Volume 31 — South Carolina Equity Reports

<p>Wills — Limitation of Estates.</p> <p>Testator made separate devises of real estate to his two daughters for life, with remainder to their children, and “should either of my daughters die leaving neither child nor children, then the estate bequeathed to her for life shall descend to the child or children of my other daughter, and my son H., their heirs and assigns forever.” M., one of the daughters, died leaving no child, but leaving H. and two sons of her sister surviving her: Reid, that the two sons were entitled to divide the estate with H. equally and per capita.</p>

- This case will be sufficiently understood from the Circuit decree and the decree of the Court of Appeals. The Circuit decree is as follows : Wardlaw, Ch. The plaintiffs, as Commissioners of Public Buildings for Charleston District, filed this Bill September 12, 1854, to make certain estate of the defendant, John W. Andrews, liable for the satisfaction of certain fines imposed by the • Court of General Sessions on this defendant.

<p>Administration — Foreign and Domestic — Assets—Debts.</p> <p>Where one ¿lies owning property, as well in the country of his domicil as in a foreign State, Administration taken out, in the foreign State, is ancillary to that of the domicil.</p> <p>In such case, if the laws of two countries differ as to the order in which debts are to be paid, it is the duty of the foreign Administrator to pay the debts presented to him there according to the laws of that country, and then, if there be any net balance, to transfer it to the domiciliary Executor or Administrator.</p> <p>And the domiciliary Executor or Administrator must apply the assets which cometo his hands, as well those of the country of the domicil, as those received from the Administrator, to the debts presented to him, according to the laws of the country of the domicil.</p>

<p>Principal and Agent — Breach of Trust — Contract—Fraud— Jurisdiction.</p> <p>It is no ground for the Courts refusing to entertain jurisdiction of a bill to account by an agent residing in this State, and having possession of his principal’s property here, against his principal residing in Virginia, that the agent was under contract to take the property to Virginia — the filing of such bill being no breach of trust or fraud.</p>

<p>Equity— Trusts— Trustees.</p> <p>Under a dormant execution against G., his creditors having levied on certain negroes in his possession,, the wife and children of G. filed their bill against the creditors, and G., alleging that the negroes were held under a parol trust for their separate use, and praying that the sale be restrained; that the trusts be decreed and established, as against G., and that a trustee be appointed. G. admitted all the allegations of the bill. The bill having failed, as against the creditors, for want of proof as to the trusts, held that the Court would not interfere, at the instance of the plaintiffs,,to restrain the sale,although the levy was as against G., a technical trespass.. The Court also refused to declare the trusts or appoint a trustee.</p>

<p>Citizens — Naturalization—Presumptions—Record.</p> <p>Under the Acts of Congress, children born abroad, not only of citizens by birth, but also naturalized citizens, are citizens of the United States.</p> <p>Proof that aJbreigner resided in this State at least as early as 1778, and that he exercised the privileges and was reputed to be a citizen until his death in 1823, held sufficient to raise the presumption that he had complied with the law in relation to naturalization which existed prior to 1790, and had become a citizen.</p> <p>The existence of a record may, it seems, be presumed, from lapse of time and other circumstances.</p>

The complainants were the executor, widow and infant child of James S. Skeen, who died about the first of January, 1857. The bill alleged that in 1852 the defendant purchased, in his own name, a plantation and some negroes from R. I. Middleton, for $27,250. That the purchase was, in fact, on the joint account of complainants’ testator, and the defendant, who were to share in proportion to the sums respectively contributed by them.

<p>Partnership — Evidence—Account.</p> <p>A partnership had funds in Macon, Georgia, and one of the partners sent drafts for the amount to his agent in Georgia, with directions to invest them in cotton and send the cotton to him, and the agent, having received the amount, failed, whereby the funds were lost, Held, upon the evidence, that the loss should fall upon the partnership, and Rot upon the individual partner who remitted the drafts.</p> <p>Where, by the terms of co-partnership between A and B, A contributes money, and Bhis personal services in consideration of the use of the money, pn which interest is not to be charged, and they are to divide the profits; if no profits are made, and the money contributed by A is sunk, A cannot claim from B a por. tion of the capital thus sunk, but must bear the whole loss himself.</p> <p>The partners, however, may make different stipulations, and where, after the dissolution, B allowed A to withdraw the capital contributed by him, held, that he was bound, and that he could hot charge B with interest from the time of the withdrawal until the partnership was finally settled.</p> <p>Books kept by the partner who winds up the business of the partnership, are not as a general rule, evidence against the other partner; but'such other partner, after every opportunity to inspect the books, having agreed to refer them to an accountant, to make up an account therefrom, to be made the basis of the Master’s report, Held, that he could not afterwards object to them as evidence.</p> <p>Held, also, that he was bound by the mode of stating the accounts, as made up by the accountant from the books.</p>

