Volume 22 — North Carolina Reports

This was a bill for the specific execution of a contract for the sale of a tract of land containing fifty acres. The defence was the act of 1819 avoiding parol contracts for the sale of land and slaves.

The case made by the pleading, was as follows: The late Moses Manning died in the year 1834, leaving a widow and nine children, all of whom were living. His three eldest children were sons who had arrived at full age, and were engaged in the exercise of professions and trades, for which their father had educated them.

<p>The bill in' this case was filed by Robert M‘Namara against Thomas Irwin, and Michael Irwin co-partners in trade under the firm of Thomas Irwin & Co. (of New-Ydrk;) Anthony W. Horton and George W. Plutton, of this state; and Albert Tarrance, formerly also of this state; but who had recently removed therefrom, to enjoin further proceedings on an execution issued upon a judgment obtained by the said Thomas Irwin & Co., against the plaintiff as administrator of Stephen L. Ferrand deceased.</p> <p>The case made by the bill was, that Stephen L. Ferrand the intestate of the plaintiff, at the request of the defendant Tarrance, endorsed a note of the said Tarrance for the sum of $5,000, for the purpose of guaranteeing to Irwin' & Co. certain acceptances made, or to be made, by them on account of said Tarrance, and that a certain William E. Poe, endorsed another note of said Tarrance for the same sum, and executed for the same purpose; that Irwin & Co. sent these notes to this state and had suits instituted thereon for the purpose of recovering the amount of their advances, intended to be secured thereby; that the whole amount of all their advances was $3940, yf-¡r; that judgments were rendered as well in the suit against Poe as in that against the plaintiff, for the entire amount of each note respectively, but with an agreement not to collect more than the sum due for their advances ; that this agreement -was testified in the suit with the presént plaintiff by a document subscribed by the attorney of record of the plaintiffs in that suit, and filed among the records of the court, whereby it was declared that the note, (on which judgment had been so obtained) with another note had been deposited with them (the said plaintiffs) as a guaranty for sundry acceptances, as per account filed, that they claimed only the sum of $3940 ; that they would not sue out execution for more than that sum, and the interest to become due thereon, and the costs — that Hutton and Horton pretended that they had some claim for the balance of these notes, and that how this might be, was to be settled between them and the defendants, (meaning the defendants against whom judgments had been rendered,) that the plaintiffs wishing to keep aloof from this controversy would lend no aid to either party therein; that if the defence against the claim of Hutton and Horton was improper at law, and not in equity, the judgment should not prejudice such defence, and if necessary, upon payment of so much thereof as should be due the plaintiffs, a new trial should be granted, the plaintiffs in no event to be liable for the costs of litigation. The bill then charged that Irwin & Co. had been fully paid off, (the one half by the plaintiff and the other half by Poe,) all they claimed as due for interest and cost, but nevertheless an execution had been sued out to collect the residue of the judgment from the plaintiff, with an endorsement on the said execution that it was issued for the use of Hutton and Horton.</p> <p>The defendants Hutton and Horton by their answer denied that the note endorsed by the plaintiff s intestate was so endorsed for the purpose of guaranteeing advances made or to be made to Tarrance by Irwin & Co., but avered that Tarrance had purchased out the • interest of these defendants in the late firm of Hutton, Horton & Co. and upon such purchase bound himself to pay them the sum of three thousand dollars, and to pay off. all the debts of the said late firm, and to save them from liability or injury therefor; but it was further stipulated upon the contract of purchase, that for the purpose of more speedily accomplishing the payment of the debts of said firm, and relieving these defendants from responsibility, thereupon, Tarrance should put into their hands four notes amounting together to the sum of $15,000, with sufficient endorsers, to be by these defendants negotiated or collected for the purpose of discharging those debts, and also of paying them the $3000 due for the said purchase; that the two notes mentioned in the bill, with two others, one for #3000 endorsed by William M‘Kay, and one for #2000 endorsed by William E. Poe, were delivered to the defendants in pursuance of said agreement; that all of the said notes were transferred by them to Irwin & Co., in order to guaranty to them such advances as they might make at the request of these defendants: that advances were made by Irwin & Co. to the amount of #9000 all of which were faithfully applied by the defendants to the discharge of the debts of the late firm of Hutton, Horton & Co ; that the notes of #3000 and #2000 were paid up in full to Irwin & Co, which left a balance due them of between three and four thousand dollars, to collect which balance suits were brought by Irwin & Co. against the plaintiff as administrator of Ferrand the endorser of one note, and William E. Poe, the endorser on the other unpaid note ; and judgments were recovered respectively in said suits for the full amount, principal and interest of each note. The answer then avered that before the commencement of said suits, these defendants had taken up and paid off with their own funds, debts of Hutton, Horton & Co, which Tarrance was bound to have discharged, and which were intended to be secured by the said notes to the amount of #1843, -xVo which with the interest thereon they were justly entitled to collect out of the said endorsers. These defendants admitted that Irwin & Co had collected from the plaintiff and William E. Poe the entire balance due them for their advances, but insisted that the sum aforesaid so due them, and for which the said notes were, and the judgments thereon are securities, remained wholly unpaid. They denied that the agreement of Irwin & Co. set forth in the bill was intended to discharge the plaintiff from liability , to these defendants on account of the judgment; but was a mere memorandum to show “ that the said Thomas Irwin & Co. only claimed in their own right by virtue of said judgments, the amount for which they severally sued out their executions, it being for about the sum of #2000 against the plaintiff as administrator of T. L. Ferrand, whereas by the agreement referred to, according to the plaintiff’s own showing they was authorized to collect the rise of #3,9001 The defendants avered that' ¿fter Irwin & Co. had collected what was due them, they, in pursuance of the agreement upon which the notes had been transferred, assigned over the said judgments to these defendants for the benefit of the creditors of the late firm of Hutton, Horton & Co. a copy of which assignment was annexed to their answer. They further insisted that if the “ memorandum” before referred to could have any operation against their claim, that, the plaintiff had full notice of that claim, and abundant time to make defence against it, and having altogether neglected to make any defence, his application for an injunction should be regarded as a mere effort to delay the payment of a just debt.</p> <p>Irwin & Co. by their answer also denied that the notes in question were received by them from Tarrance, but declared that the same were placed with them by Hutton & Horton as a guarantee for the payment of moneys advanced by these defendants to Hutton & Horton for the benefit of the late firm of Hutton, Horton & Co, and upon an agreement to be returned as soon as the amount of said moneys should be collected or refunded. They stated the amount of their advances, and of their collections, and the balance due them — and their sending on the two unpaid notes to be put in suit, and the judgments obtained thereon, as was set forth in the answer of their co-defendants; admitted the making of the agreement by their attorney on getting judgments as charged in the bill, and their having obtained full satisfaction for all their advances; insisted that they had a right to assign the judgments to Hutton & Horton ; declared that they have done so; and contended that the true meaning of the memorandum or agreement was that the plaintiff should have a reasonable time to make good his de-fence to any other claim that might arise on the judgment against him, and this he had been allowed most amply. These defendants denied that they have collected out of tho plaintiff the full amount for which they had a right to sue out execution against him, as by the terms of the agreement they were to be allowed to sue out execution for $3,940 and upwards, and they have collected from the plaintiff only the sum of $2000.</p> <p>As to Ferrand, the bill was taken fro confes'so.. On the last circuit, his Honor Judge Toomer dissolved the injunction and the plaintiff prayed an appeal which was allowed.</p>

<p>Anderson Ellis died possessed of one hundred slaves, and three separate tracts of land, each of which he cultivated. One tract, on which he resided, contained 565 acres — another called the Kelly tract, containing 800 acres, was half a mile distant from that first mentioned, but was cultivated with it as one farm — the third, called the Mill tract, was several miles distant from the two others, and contained 2700 acres.</p> <p>By his will, after giving several slaves to two of his daughters, with a direction that they should be estimated in the division of his personal estate, he proceeded as follows:—</p> <p>“ It is my will that my family live together, and that all the property not devised, to remain on my plantation in the care of my beloved wife Judith Ellis, to be managed to the best advantage until my son William Anderson shall arrive at full age, at which time I wish all my personal estate, consisting of negroes, horses, cáttlé, hogs, and sheep, farming utensils and all other personal estate divided equally among the following legatees, to wit: my wife Judith Ellis, Elizabeth Pearson, Maria Ellis, Lucy, John, Sarah, Mary and William Anderson Ellis, so as to make them all equal in my personal estate, but if my wife should die before my son William Anderson arrives at full age, then the property to be divided as soon as can be.</p> <p>“ I give to my sons John and William Anderson Ellis, on William Anderson arriving at full age, my tract of land which I purchased of Elizabeth M. Kelly, containing about eight hundred acres, to be equally divided between them both, to thernand to their heirs forever, but should either of them die without issue, then the surviving brother to heir all the Kelly tract.</p> <p>“ I give to my beloved wife Judith Ellis, during her natural life, one third part of the tract of land whereon I now live, supposed to contain five hundred, and sixty-five acres, her part to include my mansion house,'all other buildings, also the spring, also the following negroes, to wit: Dice, &c. It is my will that my Executor sell the whole of my mill lands, supposed to contain twenty-seven hundred acres, on a credit for the best price that can be obtained, the money arising from said sale to be equally divided between "my daughters Harriet Bradshaw, Elizabeth Pearson, Maria, Lucy, Sarah and Mary ; but if said land cannot be sold for something like a fair price, then my Executor is to pay (as soon as it can be made by the crops which may hereafter be raised,) to Elizabeth Pearson the sum of two thousand dollars, which is to be in full of her part of the said land, and whenever said land can be sold, the proceeds thereof to be equally divided between my other daughters, to wit: Harriet Bradshaw, •Maria, Lucy, Sarah and Mary Ellis.</p> <p>“ I will that my Executor sell my tract of land whereon I now live, after the death of my wife, either privately or1 at public sale, for the highest price, the money arising from said sale to be equally divided between the following children, to wit: Elizabeth Pearson, Maria, Lucy, Sarah and Mary Ellis.”</p> <p>The plaintiffs, one of whom was the daughter of the testator mentioned in the will as Harriet Bradshaw, contended that the testator died intestate as to two thirds of the first mentioned tract of land, which descended to his heirs until the death of his wife — that his heirs were entitled to a division thereof, and to immediate possession of two thirds of it, and to an account of two thirds of the rent and profits thereof since his death. They also contended that the second tract of land above mentioned, descended to the heirs of .the testator, until William, the testator’s youngest son, should attain bis full age ; and they prayed for an account of the rents and profits of that; and further they insisted that the growing crop upon the mill tract belonged to the heirs. They alleged that the Executor and the widow had received all the above mentioned rents, issues and profits. The Executor, the w^ow and the other children of the testator were the defendants, and the only questions were as to the proper construction of the above recited clauses of the will.</p>

