was then in the full enjoyment of his faculties: that the value of the mines was greatly over-rated, for that shares of one-tenth part sold several months afterwards at three hundred dollars, and it was a subsequent discovery that enhanced the. value to a large but uncertain amount: that when his bonds fell due, he owned unincumbered land in the county, besides that purchased of Carpenter, worth two thousand dollars, which was known to Carpenter, who neither wished to rescind the contract, nor abandoned it, nor would have let Falls do so.</p> <p>Birchett and Ormond also answered this bill to the same effect with their answer to the original bill of Falls and others; admitting further, that their principal object in buying the land was the prospect of gold, and that the spot where the gold was then found (which they then thought was vacant,) was included within the lines of the Carpenter land, which had been sold to him by the party, Robert Dixon; and stating also that that vein turned out to be of little value, but that several months afterwards another of great value was discovered in another part of the land: that Carpenter expressly declared that he and Falls had rescinded their agreement; and that he readily contracted with them, and sent for Adderholt, his friend and neigh-bour, and ordinary adviser’, to draw the writings, who came and did so; and that before he executed them, Dixon arrived and informed him that there was probably gold, to which he replied, “ he did not care, and hoped there might be; that if there was he did not want it, but wanted money to pay his debts, and put his mind at restthat he was perfectly competent to business, and had the assistance of his confidential adviser, Adderholt.</p> <p>To the answers in each of the causes, replications were entered, and a large mass of testimony taken by all the parties.' The most important, were the depositions of Adderholt, the person mentioned in the pleadings, which were taken several times by the parties respectively.</p> <p>That witness stated, that he was the friend and near neighbour of Carpenter, with whom he generally advised upon matters of business, and on whom he called to do his writing: that he drew the contracts between Carpenter and Falls; and that he knew that Falls paid corn and rye in 1827 and 1828, though he could not state the precise amount of his own knowledge; and that he also paid a note of Carpenter’s to John Falls for twenty-six dollars: that it was agreed the small bond should be first paid, and any surplus should be applied to those given upon the last bargain for the price of the land. He further stated, that on the 22d of August, 1829, Ormond came to his house, and stated that he and Birchett had bargained for the land, and that Carpenter had sent for him to draw the bonds and deeds; that he went, and on the way asked Ormond if Falls was there, and he said not: that he then asked if they had the bond to Falls, to which he also replied, no, and that they had been to see him, but that he was intoxicated continually. The witness then remarked to him, that Falls or the bond ought to be there; and Ormond stated that Birchett was with him the day before, but that he was so stupidly drunk they could do nothing with him. The witness asked if they had found gold on the land, and Ormond said, not as he knew; and that he and Birchett wanted to set up a mill and store on the land. Upon their arrival at Carpenter’s, the terms of the bargain seemed to have been settled; but Carpenter asked him what he thought of the trade; and upon his saying, that he thought Falls or the bond ought to be there, Carpenter observed that he thought so too. Birchett or Ormond then said, there was no danger; for as Falls had not paid his bonds, Carpenter’s bond was void. When •the deeds were drawn, Carpenter hesitated to sign them, and said he did not like to do so without Falls or the bond; when Dixon, who had then arrived, said that the bond, was void and there was no danger. It was understood by all parties, that Falls was then in possession ; and the witness then heard of no other person who was. After Dixon’s remark, Carpenter executed the deeds ; and in a little time Birchett or Ormond asked how they were to get possession, to which Carpenter replied, “ You must see to that yourselves.” Both Birchett and Ormond denied at that time that they knew of any gold on the land; and on that occasion, Carpenter said he had no persons to work gold mines, and did not care for them, but he wished they might find one; that what he wanted was his money for the land which, he believed, he could never get Falls to pay him; and Birchett or Ormond then said, there was no doubt Falls would give up the land and come to a settlement. The witness stated that Carpenter was a weak man, and not very competent to business from age and intemperance; and was not entirely sober on that day ; and upon being asked why, as his friend, he did not postpone the business until the next day, he replied, that he had great confidence in Ormond’s integrity, and thought every tiling fair; and he himself became their surety in the bonds to Carpenter for the purchase-money. The witness further stated, that he had considered Carpenter’s “ bond dead,” because Falls had not paid; and that he had several times told Carpenter so, but always advised him not to sell to any other person before he took it in: that this opinion was founded on the belief that the bond provided on its face that if Falls did not pay his bond when due, Carpenter should be discharged; but that upon seeing the bond, he found that he was mistaken. Two or three days afterwards, Falls and Wilson came down to pay Carpenter, who again sent for the witness to make a settlement for him. Carpenter complained of being deceived by Birchett and Ormond, and was unwilling to receive the money from Falls until he could get up his deed. They however, made a statement of the payments before made; which discharged the small bond and a hundred and thirty-one dollars of the purchase money, besides nine or ten dollars allowed as interest for the payments in advance. Carpenter asked Falls to wait until he could send to Birchett and Ormond, which was acceded to; and the witness went with their bond, and requested them to give up the deeds, as Carpenter alleged that he had been imposed on, and wished to have no difficulty with Falls and Wilson. Ormond was then willing to' surrender the the deed, but Birchett and Dixon refused. That he returned, and on the 2d September the settlement with Falls was completed, and Wilson paid six hundred and thirty-five dollars and sixty-two and a half cents in cash, and offered to pay the residue, but Carpenter requested him to keep it, and give his bond, as he wished to keep that at interest. Carpenter delivered the money to the witness for safe keeping; but in a few days took two hundred dollars; and afterwards lent the witness on his bond three hundred dollars more; and the residue the witness paid to the administrators after his death. The witness stated, that when he went to get the deed from Birchett and Ormond, the latter admitted that the conversations with Carpenter, before Adderholt was sent for, “ were or might be sufficient” to make him think they would have brought Falls or the bond, if he had not been too drunk; and Ormond afterwards acknowledged, that they, told Carpenter that they, Birchett and Ormond, would run all risks about the bond to Falls. Birchett also admitted to him, that before he bargained with Carpenter he had tried to get a lease from Falls, and could not; but Dixon said it was not from Falls, but from one Crane who then had a lease from Falls.</p> <p>It clearly appeared upon other proofs that Falls had been in possession from 1823 up to August, 1829; and that he or his tenants lived on the land, and had parts of it in cultivation ; and, particularly, that some weeks before Birchett and Ormond’s purchase, he had applied to R. M. Crane (a witness for Birchett and Ormond) to borrow five hundred dollars to pay to Carpenter; saying then, that he had paid about one hundred dollars towards the land, and if he could raise five hundred dollars more Carpenter would wait with him; and to induce Crane to make the loan, he offered to lease to him the land in dispute, and to mortgage other land, worth twelve hundred dollars, and also this as a security, and did make a lease of part of the land to Crane; and also that on the 18th of August, 1829, he leased four acres to Riley Ai'rowood, to be worked for gold; on which the lessee proceeded to work, and the ore was found which Birchett and Ormond saw.</p> <p>Thomas Dixon, a son of Robert Dixon, who wTas a party, stated, that he heard Falls say, in- the Spring of 1829, that “ he expected to give back the Carpenter land and also heard F. Carpenter, Jr. say, that in the Spring of 1829, “ his father had sent him to Falls to see if he would pay or give up the land, and that he got no money but he did not state that Falls agreed to relinquish the land.</p> <p>Hugh Patterson stated, that in the Spring of 1829, F. Carpenter, Jr. brought a message to Falls, and witness saw them conversing, but did not hear the particulars; and that next morning Falls said, that “ he must go up in a few days and settle with Mr. Carpenterbut whether he meant to settle for the corn or pay for the land, the witness could not state. A few days afterwards, Falls was very drunk, and was complaining of Dixon having gained an expensive law suit for land against his father, and said that he must give up the Carpenter land, and try Dixon himself.</p> <p>Jacob Starnes stated, that several days before Birchett and Ormond purchased, Falls had made leases to Arro-wood and others, and they proceeded immediately to work, and that those leases were publicly known: that on the day Birchett and Ormond purchased, Falls mentioned to the witness that “ they had gone to purchase the land and gold mine in dispute.”</p> <p>John Hullett stated, that in the fall of 1828, as he thought, though it might be in 1827, Falls delivered one load of corn to Carpenter, when the latter remarked, “ You have come nearer paying the interest than I thought you hadand the balance of interest was then stated to be between five and ten dollars: Falls said it was less than he had expected, but that he should never be able to pay for the land, and that Carpenter must sell it if he could, and pay himself: that no person was present but the witness and Carpenter and Falls; and this was the only payment he knew of.</p> <p>Two other witnesses proved, that in October, 1828, F. Carpenter, Sen. offered to sell the land to Ormond, and said that Falls would not even pay the interest; and that in the spring of 1829, Carpenter again sent word to Ormond to come and buy the land, as he could get nothing from Falls; and F. Carpenter, the son, said that Falls would give up, and had told him to sell the land. Falls was not present at, nor informed of,, either of those conversations.</p> <p>To the discredit of John Hullett, many witnesses were examined, who said that he wras not credible; and other witnesses proved that the last payment was not made by Andrew Falls, the party, but by-John Falls, who delivered four loads of corn in 1828, while Andrew was in South Carolina; and that the delivery of the corn by Andrew himself was in 1827.</p> <p>Benjamin S. Johnston stated; that a short time after the sale to Birchett and Ormond, Carpenter informed him that when they proposed to purchase, they stated to him that Falls had consented that they should, as they intended to establish a mill and store which would be convenient to him, residing on his own land, which adjoined; and that he, Carpenter, told them, that he did not think it right to sell to any person after having agreed to convey to Falls; but that upon receiving the assurance before-mentioned, and believing Ormond to be a very honest man, he thought he might do so; and that he would not have conveyed to Birchett and Ormond if he had not .believed it was approved by Falls.</p> <p>Richard M‘Kee, a nephew of Carpenter, stated that two or three weeks before Carpenter died, and when he was ‘‘fully at himself,” he stated to the witness, that he told Birchett and Ormond that he had sold to Falls, who held his bond ; and that Ormond replied, they had seen Falls, and he did not want the land, and had told them to go and purchase : that he, Carpenter, would still do nothing until Adderholt was sent for, who said, w’hen he came, he thought the bond for title was out of date: that putting confidence in Ormond, and thinking the bond void, he made them a deed ; but that he soon learnt from Falls that he had not given his consent to Birchett and Ormond, and therefore he received payment from him, and was willing to make the title to him.