Volume 23 — South Carolina Equity Reports

<p>By the laws and usages of this country, an executor is entitled to the controul and possession of the real estate, so far as it is necessary to enable him to carry into effect the will of his testator, by making crops, collecting rents, and deriving income, as the testator had himself done; and any interference with the executor in this lawful discharge of his duty, will entitle him to the aid of the Court against the devisees and their agents; but as between the executor and those claiming under the will, it is quite consistent with the duty of the executor and his necessary controul over the estate, that the objects of the testator’s affection and bounty should occupy the estates devised and bequeathed, so far as this may be done without diminishing the income, and without interfering with the temporary controul which the testator has conferred upon the executor.</p> <p>Testator devised and bequeathed to his daughter, A. (who was a married woman, and was living with him at the time of his death, and had previously done so for many years,) for the term of her natural life, his house, and lot, in which he then resided, and his servants and furniture used in said house. Notwithstanding the testator had, in the first clause of his will, directed his whole estate to “be kept together until, from the net produce of the crops, rents, and all other sources of income,” his debts and pecuniary legacies should be paid, the Court held, that the house and lot, servants and furniture, were intended for the immediate possession and enjoyment of the testator’s daughter, and, therefore, to be exempted from the operation of the general clause of the will, directing the estate to be kept together, &e.</p> <p>The fourth clause of testator’s will is as follows, “ I give and bequeath to the children of my daughter, S. who may be living at the time of my death, to be equally divided between them, all bonds, notes, judgments, mortgages, or other securities or evidences of debt, which I hold against their father, B.” Held, that to effect the purposes of the testator, the gift should take effect immediately and entirely, notwithstanding a previous clause of the will directing the whole estate “to be kept together, until, from the net produce of the crops, rents, and all other sources of income,” the debts and pecuniary legacies should be paid.</p> <p>Testator, in his lifetime, purchased from his son-in-law, a plantation and negroes, and took a conveyance to himself, in trust, for the separate use of his daughter, A. (the wife of the vendor,) during her natural life, and afterwards, for the joint use of her husband and the issue of the marriage during his life, and after his decease, to the children of the marriage. In the event of the daughter’s survivorship, without issue, the estate vested absolutely in her ; and in the event of her husband’s survivorship, under the same circumstances, he had a life estate in the whole, and a moiety vested absolutely in him, and the other moiety in the next of kin of his wife. The testator, in his will, required that this property should be held “ not to the uses, trusts, and limitations declared in the deed, but to the uses and purposes declared in his will concerning the property devised and bequeathed to” his “ said daughter, A.” &c. These trusts and purposes were, first, to the payment of his debts and legacies — then to his daughter, A. for life, “ and after her death,” then to his granddaughter, M. “her heirs, executors, administrators and assigns forever.” But should his said granddaughter, M. die before attaining the age of twenty-one years or day of marriage, then to the children of his daughter, S. to be equally divided among them. Held, that testator’s daughter A’s. present interest under the deed, was different from that which she took under the will, and that her contingent interest under the deed rendered it a case of election.</p> <p>The express restriction by the testator, of his daughter’s interest in a certain slave, to the use during her natural life, with remainder to her children lawfully begotten of her body, “ to them, their heirs and assigns forever,” and the subsequent bequest of the use of the proportion of his said daughter of his personal estate during her life, and “ at her decease, to her children lawfully begotten,” held, to manifest very clearly the intention of the testator to give the usufruct to his daughter, and to create a new stock in her children, and, therefore, that all the children, as they came in esse, took vested, transmissible, interests.</p> <p>The fifth clause of testator’s will was as follows, “ I give to the four children my deceased daughter, Mary, three thousand dollars each, to be paid as here-inbefore directed, out of the income of my whole estate, and should either of the said children die before arriving at the age of twenty-one years or day of marriage, then I give the share of such child or children so dying, to be equally .divided among the survivors of them, and if only one survives, then the whole of the sum of twelve thousand dollars to that one.” One of the children, an infant, had died, unknown to the testator, before the date of his will. Held, that the three surviving children were entitled to have divided among them the twelve thousand dollars, bearing interest one year from the death of the testator.</p> <p>Husband and wite (who, on their marriage, had entered into a settlement containing a covenant to settle any after acquired property on the wife,) claimed in behalf of the wife, a moiety of certain property which they alleged that testator, (her father,) had disposed of by his will, as a part of his estate, in a manner contrary to the provisions of the will of the wife’s grand-father, under which testator held it in right of her mother. The wife was co-legatee with her sister, under testator’s will. It was held, that this claim, being inconsistent with the claim of the wife’s co-legatee, her interest under testator’s will must be sequestered until compensation be made to her disappointed co-legatee.</p> <p>An infant being held bound to take under or against the will, a reference to the Master was ordered to inquire which was for his benefit.</p> <p>At the death of testator, the children (infants,) of his deceased daughter, had an immediate interest under his will, but they had, at the same time, an interest in other property which testator had undertaken to give to other persons. This presenting a case of election, it was referred to the Master to inquire which alternative would be for the interest of the children.</p> <p>Where the testator had neither contemplated nor authorized a sale of any portion of the corpus of his estate by the executor, but had directed it to be kept together, until, from the income, the debts and legacies should be paid; the authority of the Court, in such case, being necessary to confer a good title on the purchaser, and a sale having become indispensable to pay the debts of the estate, to anticipate and prevent a multiplicity of suits and a variety of litiga- ■. tion, and to prevent injustice and inequality by the arbitrary sale of property of either devisee, under execution, and to protect the legatees and tenants for life, from the indefinite postponement of the benefits intended for them by the testator, the Court restrained the creditors at law; and to provide a fund for the payment of such debts as should be established before the Master, ordered a sale to be made by him of sufficient property to raise the necessary sum; this sum to be contributed in equal parts by the devisees, it appearing on the face of the will, that the testator intended to equalize their shares.</p> <p>The refusing or granting an interlocutory order, the subject of which is purely ministerial, is entirely within the discretion of the Chancellor.</p> <p>An executor is regarded as merely a trustee for preserving and securing the rights of those interested under the will. In the discharge of these fiduciary dutie?, he will be maintained by the Court, and the law has fixed his compensation for the performance of such duties. But the Court looks first to the interest of those for whom the executor is trustee, to wit, the creditors, and then the legatees, &c.</p> <p>McC. C. R. 328.</p> <p>Hill’s C. R. 59. St.eer’s Eq. R. 518.</p> <p>1 Hill C. R. 224.</p> <p>l Swanst. 413.</p> <p>l Hop. Leg. 331.</p> <p>1 Beavan, 151.</p> <p>2 Vernon 611.</p> <p>1 Rop. Leg. 189; Pearson v. Pearson, 1 Sch. & Lefe. 10 Gillow v. Turnbull, 1 McC. C.R. 148.</p> <p>Lemacks v. Glover,1 Rich. Eq. R. 141.</p> <p>2 Jarman -wins, 74-75” 3 Dow. 61.</p> <p>4 Lim. 114 Dudi. Eq. R. 241 •</p> <p>Story’s Eq. §. 1493. '</p> <p>Story, §.1085. 2 Ves. Jr. 544.</p> <p>2 Ves.jr. 697.</p> <p>4 John. C. R. 638.</p>