<p>Coven ant — Estoppel.</p> <p>A covenant may be as obligatory when expressed by way of recital as if contained in the formal part of the agreement.</p> <p>F. covenanted to pay of the debts of H., deceased, a certain amount included in a statement referred to, and also one-seventh of any other debts not included in said statement through error or ignorance of the same. A decree was after-wards made for specific execution of the agreement, and F. was decreed to pay the amount included in the statement: Held. that F. was not protected by the decree from liability to pay one-seventh of a debt afterwards ascertained and established against the estate of H.</p>

<p>Executors and Administrators- — Account—Fraud—Negligence.</p> <p>Where an administrator neglects, in good faith, to litigate a doubtful claim of his intestate, whereby it is lost to the distributees, he is not liable; to make him liable, fraud or negligence must be shown.</p>

Every thing necessary to a full understanding of this case, may be found in the Circuit Decree, which is as follows : Wardlaw, Ch. Lucy E. born Dunbar, married 1st, Patrick, who died intestate, leaving some estate of which his widow, Lucy, and two daughters, Caroline, who became the wife of W. W. Garvin, and Laura, who became the wife of J. J. Wood, were the distributees. 2nd.

BEFORE WARDLAW, CH., AT ORANGEBURG, Wardlaw, Ch. In 1847, and for some time afterwards, Sanders Glover, Sanders L. Glover, and William R. Davis, conducted the business of factors, in the city of Charleston, as partners, under the style of Glovers & Davis.

<p>Trusts and Trustees — Husband and Wife.</p> <p>Where the trustees are to hold the property, negroes, for the sole and separate use of a married woman and her children, and to receive.the rents and profits and pay them over to her, it is no breach of trust to permit the negroes to go into the possession of the husband for the benefit and support of the wife; .and if the husband should run the negroes off without the knowledge of the trustees, they will not be liable.</p>