</p> <p>Robert Dixon was, after his release and disclaimer, examined by Birchett and his associates, under an order, subject to all just exceptions. He stated that those persons did not know that the gold found was on the Carpenter land, but they believed it extended to it; and that he told Carpenter, before he signed the deed,, that he, the witness, expected there was gold on the land, as some had been found on the piece he had that day entered, on the branch just below. He also stated that, in the winter before, at which time gold had not been found, Falls told him that he could not pay for the Carpenter land without selling a tract devised to him by his father; and that he would rather give it up than to sell his father’s old place. In a few weeks afterwards, Carpenter told him that Falls had given him up the land, to make his own out of it; and desired him to let Ormond know it, and request him to come up and buy. Upon being asked whether Falls did not tell him that he had actually given up the land, the witness replied that he did not, but only that he would have to do so.</p> <p>There was also much testimony as to Falls’s circumstances; in which the witnesses expressed opinions somewhat at variance. Upon the whole of it there was no doubt of his solvency. When he made the contract, he had but little property, and was a young man living with his father, who was a farmer in easy circumstances; and Falls could himself get credit, from the general confidence in his honesty. He added somewhat to his property, and contracted debts; and in the early part of the year, 1828 his father died and left him lands and a slave, worth about two thousand dollars, but somewhat encumbered ; so that Falls’s clear estate, after discharging his father’s debts, and his own, (exclusive of the lands then in dispute, and the price to be paid for them,) was, in 1828 and 1829, of the value probably of twelve or fifteen hundred dollars.</p> <p>These cases were brought on, and argued together at very great length, by Badger, for Falls and others; Thompson (of South Carolina), Deoereux and Iredell for Birchett and others; and by Pearson and Winston for Carpenter’s heirs. We can give-only a sketch of the arguments for the different parties.</p> <p>If, when Birchett and Ormond made their purchase, Falls had a subsisting contract of purchase with Carpenter, he has a right to a decree for specific performance; and it is sufficient to show that Carpenter must make a title, though Birchett and Ormond had no notice. ■ Carpenter has received no money, but only securities for Birchett and Ormond’s purchase, which may be surrendered. If they had paid, it is confessed that they had notice; but if not, there can be no objection to the relief sought. Falls having had an equitable right against Carpenter, how has it been lost? Several modes have been alleged in the bill of Birchett and others. The first is, that by his delay, Falls has lost his right to call for a specific performance, and must be left to his remedy at law; in other words, that he cannot call for a specific performance, unless he can show that he has been prompt in the performance of his stipulations; and that otherwise, he will be barred, by lapse of time. There are said to be two classes of cases for specific, performance; 1st, where time is of. the essence of the contract; and 2nd!y, where it is not. The non-performance of the contract does not make it absolutely void, but only voidable by the party, with whom it was made. At law, when one party has failed, he cannot support an action; but it is otherwise in a court of equity. The party who is to receive performance may give notice that he insists upon it, and then the court will consider the time as of the essence; but if he does any thing recognising the contract, that will prevent him from resisting a specific execution. Sug. on Vend. 288. Time is particularly attended to, in the sales of reversions — where the purchaser waits until a change of circumstances,— and where the vendor insists upon avoiding the purchase on account of the delay on the part of the purchaser. Green v. Wood, 2 Vern. 632; 5 Yin. Abr. 538, pi. 18. Spurrier v. Hancock, 4 Yes. jun. 667. Pope v. Simpson, 5 Yes. jun. 145. Coward v. Odingsale, 2 Eq. Ca. Ab. 668, pi. 5. Maine v. Melbourne, 4 Ves. jun. 720. In looking into these cases, it appears that the court will not execute an agreement for one who has shown a backwardness to perform his part, particularly when the circumstances are altered. In reversions, time is an essential part of the contract, but no case can be shown, where, upon the sale of land, the purchaser has taken possession and given satisfactory securities, he can be refused a specific execution, on account of his delay only. The vendor may, indeed, ask a performance, and, upon a neglect, treat it as a nullity. But if time is of the essence of the contract, the delay has been waived in the present case by the vendor. Pinche v. Cuidéis, 4 Bro. Ch. Rep. 328. Lloyd v. Collet, 4 Bro. Ch. Rep. 468. Hoggart v. Scott, 5 Eng. Con. Ch. Rep. 504. Seton v. Slade, 7 Yes. jun. 267. In this last case, the Lord Chancellor considers time as not of the essence of the contract., but that if it were, the act of a party might dispense with it. Hudson v. Barton, 3 Mad. Ch. Rep. 440, or 227 of the American edition. Time may be of the essence of the contract, but lapse of time may be waived, if, after the expiration of the time, the contract is recognised. Where time is made by the parties, or from the nature of the subject is, of the essence of the contract, a party after the time must not treat it as valid. Carpenter could not, under the circumstances, have objected to Falls’s claim to a specific execution. To have enabled him to do so, he ought to have sent, back the notes, demanded the bond to make title, and insisted that the. contract was at an end. If he intended to avail himself of the non-payment, he ought to have given notice, and proposed to restore all things to their former condition ; and distinct and unequivocal notice should have been given that he considered the contract at an end. But up to the time of the sale to Birehett and Ormond, Carpenter considered the contract as still subsisting. ^ Birehett and Ormond made false representation.? to Carpenter, that Falls was ■willing to give up the contract; and upon this, Carpenter consented to sell to them. Upon whatever grounds Carpenter had a right to put an end to the contract wdth Falls, if he did not do so, and Birchett and Ormond took a conveyance from him, knowing of Falls’s rights, they are bound by any thing which had taken place, or might thereafter take place between Falls and Carpenter. And Carpenter had a right to demand his deed from Birchett and Ormond, in order that he might clear the equitable title conveyed to Falls.</p> <p>In this ease, time was not of the essence of the contract, and even if it were, it only gave to Carpenter the right to revoke ; and it appears, that he not only did not revoke, but even recognised the contract as subsisting; and as Birchett and Ormond purchased under false representations they are bound by all the equities against Carpenter.</p> <p>It is said, however, that Falls is not entitled to call for a specific performance; not only because of his delay, but also on account of the total renunciation of the contract on his part. If a renunciation can be made, in such a case, by parol, it must be a total renunciation of the whole contract, and a restoration of all things to their former condition; and this must be shown by clear, distinct and unequivocal evidence. Price v. Dyer, 17 Yes. jun. 356. Sugden on Vendors, 113. If any thing were done under the agreement, it must appear that it is undone, and that the parties are restored to their original situation.</p> <p>; — We shall contend, that on the 22nd day of August, 1829, Falls had.no right to a specific performance from Carpen-penter; for if he had, as Birchett and Ormond purchased with notice, they cannot have a decree. But before discussing that proposition, we shall insist, that the bill of Falls is so essentially defective, that it must be dismissed. A bill for specific performance ought to contain every allegation necessary to be proved on the hearing. This bill does not allege, that Falls paid, or offered to pay, or was ready to pay for the land, on the 22nd of August, 1829, when Birchett and Ormond purchased. He alleges only that Birchett and Ormond knew that Carpenter had his notes. In support of this objection, and also to show that it is too late to amend, we refer to Lyon v. Tallmaclge, 1 John. Ch. Rep. 184. Hall v. Maltby, 6 Price’s Rep. 240. Flint v. Field, 2 Anst. 543. 2 Har. Ch. Prac. 334. 'Equity Draughtsman, 12. 2Mad. Chan. 168. His allegation that he paid Carpenter afterwards, is not sufficient. Banks v. Garneal, 10 Wheat. 188. Harding v. Handy, 11 Wheat. 103. Chit. Cas. 274, 2 Chit. Dig. 767, tit. Pleading, sec. 2, let. A. The bill does not propose to pay the negotiable securities which Birchett and Ormond gave for the land.</p> <p>We come now to consider Falls’s right to a specific performance. All the heads of equitable jurisdiction, are reducible to those of accident, fraud, mistake and trust. The right to a specific performance, is founded upon the idea of a trust. Where one party has performed his part of an agreement, he has a right, as trustee, to call for a specific execution from the other. This is not extended to chattels, because the law can give adequate relief, and equity will not therefore interfere. A party performing being considered as trustee, if he has neglected performance of his part, he can have no right to a decree, unless he show some other ground of equitable relief, as that he was prevented by accident, or the fraud of the other party. From this it may be deduced, that time is of importance in equity, but that it may be dispensed with when other equitable considerations interfere, even where it is made absolutely requisite by the parties. The most usual of these equitable considerations is a waiver by the other party of his right to declare the contract void. The acts of waiver must be alleged in the bill and proved, in order to give the Court jurisdiction upon the ground that it would be a fraud in the party to refuse a specific execution after such waiver. Hatch v. Gobi, 4 John. Ch. Rep. 559. But the mere default of a party alone cannot give him a right to relief. Instance the case of a tenant permitting the premises to go to ruin by default. Hill -v. Barclay, 18 Yes. Jun. 63. Reynolds v. Pitt, 19 Ves. Jun. 143. White y. Warner, 2 Mer. 460. Bracebridge v. Buckley, 2 Price, 200. From these cases it is insisted, that where there is no fraud, accident or surprise, a default will not be overlooked. The cases of Pinche v. Curteis, Seton v. Slade, and Hogg art v. Scott, cited by the counsel for Falls, are all cases of waiver by the defendant. Time is a law imposed upon the parties by their own act, and he who has the right to insist upon it, may waive it, but his waiver must be charged and proved. Ogiloie v. Foljambe, 3 Mer. 52. Levy v. Lindo, Ibid. 81. These principles and cases are destructive of the position that notice must be given of the intention to rescind the contract, before it can be done. Harrington v. Wheeler, 4 Ves. Jun. 686. Hatch v. Cobb, 4 John. Ch. Rep. 559. A party in-default seeking an equity, may be repelled by a greater equity on the other side, as in the case of rise in value, which alone will be a bar to a specific execution. Alley v. Deschamps, 13 Ves. Jun. 225. Brashier v. Gratz, 6 Wheat. 528. The time for performance is limited to the maturity of the notes, where .no other time is fixed. O’Rourke v. Percival, 2 Ball & Beat. 60. Laiorenson v. Butler, 1 Scho. & Lef. 13. Benedict v. Lynch, 1 John. Ch. Rep. 371. Martin v. Michell, 2 Jac. & Walk. 428.</p> <p>A party who seeks a specific performance, must be able and willing, and must have been always able and willing to perform his part of the contract; and, in this case, if Falls was at any time unable to comply with the contract, his right is gone. It is contended, that he was at one time insolvent, and therefore that there was then no mutuality between the parties. Brashier v. Gratz, ubi supra. Ome-rod v. Hardman, 5 Ves. Jun. 722. Guest v. Homfray, ibid. 818. Heaphy v. Hill, 1 Eng. Con. Ch. Rep. 332. It is said that the fraud perpetrated by Birchett and Ormond upon Carpenter, in representing Falls as willing to surrender, communicates to him all the advantages resulting from Carpenter’s willingness to sell. But this cannot be so. Falls, Wilson & Co. made of Carpenter substantially a new purchase; paid no more than Birchett and Ormond; took by a later deed; had no equity against Birchett and Ormond, whose claim to the land was at least equal. to to theirs; and yet it is contended that Birchett and Ormond’s legal estate is to be taken away and given to them. If Falls had a right, Birchett and Ormond did not affect-it; if not, nothing ex-postfacto, gave him one.</p> <p>This brings us to the question, whether any fraud was practised upon Carpenter. We contend, 1st. That there was no surprise upon Carpenter, he had the aid of his confidential adviser. Pratt v. Barker, 2 Eng. Con. Ch. Rep. 1: had a distinct object in view, to wit, the sale of his gold mine, and if he chose voluntarily to sell it at an undervalue, equity will not relieve him. Willis v. Jernigan, 2 Atk. 51. Smyth v. Smyth, 2 Mad. Ch. Rep. 75. 89. 93. 1 Fonb. Eq. 117. 