<p>Testator, by his last will and testament, devised and bequeathed his real and personal estate to his wife, during widowhood, with remainder, in case of her death or marriage, to his mother for life, remainder to James B. P. for life, i. e., “ the use thereof for life, and at his decease the said land, Slaves and premises shall be, and is hereby vested in the male issue of said James; and, in default of such, in the issue female surviving him; and if a general failure shall be at the death of the said James, I give said land and slaves to my cousin J. W. S. on the same terms, conditions, limitations and reservations as this is made liable to, in respect to James’s interest therein, in pursuance of this my will; and should there be a total failure of issue (immediate) on the decease of the said J. W. S., I give the said lands and slaves, and the issue and the increase of the female slaves, to his (the said J. W. S.’s) brother, J. S., his heirs and assigns forever.” The widow married; and James B. P. having died without issue, in the lifetime of testator’s mother, at her death the estate passed into the possession of J. W. S. His brother J. S. died in his lifetime, intestate. The Court held that the ulterior limitations in the will were valid as to the personal estate;* that J. S. took a contingent interest in the same that was transmissible to his personal representatives; that at the death of J. W. S., without issue liv" ing, the said personal estate was distributable among them, and that those persons (parties to the bill) were to be regarded as the distributees of J. S., who would fall within that description at the period of his death, and his or her legal representatives.</p> <p>1 Hill’s Ch. It. 38.</p> <p>2 Spear’s R. 793.</p> <p>Har. Law Tracts. 489.</p> <p>l Bio. 206.</p> <p>2 Bail L. 231.</p> <p>Bail Eq. 48.</p> <p>1 Hill's Ch. R. 268.</p> <p>2 Hill’s Ch. 244.</p> <p>l Rich. Eq. 404.</p> <p>1 Strob.'L. R. 130.</p> <p>Adams v. Chaplin, 1 Hill, 267. Mazyck v. Vanderhorst Bail. Eq. 42; Deas v. Horry, 2 Hill Ch. R. 248.</p> <p>4 East, 313</p> <p>Forth v.Chapman, Shaw v. Weigh, Stra. 798; Richards v. Bergany, vent. 524.</p> <p>1 Williams on Ex'ors 238, 936.</p>