<p>BEFORE WARDLAW, CH., AT BARNWELL,</p> <p>Wardlaw, Ch. This is a suit for alimony.</p> <p>The plaintiff is daughter of Mary, wife of W. B. Matheney, by the former marriage of said Mary with Seth Askew. The parties in the cause intermarried October 13, 1853. They resided, until December 9, 1854, with Matheney, and then removed to a small farm within half a mile, which plaintiff h^td purchased. At Matheney’s a daughter was born to them, September 11, 1854, who survives. The defendant, as husband, received from Matheney, as guardian of plaintiff, the slaves, Ann, (who has since had a child, named Josephus,) and Hagar, and about $100 in money.</p> <p>In the bill, filed October 8, 1857) the claim of plaintiff to relief is rested on two grounds. 1. That in the treaty of marriage, and as a precedent condition to marriage, the defendant solemnly promised the plaintiff and her mother, not to remove the plaintiff without her consent from this State, nor from the vicinage of her relatives and familiar friends; and, 2. That defendant, having secretly rented out the land on which the « family resided, and sold most of his chattels, clandestinely deserted the plaintiff and their daughter, at midnight of Sunday, September 27, 1857, and took with him abroad the slaves Ann and Josephus, and attempted to take Hagar, but she escaped from his custody.</p> <p>After hearing of the bill, defendant returned to this State > from the Parish of Bienville, Louisiana, to which he had removed; and on January 11, 1858,filed an answer. As to the first ground, he denies that he ever made a promise, either to his wife, or her said mother, not to remove his said wife out of this State without her consent; that if he had done so, he should have felt it incumbent on him, as a moral obligation, to remain here himself; that his wife, and her mother, endeavored to induce him to make such a promise, and he replied, that he had bargained for his said tract of land, and did not then entertain any purpose of removing; and he now disavows “ any purpose, past or present, of removing his said wife from this State, without her consent.” Such reply tended, and was intended, to deceive and mislead those treating with him in a matter of great and lasting interest, and in sound ethics,, imposed on him the same “ moral obligation to remain here,” with his dupes, as the most complete promise would have created. Moreover, the promise alleged by plaintiff, is sufficiently proved by the' witnesses, Mary Matheney, Lewis O’Dom, and Darling Hair. Some of the promises of a suitor to copciliate his mistress may not bind his conscience, as when they are made playfully, or would serve, if fulfilled, to impair the obedience she owes to a husband, by law and religion ; and many of such promises are deemed in law to be absorbed by the contract of marriage. From the nature of the conjugal relation, and by the law of all civilized states, the wife obliges herself to follow the husband wherever he may judge fit to establish a permanent or temporary residence. Still an antenuptial agreement, by parol, that the domicil of the wife shall not be changed, may overcome all opposition to a marriage, and prevent any marriage settlement, and thus afford a reason for the favorable consideration of the wife’s claim for maintenance, when the husband violates his engagement. In Hatcher vs. Robertson, 4 Strob. Eq. 182, Chancellor Dargan affirms, that antenuptial articles for the settlement of property, founded on the consideration of marriage, though resting in parol merely, may be enforced against the husband, and volunteers under him, and even against purchasers for value who have notice of the wife’s equity. This is reasonable doctrine as to property, which at the time is a proper subject of settlement, and it may be extended without straining, to property which is kept from settlement by trust in the perfidious words of the intended husband. In 6 Rich. Eq. 168, Teasdale vs. Teasdale, Sel. Ch. Ca. 59, is quoted, which held, in effect, that a father, unknowingly entitled in fee to an estate after the life of a son, who permitted this son to settle upon his intended wife a jointure in fee out of this estate, was concluded by his acquiescence; for if the father had understood his title, he might have joined in the settlement, or otherwise the match might not have been effected. In the present case, the evidence does not indicate that any settlement was projected, but it is pretty clear that the defendant obtained his wife, and her property, by inspiring confidence in his assurance that he would not emigrate. My general conclusion as to the first ground taken by plaintiff, is to reject it, as, in itself, a basis for relief, but to use it as an aggravation of defendant’s marital conduct in other particulars.</p> <p>2. A husbaud’s desertion of a wife is adequate cause for a decree for alimony in her behalf. In this case defendant admits the desertion, and most of the circumstances of aggravation; but while admitting that he sold his hogs and growing N crops absolutely, and his land for a term, he allegés in excuse, that he left some horses, (of very small value by the proof,) and some remnant of provisions, and that he hoped his .mother-in-law would afford refuge and support to his wife and daughter for a time, until his wife’s interest and affection should induce her to follow him. abroad, where prospects of success in agriculture were brighter, and that he left at night without adieu, “ to avoid a scene,” fearing the effects of his wife’s affectionate persuasions to remain here contrary to their interests, knowing from the result of frequent importunity on his part, that she was not then minded to remove; yet trusting that in a few months her fondness and isolation would constrain her to follow him and the slaves. He further asserts a malign influence of the mother of his wife in his domestic reign; yet the evidence, so far as it goes, is to the contrary, and leaves only that lurking suspicion of such influence which frequent examples thereof in humble life may raise in the mind of an observer. This is a brief of much declamation by defendant on this point. Assuming that every title of this excuse be true, it affords a paltry palliation of the unmanly conduct of this husband. He admits the clandestine desertion of his wife and child, and does not intimate that he warned her of the undue influence of her mother, or of his purpose to follow lucre, and leave his consort, and their helpless offspring, without shelter or sustenance. It appears that he had the means of supporting his family in comfort here ; indeed, that he was prosperous in comparison with many of like mediocrity of possessions. It required no uncommon extent of frankness or boldness in him to forewarn his wife of his determination to prosecute his fortunes elsewhere, whether she followed or abided ; yet he leaves her at midnight on Sunday, without saying farewell, and takes with him the laborers who might contribute to her support. It is needful that I restrain myself from declamation.</p> <p>The bill contains no charge of cruelty by the husband to the person of the wife, and contrariwise affirms that the couple, while together, lived in general harmony, disturbed only by such casual miffs as are sometimes found among consorts-in their sphere of life. In the answer, defendant adverts to the fact, that the complaint was exhibited on the eleventh day after he left the State, and uses it as evidence that -plaintiff acted without proper reflection; whereas, the plaintiff, in argument, uses the same fact as an excuse for the meagreness of her complaint, and the omission of statements of acts on his part, of the character of cruelty. The defendant further tauntingly vaunts that his said wife does not venture to charge him, bjr her said bill, with having been wanting to her in tenderness, respect and affection, or with having conducted himself otherwise than as a man of good moral character in all the relations of life, (except in the alleged desertion,) and this defendant challenges proof to the contrary. He further complains, “that he had hardly left the State, before the Church, of which he was a member, expelled him unheard;” and renews the offer, previously made verbally, to take his wife and child with him to Louisiana, and provide for them to the best of his ability. In reply to this challenge and offer, proof is made that defendant had * * * * *</p> <p>I think that, under the circumstances of this case, a wife is not bound to return to the society of a husband who deserted her. His oral offer to take, her back was abrupt and rude, and his offer, in the answer, is gingerly.</p> <p>It is ordered and decreed, that' it be referred to the Commissioner of the Court, to enquire and report what allowance should be made out of the defendant’s estate for the maintenance of the plaintiff, with her child, from September 27, 1857, and as to the mode and terms of payment.</p> <p>It is further ordered and decreed, that the defendant be enjoined from aliening or hiring his land and the slave Hagar, and that the allowance to the plaintiff constitute a lien on this estate.</p> <p>Parties have leave to apply for further orders at the foot of this decree.</p> <p>The defendant appealed, and now moved this Court to reverse the Circuit decree, on the following grounds:</p> <p>1. Because it was not only proved, but admitted, that the defendant, long before he left this State, had repeatedly and earnestly requested and urged the plaintiff to go with him, and that she had constantly and positively refused to do so. Therefore, and because desertion is the only substantial charge contained in the pleadings, the bill should have been dismissed.</p> <p>2. Because so much of the evidence as relates to * * * ifc * >}< * * :fc * Therefore, said evidence was inadmissible, without a previous ' amendment of the bill, and should have been ruled out by the Chancellor.</p> <p>3. Because, it is respectfully submitted, that even with the aid of the evidence referred to in the above ground of appeal, a case for the allowing of alimony is not made out.</p> <p>4. Because experience teaches, that a decree for alimony generally operates as a separation for life — as a sentence óf divorce in all but its name. And inasmuch as it is against the settled policy of our laws to favor these matrimonial causes, a decree for alimony ought not to be allowed, except for the gravest causes, and on the clearest proof.</p> <p>5. Because the defendant, in his answer, renews his invitation to the plaintiff to take her place in his house as his wife? and to bring with her their child.</p> <p>6. Because the decree is contrary to law and evidence.</p>