2ndly. There was no misrepresentation as to Falls’s willingness to give up the contract. He was in fact willing, and Carpenter knew all about it. It was at best but matter of opinion upon a question of law, and that opinion was correct. But if not, unless proved to be designedly false; it does not vitiate. Lewis v. Jones, 10 Eng. Com. Law Rep. 393. 3dly. The statement about the mill and store was harmless, if untrue. It had no effect upon the relation between Carpenter and Falls. A falsehood which does not affect the judgment, and produces no damage, will not vitiate a contract. Vernon v. Keyes, 4 Taun. 488 ; S. C. 12 East, 632. Fellows v. Lord Gwyder, 2 Eng. Con. Ch. Rep. 61. 4thly. As to the alleged false suggestion about the gold mines, it appears that it had no influence upon Carpenter, as he repeatedly declared that he did not care for gold mines. In bills for specific performance, vague declarations are regarded merely as a ground for putting a party upon his guard. Trower v. Neiocomhe, 3 Mer. 704. Scott v. Hanson, 2 Eng. Con. Ch. Rep. 7. The mere inadequacy of value is not sufficient to prevent a specific performance. White v. Damon, 7 Yes. Jun. 30. Still less will it, if the value is increased bv a future contingency. Ramsbottom v. Parker, 6 Mad. Ch.. Rep. 5. The law does not require a disclosure of every thing, except in the case of insurance. Its object is to excite that diligence which is necessary to guard against imposition, and to secure that good faith which is necessary to the intercourse of society. 1 Fonb. Eq. 380. Harris v. Kemble, 2 Eng. Con. Ch. Rep. 61.</p> <p>If one man sells brass to another for gold, honestly sup.posing it to be gold, and makes no false affirmation, the purchaser is bound to pay the price stipulated, though he supposed he was buying gold. Seixas v. Wood, 2 Cains’ Rep. 48. Chandler v. Lopez, Cro. Jac. 4. Snell v. Moses, 1 John. Rep. 96. Sweet v. Coldgate, 20 John. Rep. 196. Holden v. Dakin, 4 John. Rep. 461. Oneida Co. v. Lawrence, 4 Coweir’s Rep. 444. Welch v. Carter, 1 Wend. 185. Culver v. Avery, 7 Wend. 380. Pickering v. Dawson, 4 Taunt. 778. Schneider v. Heath, 3 Camp. N. P. Rep. 505. Early v. Garret, 17 Eng. Com. Law Rep. 522. And the converse of these cases must be true, that if one sell gold for brass, and the purchaser knows it to be gold, but makes no false suggestion to continue the seller in his error, the purchase will be'good.</p> <p>It has been contended on behalf of Falls, that as he once had a valid contract of purchase with Carpenter, it is incumbent upon Carpenter to show that his right to a specific performance has been lost. In answer, we say, that there never was any right to a specific performance, for although a contract did subsist, the right to a specific execution never arose, as that depended upon a faithful compliance with the terms of the contract. It is now contended by us, that time is an essential part of the contract of purchase; but it is admitted.that it may be dispensed with, like any other term of the contract, by the conduct of the parties. There is a difference in this respect between the Courts of law and those of equity. The first looks upon every part of the contract as essential; but the .latter will not do so, where the parties themselves do not regard it as such. Setan v. Slade, 7 Yes. Jun. 267. Hudson v. Barton, 3 Mad. Ch. Rep. 440, or 227 of the Am. ed. Harrington v. Wheeler, 4 Yes. Jun. 686. Lloyd v. Collet, in note to Harrington v. Wheeler, 489. It is not necessary that the vendor should declare the contract to be at an end, upon the default of the vendee. Brashier v. Gratz, 6 Wheat. 528. Hatch v. Cobh, 4 John. Ch. Rep. 559. When one party violates a contract, the other is at liberty at once, ancj ever after to consider it at an end, unless be does something to confirm it. The reasons given for requiring a strict compliance in the sales of reversions, apply precisely to this case. The object of such sales is to raise money, which is the very object expressly declared in this case. Pratt v. Carroll, 8 Cranch, 471. As to the contracts being discharged, it is said that though it may be done by parol, yet there must be clear and distinct evidence of such discharge. This objection does not apply to this case, because here is such evidence. The giving possession before the contract is violated, has no effect upon the right to specific performance. There is a distinction between time for the payment of money, and time for making title. The cases are mostly upon delay in making title, there being less necessity for strictness in making the title at the very time fixed on. There can be no difference between declaring a contract void upon non-performance, and requiring a thing to be done in a certain time. The first is but a conclusion of law upon the last.</p> <p>The receipt of the money by Carpenter, was not a confirmation of the contract, if it be considered as only voidable, nor did it make a new one, if it were void. He was not such a man as a contract could be made with, unless it be shown that he knew what he contracted for, and understood his rights; and that'no advantage was taken of him. He was an infirm old man, labouring under distress, and was persuaded to do what he did by fear of the consequences with which he was threatened. The receipt of the money, was therefore, not a confirmation, because he did not know his rights, and was labouring under a mistake as to his obligations. Murray v. Palmer, 2 Scho. & Lef. 486. Crow v. Ballard, 3 Bro. Ch. Rep. 117. Wood v. Downes, 18 Ves. Jun. 122. Cockerell v. Cholmely, 4 Eng. Con. Ch. Rep, 494.</p> <p>The transaction by which Wilson and others agreed to purchase shares in the land of Falls, and to assist in the prosecution of a suit therefor, was an unlawful act, it being maintenance, and therefore void. Birchett and Ormond had purchased, and were in possession when this took place. Coke Lit. 379, a. Wood v. Downes, ubi supra. Wallis v. Duke of Portland, 3 Ves. Jun. 493. Steuens v. Bagwell, 15 Yes. Jun. 139. Siueet v. Poor, II Mass. 549. The agreements were contractsffor both maintenance and champerty. Haw. PL Cr. B. 1, ch. 27, page 455, sec. 4, 42, 38, page 464 and 465, sec. 13. King of Spain v. Machado, 3 Eng. Con. Ch. Rep. 643, and Gulp v. Pleydell, cited in that case. When it appears that some of the plaintiff’s have become such by unlawful means, the bill will be dismissed as to all.</p> <p>We come now to consider Birchett and Ormond’s claim. The concealment of a material fact by a vendee, makes the contract void. Concealment by-, the vendor would certainly avoid the sale. A person who makes an assertion which turns out to be untrue, will be responsible therefor, if the other party was misled. We contend, however, for the broad ground that a fraudulent concealment, or an untrue affirmation will avoid a contract. Mellish v. Bat-teax, 1 < Peak’s N. P. Ca. 115. Shirly v. Stratton, 1 Br. Ch. Rep. 440. Laidloiuv. Organ, 2 Wheat. 178. Dean v. Raston, 1 Anstr. 64. Schneider v. Heath, 3 Camp. N. P. Rep. 565. Birchett and Ormond were guilty of misrepresentations in two particulars, to wit, in a false affirmation of the object of their purchase, and in saying that there was no gold. Fellows v. Lord Gwyder, 2 Eng. Con. Ch. Rep. 61. Philips v. Duke of Bucks, 1 Vern. 227.</p> <p>But it has been said that Carpenter is entitled to no relief on the ground of imposition, because of his having had a confidential adviser to assist him. This can have no effect where the adviser was imposed upon, as well as the principal.</p> <p>The contract with Birchett and Ormond should be set aside, on account of the inadequacy of the price. Stilwell v. Wilkins, 4 Eng. Con. Ch. Rep. 132. Morse v. Royctll, 12 Ves. jun. 354. Coles v. Trecothic, 9 Ves. jun. 246-Heathcote v. Paignou, 2 Br. Ch. Rep. 167.</p> <p>It is insisted, on behalf of Falls, that on the 22nd of August, 1829, he was entitled to a specific execution of the contract with Carpenter, in the first place, entirely independent of any evidence that Carpenter then considered the contract as subsisting, and was willing to perform it; and, in the second place, because Carpenter did, in fact, consider it as then subsisting, and was willing that it should be executed.</p> <p>It is a mistake to suppose that courts of law and equity adopt different rules upon this subject. The common law will fix the time when a contract is to be executed, when it is not stipulated by the parties, according to the nature of the contract. When no time is fixed, it must be done in a reasonable time. Equity considers what is the substance of the agreement, and executes that, without regard to immaterial stipulations. It considers whether time may or may not be a necessary or essential term in the agreement. Time cannot be made of the essence by the stipulations of the parties, but may or may not be of the essence, on account of the nature of the thing; as in the case of stock, which is of a fluctuating nature. The meaning of parties making time of the essence of the contract, is only that one party may avoid it on account of the default of the other. However strictly the time may be stipulated for, the court of equity will not regard it as essential, if, from the nature of the thing, it is not so. A party, against whom a default is committed, must be active if he wishes to avoid it. Jones v. Price, 3 Anstr. 924. Lloyd v. Collet, 4 Br. Ch. Rep. 368. If a party, immediately after a default, insists upon his legal rights, he may avoid the contract. It is laid down, in Sugden on Vendors, that the rule, as to time, applies to vendor as well as to vendee, and that, if a title cannot be made at the hearing, it is sufficient. There is a difference in the purchase of an estate, whether it is intended to be kept, or to be resold; the object of the purchase making the difference, and time may or may not be essential accordingly. In the present case, no time is specified for the payment of the money; the bond for making title says; that when the money is paid, deeds shall be executed. The meaning is, not that if the notes are paid when they fall due; but when they are fully paid up, I agree then to execute a conveyance. The securities may be collected, or not, at the option of the vendor, and the title retained only as a security for their payment.</p> <p>Where parties differ as to the construction of an agreement, and lie by, it is evidence of an abandonment. Mil-ward v. Earl of Thanet, note to 5 Yes. 720. Length of lime, except as evidence of abandonment, ought to have no effect; and when a delay has taken place, notice must be given to the defaulting party, and then, if he fails, the contract may be avoided. Heaphy v. Hill, 1 Eng. Con. Ch. Rep. 332. The specification of a day when the contract is to be performed, does not make it of the essence of the contract, where it is not so in the nature of the thing, unless one party notifies the other, that he shall expect the performance at the time, and shall consider the contract void upon failure. Reynolds v. Nelson, 6 Mad. Ch. Rep. 290. Nor are the cases of Hatch v. Cobb, Benedict v. Lynch, Harrington v. Wheeler and Alley v. Deschamps, at variance with this doctrine. Insolvency makes no difference. Newland on Contracts, 256.</p> <p>As to the objection of the value of the estate being increased by the finding of the gold-mine; equity considers it as Falls’s estate, and any accession of value is to his own estate. If, indeed, he had been notified to perform, and had then delayed, and a mine had been discovered, he could not have called for a specific execution. Supposing Carpenter to have the right to say, that the contract was at an end, is his silence sufficient to avoid it ? Or could he hold it void, while he held the notes, and did not offer to surrender them ?</p> <p>It is true, that deeds or bonds, which are void upon the ground of undue influence in obtaining them, cannot be confirmed, while the same influence continues. But all this stands upon the ground of fraud, and is totally inapplicable to the case of a contract, the effect of which has ceased from laches, but which may be set up again, by the party’s waiving his right to take advantage of the default.</p> <p>The relief against Birchett and Ormond, is founded upon this ; that they purchased with a knowledge that Falls had a contract for the purchase of the land; that he was in possession ; and that he intended to insist on the fulfilment 0f his contract; they therefore became trustees for him. The receipt of the money, by Carpenter, establishes a perfect right against him. Even at law, if he had received the money, and then refused, damages might have been recovered; and, in equity, a specific performance will be enforced.</p> <p>As to the alleged defects in Falls’s bill — Upon what grounds have Birchett and Ormond a right to the money 1 It appears that their notes are held, subject to be delivered up, if the decree is against them. To the objection, that no excuse for the delay, is alleged in the bill, the answer is, that there was no delay in the view of a court of equity; but if there were, it was a ground for demurrer, and is too late at the hearing.</p> <p>To the charge of maintenance and champerty, it is replied, that Falls was, in truth, in possession, and therefore could not be guilty of the offences mentioned. Or, if he were not, at most his assignment would be void, leaving his rights as they were before.</p>