<p>Before Johnston, Ch., at Gillisonville, Feb. Fittings, 1849.</p> <p>Mary Porter, of St. Helena Parish, widow, died in October, 1840, intestate, leaving surviving her six children, two of mature age, one of whom had married the defendant David L. Thomson some years previously, and the other four infants. Shortly after her death, Thomas Talbird, Sr. administered on her estate, and continued in the administration until his death in September, 1843, leaving hisson, ThomasTalbiid, Jr. hisex-^ ecu tor. Joseph J. Porter then became administrator de bonis non of her estate.</p> <p>In the lifetime of Mrs. Porter, Thomson, her son-in-law, was said to have received and disbursed as her agent, considerable sums of money. He was at the same time a merchant in Beaufort, in business with one James Thomson, under the firm of D. L. &. J. Thomson. With this firm, Mrs. Porter contracted, as it was alleged, sundry.store accounts. Neither Thomson’s transactions as her agent, nor Mrs. Porter’s accounts with the firm' of D. L. & J. Thomson, were settled at the death of Thomas Talbird, Sr. It also appears that Thomas Talbird, Sr. had on one occasion in his lifetime, put the four infant children of his intestate to board and lodge with Thomson, under a contract for that purpose, which brought him considerably in debt to Thomson.</p> <p>On the 7th of October, 1844, Joseph J. Porter, as administrator de bonis non of Mrs. Porter, filed his bill for account and injunction against David L. Thomson, as agent of his intestate, and Thomas Talbird, Jr. as executor of Thomas Talbird, Sr., charging, among other things, Thomson with a large balance in hand in favor of his intestate, and setting forth his insolvency, as well as the debt of Thomas Talbird, Sr. tp Thomson. This last debt, which it was alleged Thomson was about to put in suit, the bill prayed that Thomson might be enjoined from collecting, and the representative of Thomas Talbird enjoined from paying, in order that he (Porter) might have the benefit of it, by way of discount against the balance charged by the bill to be due by, Thomson to his intestate’s estate, it having been understood, (the bill alleged) at the time of the contract, and always after-wards by Thomson, that said debt was to be paid in this way only.</p> <p>The bill was taken pro confesso against Thomas Talbird, Jr. Thomson filed his answer on the 24th of February, 1845, denying, among other matters, the plaintiff’s allegations as to his liabilities as agent of his intestate, and the largeness of his indebtedness. He admitted a contract with Thomas Talbird, Sr., for boarding and lodgingtheinfantchildren ofMrs. Porter, but denied that he ever had any understanding or agreement with ThomasTalba’d, Sr., to the effect pretended by complainant, or that his demand should be paid by the discount of a debt which he did not owe, and averred that no such proposition was ever made to him, or entertained or acted upon by him. .</p> <p>In November, 1845, Thomson having commenced suit at law against the representative of Thomas Talbird on the contract for board, the plaintiff Porter, applied to the Commissioner for an injunction, according to the prayer of his bill, which was granted.</p> <p>^ February sittings, 1847, the Commissioner submitted to Qhance||or Dunlrin his report on the accounts of the parties, bringing Thomson in debt to the plaintiff «$682 73 by way of balance, after allowing him,'in addition to other deductions, 'a credit for $1,250 65 for the accounts of Mrs. Potter with “D. L. & J. Thomson,” which he reported as having been 'sufficiently proved by the books of the'firm, which were iu evidence on the reference's. Exceptions to this report were filed by both parties, all of which were overruled by hi's Honor, excepting the following, on the part of the plaintiff, which were sustained:</p> <p>“ 1st. Because the Commissioner has allowed the defendant David L. Thomson, credit for three accounts for goods and merchandize, said to have been sold and delivered to Mrs. Mary Porter, the complainant’s intestate, by the firm of David L. &• James Thomson, amounting in all to $1,260 65, whereas it was proved by the cross examination of the said David L. Thomson, after he had sworn to his books, that nearly half of the said goods, or a very considerable portion of them, were got by the members of Mrs. Porter’s family, and her servants with a pass book, arid charged to her by their direction.</p> <p>“2d. Because a merchant’s book of original entries, if supported by his Oath, is evidence only of a sale and delivery to the person charged, and if it appears that the 'goods were delivered to others who called themselves the agent's of the party charged, it is not competent for the merchant to prove their agency by his own oath, or that the person charged admitted the agency afterwards, or that he saw the goods so charged in his possession.