This bill set forth that on the 31st Dec. 1819 one William D. Taylor the husband of Nancy Taylor, formerly Nancy Monk, conveyed to John West in trust for the separate use of the said Nancy, one undivided half of the personal property and choses in action, which they were entitled to receive under the will of her father Thomas Monk, deceased : that the said Thomas Monk, who died in the year before, had bequeathed all his property to his five children, viz., the said Nancy,…

In the year 1783 Joseph Gilbert made his will and thereby'bequeathed to his daughter Mary A. Gregory, the wife of John Gregory, two female slaves for life, with a remainder to all her children which she then had, or thereafter might have, (excepting her son John) equally to be divided between them. Of this will the testator appointed the County Court of Jones the executor.

<p>This was a bill by the residuary legatees of Isaac Lamb' against the defendant, his executor, for an account of the estate of the testator, and payment of the balance.</p> <p>The usual "order for an account was taken in the court below, and a report returned there to which sundry exceptions' were pled. The only one necessary to state was, for that the master hath therein credited the defendant with-the sum of $4000, because of a decree rendered against him in the court of equity for the bounty of Curituck, in a suit wherein Spence Hall and others were plaintiffs, and the said .Gatlin was defendant. The item of credit thus excepted to was allowed solely upon evidence of the proceedings in. the suit referred to, and of the decree therein made. From this it appeared that Spence Hall, James G. Hall, and Isaac - N. Lamb and his wife Sidney, filed their bill against the said Gatlin as executor of Isaac Lamb deceased, and therein charged that Spence Hall, the father of the plaintiffs, Spence, James and Sidney, died in the year 1807, and before his death duly made a last will and testament, whereof he constituted.his wife Polly sole executrix during her widowhood and no longer, and after her widowhood, should she marry again, constituted Thomas R. Raynor sole executor — that said Polly proved the will, and took upon herself the office of executing it. The bill charged that by the will the testator directed that his schooner Sidney should be kept running as long as his executrix should think proper, or so long as she remained a widow, and that his wife should have the privilege of sending by said schooner for such necessaries as her family might want, and that the remainder oftthe earnings of the schooner should, form a part of his estate. It was charged also that the testator directed, that his negroes Big George and Little George, should be set at liberty on the 1st January 1820, and that at the death or marriage of his wife, all his property should be divided among the testator’s children then living. The bill charged that the testator’s widow kept the schooner Sidney running from the death of the testator until her intermarriage in 1814, with Isaac Lamb, the testator of the defendant. Gatlin, and x-eceived of the earnings of the schooner, exclusive of what she was entitled to x-eceive for the family use, the sum of $3000 and upwards — and that she sold the negro, Big Geoi-ge, for the sum of $300, — and that these sums upon her intermarriage as aforesaid, came into the hands of her second husband, Isaac Lamb — that upon such intermarriage — Rainor, the other executor of Hall, qualified, and took into his possession the unadministered assets of his testator — that the plaintiffs in that bill, Spence, James and Sidney, together with Joi'dan Hall since deceased, were the pei'sons entitled upon the intermarriage of Polly Hall with Isaac Lamb, to the property of the testator — that Jordan Hall had died intestate, and the said Isaac Lamb had administered upon his estate, and the plaintiffs Spence, James and Sidney were his sole next of kin — that the said Isaac Lamb had died having left a very large pei-sonal estate which came to the hands of the defendant Gatlin his executor. The said bill prayed process against the said Gatlin and Raynor, that Gatlin might be compelled to account for the sums so improperly retained by the wife of Hall, and on her intermarriage passed over to her second husband, and Raynor to account for the rest of the estate to which the plaintiffs were entitled. To this bill answers were put in. That of the defendant Gatlin admitted all the facts set forth in the bill, except that he declared his ignorance as to the amount of earnings of the schooner that came to the hands of the widow of Hall, and prayed ■ that the plaintiffs might be put to the proof thereof — and the answer of Rainor also admitted the facts charged, but alleged that he had fully accounted for all the estate which had come to ' his hands. It did not appear what order was taken in the suit upon the coming in of these answers — but a document was afterwards filed purporting to be a report under a rule of reference, and to be made by S. Ferebee, in which upon an examination of the depositions in the case, a statement was submitted of the matters in account. This statement, as to the freights and profits of the schooner, purported to conform to a deposition of Jeremiah Eldridge, the commander thereof (but no deposition was exhibited). It makes the total amount of profits on the schooner, with interest until 1832, $5090-3J ; added thereto as debits the price of negro George $350, and interest thereon from 1809 to 1832 $462, making a total of debits $5902--ajV; then followed a lumping deduction of “ sundry errors,” by this sum of overcharge on items and interest, and commissions on the earnings of the vessel — and for one fourth part of the earnings due Jordan Hall’s estate $1902-^, leaving the exact balance of $4000, which the referee reported as the sum due the plaintiffs as by the above statement. This report was thus subscribed: “I sign this report at the request of the plaintiff I. G. Hall, as being made by the parties: S. Ferebee.” And then followed the decree, “ that this cause coming on to be heard on the bill, answers and report of the referee, it is ordered, adjudged and decreed that the plaintiffs recover out of the assets in the hands of the defendant the sum of $4,000, in full satisfaction of their claims. It is further ordered, adjudged and decreed that the costs be paid out of the assets in the hands of the defendant.”</p>

The plaintiffs set forth in their bill that in the year 1817 Sarah Smith, their mother, and then the widow of Etheldred Smith, being about to contract another marriage with Leonard Purdy, certain marriage articles were drawn up and executed between them, by which it was declared that after the marriage the said Leonard should be entitled to the use and possession of the land and slaves of the said Sarah during his life, and that the said Sarah should have power, should she…

The case upon the pleadings was as follows. — The plaintiff purchased of A. D. Murphy a tract of land, and executed four bonds, to secure the purchase money, payable at different times. Subsequently the plaintiff became embarrassed, and Murphy agreed to receive a re-conveyance of the land, and to surrender the bonds.

■This was a bill for an account of the administration by the defendant Dickens, of the estate of James Vaughan his testator. The sole question was whether under the will and the after stated facts, the testator had died intestate as to any part of his estate. If so, then the plaintiffs were entitled to a share of it.

<p>The case made by the' pleadings and proofs was that Peter Wynns by his will gave to his wife Elizabeth Wynns a negro woman for life, with remainder to his children — that his executors exhausted all his assets in the payment of his debts, excepting that slave and a horse — that they then settled their accounts with the county court, when it appeared that the sum of £181, 14. 1., was still due for outstanding debts of the testator — that the widow agreed with the executors for the purchase of the slave and horse, upon the terms of her paying those debts — that- this agreement was perfectly fair, and the sum agreed to be paid was a full price for the slave and horse — that the widow con-t tinued in possession of the slave for many years, and gave„ of her issue, several other slaves to the defendants, who were her children, or who had married her daughters. — The plaintiff, a son of the testator, filed this bill claiming an interest in this slave and her issue, and praying to have his share of them assigned to him.</p>

From the pleadings it appeared that Frederick Long made his will in the yea¿' 1807, and therein bequeathed pecuniary .legacies to some of the plaintiffs and the residue of his estate to the plaintiffs and some of the defendants. After making the will he became of nonsane mind, and after inquest found, his son John, one of the defendants, was appointed guardian in November, 1811.

Henry Skinner,a resident of Perquimans died seized of a tract of land lying in that county and Chowan.

The bill charged that Simon Foscue the elder, the father of the plaintiff, by his will bequeathed a male slave to her, and appointed Simon Foscue, the younger, his executor, who sued out letters testamentary, and duly assented to the legacy, but died before he had delivered the negro to the plaintiff — and appointed the defendant, John, his executor — that the latter refused to deliver the slave, alleging that Simon Foscue the elder, had, after the bequest to the plaintiff,…

John Williams the testator of the defendants, was the guardian of his grandchild the feme plaintiff He neglected to secure a debt due her by another of his grandchildren who had died, and the object of the bill was to charge his estate with its amount.

This was a bill to set aside a sale made under the order of a court of equity, for the purpose of partition. The gravamen of the bill was that the title of the petitioners, at whose instance' the sale had been ordered, had proved defective. In his bill the plaintiff had alleged that one Thomas Blewett had not had issue by his wife, so as to constitute him a tenant of the land by the curtesy.

Joseph Webb, in the year 1819, made his will, by which he bequeathed as follows: — “ I give and bequeath unto my favorite friends, William A. Bozman, Harriet Bozman and Joseph Bozman, children of Levin Bozman, two thousand dollars each, or the value thereof in property to them and their heirs for ever.” In the same terms he gave other Ie-gacies> an^ died in the year 1823, when his will was duly proved.