The pleadings, exhibits and proofs in this cause, which were very voluminous, presented substantially the following case. — In the month of June, 1826, the defendants, Evans, Andrews, Runyon and William Ellison, associated themselves together as merchants and partners in trade, to commence business on the first of the ensuing month.

The bilí, charged, that the President of the United States, on the 18th of January, 1826, issued letters patent to one Thomas Key, upon allegation that he was the inventor of a new and useful improvement, in the mode of letting water on water-wheels. In the schedule or specification annexed to the letters patent, and forming a part thereof, and which was set out in the bill, a description and drawing of the said improvement was given.

The bill was filed against several defendants, only two of whom answered, ánd it was taken pro confesso ns against the others, who were non-residents. The case made by the pleadings and proofs,- was, that a certain negro was supposed to belong to the estate of Solomon Lee ;• after whose death an order was obtained by> his administrator for the sale of the negroes of the deceased, for the purposes of distribution.

In this case the plaintiff had obtained an injunction .■against a judgment which the defendant, William, had .against him at law.

Josiah Trotter, in the year 1792, made his will, and bequeathed as follows: “ First, all my debts to be paid. Secondly, I give and bequeath to Jane, my wife, during her widowhood, the plantation whereon I now live, with three hundred acres of land, together with' all my household goods, debts and moveable effects, as horses, cows, hogs and sheep, and one negro woman named Beck, one negro girl named Ailse.

The plaintiffs were the children and heirs-at-law of one John Edwards, who died in the year 1817, intestate. John Edwards was a non-commissioned officer in the continental service during the revolutionary, war, belonging to the North Carolina line, and had been regularly discharged.

After this cause was remanded, at June term, 1834, (see 2 Dev. Eq. Rep. 525), to the Court of Equity for Wayne County, it was continued in that Court until the Spring term of 1835, when the death of the plaintiff was suggested.

The bill charged that the plaintiff; on the 9th day of June, 1818, conveyed to Charles Simms; (one of the defendants,) one-third part of the Lot No. 18, in the town of Milton, for the price of five thousand dollars, and took from the said Simms therefor three several bonds, one for one thousand dollars,. payable the ’25th of , December ensuing; the second, for two thousand dollars, payable the 25th of December, 1819; and the third for two thousand dollars, payable on the…

William Beck made his will, which was proved by the defendants. The testator gave to his wife several slaves, and other personal property, for and during her life; and, on her death, then he bequeathed one-fifth part thereof to the plaintiff, provided he should attain to the age of twenty-one years.

After the cause was remanded to the Court of Equity for Rowan, at December term, 1833, (see 2 Dev. Eq. Rep. 380), it was continued there until October term, 1835, when the plaintiffs set the plea down for argument. His Honor Judge Norwood, fro forma, sustained the plea, whereupon the plaintiffs appealed.

Robert Carr came of age on the 10th day of January in the year 1829, and on the 8th of April following, was, by an inquisition legally taken, found to be a lunatic, and that he had been such since the month of November, 1827. Sarah Carr was appointed, by the Court, his committee.

The plaintiff, by an original bill, filed the 21st of June, 1827, against Flora Buie, and Archibald Gilchrist and his wife, charged, that he purchased in April, 1823, from Daniel Buie, (then the husband of the defendant Flora,) and his wife Flora, and from the defendants, Archibald Gilchrist and his wife Mary, certain lands at the price of fifteen hundred dollars, and that he executed to Daniel Buie two bonds for three hundred and seventy-five dollars each, and to Archibald…

This was an original bill filed 28th June, 1834, against Flora Buie, Archibald Gilchrist and his wife Mary, against Duncan Buie and Malcolm Buie, administrators of Daniel Buie, deceased, and against Daniel Gilchrist, and charges the same matter which is charged in the original bill, filed by the same complainant, on 21st June, 1827, against Flora Buie and A. Gilchrist and wife, on the decree in which he brought his bill of review on the 20th May, 1834, which has been decided…

CeRtain runaway slaves having .committed great outrages in the county of Gates, several magistrates of that county assembled at the court-house to deliberate upon the propriety of calling upon the colonel of the county to order out the militia for the purpose of apprehending them.

The plaintiff was surety to one Richard H. Hines, in a bond payable to one James S. Clark. Clark transferred this bond to one Anderson, who brought a suit on it, in the name of Clark to his, Anderson’s use; and] his beneficial interest, appeared on the face of the original writ, and on the proceeding throughout the whole process of the suit.

This case came before the court by appeal from the final decree of Strange, Judge, pronounced in the Court of Equity for Montgomery county, on the last Fall Circuit, by which the bill was dismissed.

The testator of the plaintiff, duly made and published his will, whereby he devised as follows:— “ I give and bequeath to my son Christy Arny, three hundred and fifty dollars in money.

This was a bill filed by a vendor, to subject the land sold, to the payment of the purchase money. Many facts and circumstances were stated to strengthen the plaintiff’s claim, which were strongly contested by the defendant; but which it is wholly unnecessary to state, as it was conceded that the defendant claimed under a sale made upon executions against the vendee. The case was submitted, without argument, by Morde-cai for the plaintiff, and W. C. Stanly for the defendant.