</p> <p>“3d. Because neither the agent's nor the written orders of Mrs. Porter, if there were any. nor the pass book by which the goods were delivered to her servants, were produced or offered to prove the right of the said David L. & J. Thomson to charge the said Mrs. Mary Porter with the aforesaid goods.</p> <p>“ 4th. Because the Commissioner has refused to set off against the accounts of the said D. L. & J. Thomson, the reasonable value of the board and lodging of the said David L. & James Thomson, and the family of the said David L. Thomson, for more than three years, or to give the estate of the said Mrs. Mary Porter any Credit therefor; and it is submitted that the reasonable presumption is, if the goods were got by the said Mrs. Mary Porter from the said D. L. & J. Thomson, that they were to be paid for by their board.”</p> <p>In regard to these exceptions his Honor decreed as follows:</p> <p>“ In relation to the first, Second, third, and fourth exceptions, it is ordered and decreed, that an issue at law be made up* in which- the defendant D. L. Thomson, as survivor of D. L. & J, Thomson, shall be plaintiff, in the nature of an.v action for goods sold and delivered, the object of which issue shall be to ascertain the amount due by the complainant’s intestate on the store account of D. L. & J. Thomson, independent.of any payments.alleged to have been made thereon; in which issue the administrator of Mary Porter, deceased, shall be at liberty to rely in discount on any demand for board against the said D. L. Thomson or James Thomson, deceased, if uppn the evidence adduced, thé jury should be of opinion that board was to have'been charged or discounted ; and that the Judge of the Court of Common Pleas be respectfully requested to certify the verdict, with.the evidence on which the same was founded. It is further ordered,'that the injunction to stay the proceedings at law-, of D. L. Thomson v. Thomas Talbird, executor, be dissolved, with liberty to the complainant td .renew his motion against enforcing the judgment, after, the same shall have been rendered.”</p> <p>At the Spring Term of the Court of Common Pleas, 1848, the feigned- issue was tried before his Honor .Judge Frost, when the jury found for the plaintiff $1,250, being the amount of his account, without reference to any payments made thereon,, and ‡350 as a discount for. board. From this verdict and the Judge’s charge, Porter appealed to the Chancellor. At the same Court, Thomson obtained against the representatives.of Thomas Talbird,.on his claim.for board of the infant children of. Mrs. Porter, a verdict for $900, from which no appeal was taken.</p> <p>,'lij May following, the plaintiff renewed before the Commissioner his motion for an injunction, which was granted. In October of the same year, Thomson moved, before his Honor Chancellor Dunkin, at Chambers in Charleston, to dissolve this injunction, which motion was refused, his Honor declining, to interfere before the regular hearing of the case..</p> <p>At February sittings, 1849, the case came on to be heard before his.Honor Chancellor Johnston, on the appeal of.the plaintiff/and on. the motion of the defendant, Thomson, to dissolve, the injunction, when the following decree was rendered :</p> <p>Johnston, Ch. When the Commissioner’s report on a former occasion came before Chancellor Dunkin, he overruled the defendant’s exception, and the sixth and seventh exceptions of.the plaintiff; and the first five of the plaintiff’s exceptions, ordered an issue at law uponcertaiu terms specified in that order.</p> <p>The case was heard before Mr. Justice Frost, and the jury, under his instructions, found the following verdict at April Terra, 1848, ■</p> <p>“ We find for the plaintiff (Thomson) twelve hundred and fifty dollars, being the amount of his account, without reference to any payments made thereon ; and for the'defendant (Porter) three hundred and fifty dollars, as a discount for board/’</p> <p>Judge Frost has certified to this Court the proceedings upon' the trial before him, upon which this verdict was rendered: and Mr. Treville moves on behalf of the complainant, that the case be remanded to the Commissioner, with instructions upon certain points, set forth in what he has entitled grounds of appeal from the trial at law.</p> <p>There can be no doubt upon some of the points: Judge Frost has stated the manner in which the book account of Thomson was proved before the Court: and the charge which he gave as to the competency of the shop-keeper to prove the agency of persons to whom the goods were delivered, or to prove the existence of a pass book as an authority to deliver the goods.