<p>The act of 1797 (Rev. Stat. ch. XLVI §. 28) empowering executors and administrators to convey land in certain cases, is confined to sales of land for which the vendor had executed a bond with a condition to convey, and had died before performance. It does not extend to agreements to convey made upon other considerations — nor to a case where a deed was executed in performance o£ the condition and lost after the death of the vender, and before its registration.</p> <p>The loss of ^death* jen" before its t^cañ by a decree dt-hS'or ¡’suet®toex‘ another,</p> <p>Under the act an ex-riot com-execute's fhe vendo? or his heir’ wouldbe ’ specific*0 perfor-any de-latter* as*10 Warl'dera tion &c, is the forme?</p> <p>A a spe-^ manee obtained e uP°n a biu of several</p>

The plaintiffs in their bill filed in the year 1826, alleged that James Muse, the father of the feme plaintiff, in the year 1780, made his will, and thereby bequeathed to his said daughter a female slave to be delivered to her on her attaining the age of sixteen, or her marriage, and thereof appointed his wife and son Jesse, executors, who proved the same at the January Term, 1782, of Cumberland County Court— that shortly afterwards the executors mortgaged the slave • to…

The plaintiff resided at Newbem, and the defendant’s intestate at Salisbury — the former had sent to the' latter various invoices of goods for sale, and had purchased for him household furniture.

This cause was heard on bill and answer, and from them the case appeared to be as follows : — Hoskins, the intestate of Lindsay, being induced by ill health to close a mercantile business which he had carried on in Charlotte, proposed to place his bonds and accounts for collection in the hands of Mr. Morrison, a practising attorney of that place.

<p>Between the creditor and a surety, the former is not bound to active diligence to protect the latter — but if by his act he deprives him of a security, the latter is pro tanto discharged; and where upon an appeal from the County to the Superior Court, the judgment was affirmed, and execution issued against the defendant and the sureties to the appeal bond, and was levied upon property of the principal debtor sufficient to satisfy it, and the plaintiff discharged the levy, he discharges the sureties.</p> <p>The rights to protecy tion are re-affcourts'if ter surety can as at law between th^holder of a bill, if releaseXe thereby discharges the latter.</p>

The plaintiff in his bill set forth a deed of trust executed to him by Benjamin J. Spruill, on the 28th January, 1834, whereby the said Benjamin, among other real and personal property therein mentioned, conveyed to him all his, the said Benjamin’s undivided interest, whether in law or equity, to the tract of land whereon he resided, it being the same which was devised by John S. Ross, to his sisters, Margaret, then the wife of said Benjamin, and Elenor P. Ross, and all his…

<p>A marriage aettiement which directs the trustee, in the event of the wife dying ■without issue of the marriage before her husband, to transfer to him all her property excepting her land and slaves, and to convey them as she should appoint; in the event of the wife’s surviving the husband, there being no issue of the marriage, held upon the recital and other parts of it, to create a trust of the land and slaves for her sole and separate use.</p> <p>Clear proof of fraud or necessary10 to reform a settlement, absentó? is heicUod be conclusive'</p> <p>the hands Orator1*" * share ftme sole J® plunder scription in sJtiement^ °f a11 thf slaves of which she sessed?S"</p> <p>Upon an the°sepa-f ^faate ried wo-tween her j^^nd’s adminis-Íatter’ísnot ®"ej-Je¿rt0 debts of the pa™by his coverture,</p> <p>tenant for Jiíes den?is~ ses, dies rentes ¿hfe h!s admi-mstrator is not entitled ^ ft"y part</p>

<p>The bill stated that the plaintiffs were incorporated by the legislature into a company to lay out a turnpike road 'from the Saluda Gap, through the county of Buncombe, by Asimile and the Warm Springs, to the Tennessee line, with power to take tolls for the travel on said road, not exceeding a table of rates set forth in the bill; that in laying out the road, they were necessarily compelled from the mountainous situation of the country, to run a few miles of the line of their road upon an old road, that had theretofore composed part of a turnpike granted by the legislature to two men by the names of Hoodenpile and Barnard ; that the privileges once grantéd to the proprietors of the latter road, had been forfeited as well by non user, as the omitting to comply with the conditions and stipulations contained in the legislative grant. The bill then stated that the defendant, pretending to be the assignee of the interest of Barnard in the old road, had also recently opened a new road, beginning on the Tennessee line seventeen miles north of the western termination the old Hoodenpile and Barnard road, and joining that road west of that portion of the line where the plaintiff’s rUn ^nt0’anc® uPon the said old road ; that the defendant obtained from the legislature the privilege of collecting tolls on the travel over his new road, with a view to enable him to keep the same in repair; that the defendant, instead of placing his toll-gate across some part of his new road, so as to receive toll from those only who travelled over it, as in law he had a right to do, fixed his toll-gate across the plaintiffs’ road at that small portion of their line which run upon the old Hoodenpile and Barnard road. The bill then charged that by this conduct of the defendant, all the tra-vellers going east and west on the plaintiffs’ road, were compelled to pay, in addition to the tolls due them, a second set of tolls to the defendant, although they did not travel more than two or three miles on the old line of road formerly Hoodenpile and Barnard’s ; which small portion of road, the defendant pretended was his, as one of the assignees of Hoodenpile and Barnard, notwithstanding it was kept up by the plaintiffs as part of their long line of road; and that the defendant had received large sums of money from travellers on the road which he had no right to take. The bill then stated further, that the defendant not keeping his new road in repair (as he was bound as a condition of receiving tolls on that road to do), certain commissioners appointed by authority of law, removed the defendant’s toll-gate ; but that the defendant had again set up his gate, in contempt of the law, and still continued to exact tolls of all the travellei’s passing over the plaintiffs’ road ; that the plaintiffs’, in consequence of the defendant’s illegal acts, and the fear of the loss of travelling over their road, had been compelled to reduce their rates of toll one fifth less than they were authorized by their charter to take, and that their profits had been diminished at least twenty per cent. The bill prayed for an injunction to restrain the defendant from keeping up his gate on the plaintiffs’ road ; and also prayed an account of the tolls received by the defendant. The defendant answered and set up title as one of the assignees of the unexpired term of the grant of the turnpike road to Hoodenpile and Barnard. He said that the plaintiffs run their road into his, against his will and consent-; that he had received no more tolls than he was entitled by law to take for travel over his road ; that the commissioners put down his gate, upon a view illegally made, when he was not present and had no notice, and that he set up his gate again by the permission of one of the"commissioners.</p> <p>The bill was filed in February 1831, and an injunction was granted, with leave to the defendant, notwithstanding, to bring an action at law against the plaintiffs. When the answer came in, the cause was set for hearing upon the bill and answer, and on the hearing in October 1833, the Court dismissed the bill, and the plaintiffs appealed.</p>

The statement of the bill was, that one Britt, and the plaintiff as his surety, gave to Brinkley a bond, on which judgment was rendered in November 1837, for ‡109 -fifiy against both the obligors. Britt then owned a tract of land, unencumbered and of value sufficient to satisfy the debt; but his circumstances were becoming doubtful.

The bill stated that Saunders Meredith,' in consideration of goods, wares and merchandise, sold and delivered to him, executed to the plaintiff’ a single bill for the sum of $189-^, on the 25th of May, 1827, and payable one day after date ; and that the obligation had been since destroyed by accident. The prayer was for a discovery, and also for relief in the payment of the amount of the obligation with the interest accrued thereon.

<p>In the month of October, 1825, William H. Philips and Josiah Turner, formed a copartnership for carrying on mer-cantile business in the town of Hillsborough, under the firm and style of Turner and Philips. They afterwards changed the name of the firm to that of Josiah Turner and Co., and continued to carry on the joint concern until the month of January, 1833. The copartnership was then dissolved, and Turner being regarded as the more responsible of the late partners, took upon himself the office of paying off the debts of the concern. Philips and Turner joined in an assignment of all the effects and credits of the copartnership, to Allen Parks, in trust, to collect the said debts, and to pay the proceeds thereof as well as the proceeds of the said effects, to Turner,' for the purpose of enabling him to pay off the debts of the firm'; and Philips further conveyed to the said Parks certain property belonging or claimed to belong to the said Philips, individually in trust, to secure Turner from loss. In August, 1836, Philips filed his bill of complaint against Parks and .Turner, alleging that the property of the copartnership had been more than sufficient to pay. off its debts, that these had all been discharged accordingly, that a considerable amount of money was in the hands of the defendants or one of them, to a part whereof the said Philips was entitled; and praying to have the necessary accounts taken, and the defendants decreed to pay over to him, what should thereupon be found due. The defendants severally answered this bill. ^113 defendant, Parks, set forth an account of his management of the trust property, showing the amount received, the amount paid over to Turner, and the debts yet remaining to be collected. The defendant, Turner, set forth an account of the debts which he had paid, and of the money’s which he had received from the trustee, according to which account he had paid a large sum over the amount of his receipts, and exceeding any sum which could probably be realized from the trust funds. Turner then filed a cross-bill against Philips, alleging that on a settlement of the partnership accounts, Philips would be found largely indebted to the firm and to him as copartner ; that all the property assigned to Parks was not sufficient to discharge the debts of the co-partnership, much less to pay unto him the balance justly due from Philips upon said partnership, and prayed that an account might be taken of their partnership, and that Philips might be decreed to pay what should ultimately be found due to him. Philips answered this cross-bill, and insisted that upon taking the account prayed for by Turner, it would be found that Turner would be largely indebted to him. An order was made directing the master to take an account of all the matters in controversy between the parties and report the same to the Court. The master made his report, to which exceptions were taken by Turner, and the cause was transmitted to this Court for hearing.</p>

On the 14th of August, 1822, the plaintiff, Smith, intermarried with Mrs. Hays, then a widow and the mother of the defendant, Mrs. Thomas, then her only child and an infant of about four years of age. Mrs. Hays was then in possession of a negro woman and two children, which she claimed under the will of her first husband ; and Smith, the second husband, upon his marriage, took them into his possession and kept them until he sold the woman to Yancy, about two years afterwards.