<p>Wills and Testaments — Trusts and Trustees.</p> <p>The testator directed certain property to be sold, and the surplus of the proceeds to be “equally divided in six parts, for the benefit of my six children, or the heirs of their bodiesheld, upon the construction of the whole will, that the shares of two married daughters, were intended to be settled upon the same trusts, that property specifically devised and bequeathed to a trustee for their/ benefit, was, in terms, settled. ;</p>

BEFORE WARDLAW, CH., AT LEXINGTON, Wardlaw, Ch. Most of the facts upon which the questions of this case depend are stated in the report of Coleman vá. the Bank of Hamburg, 2 Strob. Eq; 285, and for the grounds of my judgment, not much additional statements is needed.

<p>Executor — Administration— Counsel Fee.</p> <p>■ An executor, who was a devisee and legatee, allowed his counsel fee in establishing the will before the Ordinary in solemn form; the devise to himself and the legacies being charged rateably in proportion to value.</p>

<p>Evidence— Witness — -Practice—Answer.</p> <p>A defendant is a competent witness for his co-defendants upon all issues in which he has no interest, though upon other matters a decree might be rendered against him — the contingent liability for costs not being sufficient to exclude him.</p> <p>The depositary of certain choses, upon bill filed against her and others who claimed title through her, deposited the choses with the Commissioner to abide the event of the suit, and then filed her answer disclaiming all interest, held, that she was a competent witness for her co-defendants upon the issue whether the plaintiff or the co-defendants were the owners of the choses.</p> <p>The answer of a defendant who is the depositary of a chattel claimed by the bill, is, it seems, evidence for co-defendants, who claim title through the depositary.</p>

BEFORE DUNKIN', CH.} AT WILLIAMSBURGH, Dunkin, Ch. The pleadings and the evidence present the following state of facts: In March, 1833, Hardy B. Godwin was about to be married to the defendant, then Margaret McCutchen — Godwin had no other property than his horse. The defendant was possessed of negroes and other property. In contemplation of the marriage, an instrument was executed on 26th March, 1833, a copy of which is filed with the pleadings.