</p> <p>I think no doubt can be entertained as to the propriety of his charge. Certainly when the goods were not delivered to the person charged with them in the book, the shop-keeper is not competent to shew, by his own evidence, that the person to whom they were delivered had an authority, either by pass book or otherwise, to call for and take up the goods on that person’s account.</p> <p>It appears by the testimony that the defendant in this case, when proving his book account, was unable to say what goods were delivered to Mrs. Porter, aud what to her servants or children. He knew that some goods were delivered to her, but could neither state what specific articles were so delivered, nor what proportion they bore in the whole account.</p> <p>It is very clear that this is not proof of any one item in the. account.</p> <p>But it appears also that some of the book entries were proved or admitted to have been made by Mr. Thomson’s partner, who is understood to be dead. 1 think that upon these entries, the fact of delivery of the goods charged in them, is to be presumed prima facie. It is the best evidence the instances admit of, and is entitled to be weighed and considered, and if there is no contrary testimony, and I see none, these entries should be allowed.</p> <p>The jury, however, appears to have been instructed, that there was no alternative but to find the whole account or none. It is not the province of this Court to entertain an appeal from the law Court, whose assistance it has asked. But if not satisfied with the verdict, it cannot adopt it. I must say lam not satisfied with this verdict, and shall remand the account to the Commissioner with instructions. .1 have intended what I have said, for instructions upon the point of evidence. On the reference before the Conmissioner, he will let in any.other competent testimony which may be produced. Perhaps notice may be given and the pass book produced.</p> <p>I think the jury was warranted by the evidence to find the charge they did for board, and so far the finding is confirmed.</p> <p>It is ordered, that the report be recommitted for fuither investigation, on the points not decided by Chancellor Dunkin, whose decision is conclusive upon the'points decided.</p> <p>A motion was made to dissolve the existing injunction, which is refused.”</p> <p>From this decree the defendant Thomson appealed, on the following grounds:</p> <p>1st. Because although it is not. competent for the shopkeeper, of his own motion, to prove either the agency of the persons to whom he delivered the goods for the purchaser, or the existence of the pass book as authority for the delivery, yet if the defendant chooses to make the shop-keeper his witness, for the purpose of proving these facts, it is not competent for the Court to reject the testimony, because it has established the contract of sale in another way than that proposed by the plaintiff.</p> <p>2d. Because when the shop-keeper is called to prove the entries in his books, he can properly be cross-examined only on his books, and if after the examination and cross-examination on that issue is ended, the defendant goes on to interrogate the witness on a different method of proving the account, to wit, the delivery of the goods by the agency of other persons, or by a pass book, or by the personal acknowledgments,of the purchaser, of the receipt of the goods to the shopkeeper, .subsequently to the delivery, he ceases from that moment to be the witness of the complainant, and becomes the witness of the defendant, and his testimony is competent against the defendant.</p> <p>3d. Because the witness Thomson, having -been called to prove his book of original entries merely, it follows that when the defendant proposes to examine him as to the delivery of the goods, he proposes to examine him on new matter, aright which although undoubtedly in him, the plaintiff'on the examination in chief could not exercise. But by doing so, the defendant made him his own witness, and if in the course of the examination and cross-examination on such new matter, the account was proved on the plaintiff’s oath by other means than the book of original entries, it was too late.for the defendant to object to the testimony, as either irrelevant, irregular, or incompetent; and it is, therefore, respectfully submitted, that his Honor erred in ruling that Thomson’s testimony on such new matter was incompetent. _</p> <p>_ 4th. Because in view of the facts before the Court, his Honor erred in not dissolving the injunction, the doctrine of set_0ff having no application in the case.</p>