This cause was heard upon bill and answers. From the pleadings it appeared, that in a cause by petition in the County Court of Nash between Zaney Lewis and others, there was an interlocutory decree, that a certain slave should be sold for. the purposes of the suit, and Bolin Melton was appointed commissioner to make the sale on a credit of six months.

The defendant, Long, wasf indebted to Campbell, one of the plaintiffs, in the sum of $1000, and executed his bond therefor with Brown, another of the plaintiffs, his surety. On that bond Campbell took judgment at law, for principal, in-' terest and costs ; and thereupon issued a capias ad satisfa-ciendum, on which Long was arrested, and from which he was, in 1833, discharged as an insolvent debtor.

<p>®*e proceeds of land sold for partition under the act of 1812, (.1 Rev. Stat. ch. 85, sec. 7,) to which an infant is entitled, remain real estate, until the infant comes of age and elects to take them as money; and if the infant be a female and marry, and her guardian, to whom such proceeds had been paid by order of the Court of Equity, pay the same to her husband, upon her death they will descend as land to her real representatives, and this whether shemarried and died before or after she came of age ; if in the latter case she never elected herself while sole to take such proceeds as money, nor consented, in the ,' manner provided by law, after marriage, that her husband should so take them.</p>

The bill was filed in July, 1835, for an account and distribution of the personal estate of William M’Lelland, who died intestate in the year 1781. The intestate left a widow and three infant children, of whom the plaintiff was one; and administration of his estate was granted to John M’Lel-land, William M’Lelland, and his widow Rebecca.

Lemuel Jennings was the guardian of Susan Harris, an infant of tender years, who was entitled to a negro woman and three children. The guardian obtained an order of the County Court for the sale of them, upon the ground that the ward had no other sufficient estate to defray the expenses of their support.

The bill was for a foreclosure of a mortgage. The defendant Allen purchased a slave named Ned, and other articles at a sale made by the administrators of one Littleton Patillo. Allen was one of the distributees of the personal estate of Patillo; and at the sale he requested the plaintiffs to be his sureties in a bond to the administrators, promising them that the administrators might retain his distributive share to satisfy the bond when it became due.

<p>■ Charles Conner, formerly of the County of Mecklen-burg, died in the month of January, 1804, having previously duly executed his last will and testament in writing, whereof he appointed his wife Ann, the defendant George L. Davidson, Charles Harris, and Peter Epps, of Virginia, executors, who all caused the said will to be proved and took upon themselves the trust thereby confided to them. The testator left surviving him his widow and two children, a son, Henry W. Conner, one of the defendants to this suit, and a daughter, Elizabeth Epps Conner. By his will he devised and bequeathed to his said widow, land and personal property during her widowhoodother personal property for life, certain negro slaves absolutely, and an annuity of one hundred dollars for five years. He devised to his son Henry several tracts of land, among which was one called the Greenwood Farm, “ with all the appurtenances belonging to the said land, including all stock on the same,” absolutely; also a tract of land called Given’s, “ if not needed to defray debts,” and bequeathed to him several personal chattels, a good horse, carriage and harness, with a negro boy Jack, exclusive of his dividend of the others.” The testator devised to his daughter several tracts of land, and bequeathed to her two beds and furniture! and two negro women, upon condition that if she should die before arriving to mature age, all the said property should descend to her brother; and further declared his will that she should be furnished with a horse, saddle and bridle. In a subsequent part of the will the testator directed that his store of goods should be sold in order to help to discharge debts, and that the obligations then in suit, and to be put in suit, should be collected and debts discharged'therewith, and if there should be any over-plus — the same to be put on interest for the use of schooling his two children, but in case they should prove insufficient, Given’s plantation to be sold. He further directed that the funded stock of the United States which he held in the loan office in Richmond; (Virginia,) should be removed to Raleigh, and the interest arising therefrom be put to the use of his children, and in case the interest should prove insufficient then the principal to be made use of, but if the interest be sufficient, the principal should not be drawn until his son should come of age, “ which sum, whatever it may be, is to be at his disposal.” He further directed that application should be made to Mr. Wickham, of Virginia, respecting a decree in Chancery which was rendered in his favor against Likely, Wardrobe, and others, and whatever might be obtained thereon after payment of expenses, “ to be put on interest for the use of his children with the general stock.” The testator further declared his will to be that his negroes not before mentioned should continue under the jurisdiction of his executors during his wife’s widowhood, or at least until his son should arrive at age, then a division thereof to take place as follows, two thirds to his son, and one third to his daughter, the negroes to be hired out in case his wife should marry before his son arrived at age, and the monies arising from said hires to be put on interest and divided as before mentioned in the division of negroes.</p> <p>After the probate of the will, the widow of the testator under our act of 1784, (Rev. ch. 204,) caused her dissent to the provision therein made for her to be recorded, and thereupon a jury was summoned to allot, unto her her dower in the lands of which her husband died seized, and also to allot and set off to her the one third part of his personal estate to which she was, under that law, entitled. The jury on the 18th July, 1804, made the allotment accordingly. In this, was se(; f0rth that the personal estate of the testator was valued by them at $18,306-ía5ü¡r> her third part whereof was $6,102-,Vo — that they found this sum discharged in part by personal property bequeathed to her by the will, which property was specially set forth with the value of each article, amounting in the whole to $3,043, leaving a balance of $3,059-^„\; that this balance was further lessened the sum of $620-^, by articles of personal property not willed, naming each and its value, and reducing the balance to $2,138-Vo. The last item in this list was thus expressed: “ The jury finds there is $100 annuity to be paid to the widow annually; the jury deducts $60 for prompt pay, $440.” They concluded their return thus: “After the executors pay the relict the said $440, there remains due to the widow this last balance of $ 2,138 W Peter Epps, one of the executors of Charles Conner, lived in Virginia, and •transacted no part of the business of administering the estate in North Carolina. During the life of Charles Harris, the said administration was conducted by him and George L. Davidson, jointly. Harris intermarried with the widow in the latter part of 1804, or in the beginning of 1805, and died in 1805. The sole administration of the estate in North Carolina was thereafter carried on by Davidson. At the April term, 1809, of the County Court of Mecklenburg, George L. Davidson was chosen guardian by Elizabeth Epps Conner, and Robert Worke was chosen guardian by Henry W. Conner, and at the next July term, Davidson and Worke executed a bond as joint guardians of the said Henry and Elizabeth. In the month of June, 1815, the said Elizabeth being then about 18 years of age, intermarried with the plaintiff, John D. Graham, and shortly thereafter a division was made between him and Henry W. Conner, of the negi’oes belonging to the latter and his sister. On or about the 1st of June, 1821, Mr. Conner and Mr. Davidson made an attempt at a settlement respecting the latter’s liability to the former and to his sister, upon his accounts as executor of their father, and as guardians ; and thereupon Davidson executed his note to John D. Graham for the sum of $283-ffi, and to Henry W. Conner for the sum of f566-¡^-, to secure the payment of the balances admitted by him ’to be due to them respectively. What were the debits and credits in that incomplete or attempted settlement is unknown; and the principles upon which it was made are also unknown, except that it was then supposed by the parties that under the will of Charles Conner, his son was entitled, after deduction of the widow’s allotment, to two thirds, and his daughter to one third only of the personal property of their father, which was not exclusively bequeathed to one or the other of them. In the month of January, 1825, Mr. Conner made a settlement with Robert Worke, because of his guardianship as well of his sister as of himself, by which settlement a balance was found due from Worke of $537-^0\. And Worke having died in 1827, he caused an action to be instituted thereon against Worke’s executors, and recovered judgment in the names of Henry W. Conner, and John D. Graham and wife — but it did not appear whether any thing had been collected or could be collected upon that judgment. After ineffectual efforts to settle amicably between the parties, the present bill was instituted by John D. Graham and wife, and subpoenas sued out thereon returnable to the Fall Term, 1829, of Lincoln Superior Court, against George L. Davidson, Henry W. Conner, and John Mushat, and Mary Worke, executor and executrix of Robert Worke, deceased, in which they charged that they were not parties to the settlement between the defendants Davidson and Conner; that at the time thereof the plaintiff John was wholly ignorant of what was due to his wife, and received the note from Davidson, merely because Davidson and Conner represented that much to be due ; that upon subsequently examining into the management of the estate upon the papers submitted by them for his consideration, he had found gross mistakes and errors ; that there were omissions in the inventories returned by the executors of Charles Conner; that Davidson claimed commissions on the sum allotted to the widow of his testator and paid over by him; that he had claimed more than was right because of debts alleged by him to be desperate ; that the account of the guardianship had' never been settled, that Davidson had paid over to Conner more than the latter was entitled to receive ; in particular that he had paid over to Conner, as his, the proceeds of a large quantity of corn, cotton and tobacco that was 'on the Greenwood farm, one half whereof belonged to the plaintiff Elizabeth ; that he had accounted with, and paid over to the defendant Conner, two thirds instead of one half only, the said Elizabeth being entitled to the other half, of the sales of goods and of the debts due to Charles Conner ; that the- interest of the loan office certificates had not been applied to the education of the children of the said Charles, but the whole received by Henry W. Conner, of which they contended one half was due to his sister ; that they were no parties to the settlement made by the said Henry with Robert Worke, nor to the judgment obtained thereon against his executors, and that the guardianship never had been settled ; prayed that these (alleged) settlements might be opened, and that the defendant Henry should account for any excess he had received from Davidson or Worke, and for general relief.