<p>Jurisdiction — Specific Delivery of Slaves — Compensation— Damages.</p> <p>The question, whether the Court has jurisdiction to decree the specific delivery of slaves to any one but the absolute owner, reserved.</p> <p>In decreeing compensation for the loss or injury arising from a trespass, as the • unlawful taking and detention of slaves, the Court confines itself to giving compensation for the actual loss or injury j it cannot give vindictive, speculative or possible damages. »</p>

<p>Trusts and Trustees — Assignees and Agents — Assignment.</p> <p>Where there are joint trustees, the general rule is, that each is liable for his own acts alone, and not for the acts of his co-trustees, except where he has contributed to them; and this rule applies to assignees and agents under the Act of 1828, in relation to assignments for the benefit of creditors, there being nothing in the Act which makes them jointly liable.</p>

<p>Evidence— Witness— Creditors — Fraud—Equity.</p> <p>Upon the trial of a creditor’s bill, filed to set aside a judgment confessed by the debtor, and certain purchases made by the plaintiff in that judgment of the debtor’s property, at Sheriff’s sale, and for an account from the plaintiff in the judgment, of all moneys received by him on the judgment, and from sales he had made of the property purchased by him, all creditors of the debtor, whether by judgment or simple contract, are incompetent witnesses for the complainants.</p> <p>Where the object of a bill, filed by judgment creditors, is to subject equitable assets to their demands, simple contract creditors are incompetent witnesses for complainants — equitable assets being always distributed fro rata among all creditors.</p> <p>Permitting the debtor to remain in possession of property purchased at Sheriffs sale, is, of itself, an insufficient badge of fraud, the sale being otherwise fair and unimpeached.</p> <p>A debtor having an equitable right to become the owner of property on paying for it, may without the consent of his judgment creditors, waive his equity and consent to a sale of the property to a third person.</p>

<p>Set off — Judgment—Assignee—Guaranty.</p> <p>The assignee of a judgment takes it subject to the equity of the defendant to set off against the judgment any sums he may be compelled to pay in consequence of his subsisting liability as guarantor of a note of the plaintiff in the judgment</p>

BEFORE DUNKIN, CH, AT MARION, This bill was filed by the widow of Dr. Barnabas K Hena-gan, late of Marion district, against his executors-and children, for delivery to complainant of the legacies bequeathed to her by the testator, and also for recovery of dower, with account of rents and profits, in several tracts of land of which the testator died seized.

<p>Attachment — Practice—Lien—Assets.</p> <p>In a suit by attachment, service of the writ by delivering a copy to the garnishee, gives the creditor a lien on all assets of the absent debtor in the hands of such garnishee, although such assets be not taken into custody by the attaching officer.</p> <p>A creditor who sues by attachment, and thus gains a lien on the assets attached, has no right, for any balance due, after exhausting his lien, to come in, with other creditors, and participate with them, in the distribution of unattached assets of the absent debtor.</p>

<p>BEFORE LARGAN, OH., AT CHESTER,</p> <p>This case will be sufficiently understood from the opinion delivered in the Court of Appeals.</p>

<p>Practice — Appeal—Rehearing.</p> <p>Appeal from a circuit decree, and, also, a petition for rehearing the same, \yliich could only be presented on circuit. As the hearing of the appeal would preclude the consideration of the petition, held, that the argument on the appeal should stand, until the petition could be presented on circuit.</p>

BEFORE DUNKIN, OIL, AT UNION, Dunkin,Uh. Daniel White, plaintiff’s intestate, was surety to B. H. Bradley, administrator of Henry Long, deceased. Held: that when goods sufficient to satisfy an execution are levied on a fi.fa., the debt is discharged, even if the Sheriff waste the goods, or misapply the money.