Before Johnston, Ch. at Gillisonville, Feb. Sittings, 1849. On the 29th of January, 1829, Dr. Thomas E. Screven conveyed in fee, a certain tract of land called “ The Bower,” and described in the pleadings, to John McNish, as trustee of his eight children, Honoria McNish, John H. McNish, Charles L. McNish, Thomas J. McNish, Laura McNish, Mary C.v McNish, Jane D. McNish, and Susannah McNish ; “ to have and to hold the said tract of land,” &c. “ in trust for the aforesaid…

Before Dargan, Oh., at Charleston, June Sittings, 1848. George Henry died in August, 1837. He left a considerable property, real and personal; and he also left surviving him, his wife, Eliza Woodward, one of the defendants, and. his daughter, Eliza A. H. Bailey, one of the complainants, and wife of the complainant Nicholas V. Bailey.

<p>After malting other provisions in his mil, testator directed that all the residue of his estate, of what nature soever, should “remain in the possession” of his wife until his debts were paid, and during her widowhood, under the direction of his executors, and after her death, “all such estate, with ike increase arising thereon” should “be collected together,” appraised and equally divided, &c. Held, that the widow Was entitled under the will, only to a comfortable maintenance and support, and that a purchase of slaves made by her from the income, inured to the benefit of testator’s estate.</p> <p>Defendants'had been in the unbroken possession of the slaves in controversy, claiming them in their own right, and adversely to the plaintiffs, for a period of nearly twenty-five years before the commencement of the suit; held, that this lapse of time gave rise to all the presumptions that might be necessary to consummate and quiet the title of defendants to the slaves.</p> <p>The effect of a settlement in full is prima fade to bar all claims which might or should have been brought into it; and must be rebutted by stronger and more direct evidence, than is afforded by the formal and unsatisfactory answer of a party who had been brought in debt in the settlement, and who had slumbered over his claim, alleged to have been omitted therefrom, for years, and until after the death of the other party to the settlement.</p> <p>Held, that a defendant in an action at law, on certain notes which, it was alleged, had been omitted in a settlement in full, previously had, had a right to come into this Court to seek a discovery from the plaintiff at law, in regard to the circumstances attending that settlement. And that the Court having entertained the bill for that purpose, had a right to retain it for judgment.</p> <p>Held, that complainant had a right to come into this Court to raise a question, which the Law Court, considering it as falling within the peculiar province of the Court of Equity, had refused to decide.</p> <p>Although a bill is multifarious, which seeks to restrain distinct actions at law, and relating to different estates, yet, if the defendant does not make that de-fence at the proper time, by plea, or waives it, it is a matter of discretion with the Court whether it will act upon the objection to the bill, on its own motion.</p> <p>1 Hill Ch. 378.</p> <p>S. 527¿</p>

This was an issue sent down by the Court of Chancery, to try the question whether a certain deed, signed and sealed by Thomas G. Jaggers, conveying certain negroes to t:he plaintiff had been delivered. Every other inquiry was excluded by his Honor, Judge Evans, before whom the issue was tried, at Chester, Spring Term, 1850. The jury found the delivery of the deed, and defendant appealed, and moved for a new trial.

Before Dargan, Ch. at Cheraw, Feb'y Sittings, 1847. The following Circuit decree sufficiently refers to the facts of the case: The complainants and defendants are the heirs at law of John Hamer, late oí Marlborough district, who died intestate, and the bill was filed for the partition of his real estate.

Before Dunkin, Ch. at Fairfield, July Sittings, 1849. The following Circuit decree contains a sufficient statement of the facts of the case. Dunkin, Ch. It is proposed to do little more than to state the judgment of the Court upon the points submitted. A history of the transactions which gave rise to the litigation, must be learned from the pleadings and the evidence. It may suffice to say, that Dr. James B. Davis and Wm.

Before Dunkin, Ch., at Union, June Sittings, 1849. The following Circuit decree contains a full statement of the case: Dunkikt, Ch. On the 4th of December, 1837, P. M. Huson gave bond to John J. Pratt, Esq., Ordinary of Union district, conditioned for the discharge of his duties, as administrator of Wm. Brummett, deceased. His sureties were Levi Rogers, T. A. Glenn, (the complainant) and H. D.. Yan Lew.

<p>The bill charged that, at a sheriff’s sale, the defendant, who controlled the executions under which the plaintiff’s land was sold, fraudulently stifled competition, by certain public declarations which he then and there made to the bystanders. The sale took place in February, 1842, and the bill to set it aside waá'filed on the 26th day of June, 1848. Defendant relied on the statute of limitations. The bill was dismissed on the ground of the statute, as well as on the merits. ,</p> <p>Where the bill avers that the facts constituting the alleged fraud came to the plaintiff’s knowledge within four years before the filing of the bill, such an allegation is substantially an averment that the plaintiff was ignorant of them until that time; and I am of opinion, that such an averment throws the burden upon the defendant of proving that the plaintiff was acquainted with the facts for four years or upwards, before the bill was filed; otherwise, he is not entitled to the benefit of his plea of the statute — ob. diet, per Johnston, Chancellor.</p> <p>3 Brod. & Bing. 116.</p> <p>Í Sclt. & Lef. 438.</p> <p>IHillC.R. 217.</p> <p>3 Pr Wms 143, 144; vide 2 Scho. & Lef. 635; 1 Ball & Beatty, 166, 167.</p> <p> 1 Hill Ch.251. </p> <p>ViaeGresley’s -q.Ev. 288-9.</p> <p>2 B & B 303, cited Gresley’s Eq. Ev.289.</p> <p>See Beame's Pleas in Eq. 29, 168, 209, and Willis’s Pleading, 248, note; Law Lib. vol. 35. 1 Br. P. C. 455. 4 Dess R. 479’</p> <p>Bail. Eq. 459.</p> <p>3 Pr. Wms. 144.</p> <p>Bail. Eq. 420.</p>