</p> <p>The defendant, Davidson, answered and stated that until the latter part of the year 1805, the management of the estate of his testator in North Carolina, was conducted chiefly by Charles Harris, tvho had lived with the testator in his life-time, and in whose possession the bonds, notes and accounts were left for collection, but that after the said Charles’s death, it devolved upon himself; said that it would be extraordinary if, in the management of so large an estate thrown into confusion, also by the dissent of the widow, there had been no mistakes ; “ that defendant, however, did not admit the errors charged, but left complainants to the proof thereof, more especially as the complainant, John, had had possession of the papers of the defendant since the settlement in 1821; said, with respect to a particular debt, a judgment against James Kerr, the amount whereof was charged as left blank in the inventory, that he could not tell who collected it; but that the same with sundry others were at the time of taking that inventory in the hands of Harris, as appeared from a memorandum given to him by Harris at the time, and which by his answer, he declared that he had ready to produce ; that Peter Epps managed the estate in Vinginia, which consisted of the funded stock and the demand against Likely, Wardrobe, & Co., that he received a small part of said funds but paid them over to the widow in part of her allowance, or to the said Peter, and was ready to produce the vouchers therefor when required; that the defendant, Henry W. Conner, might have received some part thereof, and believed that such was the fact, because the defendant held the receipt of the said Henry for the receipt which he, the defendant, took from Epps when he paid over a part of the funds. Defendant further stated in this, his answer, that “ in the year 1821, the plaintiff, John, the 'defendant, Henry, and himself being all present, they fixed upon a day for a final settlement of the estate; that the said plaintiff declined attending, observing that he would leave the matter to the said Henry to settle ; that himself and the said Henry had a meeting, and an amicable settlement took place, so far as this defendant’s responsibility extended ; that the said John and Henry and this defendant again met, and the papers and settlement which had taken place were tendered to the plaintiff for examination, but it was declined, the said John still alleging that the said Henry knew more of the matter in hand than he did.” He declared that “ the division” was then made between the said John and the said Henry upon their own judgment, and that he executed his bond to each for the respective parts of the balance as arranged between them, and according to their directions, and he prayed to have the same benefit of these matters as though he had specially pleaded them. This defendant further answered that he and Worke became guardians of the children of his testator in 1809, and admitted that for two years he had control over the guardian fund, but said that about the year 1811 he handed over to Worke all the bonds for hire and rents which he had taken for the two preceding years, that Worke managed the whole concern of the guardianship afterwards, and therefore defendant insisted that he was not responsible for any mismanagement if any such took place. He further insisted that “ a settlement of the guardianship had taken place since Worke’s death with his executors, that the guardian funds which defendant had handed over to said Worke, were included therein and a judgment rendered for the amount, and he in * sisted on these facts as though he had specially pleaded the same.-</p> <p>Henry W. Conner by his answer admitted that there never had been any formal settlement between himself and the plaintiffs, and declared his willingness to have a full and correct settlement made under the directions of the Court; stated that he and the plaintiffs had at different times received money from Davidson and Worke as it was wanted, and that after coming of age he. had frequently applied for money, and appropriated what was received as well for his sister’s wants as for his own; he contended that under a fair construction of his father’s will the residue of the personal property was to be distributed two thirds to himself and one third to his sister; said that he was utterly unable to set forth what part of the estate was settled for by Davidson, either as executor or guardian, nor was he able to say what part had been accounted for by Worke otherwise than by the settlement which he made with Worke in 1825; that the plaintiff, John, at the time of the settlement referred to with Davidson was furnished by the latter with his vouchers both as guardian and executor, and was requested by the defendant to examine them, and assured that so far as he was concerned any error detected should be rectified ; that he was yet ready and always had been, so to do, and the moment he ascertained the dissatisfaction of the said John with the settlement so made as well with Worke as Davidson, he proffered to the said plaintiff to submit the difference between them to the arbitration of any intelligent gentleman. In regard to the settlement with Worke, the defendant stated that he had been urged by the plaintiff, John, to bring Worke to a settlement; that this settlement was made (as defendant believed) in the presence of the said John; that it was signed only by Worke and this defendant; but that at all events a copy thereof was afterwards delivered to the said John; and that after Worke’s death, the defendant, in order to secure whatever might be obtained from his estate if any thing could be had, and certainly not with any view to prejudice the rights of the plaintiffs, caused the settlement to be put in suit, when a judgment was rendered to the benefit of one third, whereof the plaintiffs were admitted to be entitled. The defendant contended that by the construetion of the will of his father he was entitled to every thing that was on the Greenwood farm, and that the plaintiffs had improperly received a part ther'eof; stated that he had received of the Likely debt about $~20 from Peter Epps in Virginia, the one third whereof he had accounted for to the plaintiffs; that he had no recollection of having received more, and believed that the residue had been applied to the payment of his father’s debts in Virginia, and to the support of himself and his sister, except a small balance which he believed to be in the hands of the representatives of Peter Epps, and the sum of about $270 then in deposit either in the United States Branch Bank at Richmond, or in the office of the clerk of the Federal Court in that city. With regard to the funded debt, the defendant stated that when he arrived at age he received the whole that was then unpaid, the residue having been applied as directed by the will. To this the defendant denied that the plaintiffs had any claim; and the defendant further set forth certain credits which it is unnecessary now to particularize, but which he claimed to be allowed him in account with the plaintiffs.</p> <p>The executors of Worke relied in their answer upon the settlement made by their testator in his life-time, and the judgment thereon rendered after his death, as establishing what was due from him ; denied that they knew of any errors therein, and alleged that they had fully administered all the assets of their testator before they were served with process in this suit.</p> <p>To these answers there was a general replication, and thereupon and before a hearing of the cause at the Spring Term, 1830, it was ordered that it be referred to the Master, with the assistance of Thomas Dewes, Esq., to take an account of the estate of Charles Conner, deceased, which came into the hands of the defendant Davidson, as his executor, and how the same had been expended ; and in that report to set forth what amount of money or property, was set apart by the will of the said Conner for the payment of debts, what amount was set apart for educating his children, and how expended, and on whom ; what amount was for ■ distribution and how divided ; and what sum or property was undisposed of by the will; and that the report set forth qle sums which came into the hands of George L. Davidson and Robert Worke as guardians, and how disbursed. At the subsequent term, in 1830, it was ordered that it be referred to the Clerk and Master, to take an account and report; that he have power to call the parties before him, and examine them on oath. At the Spring Term, 1831, the Clerk and Master made his report, and at the same term it was ordered that the rule of reference at the last term be amended so that the reference be without prejudice. To the report, exceptions were taken by the parties ; at the Fall Term, 1832, the cause was set down for hearing, and at the August Term, 1833, was upon affidavit of the plaintiff, John D. Graham, removed to the Supreme Court. After the cause came here Mrs. Graham, died and her husband was by an order of the Court permitted to revive the cause as her administrator. At the June Term, 1834, of the Supreme Court, the following order was passed: “ The plaintiff’s counsel admitting that certain exceptions taken by the defendant to the report of the Master made in the Court below, and which affect the whole report, are well founded, it is thereupon ordered by consent of the parties that the said report be set aside, and that the cause be referred to Mr. Commissioner Freeman, to state the same accounts as are directed in the decree made in the cause below, and that he report at the next term. It is also ordered by the like consent that the reference be without prejudice to any matters of defence set up by the defendants or either of them.” Under this order the commissioner made his report, to which very many exceptions were taken by the defendant Davidson, several by the defendant Conner, and many by the plaintiff.</p> <p>It is not deemed essential to state the exceptions of the different parties in detail, as the nature of those of which a particular notice is necessary, will be sufficiently seen in the opinion of the Court.</p> <p>By an arrangement between the counsel, the cause was heard upon the pleadings and proofs, and the exceptions argued at the same time, by</p>