The defendant’s testator, in the year 1822, made a parol gift of slaves to his nephew, the father of the plaintiff.

The case made by the pleadings and proofs was, that the late husband of the defendant, the father of the feme plaintiff, had by his will, given the estate to his wife for life, with a remainder to his children: that after his death the plaintiff intermarried: that the plaintiff John, was at his marriage, settled upon land situate several miles from the defendant, and continued to reside there until the month of January following his marriage: that the defendant being anxious…

On the llth January, 1819, William D. Freeman, in contemplation of a marriage, which had been agreed on between himself and Harriet Guin, executed a bond to the defendants, Marmaduke N. Jeffreys and Jones Cook, in the penal sum of ten thousand pounds, with condition to be void, if within six months after the marriage, he should, by such deed as the obligees might approve, convey the whole of the property of his then intended wife, unto the said obligees, upon trust, to…

<p>Redding Simms, in the year 1823, by his will, among other things, bequeathed as follows: “ I leave to my beloved mother, Martha Simms, one negro woman, during her natural life, by the name of Sally; and at her death, I give her to Joel Simms’s lawful heirs. ¡</p> <p>“ I loan to my brother Joel Simms during his natural life, four negroes, viz., &c.; also one tract of land, &c.; and at his death, &c. I give to my brother John Simms, two negroes, &c.; also two hundred and fifty dollars in cash.</p> <p>“ The balance of my property, consisting of stock, of horses, cattle, hogs, and sheep, with my household and kitchen furniture, plantation utensils, with my crop of corn, fodder, wheat and cotton, I leave with my executors, out of which my just debts are to be paid) and the residue, if any, I give to Joel Simms’s lawful heirs; one mule excepted, which I give to Berry D. Simms.”</p> <p>Of this will, he appointed the defendants executors, who, after his death, proved the same. John Simms died before the testator. The plaintiffs are Joel Simms’s children, who survived the testator. Martha Simms, the mother of the testator, survived him; and upon her death, the negro woman Sally, was sold by the executors. The plaintiff, Berry Simms the younger, is a son of Joel, born after the death of the testator, but before that of his mother.</p> <p>The bill prayed an account of the assets of Redding Simms; and at the hearing the following questions arose :—</p> <p>1st. Whether the plaintiffs were sufficiently described so as to enable them to take under the will ?</p> <p>2nd. If they were, did the plaintiff, Berry Simms the younger, take under the residuary clause ?</p> <p>3rd. Whether the legacy to John Simms which lapsed by his death, passed under the residuary clause 1</p> <p>4th. Whether the plaintiffs, and especially the plaintiff Berry Simms the younger, took the money for which the slave Sally was sold ?</p>

Pherebee Williams, on the 20th day of November, 1827, conveyed to Joel Williams fifty-nine slaves in trust, to be divided into three equal parts: of which one-third part to be divided among the children of donor’s brother Samuel, deceased, who may now be living, and those who represent any deceased child or children, in the proportion, and after the same manner, as if they were claiming the said slaves, as next of kin, or distributees, under the statute of intestacy, of…

<p>Tins bill was filed against the defendant, as administrator of S. L. Ferrand, for an account of certain dealings between the plaintiff and the intestate, including some articles of merchandize, which had been consigned to Ferrand for sale, on the plaintiff’s account. The defendant put in an answer, to which he did not annex any account, and in which he denied all accountability, so far as the facts are known to him; but if it should be established by proofs, the answer then insists on the statute of limitations, and also on the act of 1789, for the protection of administrators; and prays the same benefit thereof, as if the same had been pleaded.</p> <p>The plaintiff replied to the answer, and the cause stood several terms, upon orders for taking testimony. At. the last term, without any order, publication, and without setting the cause down for hearing, “ the pleas were set down for argument;” and the counsel for the plaintiff further moved the court, “ that it be referred to the master, without prejudice, to take an account, with power to examine the parties on oath, and to compel them to produce such papers, as they may respectively have in their possession, as are requisite for taking such account.” The court refused the motion, but allowed an appeal by the plaintiff to this court.</p>

The bill of the plaintiff charged, that the plaintiff became indebted to the State Bank in the sum of eight hundred dollars, or thereabouts, and that Samuel Mitchell and James Currie were bound as his sureties therefor; that to indemnify his sureties the plaintiff conveyed in trust to one John B. M‘Mullin, two tracts of land, two negro slaves, his stock of horses, cattle and hogs, and all his other property : that a suit was brought by the bank against the plaintiff and his…

The bill charged, that William Kooling the elder, by his last will and testament, whereof he appointed the defendant Dunn, and others, his executors, after directing all his just debts to be paid, devised a certain tract of land, in distinct parcels, to his two sons and five grandsons, the other defendants to the bill.

On the 1st day of June, 1824, William Orme, in the name of John Simmons, to the use of Orme, sued out a warrant against Morris Ward, for the sum of one hundred dollars, due by note; on which judgment was rendered by Daniel Smith, a justice of the peace, on the 5th day of that month, for the sum demanded, and costs.

The plaintiff alleged, that in March, 1818, he purchased of one Oliver, a tract of land lying in Jones county: that he paid the purchase money, (eleven hundred dollars,) and took possession in January, 1819; and continued that possession until recently, when the defendant brought an ejectment for it, and recovered .judgment at the Fall Circuit of 1835, (1 Dev. & Bat.

Jambs Maxwell made his will, and therein appointed his wife executrix, and gave to her his whole estate, real and personal, during her life, with a discretionary authority to sell such parts of the personal estate as she might choose, with remainder at her death, as to one-third, to such of her relations as she might appoint; and as to the other two-thirds, to certain other persons mentioned in the will.

In the progress of this suit, many changes had been made in its parties, and in its character. It was at the hearing considered as one instituted by the administrator, with the will annexed, of Hugh Black, against David Ray, seeking relief upon the following case: — Hugh Black died in the year 1807; having by his will, bequeathed certain slaves to his widow Effie Black, for life, and without making any ulterior disposition of them.

The plaintiff, Barden Toler, filed his bill against Stephen Boyd, John ,C. Pender, and Blany Coor, and therein charged, that one Nehemiah Toler had obtained judgment against Him, in the County Court of Wayne, in an action of detinue, for several slaves: that he applied to the •defendants to become his sureties for a certiorari or appeal upon this judgment, to the Superior Court of Wayne: that they consented, upon the condition of being indemnified against loss: that it was…

Suits in equity between these parties were,, upon being set for hearing in the Court of Equity, for Lincoln, transferred to this court to be heard. Upon the hearing, in this court, there was the usual decree for costs, including solicitors’ fees ; and the clerk sent down to the clerk and master of Lincoln, a' certificate, according to the act of 1825.

<p>A Court of Equity will not enjoin an execution, because the defendant at law has paid it, when he might have proved that fact on the trial, and was not by fraud or surprize, prevented from so doing.</p>

The plaintiff obtained a judgment before a justice, on an attachment against Stephen Clements, for one hundred dollars, with interest from the 21st December, 1826, to the rendition of the judgment, on the 29th of January, 1829. Two dollars were paid on the same. Clements was in the state of Tennessee. The judgment was left in the hands of John J. Carrington, (the plaintiff alleges as his agent,) to have it sent to Tennessee, and collected.

John Patterson, the younger, the son of John Patterson, the elder, died in the year 1794, possessed of a slave named James. He made no will, and left no children; his father, and several brothers and sisters survived him. In the year 1820, the defendant took out letters of administration upon the estate, received the slave into his possession, and returned an inventory of him.

AndRew- Knox, by his last will and testament, duly executed, to pay lands, devised as follows: — ■“! give, devise, and bequeath, unto my beloved wife, Sarah Penelope Knox, the use of the land and buildings whereon I now live, for and during the term of her natural life; and after her death, it is my will and desire, that the said land and buildings shall be sold by my executors, and at their discretion; and the proceeds thereof to be equally divided between my four children,…

Jacob Clapp died in the year 1826, having made and published his will, by which he devised his land to his two sons, and bequeathed pecuniary . legacies to his two daughters.

The bill charged in substance, that the plaintiff, being the sole acting executor of William J. Wilson, and having shortly after the death of his testator, and in pursuance of the directions of his will, made sale of all his estate, real and personal, and having discovered that it was uncertain whether the assets would be sufficient to discharge the debts due by bond and otherwise liquidated, for the pur-posé of removing all difficulties that might arise between. himself and…

<p>In the absence of fraud, mistake, or surprise, parol evidence cannot be received, to prove that a bond, payable immediately, was not to be demanded until after the obligor’s death.</p> <p>A bond given for the amount of an account, is not rendered voluntary by the fact that the obligor had a set-off of equal amount which was waived.</p>

This suit, which was pending at the same time with the 'preceding one of Geddy v. Stainbach et al., was brought for the purpose of having a sale of certain mortgaged premises belonging to the plaintiff in that suit, to satisfy the judgment he had obtained upon the bond mentioned in that suit. The matters set forth in the bill in the preceding suit, were relied upon in the answer in this, as a bar to the ■ relief sought.

This bill was filed by John M. Dick, Daniel B. Pitch-ford, and Miles Pitchford, against Allen Pitchford, Hezekiah Pitchford, and Branch Pitchford; and its prayer was, the said Allen and Hezekiah might be decreed to surrender unto the complainant, John M. Dick, the possession of the negro slaves, Harriet, Solomon, Elvira, Sally and Frances; and to account with him for the profits of said slaves; and for general relief.

William Layden died in December 1834, having duly made his last will and testament, whereof he constituted his daughter Eliza Curtis, and his friend Thomas Newby executors; the last of whom alone proved the will, and performed the functions of executor.

Elizabeth Brasier, by her will, gave all her ne-groes to her “ executor hereinafter named, to be by him hired out annually to such person or- persons as he may think proper, and the hire of the said negroes I leave as a fund f°r Iheir support when they are too old, or unable to suPPort themselvesand after sundry particular instructions for their comfort, and for removing them to another state or to Africa, and giving several small specific legacies, she proceeded as follows:…

George White, the father of the plaintiff, purchased a tract of land of one Johnson, for which he paid one thousand five hundred dollars. He took a deed in his own name, but told the pláintiff that he had purchased it for him, and that he, the plaintiff, must aid in paying for it.