, at Lancaster, June Sittings, 1848. The plaintiffs, McKenna, Mcllwain, Johnson, Ingraham and Twitty, were the sureties on the official bond of the defendant, Seerest, as sheriff of Lancaster, and filed their bill the 23d of January, 1843, calling in his official and seeking to be discharged upon payment of their aliquot shares of the bond towards the demands of the creditors. The share of each surety to the bond was $2400.

Before Dunkin, Chancellor, at Chester, July Sittings, 1849. CIRCUIT DECREE. Dunkin, Ch. — It is proposed'only to advert to some of the leading facts in this case. The complainants are, some of them, children of Patsy Woodward, deceased, and others, children of Caleb Clarke, sen., but all of them are grandchildren of Charlotte McMul-lan, deceased.

Before Dunkin, Oh., at Lancaster, June Sittings, 1849. CIRCUIT DECREE. Held: that where there was no antecedent liability — where it is the bond that first creates the liability — . when the “obligation exists only by virtue of the covenant, its extent can be measured only by the words in which it is * collceived. See same case on appeal, 11 Eng.

<p>Before Dunk in, Ch., at Union, June Sittings, 1849.</p> <p>CIRCUIT DECREE.</p> <p>Dunkin, Ch. On and before the 10th of January, 1842, there were executions in the sheriff’s office in favor of the complainant, J. M. Gadberry, and of Kitchins and Gowing, against the defendant, Willard; on which executions a balance was then due of $88 63. In the forenoon of that day (10th January, ’42,) Willard confessed a judgment to McLure and Wilson, amounting, with interest and costs, to $124 41; and to C. Gowing a judgment, amounting to $83 15, or, in the aggregate, $207 56; on both which judgments executions were lodged in the sheriff’s office before dinner. About dusk in the evening of the same day Willard executed a mortgage of two tracts of land to the complainants, to secure a debt of $28 50 to R. J. Gage, and $L12 to J. M. Gadberry, and to indemnify R. J. Gage and Gad Clark as sureties on a recognizance. The mortgage was recorded next day. On the 11th January, 1842, sheriff Johnson levied on one of ihese tracts, containing 110 acres, by virtue of executions in his office, and on the 14th February, 1842, he levied on the other tract of eighty acres. He sold the land at sale day in December, 1842. The defendant, John McLure, purchased both tracts — the former for $250, and the latter for $85. He settled with the sheriff 18th August, 1843, by signing a receipt for the amount of the execution of McLure and Wilson, and paying the balance in cash. McLure afterwards sold the laud to his co-defendants, Spencer and Sketlan, at enhanced prices.</p> <p>On the 27th April, 1847, Ibis bill was filed, alleging, among other things, that the complainant, Gadberry, was surprised in regard to the time of the sale of the land, and also that the defendant, Willard, had personal property which should have been subjected to the satisfaction of the executions. It is also insisted that only the equity of redemption was sold by the sheriff.</p> <p>In respect to the surprise, no evidence was offered. • As to the personal property, the sheriff testified that about a week after the sale of the land he received from the defendant, Willard, corn and fodder to the amount of sixty-two dollars.</p> <p>On the reasoning and authority of ex parte Stagg, the Court is of opinion ihat the executions of the 10th January, 1842, have priority to the complainant’s mortgage. The sheriff’s sale of the 5th December, 1842, seems to have been and bona fide in every respect, and there is no ground to question the title of the purchaser, or of his subsequent ven-dees. It seems, too, that the sale of neither tract was, in itself, sufficient to discharge the existing executions. Again, the sheriff having in his office existing executions amounting altogether to about $296, and having sold real estate for $335, subsequently received from the defendant in the execution corn and fodder to the amount of $62. He then pays over to the execution creditors the amount of their several demands. If the sheriff were now a party defendant, and the mortgagee had not a plain and adequate remedy at law, there might be ground for giving relief to ibe mortgagee against the sheriff. But in August, 1843, the defendant, McLure, received from the sheriff only the money to which he was entitled, and the Court can perceive no principle upon which he can be called to account or to refund.</p> <p>It is ordered and decreed that the bill be dismissed.