Burnet Bryan, Simpson Bryan, Epsey Bryan, Zilpha Bryan, Sally Bryan, William Bryan, and Margaret, then the wife of Miles Radford, were the children and heirs at law of Robert Bryan, deceased ; from whom descended to them a tract.of land situate in Wayne County.

The complainants filed their bill in 1834, therein charging that Samuel Trogden the elder, died in the year 1831, intestate; that administration on his estate was granted to the defendant Samuel Trogden ; that the personal estate of the intestate after payment of debts and expenses of administration was distributable between his widow and eight children, of which children the female complainant was one, and the defendant Samuel another; that the said defendant had accounted…

The plaintiff brought his suit against the defendant for at partition of the slaves mentioned in a sealed agreement referred to and made part of the bill, and also for an account of the hire and profits of the said slaves, and to be decreed a moiety of the same. The slaves originally belonged to Willie Bunn, the plaintiff’s maternal grandfather.

A marriage being contemplated between Abner Bronson and Susan R. Cox, articles of agreement were entered into between the said parties and a common friend, Isaac B. Cox, by which it was covenanted that after the marriage, the said Isaac should hold certain slaves, then the property of Miss Cox, to her sole and separate use forever; and whereby Bronson bound himself at any time after the marriage, when he might be thereunto required, to make a conveyance of the legal estate…

<p>Where a hill alleged that, at an execution sale of the lands of the plaintiff’s deceased father, a certain person, by representing that he was purchasing for the plaintiffs, prevented competition, and thereby obtained the lands at an under value, and afterwards sold the same to the defendant, who pretended that he was buying for the plaintiffs, but afterwards refused to acknowledge the trust, and convey the land to them, it was held that, upon its appearing from the proofs,"that the purchaser at the execution sale, did not in fact buy the lands for the plaintiffs, but bona fide for himself, it was not necessary to consider whether the defendant bought upon any trust, and if so, upon what trust, for the plaintiffs; for that, unless the facts proved agreed with those alleged, the plaintiffs could not have any decree, and the foundation of their claim, as alleged, was an original purchase in trust for thereby the purchaser at the execution sale, and a devolution of that trust upon the defendant.</p>

<p>Where a testator, after several devises and bequests, concluded thus: ■ “The,balance of my property to be applied to the payment of my just debts. Should there be a surplus, it is my 'will and desire that it be equally divided among the heirs of my deceased brother S. F. and the heirs of D. C.” It was held that as the “property” mentioned in the will was a mixed fund of real and personal estate, and was to be applied in the first place to the payment of debts, the executors 'had a power by implication to sell a tract of land not specifically devised, for the payment of debts and for distribution.</p> <p>Where <rai lands but it i>7™ homed there, if the side is to be op... p!ied by the CXCCLPc,is iii the execu-then of theji- office a pond- 10 sell intl be implied to the execu-t >1-s</p> <p>If a tesistor ~`~~l)1Y directs the ~hstpibu_ los, srnon~ cer sin objects. of an Uiii~~ixc,l fusd crising from the sa'c ot land only, ttten the heir alone can sell.</p> <p>The word "property" is equ va-lent to "estate" in its operation tn pass the interest in land as wet as ~lie land itseif and land will pass irs a will by either of these words.</p>

It was charged by the plaintiffs, that on the 6th of March, 1818, a few months before the death of the defendant’s intestate, he being sorely pressed to raise the sum of $818, to meet an immediate emergency, applied to the defendant, his brother-in-law, for aid in procuring the money; that the defendant advanced part of this sum, and, by his guaranty, enabled his intestate to procure the residue; and that, for the purpose of securing to the defendant the re-payment of the…

William Dailey made his will, and died in the year 1812. Alter a legacy to the wife, the will has this clause: “I lend to my son Samuel Dailey all the residue of my property, whether real or personal, till the age of twenty one; if he should die before that time and I have no other child, I then give half my personal property to my wife Elizabeth Dailey; and the rest of my property, whether real pr personal, to my relations on the part of my mother, in England, if any living.

John Morrison and Colin A. Munroe and wife, as the administrators of Benjamin Person, deceased, in March, 1S32, filed their bill of complaint against Neil McLeod, setting forth that the latter had obtained a judgment against them for $1,000, principal money, besides interest, on bonds of their intestate; that they had obtained judgments against said McLeod for six or seven hundred dollars, and were-then prosecuting a suit against him, in which they expected to obtain a…

<p>One partner cannot be charged with all the debts of the firm, simply upon the ground that the books were in his possession, and without any evidence of any special undertaking that he would collect the debts. He should be charged with only What he collected.</p> <p>Where no settlement or statement of company accounts between the partners appears, the intetest of each patmer in the funds is only an equal share after'all debts are paid, and after each has accounted for what he has already received. This, therefore, involves the taking all the accounts of the partnership, as well of the debts it owed as of those ow- ' ing to it, and every thing else material to stating a proper profit and loss account — for it is only such balance as may appear upon that account, that is to be divided-between the partners, and carried to their respective accounts in the books, and thereby show how they stand towards each other. Therefore, the report of the master, upon a reference to him to state an account of the partnership, merely ascertaining the debts due to the firm, and dividing them equally between the partners, will be erroneous.</p>

-On the 22nd of August, 1835, by an instrument declared to bean indenture, and to have been made between Richard W. Benburyof the first part, and Joseph N. Hoskins of the other part, but which purported to be sealed, and was in fact sealed by the saidBenbury only, the former, in consideration of the sum of five dollars therein acknowledged to have been paid unto him by the said Hoskins, conveyed unto the latter a certain tract of land, to have and to hold unto him, his heirs…

The bill was filed in August, 1833, by Jacob Buffalow, the administrator and heir at law of Steele Buffalow deceased, for the purpose of having certain deeds made by him to John Buffalow, declared void, as having been fraudulently procured, or that they should stand only as a scurity for what might be found to be justly due to John Buffalow, upon the transaction between the parties.

By an original and amended bill, brought by John A. Chaf-fin, George H. Chaffin and Mary Chaffin, it was charged that Nathan Chaffin, the elder, and his two sons, Nathan Chaffin, the younger, and William W. Chaffin, entered, in the year 1812, into a mercantile partnership, under the firm of W. W. Chaffin and Company, carried on at Huntsville, in Surry county, under the particular management of William W. Chaffin, one of the partners; and that the co-partnership continued…

The plaintiff charged by his bill, filed against Charles L. Crissman, in his life time, that he purchased a tract of Iand; at execution sale, for $101; and that he borrowed of Criss-man $75, to enable him to make up the amount of the purchase money; and that, thereupon, and for the purpose of securing the re-payment of the sum so advanced, the sheriff was directed to make, and did make, a conveyance of the title to Crissman.

This was a divorce cause, begun by bill filed in the Court of Equity for Wayne county, and answered by the husband. After replication and much evidence taken, the cause was set down for hearing, and then transferred to this Court to be heard.

This bill was filed by the executor oí Godwin Cotton, for advice as to the construction of his will, which contained, among others, the following clauses, to wit: “I give and bequeath unto Gemisou G. Cotton, son of Arthur L. Cotton, two hundred and fifty dollars. 2ndly, I give and bequeath unto Edwin Whitehead, son of Joseph Whitehead, deceased, two hundred and fifty dollars. 3rdly, I give and bequeath unto Mary Godwin Cotton, daughter of Joseph Whitehead, deceased, two…

The plaintiffs were a grand-son and two gfand-danghters of John Martin, who made his will and died in 1822. Their father died intestate, leaving very little property, in 1814, when they were quite young. The grand-father, by his will, desired “ that my three graud-children, John Martin Cloud,' Mary Ann Cloud and Jeroam Elizabeth Cloud be raised and taken care of at the direction and care of my son.

<p>When the depositions of the witnesses in an equity suit, transmitted to the Supreme Court for hearing, are in such direct conflict with each other, that it is evident perjury has been committed, hut the court cannot tell on which side the guilt lies, it will direct feigned issues to be made up and tried in the Superior Court, where ’ the witnesses may be personally examined in open court, instead of empannelling a jury before it, the Supreme Court, under the special authority conferred upon it for that purpose, where such personal examination cannot be had.</p>

Thomas Speight became indebted by note to one Harper, in the sum of $400, and Jesse Speight and Lemon Speight also executed the no,te as the sureties of Thomas. In 1829, Harper brought an action at law on the note, and obtained judgment; and, thereupon, Thomas Speight filed his bill in ■the Court of Equity, to be relieved against the note and judgment, upon certain equitable grounds therein stated, and obtained the usual preliminary injunction.

Joel H. McLemore, by his last will and testament, devised and bequeathed as follows: “I give the following property to my friend, Henry Doggett, in trust, for the support and maintenance of my daughter, Mary E. Avent, viz: Austin, senior, Cynthia, Emanuel, Daniel and Chaney, with an equal share of the proceeds of the sale of property, which I shall empower my executors to sell, with the exception of five hundred dollars, to be taken out of the part of my daughter, of the…

On taking the account of the administration of the personal assets of William Keeling, deceased, by his executor, the defendant, 'Dunn,- as directed by the decretal order of this Court, the Commissioner reported that the said executor received assets but to the amount of $180:04 cents, while he paid debts of his testator, and made other disbursements on account of the estate of his testator, to the sum of $308:07, leaving a balance due to the said executor, and for which he…

The bill was filed on the 18th day of September, 1835, and stated, that the defendant, Lewis White, became indebted to the plaintiff, for the price of a tract of land, in the sum of $1,200; for which he gave two bonds, dated the 20th March, 1819, for $600 each, payable, the one on 1st. December, 1819, and the other on 1st December, 1820: that on the bond first due, the plaintiff obtained judgment, at law, on the 12th of June, 1820, for principal, interest and costs: that…

<p>Where a plaintiff can hare as effectual and complete a remedy in a Court of Law as that for which he invokes the aid of a Court of Equity— a remedy, direct, certain and adequate — the defendant may insist that this remedy shall be sought for in the ordinary tribunal. But, this objection to the exercise of jurisdiction ought to be taken in due order and apt time; for, otherwise, if it be one which the party may waive, it will be deemed to have been waived, by failure to bring it forward to the notice of the Court in limine... Where the objection has not only not been taken in the pleadings, but. the defendant has expressly submitted to the jurisdiction of the court, by praying of it to decide on. the question of his liability, the objection must be regarded as one not of strict right, but addressed to the sound discretion of the Court.</p> <p>Upon an agreement for an indemnity, the plaintiff has a right, without waiting for actual loss, to call on the defendant, in a Court of Equity to indemnify him against impending injury, and, to that extent, enforce the specific execution of the agreement between them. But, before an actual loss sustained, the plaintiff can maintain no action at law upon the agreement.</p> <p>Where a bond of indemnity is in the- hands of the defendant, the plain, tiff has a right to go into a Court of Equity for an exhibition of it, arid for such relief there as, upon its exhibition, may be deemed just; and this without any previous demand of the instrument. The want of such demand may affect the costs, but does not per se oust the court of the right to decree its exhibition.</p> <p>Where an agreement was made between an executor and D. M., thatthe latter should take possession of certain slaves belonging to the testa, tor’s estate, and keep them until the executor should be called upon, for them and their hires by the person entitled thereto,'and should indemnify the executor from all loss on account thereof; and the executor stipulated, that if so saved harmless, he would not, as executor or otherwise, have any further claim to said slaves, and moreover relin. quish to D. M. all the right which he had, as executor, to them, it was ■ held, that the commissions allowed to the executor in his account with the parsons entitled, for collecting the hires of the slaves while in the possession of D. M., belonged to the latter; but that he was not entitled to the commissions allowed the executor for selling said slaves as commissioner under a decree of Court.</p> <p>A (lefi.ct of (iXlStSWllCl'C courts of a ristJ oli°" undertake to actbe-bounds'of iiuR-deie-quted au-thorny; or UI,UQ by l!"vs°t the country«are reseived for sl'ye consid-10,1 oí a (i’flcrcntju d¡o>a¡ or tribunal,</p> <p>Mo crnsent of i)arti;s juiisdietion ia,v'handby tt{|®t‘"j;tant court per-kisexel-ris-ercise, a fot- £ ’{0,1: *tay its ac-_ it°dó not,' a nulliY-</p> <p>lt ¡s tionabietor up0n a ref-hi.m>t0 <le-cline Dass~ ingupon a- & its validity ’^hou'id decide, according to his best judgment, upon ail the mufuaf ° and brought_ andreport ’ elusion thereon, p“t™py"0 having that c.ifio exoeP-</p>

The plaintiff alleged, in his bill, that in the year 1830¡ he obtained of the defendant, by the way of a loan, the sum of, $300; and that, to secure the repayment of it, he mortgaged to the defendant a negro woman by the name of Jane, and her child. The bill was filed in '1836, for the purpose of redeeming the mortgage.