In the month of April, 1830, Jonathan Ledbetter sold to Jonathan Elms a tract of land lying in the county of Rutherford, at the price of six hundred dollars; received Elms’s notes to secure the payment of the purchase-money, and delivered to him a bond in the penal sum of twelve hundred dollars, conditioned to make a warranty-title thereto upon the payment of said notes.

This was a petition for an account of the administration of the estate of John Wright, filed by the plaintiffs against the defendants, the executors of Joseph Pickett, who was administrator with the will annexed of John Wright. There had been a reference of the accounts directed, and the commissioner had rejected certain judgments confessed by Pickett as administrator, because of some informality in them.

The plaintiff filed his bill in the Court of Equity for the County of Iredell, on the 29th Sept. 1827, against P. C. Caldwell, who alone was made defendant thereto; and therein charged that he had executed a bond to a certain John A. Chaffin, for the sum of six hundred dollars, due to the said John on the settlement of the accounts of a copartnership theretofore existing between them : that at the time of executing the bond, the plaintiff was in copart-nership with one…

<p>This is a bill to review a decree made in a cause in which Mitchell and Martin, as the administrators of -Ambrose Parks, deceased, were plaintiffs, and- William P. Waugh, John Finly, and Benjamin J. Parks, (the present ■complainants,) were defendants.</p> <p>The original bill charged, that in 1822, (immediately •after the death of one George Parks,) Ambrose Parfe, of the first part, the defendants William P. Waugh and John Finly, under the firm of Waugh & Finly, of the second part, and the said Waugh and the other defendant, Benjamin J. Parks, under the firm of Waugh & Parks, of the third part, entered into an agreement of copartnership, to carry on the mercantile business together, at Wilkes* borough and at Ashe Court House; the latter under the -direction of the said Ambrose, and the former under the .joint direction of said Waugh and Benjamin J. Parks: that the parties did so until February, 1826, at which time the said Ambrose died, after large profits were made, having large stocks of merchandize on hand, and debts due to the firms, all which came to the hands of the original 'defendants, as surviving partners. The bill sets forth the terms of copartnership, and the interest of the respective partners, in the manner following: that in July, 1820, it had been agreed by and between the said Waugh and Finly, of one part, the said Ambrose, of the second part, -and one George Parks, of the third part, that these four persons should be copartners to carry on the trade of merchandize, in Wilkesborough and Ashe, aforesaid, upon a capital stock of thirteen thousand dollars; whereof Waugh and Finly were to advance the sum of ten thousand dollars, and each of the said partners, Ambrose and George, the sum of fifteen hundred dollars: that Ambrose was to eon-duct the business at Ashe by. himself, and by clerks employed and paid by him, under the firm of Ambrose Parks & Co.: and that George was in like manner to conduct that at Wilkes by himself, and by clerks paid by him, under the firm of George Parks & Co-.: that at the expiration or dissolution of the business, the capital of the respective partners, with interest thereon, should in the first place be paid; and the surplus or profits should be divided, one-half to Waugh and Finley, and one-fourth to each of the other partners: that the partnership should continue for five years, notwithstanding the deaths of the said Waugh and the said Finly; but that upon the death of either of the Parks, the concern should be closed or continued, at the election of Waugh and Finly. The bill then charges, that the business began and proceeded according to the articles, until the Autumn of 1822, when George Parks died: that thereupon the business was not continued for the benefit of the estate of George Parks, upon the footing of the articles ; neither was it closed by a settlement with the representatives of the said George. But it was then agreed by all the partners, that Waugh and Benjamin J. Parks should represent said George in the firm, by assuming to those beneficially-entitled to his share, the responsibility therefor,' and by taking on themselves, as between them and the other partners, all the duties and rights of the said George, under the said original agreement: that accordingly the business proceeded at Ashe, under the charge of said Ambrose, and at Wilkes, under that of Waugh and Benjamin J. Parks, for the whole term limited in the articles, and afterwards, by mutual consent, until the death of Ambrose, in 1826, as aforesaid: that administration of his effects was granted to the plaintiffs, Mitchell and Mastin; and they had repeatedly applied for an account, and to be paid the share of their intestate ; but that the defendants, Waugh and Benjamin J. Parks, who were the active managers, and represented George Parks under the new agreement, failed, and refused to render such account, which the bill prayed for in the broadest terms; and that the partnership accounts and transactions might be finally settled, under the directions of the Court.</p> <p>The answer of Waugh and Finly admitted substantially the several allegations of the bill, except that it was stated that the first agreement of partnership was made between Waugh and Finly, of the one part, and George Parks, of the other, in which the former were to advance five thousand dollars, and the latter fifteen hundred dollars; and that it was reduced to writing, and contained the stipulations touching the duties and rights of the parties thereto, as set forth in the bill respecting the store at Wilkes-borough: that afterwards a similar agreement was entered into with Ambrose Parks, as to a store at Ashe, under his management: that it was not reduced to writing, but was to be governed by the other; and that Ambrose Parks and George were to be partners in each house, so as to make both firms really one, though in different names. The answer thereupon insists, that upon the death of George Parks, Ambrose was bound to perform his duties; and that as they were performed by Waugh and Benjamin J. Parks, those persons are entitled to an allowance from the plaintiffs therefor: that upon the death of Ambrose Parks, the defendant Waugh employed the plaintiff Mastin and other clerks to close the business; and that the plaintiff Mastin had the actual custody of the books, notes, and other effects of the concern: that the plaintiffs and the defendants came on the 1st March, 1828, to an agreement for a partial settlement, in which the terms thereof were fixed, and then reduced to writing; whereby the sum of four thousand dollars was set apart to cover balances of debts for goods then outstanding, and securities allotted to Waugh and Finly for their capital and interest, and to the plaintiffs for that of their intestate; and the residue of the effects were to be divided, one-half to Waugh and Finley, and the other half to Waugh and Benjamin J. Parks, and the administrators of Ambrose : and that said Waugh and Parks, and said administrators should bear in equal shares the expenses for clerk-hire, from November, 1825, until the business should be closed. The answer further states, that the settlement was not concluded, because the parties differed as to the persons who should bear the charges of clerk-hire before November, 1825; and also upon the charges brought forward by said Waugh for his expenses in purchasing goods for the Wilkesborough store, and giving his general superintendence to the business there; and closing both concerns upon the dissolution; and it is insisted, that Waugh was entitled to such allowances, and was not liable for any part of the clerk-hire. The answer then stated, that the defendants were advised that there ought to be other parties. But they submit to a settlement and division, if it can be ordered with safety to them; insisting, however, upon the demands of Waugh, before mentioned.</p> <p>The defendant Benjamin J. Parks did not answer; and the bill was taken pro confesso as to him.</p> <p>The bill was filed in March, 1829; and after several orders, the parties, at September Term, 1833, referred it by rule of Court to James R. Dodge, Esq., to make his award upon the matters in controversy in the suit.</p> <p>The administrator made his award thereupon, and returned the same to March Term, 1834, and therein found that Ambrose and George Parks did not stipulate for each other in the original agreement; but that each of them was to manage the store under his particular care at his own expense ; and that Waugh and Benjamin J. Parks took the place, in this respect, of George, upon his death,. and must therefore exclusively bear the clerk-hire of that store; and between them, therefore, they had one-fourth of the profits ; especially as they had in 1827 settled with the representatives of George Parks, and been allowed therein by his representatives for the hire of the clerks in his time, as a charge against George’s share in the concerns. Further that Benjamin J. Parks had left this state before the death of Ambrose, and that upon thelatter event all the effects of both stores came to the hands of the defendant Waugh: that Waugh and Finly had received their capital and interest, and the plaintiffs had received that of their intestate and interest: that payment had been fully made to the representatives of George Parks, for all his capital, interest and profits, up to the time of his death by the surviving partners in 1827: that Benjamin J. Parks was indebted to the concern more than his share of the profits, and that he was insolvent. He charges to the plaintiffs, all the clerks’ hire at the store in Ashe, in conducting and closing it; and to Waugh and B. J. Parks, all that in Wilkes, from the beginning of the business by George Parks & Co.; but he limits the period to eighteen months from the death of Ambrose, as a reasonable one, when Waugh ought to have closed the business, and therefore does not allow the payments made by him, for clerks after that time. He refused to make any allowance to Waugh personally, for closing the concerns, because Waugh was bound by contract to settle the concerns of the store-in Wilkes, as George Parks would have done, and because those of the store in Ash, had been settled by clerks employed by Waugh, whose wages the arbitrators made the plaintiffs pay. The award, then proceeded to find that the debts which either of the stores had contracted, had all been paid, except the sum of eighty-seven dollars and thirty-six cents, with interest from the 23rd day of March, 1828, which was still owing to the plaintiff Mastin, in his own right. It finds the whole personal assets of the firms including the accounts of the respective partners to be fifteen thousand four hundred and fifty-eight dollars, and sixty-one cents, whereof the plaintiffs were entitled to one fourth, or the sum of three thousand eight hundred and sixty-four dollars, and sixty-five and one-fourth of a cent. That B. J. Parks’s account, exceeded his share, by the sum of four hundred and three dollars, of which one-fourth, or one hundred and thirty-four dollars and thirty-three and one-third cents was to be borne by the plaintiffs, and being deducted from their share, left to their credit the sum of three thousand seven hundred and thirty dollars and thirty two cents: but the account of Ambrose Parks, and the debts of clerk-hire to be ’paid by him, amounted to three thousand and seventy-three dollars, and ten cents, which left a balance really due to the plaintiffs, of six hundred and fifty-seven dollars, and twenty-three cents, with interest from the first of March 1828. The arbitrator then states the accounts of each of the other partners with the companies, and finds the balance due to Mr. Waugh and to Mr. Finly; and awards that Waugh, in whose hands are all the funds, shall pay to Finly, the sum of five hundred and seventy-seven dollars and fifty-seven cents, with interest, and to the plaintiff the said sum of six hundred and fifty-seven dollars and twenty-three cents and interest, as before mentioned; and likewise shall pay into the office the sum of eighty-seven dollars and thirty-six cents, and inter es, to satisfy the debt of Mastin: that B. J. Parks, shall pay to Waugh, Finly and the plaintiffs, each the sum of one hundred and thirty-four dollars and thirty-three and one thifid cents. The arbitrator then finds, that the defendant Waugh, has securities for debts due from insolvent debtors to the firms, to the amount of four thousand nine hundred and sixty-three dollars and nineteen cents, which he divides between the parties by schedules, and awards that the division shall be final, and that each party may use the names of the others, to collect his sharebut at his own expense, and without any claim for contribution in case the debts shall prove absolutely bad. He then proceeds to find, that George Parks & Co., had purchased four tracts of land in Wilkes with the partnership funds, and in the course of their joint dealing: that the value of them had been accounted for, with George Parks’s representatives, by the surviving partners, and that the land now formed part of the effects of the firms he was then settling, in addition to the effects before mentioned, and must be sold, before a final settlement could be made; that the arbitrator doubted his authority to award such sale; but if under the facts found by him, he had such, power (which he refers to the Court,) he did then award that those four tracts (which he described) and any other lands belonging to the said firms, should be sold under the direction of the Court, and the money arising therefrom be divided between the parties, that is to say, one eighth to B. J. Parks, two-eighths to the plaintiff, two-eighths to. Finly and the remaining three-eighths to Waugh : that the-share thereof, which might belong to- B. J. Parks, should be applicable, first, to that part of the costs of the suit which he was awarded to pay ; and secondly, to the payment prorata, of the sums awarded to be paid by him, to the other parties respectively; but the same should be cons>dered as a collateral security only for those sums ; and that the said parties might proceed otherwise to collect the said moneys from said B. J. Parks. The award concludes by directing B. J. Parks to pay his own costs, and Waugh to pay the residue of the costs.</p> <p>To the award the defendant Waugh alone objected. He moved to set it aside on several exceptions. First, that the arbitrator rejected legal evidence of payments made by him on account of the concerns. Secondly, that he erred in awarding upon matters not submitted to him. Thirdly, that he erred in not awarding on all the matters submitted. Fourthly, that the award is not final, as it leaves the parties exposed to further litigation as regards the subject-matter submitted. There were other exceptions, but they related exclusively to the conduct of the arbitrator, in deciding certain questions of fact, upon certain evidence given, and were not supported by any affidavits, or evidence in this cause.</p> <p>Upon the hearing, upon the pleadings and award and exceptions, the Court denied the motion of the defendant Waugh, and proceeded to decree according to the award ; that the defendant Waugh should pay into the master’s office, the sum of eighty-seven dollars thirty-six cents, with interest thereon, for the use of the plaintiff Mastin, in discharge of the debt owing to him by the said A. Parks & Co.: that'*hg should pay the parties, Finly and the plaintiffs, as administrators, the sums due to them which the decree specified as in the award: that the debts reported as beinginsolvent, should, as directed in the award, belong to the several parties, who should be at liberty to collect them, if they could, at their own expense and use, and for their several use. That B. J. Parks should pay to each of the other parties, the sum of one hundred and thirty-four dollars thirty-three cents, and that executions might issue therefor; but as the said Benjamin J. was found to be insolvent, it was declared that the said sums, and the costs decreed against him should be a charge against his one-eighth part of the proceeds of the land mentioned in the award and directed therein, and in the decree to be sold, unless the said B. J. Parks should otherwise pay the same. The Court further decreed, that the four tracts of land mentioned in the award and particularly described, should be sold by the clerk and master; and that the money arising therefrom should be divided as follows : to wit, one-eighth to Benjamin J. Parks; two-eighths to the plaintiff; two-eighths to Finly; and the remaining three-eighths to Waugh; all which is in full satisfaction of the respective claims of the said parties litigant against each other. The decree then ordered B. J. Parks to pay his own costs ; and the defendant Waugh to pay the other costs.</p> <p>To review the foregoing decree, the defendants in that suit, William P. Waugh, John Finly, and Benjamin J. Parks, have now jointly brought their bill, alleging the following errors. 1st. That the decree does not pursue the award. 2d. That the award and decree was erroneous, in ordering the sum of eighty-seven dollars and thirty-six cents, with interest, to be paid to the plaintiff Mastín, as he was a party only as administrator of Ambrose Parks, and the said sum is recovered by him in his individual capacity. 3d. That in ordering the payment of said sum, and in ordering the sale of the land, the arbitrator exceeded his authority, as those matters were not in issue or controversy in the suit, and so were not submitted, 4th. That the Court ought not to have decreed the sale of the land, because the heirs of Ambrose Parks and George Parks were not before the Court: and that the Court ought not to have made any decree in the cause, because neither the award nor decree could be final, inasmuch as neither the heirs nor personal representatives of George Parks were parties, and they may yet call for an account from these parties, and draw them into litigation again for the same matters. 5th. That the Court improperly overruled the exceptions, without declaring any reason therefor; and made the decree without declaring any facts as the grounds therefor. To this bill the defendants put in a demurrer, which was removed to this Court for argument.</p>