</p> <p>Thp complainants appealed, and moved the Court of Appeals to reverse or modify the decree of the Chancellor, on the following grounds, viz:</p> <p>1st. Because there was error in the decree of the Chancellor, on the circuit, in giving a preference to the judgments and executions against Thomas E. Willard, of the 10th January, 1842, which were of the same date of the complainants’s mortgage against Thomas E. Willard, as in equity the complainant, James M. Gadberry, the mortgagee, though his mortgage was executed at a later hour of the day, on the 10th January, 1842, still the mortgagee was entitled to be paid before the judgment creditors of that date, or at least to his just and equitable share of the real value of the lauds mortgaged.</p> <p>2d. Because, from the proofs in the cause, it'was apparent that there was personal property of the defendant, Thomas E. Willard, amply sufficient to pay all the judgments against the said T. E. Willard, of a date prior to the 10th January, 1842,.and thereby to leave at least one of the tracts mortgaged to the payment of the complainants’s mortgaged debt.</p> <p>3d. Because the defendants, McLure and Wilson, took an unconscientious advantage of the complainant, Jas. M. Gad-berry, in using his executions against Thos. E. Willard et al. to his prejudice, and pressing the sale of the mortgaged premises, in the absence of the mortgagee, when it had been agreed to postpone the sale of the said lands, as was charged in the an(j not ¿enie(j jn the answer.</p> <p>4tp_ Because, under the circumstances of the case, the she- ^ ^44 not¡ an¿ jn fact did not, sell anything but the equity of redemption of Thos. E. Willard, in the mortgaged premises, as appears from the prices at which John McLure, one of the execution creditors, bought and sold the same.</p> <p>5th. Because the defendants should not have been permitted to go into evidence to fix the hours of the day, of 10th January, 1842, at which judgments and mortgage against Thos. E. Willard were severally created, as fractions of a day in such case, in law and equity, are not to be regarded.</p> <p>6th. Because the matters of account should have been referred to the Commissioner, where the complainant, Jas. M. Gadberry, can clearly show there was personal property of Thos. E. Willard, to have secured the lands to the mortgagee.</p> <p>7th. Because the decree should have required the defendants, John McLure and Clinton Wilson, to contribute, or the lands should have been ordered to be sold to foreclose the mortgage.</p>

Before Dargan, Ch. at Chambers, Williamsburg. May, 1849. CIRCUIT DECREE.

<p>If there be a general or continuing agency, the statute will not commence to run until the termination of the agency; but if the agency be special, and relate to isolated transactions, in regard to which the agent received special authority from his principal to act for him in those particular matters, then the statute of limitations will commence to run from each of those several transactions, each of which will be barred or not, according to the time which has elapsed from their respective dates to the filing of the bill.</p> <p>Where there has been an assignment (for valuable consideration, or for the consideration of love from a parent to a child,) of legal chases that are unassignable at law, this Court will entertain a bill in the name of the assignee for the enforcement of such claims; p'ovided the assignor be made a party either as a complainant or defendant, and provided also there be bona, fides in the transaction of the assignment. If the object be to obtain an unconscientious advantage over the party to be brought to the reckoning, the Court will not lend itself to the enforcement of the inequitable arrangement</p> <p>Where the bill is filed for the enforcement of his claims, by the assignee of legal chases, unassignable at law, the assignor is not a competent witness for the assignee, but must be a party to the suit, either as complainant or defendant.</p> <p>Where a party has submitted his case, upon a final hearing, to the judgment of the, Court, he has no right to the privilege of being allowed to amend. He should have done that at an earlier stage of the proceedings; more particularly, where he has been notified by the plea of the adverse party.</p> <p>1 McC. C. 310.</p> <p>Bail. Eq. R. 226.</p> <p>9 Sim, 327.</p> <p>Story Eq. Ju-ris. S. 1048 and 1049, and note, 2 Myl. and Keene, 590.</p> <p>Ball & Beat- ^ 517-</p> <p>Note. — As to the competen-news see Bell v. Smith, n E. c. L. Rep. 198-</p> <p>Dec. Term, 1848.</p>