This was a petition by some of the tenants in common of a certain tract of land, against their co-tenants for a sale of the land for partition, under the act of 1812; (1 Rev. St. c. 85, sec. 7,) but the persons entitled to the land, and their respective shares therein, Avere not distinctly and precisely shown either in the statements of the petition, or by the evidence produced to establish them.

John Powell died in the year 1838, leaving a will, in the first clause of which he bequeathed several slaves to his wife for life, and afterwards to his children, to be equally divided between them, “ share and share alike,” and then proceeded as follows; “ Item 2.

Edward Graham Esq. formerly ofNewbern, in this State, duly executed his last will and testament with the ceremonies required to pass real and personal estate, whether in New York or North Carolina, and thereby devised and bequeathed as follows::í I give, devise, and bequeath to the use of my dear wife Elizabeth Graham, for and during the term of her natural life, all my estate, both real and personal, ’whether lying and being in the States of New York, North Carolina,, or…

William Smith, formerly of Warren county, departed this life in the month of July, 1818, having first duly executed his last will and testament, whereof he appointed John R. Eaton, Charles Baskerville, William Baskervilie, and his brothers, Alexander Smith and Maurice Smith, executors.

The plaintiff’s bill was filed in Febttary, 1838, and it charged that William Ogburn died in 1824, having first ly made his last will and testament, wherein, among other devises and bequests, he bequeathed as follows, viz:: “ I give and bequeath to my daughter, Nancy Watson, a negro woman named Fan, and her increase after this date, to her and the heirs of her body, if any; if not, an equal division to be made between Claborne and Nancy, at her death, her part to return to…

The plaintiff stated in his bill, which was filed in the Spring of 1835, that on the 12th of December, 1822, he borrowed of the defendant the sum of $400; and to secure the repayment thereof, executed a bill of sale, oí the same date, for a female slave, named Tener; and, at the same time, took from the defendant, on a separate paper, the following instrument, in writing: “on condition, a't January, 1823, that Mr. Joseph Munnerliu does come forward, and tender unto me,…

On the 25th of May, 1808, in contemplation of a marriage about to take place between Hubbard Pearson, of this State, and Martha Rogers, of South Carolina, several negro slaves, the property of the said Martha, were duly conveyed unto John Rogers and Nathaniel Pearson, their executors, administrators and assigns, upon trust, to the use of the said Martha until the intended marriage should be solemnized; and after the said marriage should be solemnized, then lor the sole and…

In the year 1817. the plaintiff and the defendant, together with Daniel Harvey and William Dickey, became jointly and severally the sureties of one James B. Dickey, for the faithful discharge of his duties as guardian to the infant children of Henry Shut!., deceased; and, as such sureties, executed with their principal, the ordinary bonds required by law to be given by guardians.

<p>The construction of devises of legal interests in land is a legal question, and belongs to the tribunals of the law, and not to those of equity; and the obscurity of the will furnishes no sufficient reason for apply- . ing to equity; for, if the obscurity be not so great as to render the disposition altogether unintelligible, the devise will be valid at law, so far as it can be understood; and if it be so vague and uncertain as not to amount to a designation of any corpus, it necessarily follows that no court can help it, but that it must be ineffectual.</p> <p>A Court of Equity will not entertain a bill to settle boundaries, except incases in which the boundaries were once certain, and were rendered uncertain by the default of the defendant, or those under whom he claimed; and where there was either an agreement that the land of tho several parties should be distinguished; or some relation between the parties, which made it the duty of one of them to preserve the landmarks, and therefore the boundaries became confused, by the neglect or fraud of the party charged with that duty; as a tenant.</p> <p>It is essential to a bill to stay waste, that a good, and not a doubtful title to the place wasted, or in which the waste is apprehended, should be shewn. Equity will not interfere for that purpose, where, by possibility, the plaintiff’s claim, now confessedly uncertain, may turn out upon evidence hereafter to be discovered, to cover a part of the .land in which it is said the waste is contemplated.</p> <p>In a bill for the discovery and production of deeds, it is absolutely necessary to charge that the deeds have come to, or are in, the hands of the defendants. It is not sufficient to state that a certain person had some deeds in his hands without describing them, and that he died and made some of the 'defendants his executors, and others his devi-sees, without any allegation thatany deeds for the land claimed by the plaintiff, or material to him in the controversy, have come into the . custody, or under the control of the defendants.</p>

The bill stated the defendant to be a sister of the plaintiff and an idiot; and that, upon the death of their father, in 1818, sire became entitled to three slaves, emd to the sum of $500 in the hands of the plaintiff; that he then took her to live him, for the purpose of taking care-of her; and also took the management of her property, as she had no guardian; that he had supported her comfortably up to the filing of the bill, in 1838, and that her negroes had increased to…

The bill which was filed in November, 1837, charged that at the November Term, 1836, of the Court of Equity for the county of Caswell, it was decreed on the petition of the heirs at law of one Littleton Sledge, that a lot of land in the town of Milton, in said county, should be sold by the Clerk and Master of said Court, upon the terms therein stated, which was accordingly done, in December following, when the defendant, John H. Crockett, became the purchaser, at the price…

Daniel Gallant died intestate and seised in fee of certain lands, situate in Mecklenburg County; and in 1829, upon the bill of Daniel’s heirs, (of whom John Gallant was one,) the Court of Equity for that County decreed that, for the purpose of partition, the lands should be sold by the Clerk and Master, on a credit, in the decree specified.

The bill stated that one Adams, as principal, procured a note, to which the plaintiffs and the defendant’s testator were sureties, to be discounted at Bank. That Charles McCau-ley died before this note came to maturity; and that Adams, for the purpose of raising money to meet this note, offered another note with the plaintiffs only as his sureties, which was discounted, and the proceeds applied to the satisfction of the first note.

The bill was filed for an account of the personal estate of Robert Cannon, deceased, of which his son, the defendant, Henry J. Cannon, was the administrator. The intestate died in July, 1833, and the administration was taken in August following. In February, 1834, the widow intermarried with the plaintiff, Samuel B. Spruill, and in August following, he filed this bill against the administrator, and against the other five children o'f the intestate, who were all infants.