<p>One tenant in common may purchase the interest of his co-tenant, under an execution in favour of a third person, or of himself, against the other, for the ■sole debt of the latter, or under an execution in favour of a stranger against both for their joint debt. And such purchase, if fairly made, will be good in ■equity, as well as at law! An actual ouster, or disseisin in fact, is not ■necessary to make the possession of one tenant in common adverse; and although the silent sole perception of the profits, will not constitute an ■adverse possession, yet if continued without claim for a long time, every presumption necessary to support it will arise. But where one, who has in fact but an undivided share, is exclusively in possession, under a conveyance for the whole, notoriously claiming to hold in severalty, the possession can no longer he regarded as common; more especially, if the possession be taken under colour of a conveyance for a share of one of the co-tenants, though the conveyance may be ineffectual.</p> <p>Lands purchased with partnership funds, are not held by the owners as tenants in common, but as joint tenants, as copartners; and a bill for the partition of such lands, upon the ground of their being held in common, or joint tenancy simply, cannot be sustained; as there can be no division of partnership property, until all the accounts of the partnership have been taken, and the clear interest of each partner ascertained.</p> <p>'One partner cannot demand an account in respect of particular items, and a division of particular parts of the property; but the account must necessarily embrace every thing.</p> <p>Where the right to call for an account of a partnership is lost by lapse of time, and there are lands belonging to the partners, they may be taken as a clear surplus remaining, and equally divisible between the partners as joint tenants, provided it appear that the parties were equally interested; and provided further, that the lands continued to be treated by the parties as joint property.</p>

<p>This was an information filed in the Court of Equity for Wake county, by the Attorney General on behalf of the state, against the President and Directors of the State Bank of North Carolina, for the purpose of effecting a settlement of certain matters of account between the state and the bank. All the facts, necessary to a proper understanding of the case will be found stated in the opinion of the Court as delivered by his Honor Judge Gaston.</p>

<p>The plaintiffs were the children of Joel Tyrrell deceased, and with their mother who was one of the defendants, were the legatees of all his personal estate; and they brought this bill against their said mother, the executrix, and James L. Tyrrell the executor of their father, and against James Morris, John Rowland and Robert G. Twittv, to impeach the sales of certain negroes belonging to the estate of the deceased made by his executors to Morris, and hy him, as was alleged, to the other defendants. Joel Tyrrell by his will, directed that his negroes should be kept for the support of his wife and children ; a part to be employed in cultivating a farm, and the residue hired out, as his executors should deem most advisable. He further directed that his lands and stock of every kind should be sold or retained at the discretion of his executors ; and the product together with the hire of his negroes should go to the payment of his debts; and the surplus to be laid out in lands, at the discretion of his executors, as a residence for his wife and children. Upon his death, which took place in 1819, James L. Tyrrell and the widow qualified as executors to the will. There was no sale made of any of the property, nor were the negroes hired out, but the widow continued on the farm with all the children, retained the possession of all the property, supported herself and the children out of the produce of the farm, and the labour of the negroes. The testator died considerably indebted, and the creditors seeing no arrangements made for discharging their demands brought suits; obtained judgments, and took out executions against the estate. The executors from time to time as they were pressed by the creditors, disposed of the negroes; and amongst others, in the years 1822 and 1824, disposed of five, viz. Reuben, Patrick, Katy and her two children, to the defendant Morris, who afterwards sold some of them to the defendant Rowland, and he was alleged in the bill to have sold to the defendant Twitty. The plaintiffs contended, in the first place, that the sales of these negroes by the executors should be set aside, and declared to be void, because made in violation of the injunctions of the testator; because made at private sale, and without any order of Court; because although ostensibly made for the relief of the estate, the purchase-money was in fact advanced to the executors, or one of them, for private and personal uses, or was applied to such uses, or otherwise wasted; of all which matters the purchaser was charged to have had notice; and secondly, that the conveyances by the executors should be declared to be but securities for refunding certain sums of money loaned to the executors, and that the plaintiffs be allowed to redeem the negroes thus conveyed.</p>