<p>Practice — Chancellor—Commissioner.</p> <p>Exception being filed to the answer for insufficiency, the presiding Chancellor, without referring the matter to the Commissioner, sustained the exception, and ordered the answer to be amended within thirty days. On appeal, held, that the course adopted was not irregular, and the judgment of the Chancellor was sustained.</p> <p>The Chancellor is the Court, and may, in deciding matters before the Court, dispense altogether with the aid of the Master or Commissioner.</p>

<p>Estoppel — Judgment—Appeal—Practice.</p> <p>After a verdict for pJaintiiTia an '’.ction of debt, defendant filed his bill in this Court for injunction, alleging the same matter he has pleaded as defence to the action at law, and the discovery of additional testimony: Held, that the judgment at law was conclusive.</p> <p>Plain tiff, in his ground of appeal, having asked only for an injunction, the Court refused to consider whether he was entitled to a decree for account of moneys paid.</p>

<p>Commissioner’s Sales— Con tract.</p> <p>The Commissioner has a discretion, subject to the control of the Court, to withdraw land from sale after it has been offered, and even after a bid has been received and cried. If he does so, the highest and last bidder is not entitled to a conveyance, there being no contract with him.</p>

BEFORE DARGAN, OH., AT LANCASTER, John Stewart, who died in 1857, directed his lands, consisting of two separate tracts, one lying on Waxhaw, and the other on Cane Creek, and his personal estate, to he divided between his grand-son, John H. Steward, and his four daughters, one of whom was the defendant L. H. Williamson, wife of Dr. L. Z. Williamson.

<p>Pleadings — Multifariousness— Creditors’ Bill — Practice.</p> <p>A creditor’s bill to set aside deeds of gift made at various times to the several defendants, children of the debtor, is not objectionable for multifariousness. Leave will be granted at any time to amend a bill so as to make it a creditor’s bill; and where several such bills are instituted by different creditors, all will be stayed but one, and all the creditors allowed to come in under the decree in that suit.</p>

BEFORE DUNKIN', OH., AT SUMTER, Dunkin, Ch. This bill was filed 34th November, 1857 stating the death of plaintiff’s intestate on the second day of the preceding month, and that the defendant had taken possession of all her effects in his capacity as administrator of James Ridgill, deceased, and that under an .order from the Ordinary, he had advertised them for sale on the 36th November.

BEFORE WARDLAW, OH., AT CHESTER, Wardlaw, Ch. The pleadings in this case are voluminous, and some of them, so far as I can judge, from the imperfect copies furnished to me, are irregular and incomplete. It is not necessary to the judgmeht to be pronounced, that I should attempt any full summary of the pleadings and facts.

<p>Interest — Administration—Account—Trustees.</p> <p>The whole estate consisted of the sale bill, which fell due in December, one year from its date. The administrators having ascertained that the debts were very inconsiderable, charged themselves early in the next year with the amount of the sale bill, deducting therefrom their expenditures. Held, that the administrators were not exempt from liability for interest for the year in which they charged themselves with the amount of the sale bill.</p> <p>The rule exempting trustees from liability for interest until the end of the year is not absolute, but dependent on the circumstances of the cases.</p>

<p>Gift — Limitation of Estates — Heirs—Trusts and Trustees —Pleadings—Heed—Delivery—Fraud—Marital Rights— Marriage Settlement.</p> <p>A father, shortly after the marriage of his daughter, conveyed slaves to a trustee for the use of his daughter during her lifetime, and after her death without children, then for the use of her husband so long as he should remain single: “ but if he marry again, then they, with their increase, are to return and be divided among the remainder of my heirs.” Reid, that the limitation was valid, and that u heirs” meant such persons as upon the happening of th§ contingency would answer the description of heirs apparent of the donor.</p> <p>Upon the happening of the contingency, held, that the trustee, or his representative, might file a bill against the husband and heirs apparent of the donor for delivery and division of the slaves.</p> <p>Reid, that the limitation was not void as in restraint of the subsequent marriage of the son-in-law.</p> <p>It is not necessary to the validity of a deed of trust that the trustee should accept the deed, or even that he should know of it.</p> <p>Delivery of a trust deed to a witness to be recorded is sufficient delivery.</p> <p>A statement in an answer, exhibiting matter of independent deferfce, or matter of avoidance in a confession with avoidance, is not evidence for the defendant.</p> <p>Where a father, before delivery of slaves to his son-in-law, makes a deed of trust, settling the slaves on his daughter, with limitations, mere neglect on the part of the father to give notice of the deed to the son-in law, is no fraud upon his marital rights. •</p> <p>A deed from a father to a trustee, of property to be held in trust for the benefit of his married daughter and her family, is not n marriage settlement.</p>

BEFORE DARGAN, OH., AT YORK, Demurrer for multifariousness. The bill alleged that W. B. Dunlap, being indebted to the plaintiff and others, executed an assignment of his estate to the defendant, L. H. Massey, for the benefit of his creditors: that amongst the preferred debts were several stated to be due to the defendant, John Foster, on sealed notes — the plaintiff’s debt being in a lower class.