<p>In January, 1832, the defendants administered on the estate ol James Murphey, who died intestate, and left the plaintiffs, his infant grand-children, his next of kin. His estate was considerable; and, except five, his slaves were sold, and a's0 ^le Per^s^a^e property, to the value of $38,658:41 cts. There were also a number of debts due to him on bonds, notes and accounts. From these sources including the in- ° terest accrued on the debts to the intestate, and ón the proceeds of sales, the administrators received assets to the value of $66,615:43 1-2 cents over and above the value of the five slaves. The administrators paid debts of the intestate to the amount of $9,869:43 3-4 cents. The plaintiffs all had the same guardian, and it was agreed between him and the administrators, in order to keep the funds of the children at interest, and the better to secure the money due the estate, that the administrator should take bonds with good sureties for debts due the estate, and made payable to the guardian, and that the latter would receive such bonds in payment as cash. The business was accordingly conducted in that manner, and the sum of $54,699:76 1-4 cts. thus paid to the guardian for the plaintiffs; whereof the sum of $33.-884:63 1-2 cents was paid in October, 1833, and $16,566:65 cents on the 1st of May, 1835, and the residue in 1836 and 1837. One of the five slaves, not sold, was in the possession of another person, against whom the administrators were under the necessity to bring an action of detinue to recover the negro; who was of the value of $625:00. The other four wore of the value of $1,590:00; and at those values the guardian took them and gave a receipt to the administrators.</p> <p>The intestate had been the guardian of certain infants, and at his death owed them a sum of money which he had received of theirs, and also held bonds payable to him as their guardian for $237:26 cents. The intestate had also been administrator of his only child, who had died intestaie, leaving the present plaintiffs his children; and the defendant’s intestate owed that estate upwards of $2,000, for a balance of cash in his hands, and held bonds for the further sum of $2,936:48 1-2 cents, payable to him as administrator. The present defendants in settling with the former wards of their intestate, and with the administrator de bonis non of the first intestate, claimed and got credit for a commission of 5 per cent, to the intestate James Murphey; and also passed over to the wards and to the administrator de bonis non bonds for the said sums $237:26 cents, and $2,936:48 1-2 cents, as cash. The defendants, in like manner, delivered ' over to a person bonds to the amount of $113:58 cts., which their intestate held in trust for that person.</p> <p>In settling and collecting the debts owing to their intestate, the same were reduced by the sum of $3,437:89 1-2 cents, for and by way of set off, claimed by the debtors, and allowed judicially, or by the defendants themselves.</p> <p>In January, 1836, upon the application of the administrators, the County Court which granted the administration, passed an order “allowing them 5 per cent, commission on the receipts and disbursements of said estate;” and also appointed commissioners to audit and settle the administration account. In October, 1836, a report was made, upon which a balance appeared to be remaining in the hands of the administrators of $1,348:79 cts., after giving them credit for the sum of $4,294:86 cents for their commissions. That sum was made by computing the commissions at the rate of 5 per cent, on the receipts and disburements: reckoning as receipts the sums of $3,437:89 1-2 cents, and $2,215:00, being the amounts of the set-offs and values of the slaves; and also reckoning as disbursements the said sums of $337:26 cents; $2,936:48 1-2 cents, and of $113:58 cents; being the amount of the bonds delivered over to the administrator de bonis non and others, as before mentioned.</p> <p>Subsequently the administrators disbursed the balance of $1,348:79 cents, reported to be in their hands, in payment of demands then impending over the estate.</p> <p>In October, 1839, Mr. Walton having intermarried with one of the next of kin of James Murphey, and been appointed guardian for the others, instituted this bill in the names of himself, and his wife, and his wards, for an account of the estate; but alleging therein particularly no objection to the account rendered to the County Court, except in respect to the charges and allowance of commissions. As to that the bill charged that-the value of the slaves specifically delivered to the guardian, and the amounts of set-off, and the bonds which the intestate James held, as guardian, administrator, trustee, and which the present defendants delivered over to the owners, were not properly the subjects of commissions. The bill charged secondly, that, considering the time and trouble of the defendants while employed in the administration, and that the guardian accepted payment in bonds without putting the administrators to the trouble and delay of collecting the money, the rate of commission was excessively high and disproportionate; and that as the allowance was ex parte and while the next of kin were infants, the order of the County Court ought not to conclude them, but that the commission ought to be reduced to a reasonable compensation.</p> <p>The defendants, without waiting for service of process, put in an answer at the same term; and therein set forth a particular and detailed account of their administration, and annexed also a copy of the account, stated by the auditors; between which two accounts there was no discrepancy, except as to transactions subsequent to the report. The accounts appeared to have been very accurately kept, and especially in respect to the interest accrued on the debts, and lor interest thus arising, large sums were accounted for.— With the accounts thus rendered, the plaintiffs were so entirely satisfied as to set the cause down for heaving on bill and answer. The defendants admitted therein the charges of the bill as to the several items on which the compensation was charged. But they insisted that the order of the County Court was made upon due investigation, and, as the decision of a competent tribunal, was conclusive: that the commission was properly charged, upon the value of the slaves, bonds and set-offs; and that the administration was tedious, difficult and protracted, and the responsibility very great, and requiring sureties for a large amount; and that the commission was reasonable — especially as there was no charge for personal expenses in attending to the business of the estate, which were heavy, but that no account was kept of them..</p> <p>In this state of the case, it was, by the consent of the counsel, submitted for decision; and his honor Judge Pearson, before whom it was heard’, at Brlrke, on the last circuit, allowed no commission on the amounts of set-off, or on the value of the four slaves. His Honor allowed’a commission of $5 per cent on the cash collected by the defendants; and on the value of the slave which was recovered at law; and on all the cash disbursements; and a commission of 2 1-2 per cent, on the residue of the estate which the administrator did not collect, but paid over in bonds to the guardian. And upon the admissions of the counsel, as to the probable amount of expenses for travelling, attending courts, &c., his Honor allowed therefor the sum of $400, making for all those allowances, the sum of $2,851:78 1-2 cents.</p> <p>This reduction of the amount of commissions had the effect of creating a balance in the hands of the defendants of $1,409:52 cents, with interest on which, after two years from the administration, viz: the sum of $493:33 cents, his Honor directed the defendants also to be charged; and for the aggregate thereof, namely, $1,902:85 cts., a decree was made in fa-vour of the plaintiffs, and the defendants appealed.</p>

Samuel Ralston, died in Pitt county, on the 11th day of February, 1829, and at the succeeding May Term of the County Court, the defendants, Telfair and Blount, offered for probate a paper writing, dated the 7th of February, 1829, purporting to be the will of Ralston, whereof they were the executors; and they procured the probate thereof, and letters testamentary, to be issued to them jointly.

<p>Where a testator devised and bequeathed all his estate, consisting of land, slaves'and perishable property, such as household furniture and live stock, to his wife for life, and then proceeded, “ and at the,death of my wife, the property then remaining to go to my son A. H. And provided he should be then dead, to go to his lawful heirs, if any; and provided the said A. H. should die before his mother, and die childless, then the remaining property, after the death of my wife, to be sold, and to be applied” to certain specified purposes; it was held, that the wife took but a life estate in the land and slaves, that the son did not take a vested‘but only a contingent interest in this-property, and that upon the death of the son, in the life time of his mother, leaving children, the children took such an interest in the slaves as entitled them to apply to a Court of Equity to restrain the tenant for life from selling the slaves out of the State, and to compel her and her vendees to give security for the forthcoming of the slaves at her death.</p> <p>In a consid-erabie class of casos & devise oí-w/?a/sAo°i íeheft^at the decease deviseePoi-°l be!n held”</p> <p>for uncei--aBut of the comprised ,sists °f household furniture or ¡fes of a1" perishable nature,these words may ^¿utered as referring to the use and wear of^^g*1^ if ^ expressly for lire; and indeed anyWsenin whioh ?ach expressions have been tier the gift of the „‘ass So i¡m-lor hle‘</p>

The defendant residing in Orange county in this State, was entitled under the will of his lather to certain lands and slaves during his life, and at his death, they were to go in remainder to other persons; of whom the plaintiff, Mrs. Cates was one.

The bill, in this case, was filed by the next of kin of William Utley, against his administrators, for an account.

<p>An executor of a deceased partner, ■who has generally exhibited perfect integrity and zeal in the management of his testator’s estate, shall not . be charged with negligence in not filing a bill for an account and settlement against the surviving partner within two years after the expiration of the partnership, and until after the surviving partner had left the State, where it appears that the latter had been greatly trusted by the testator himself, was a man of unexceptionable character, and up to the time of his going away, was actively engaged in winding up the affairs of the concern, and no suspicion was entertained by any person of his integrity during that period.</p> <p>In a bill lor an account by the legatees against the executor of a deceased partner, in which they seek to charge him for not collecting the amounts of certain decrees which he had obtained against the surviving paitner, upon a bill taken pro cnnfesso, against him, it it appear that the decrees were erroneous, and the sums decreed therein too large, and the executor has in fact obtained from the surviving partner as much, or more than the amount properly due from him, the executor shall not be charged with the balance remaining unpaid on the decrees, and which cannot nolv be collected because of the insolvency of such surviving partner.</p> <p>If an executor make a compromise for the estate of his testator, which is, as a whole, highly advantageous to it, he shall not be charged because, in a single’particular, it is not so; for, being advantageous upon the whole, the estate must take it with its inconveniences as well as its benefits.</p> <p>An executor is entitled to charge for actual expenditures incurred in the faithful discharge of his duty; and the expenses of attending sales in whi^h the estate is interested, and of sending an agent out of the State to collect a debt of considerable amount, are of that character.</p> <p>The Court will not disturb the o' mmissions allowed an executor by the Master, though they were in part allowed on some items not the proper subjects of a commission, if the Master has reported the whole sum allowed for commissions to be reasonable, and excluding from the account every item not properly the subject of a commission, the amount allowed will not exceed 5 per cent, on one side of the account.</p> <p>A commissioner, by reporting an account annexed to the defendant’s answer to be correct, adopts it as his account.</p> <p>Where claims against a partnership appear to have been unsatisfied at the death of one of the partners, the exhibition ot the vouchers of payment by his executor, in a suit by the legatees against him, is prima facie evidence that he made'the payment; though the mere production of the testator’s notes by an executor does not establish payment by him, where it does not sppear that the notes were unsatisfied at the testator’s death.</p> <p>In a bill by the legatees against the executor of a deceased partner, it is immaterial whether the partnersnip debts were paid by the executor or the surviving partner. They were charges upon the assets, and the plaintiffs are entitled only to the clear residue of these assets, after payment of the charges upon them.</p> <p>The Court will not disturb the Masters allowance of commissions,'because he has not allowed any on the disbursements, if it is satisfied with the amount allowed as a compensation for the executor’s services.</p>

<p>The plaintiffs, who were the children of Nathan Sessoms, filed their bill to recover a legacy of $500; which they alleged that they were entitled to receive under the will of Celia Freeman. The objections on the part of the defendants were, first, that no such legacy was given- by the will. But, secondly, that if there were such a legacy, it was a specific legacy, or a legacy payable out of the land only; and that the fund out of which it was intended to be raised, had failed, in consequence of the will’s having been attested by one witness only: that the power intended to be given to the executors, to sell the land, and pay the five hundred dollars out of the proceeds, was not good in law, for the want of two witnesses to the will. Celia Freeman, the testatrix, in the first and second pages of her will, gave several specific and pecuniary legacies. The sums in all the money legacies, were mentioned in dollars. Then came the following clauses: “Item, 1 likewise leave all my lands and plantation to be sold by my executors, but one acre to include-graves, and pay five hundred to my brother Nathan Sessoms’s children, to be equally divided, to them and their heirs forever. Item, I give and bequeath Elisha Sessoms the sum of one thousand dollars, to him and his heirs forever. Item, and also the residue of my estate to be sold by my executors, and. all my just debts to be paid — those legacies to be paid off, which I have already given away; and the balance, if any, to be equally divided between Elisha Sessoms” and others.</p>

Simon Williams died in the year 1808, having previously, by his last will duly executed, made a disposition of certain slaves in the following words, to wit: “ I lend unto my son, Alanson Williams, and my son-in-law, Anthony Sale, in trust for the only use and benefit of my daughter, Betsey Payne, during her natural life, against the claims or control of her present or future husband, the following negroes and their future increase: Teresa and her two children, the names not…

The plaintiffs, in this case, were Sarah Lenox Thompson, otherwise called Sarah McKinnel, suing by her next-friend James Stuart, Alexander Kissock, James Broom and George Blount, and the defendants were Jane McDonald, widow an executrix of Ronald McDonald, deceased, Robert Martin, administrator de bonis non of Ann Charteris, deceased, John W. ’Ellington and John McKinnell.