<p>This cause was heard on exceptions to the commissioner’s report. By a former order the commissioner was directed to take an account of the receipts and disbursements of the defendant, John D. Hawkins, as one of the executors of James Boyd, deceased, and testamentary guardian of his children ; and to report the nature of the services rendered by said defendant, and what amount of commissions should be allowed him therefor. The report of the commissioner set forth an account of the receipts and disbursements, in which the said defendant was charged with the sum of nine hundred and two dollars, and credited by the sum of two hundred and ninety-one dollars and eighty-nine cents, for interest. The report also ■found he was entitled to a commission of two and a ■'half per cent, on thirty-seven thousand one hundred and seventy-nine dollars, being the amount of receipts and •disbursements of James Boyd’s estate, as audited and ¡returned to the August Term, 1816, of Granville County 'Court-; also upon three thousand two hundred and sixty-three dollars and three cents, amount of money paid Thomas Brown, a creditor of the estate; also upon the •sum of six hundred and eighty dollars and thirty-two cents, recovered from Thomas Boyd ; and on the sum of four hundred dollars, recovered from Spain’s heirs, amounting to one thousand and thirty-eight dollars and nineteen cents. To this report the plaintiffs excepted, first, for that in the account of receipts and disbursements, the commissioner- ought to have charged compound, and not simple interest, on the balance in his hands; and secondly, for that the defendant was not entitled to any commissions on the sums whereupon the commissioner allowed him commissions; because a full commission of five per cent, had already been recived by his co-executor and joint guardian ; and also, for that the commissions so allowed by the commissioner were unreasonable and excessive.</p> <p>Upon the pleadings and proofs it appeared, that the testator appointed Richard Bullock and John D. Hawkins joint' executors of his will, and guardians to his two infant children ; and that upon the death of one of them under age, the whole beneficial interest in the testator’s estate, according to the limitations of his will, accrued to the survivor, the present plaintiff. Both these gentlemen qualified and joined in returning the inventory, and both of them acted, more or less, in the management of the trusts confided to them. Shortly after the marriage of the plaintiff with William S. Hodge, (who died after the institution of ■ this suit,) a settlement was made between the plaintiff’s-husband and Bullock, who had been the principal acting executor, and had the great bulk of the estate in his hands; to which settlement the defendant Hawkins was not a party, when Bullock made a statement of his accounts as executor and guardian, (containing the items, the commissions on which were excepted to,) and charging therein a commission of five per centum on all his receipts and disbursements, amounting to the sum of four thousand seven hundred and three dollars and eighty-eight cents. It appeared that a proposition was then made to the said Hodge, which he accepted, to deliver over to him the whole estate, including the bonds and other effects in the hands of Bullock, and pass receipts. The present bill was afterwards instituted, to call the defendant Hawkins to account, because of his receipts on account of the estate which were not included in the settlement with Bullock, and in the adjustment of these matters, the order for ascertaining the commissions, now the subject of dispute, was made.</p>

The bill was filed on the 14th of May, 1831, by William Irby, Andrew B. Cox, and William IJolin, and stated that one Joshua Irby died intestate, in the year 1828, leaving a personal estate consisting of certain negro slaves, designated by name, moneys on hand, debts due on bonds, notes and accounts, and also specific articles of furniture, stock, and other things; and that the same came to the hands of William J. Wilson, who duly obtained letters of administration, and…

Josiah RogeRSon, in the year 1806, made his will, which contained the following clause: “ I lend unto my grandson Obadiah Rogerson, a tract of land; three negroes, Dick, Rose, and Yiney.

In the year 1821, Hollowell Old put into the possession of the defendant, who had then recently intermarried with his daughter, several negroes that have ever since remained in his hands. The defendant’s wife died in January 1825, and her father died in the month of May following, intestate. Two children were the issue of the marriage, viz. the plaintiff, and a brother who died an infant of tender years, in September 1825.

The questions in this case depended upon the construction of the will of John Rogers, who died in the year 1797.

<p>A bequest of chattels is within the rule in Shelley’s Case; and the words “ I lend my daughter C., my negroes, &c., during her lifetime or widowhood, and then I give them to her lawful heirs, for them and their heirs forever,” pass the absolute interest in the slaves to the daughter.</p> <p>The repe-similar* in not vary t]f c°.n" which one would receive’</p>

The bill, stated that Lewis Peobles died in the year 1834, having made his will, whereof he appointed the defendant Allen executor, and thereby, among other things, bequeathed as follows : “ My will is, that all my negro slaves be laid off into six lots, made equal in value, and then drawn for by my six children, namely, Betsey, &c., and the heirs of Patsey M'Connell, deceased.” The plaintiffs were the children of Mrs. M'Connell, and the defendants the other legatees.

<p>Although at law the covenants of the vendor and vendee may be independent, yet in equity, upon a hill for specific execution of a contract for the purchase of land, a conveyance is never ordered until the purchase-money is paid.</p>

<p>The bill charged that the plaintiff, as the surety of the defendant Charles in his official bond as sheriff of Stokes county, had been compelled to pay large sums of money for the default of his principal: that he had obtained a judgment against his principal for the sum of two hundred and thirteen dollars and twenty-seven cents, part of such payments; and that a large balance still remained due him on account thereof, for which he had obtained no judgment: that the defendant Charles, to defeat the plaintiff’ in obtaining satisfaction of his debt, had conveyed to his sons, Constantine and John, also defendants, all his property, except one mare, which he had conveyed to the plaintiff; and that the defendant Constantine had brought an action at law against the plaintiff for the value of this mare. The plaintiff insisted, that all the conveyances by the defendant Charles to his sons were fraudulent; and prayed a discovery and account of the property of Charles in the hands of the other defendants; and for satisfaction of his debt out of the property or money.</p> <p>The defendants answered, and denied all the allegations of the bill. Proofs were taken, and the cause trans-red to the Supreme Court for hearing.</p>

William Bethell and Absalom Watt filed their bill against John P. Wilson, and also against Sarah and Covington Wilson, executrix and executor of John Wilson, deceased, and thereby charged that the plaintiffs and the defendant John P. in the year 1826, entered into a co-partnership for the purpose of buying and selling slaves: that the defendant John P. was the acting partner of the concern,, received the capital paid in, purchased a parcel of slaves, carried them to the…

<p>The bill was originally instituted by the plaintiff against John Ricks and Hardy W. Hatton. The latter died pending the suit, and it was supposed to abate as to him, and was brought to a hearing against Ricks only. Upon the pleadings and proofs the facts were, that a short time before the 20th of May, 1833, Hatton contracted with Mrs. Temperance Alston, to purchase an improved lot. in the town of Nashville, at the price of four hundred and fifty dollars, to be paid in cash. Not being able to raise more than one hundred and fifty dollars of the price, the defendant Ricks advanced the residue, three hundred «dollars, and paid the whole to Mrs. Alston, and by an •arrangement between him and Hatton, took a deed for the lot to himself. On the same day Hatton executed his single ■bill to Ricks, securing to the latter the sum of one hundred ■and twelve dollars and fifty cents, in three annual instal-ments of thirty-seven dollars and fifty cents each, for the ■rent of the lot for three years; and Ricks executed a bond to Hatton, wherein it was recited, that Ricks had bought ■the lot, and leased it for three years to Hatton, at the annual rent of thirty-seven dollars and fifty cents; and that the lot was bound for the payment of the rent, and was not to be liable for the payment of any other debts ; and it was thereupon declared, that if Hatton should pay the rent as it fell due, and also the further sum of three hundred dollars, then Ricks was to convey the lot to Hatton. 'The instrument also provided that Hatton was to take the Jot under all incumbrances: that Ricks was not bound to .put him in possession, but that he, Hatton, was to obtain possession in a peaceable way, or in any other way the law permitted. At the time of this transaction, Hatton was deeply indebted, and continued so until August, 1826, when he died insolvent. Among other creditors at that time was Henry Blount, who, in August, 1833, came to a ■settlement with Hatton, took a note for one hundred and seventy-three dollars, fifty-two cents, and in November following obtained a judgment for the amount. An execution •issued upon this judgment, which was levied upon Hatton’s interest in the lot, and in February 1835, the sheriff sold that interest, whatever it might be, and subject to the claim of Ricks ; when the plaintiff purchased it, and took a deed purporting to convey the estate of Hatton therein. At the ■time of the purchase from Mrs. Alston, the lot, independently of the buildings on it, was worth three hundred •dollars. Hatton took possession immediately upon this purchase, and put additional improvements on it, worth one hundred and fifty dollars; and continued in possession up to the day of the sale to the plaintiff, when the lot with all its improvements was worth eight hundred dollars. The plaintiff, after his purchase, as the assignee of Hatton, claimed of the defendant to redeem the lot upon the payment of three hundred dollars and interest; the defendant refused to allow such redemption, but offered to convey to the plaintiff, on his paying the sums of three hundred dollars and one hundred and twelve dollars and fifty cents for the rents, with interest on the latter from the times when the several instalments became due, or to refund to the plaintiff the one hundred and fifty dollars advanced by Hatton, if the plaintiff would convey the lot to him.</p> <p>The plaintiff prayed, that upon his paying to Ricks the sum of three hundred dollars and interest thereon, he, Ricks, might be decreed to convey the lot to him.</p>

The allegations of the bill were, that the defendant purchased goods of the plaintiffs, residents of Charleston, to the amount of one thousand five hundred and two dollars and eighty-four cents, and on the 19th of May 1832, gave a note at six months, for the amount: that the defendant neglected to take it up, and the plaintiffs becoming doubtful of his solvency, went to the residence of the defendant, at Waynesville, in Haywood County, and requested further security: that…

<p>Where several persons agreed to purchase land at a sale by the clerk and master, and one of them bids it off, the act of 1819, (1 Rev. Stat. 290,) avoiding parol agreements for the sale ofland, does not bar the claim of his associates ; neither is it a defence to a bill by them that they had a remedy by petition.</p>

The facts of this case, as found by the Court, were as follows:— John P. Strickland, the father of the plaintiff, was entitled to nine slaves for the life of his wife, with remainder to her children. An execution issued against him, and his interest in these was sold to one Newton Wood, in the year 1827.

Thomas Hudson devised the tract of land whereon he resided to his wife for and during her natural life; and after the death of his wife, to the plaintiff. The defendant married the widow of the testator; and the plaintiff filed this bill against him, for and on account of the value of waste alleged to have been committed by him. The waste was denied by the answer.

George Miller, by his will duly executed to pass personal property, but not sufficiently attested to pass land, bequeathed certain negroes to the defendant, the daughter of his deceased child, Esther Burger.