AT ABBEVILLE, This case will be sufficiently understood from the Circuit decree, which is as follows : Wardlaw, Ch. Russell Cannon died in the summer of 1824, leaving a will, dated July 10, of same year, attested by two witnesses, whereof he appointed his wife, Jean, and his son, Elijah, executors, and whereby he bequeathed to his wife a negro, Simon, and other chattels absolutely, and also the slaves Rose, Willis, and Cate, during her life, and at, her death to be sold and…

<p>Limitation of Estates — Wills and Testaments.</p> <p>The testator, as to certain lands, declared that, should they not bé sold by himself, “ then I wish my executors to dispose of them to the best advantage, and when in funds for the same, I wish for them to divide the money among the whole of my surviving children, share and share like, to them and their lawful heirs forever — Held, that the testator, by the term “ surviving,” meant the children who survived him, and not those who were living when the funds arising from the sales were in the hands of the executors.</p>

<p>Limitation of Estates — Wills and Testaments.</p> <p>Testator bequeathed as follows: “ I give and bequeath to my daughter, A. N., two negro girls, to wit: Hanna and Dina, which is intailed to her brothers, she leaving no lawful issue — Held, that the limitation to the brothers was valid, and that they took transmissible interests, which became absolute upon the death of A. N. without issue.</p>

BEFORE DUNKIN', OH., AT SUMTER, The bill alleged that in the year 1835, Ann Sessions made a deed of gift of a negro girl named Abbe, to her grand daughter, Esther Elizabeth Sessions, in terms which created in the donee a sole and separate estate, and set forth, in an exhibit, a copy of the deed, taken from the registry; that said deed is not in the possession of plaintiffs; that Esther Elizabeth afterwards intermarried with Benjamin W. Brown, who died in ] 855; that after…

<p>Fraud — Confession of Judgment — Debtor and Creditor.</p> <p>The mere fact that a debtor knows when he confesses judgment to a Iona fide creditor, that the creditor intends to settle the larger portion of the debt on the debtor’s family, will not make the confession fraudulent as against other creditors.</p> <p>A possession in accordance with the terms of the deed is not fraudulent.</p>

<p> Jilimony. </p> <p>The amount to be allowed as alimony depends on the circumstances of each particular case.</p> <p>That the husband lives in adultery with another woman is a circumstance entitling the wife whom lie has abandoned to a large share of his income.</p> <p>The conjugal conduct of the parties, the extent of their respective incomes, the sources of these incomes, the condition in life of the wife, are all circumstances • to be considered.</p>

<p>Jurisdiction — Title to Lands — Partition.</p> <p>A bill will not lie to compel persons in adverse possession of lands to surrender them, in order that they may be partitioned between the other parties to the cause, even though the bill alleges that all parties claim under the same will, • and prays construction thereof.</p>

<p>Limitations, Statute of- — Decree—Administration.</p> <p>Where there have been proper proceedings for administration of an estate, under which all the creditors have been called in to establish their demands, and a decree has been pronounced, under which a legatee has been in possession of his legacy for more than four years, he is protected by the statute of limitations from the claim of a bond creditor who failed to present his demand and have it established under the decree.</p> <p>Such a decree is, it seems, itself a protection, until by direct application for that purpose, it be vacated or mjpdified for the benefit of, the creditor.</p>

BEFORE DARGAN, CH., AT CHARLESTON, This case was heard upon the Master’s report, which is as follows: “ I beg leave respectfully to report, that I have been attended by the Solicitors in this case, and have taken the testimony, which I find to be as follows : “ On the seventeenth day of January, 1852, Glovers & Davis, then doing business as factors, in Charleston, borrowed from the plaintiff four thousand three hundred and twenty-eight dollars, and gave their memorandum…

<p>Specific Performance — Frauds, Statute of.</p> <p>Contract for sale of land construed and defendant decreed to make specific performance.</p> <p>Slight delay in filing bill excused by the circumstances.</p> <p>The requirements of the statute of frauds in relation to contracts to convey lands are fulfilled by the signature to the contract of the party to be bound, where the adverse party by bringing his bill, or any writing, affirms the contract,</p>

<p>Re-hearing — Appeal—Decree—Penalty.</p> <p>Where a party appeals from a decree and then abandons his appeal, it is no ground for a petition for a re-hearing that the appeal was abandoned, because the Chancellor’s notes of the evidence were not forthcoming.</p> <p>The Court may suspend the execution of a decree where the party, if he were to obey it, would subject himself to a penalty; but where the apprehension of a prosecution is manifestly groundless, the Court will not suspend the execution.</p>

BEFORE BOTKIN, CH., AT CHARLESTON/ This case came before the Court on exceptions to the Master’s report, which is as follows: “ The decretal order of Chancellor Dargan, of the 16th Jan., 1857, directed me to take the account of the executor and executrix, with the estate of their testator; to take the account of rents and profits between the hefrs and distributees of the testator, and the defendants Alonzo J. White, Wm.

<p>Foreign Judgment — Satisfaction—Presumption—Foreign Statute.</p> <p>A statute of Georgia providing that if no entry be made by the proper officer, on an execution, for seven years, the judgment shall be null and void — in an action in this State on the judgment, satisfaction will be presumed if the proper entries have not been made.</p> <p>The construction given to a statute by the Courts of the State which enacted it, is binding upon other Courts. I</p>

<p>Practice — Devise—Mortgage — Pleadings — Parties—diction at Law. '</p> <p>Case sent to the Court of Errors, and then, after argument in that Court, withdrawn.</p> <p>A devise by the mortgagee of the mortgaged premises, carries with it the mortgage and all the securities for its payment.</p> <p>To a bill by the devisee of the mortgagee against the representatives of the mortgagor, the executor of the mortgagee is a necessary party; and the personal representative of the mortgagor is also a necessary party.</p> <p>Plaintiffs’ right being prima facie good, but their bill being defective for want of proper parties: — Reid, that the Circuit Chancellor erred in dismissing plaintiffs< bill, and leave given them to amend on payment of costs.</p> <p>The defence being that the bond, mortgage to secure the payment thereof, and judgment on the bond, must be presumed paid or satisfied from lapse of time, Ordered, that an action at law be brought on the bond to determine the question of payment or satisfaction, and that the pleadings be made up and question decided as if the action had been commenced on the day the bill was filed.</p>

BEFORE DARGAN CI-I., AT CHARLESTON, Dargan, Ch. The plaintiff is the widow of William Sea-brook, late of Edisto Island, and the defendants are the devi-sees and heirs at law of the said William Seabrook, and per-sous claiming by or under them.

<p>Master in Equity — Practice—Guardian—Decree for Foreclosure.</p> <p>Where an order directs the Master to pay out the assets ofan estate in his hands, reserving a sufficient amount to pay certain claims, the Master discharges his duty if the assets retained are sufficient at the time. He is not liable to the parties if from subsequent causes they should become bad.</p> <p>Where dioses belonging to suitors are in the hands of the Master, it is the duty of the parties, and not of the Master, to have proceedings instituted for their collection ; and where a minor is the party interested, it is the duty of Ms guardian to see to their collection.</p> <p>If a Master institutes proceedings for the collection of choses, without the order of the Court, he acts as the private agent of the parties.</p> <p>In taking a decree, in I-SdO, for foreclosure of a morcgage, it was not negligence to omit to take a decree for the balance due after exhausting the proceeds of the mortgage — the practice of taking such decrees having then but recently commenced.</p>

BEFORE DUNKIN, CH., AT CHARLESTON, The plaintiff, as the executor of the late Hon. Langdon Cheves, filed this bill, praying that the trusts of the testator’s will may be declared, and his estate settled under the direction of the Court. The testator died on the 27th June, 1857, leaving a last will and testament as follows: “In the name of God, Amen.

BEFORE DUNKIN, OH., AT LANCASTER, Edward Bowers died in the month of December in the year 1835, intestate. Shortly before his death a marriage ceremony was celebrated, in the town of Camden, between him and Elizabeth Jemima Graham, his niece, a brother’s daughter.

BEFORE DUNKIN, CH., AT WILLIAMSBURG, In the’case of McKnight vs. Bradley, first above stated, the Circuit decree is as follows: Dunkin, Ch. A. Isaac McKnight, son of the complainant, married the daughter of the defendant. In November, 1854, he was much embarrassed, and there were executions in the Sheriff’s office against him to the amount of about four thousand dollars.

BEFORE JOHNSTON, OH., AT RICHLAND, Johnston, Ch. The bill was filed by the executrix of the late Abram Blanding, against the City Council of Columbia, praying that they should be required to redeem certain stock which they issued in favor of her testator on the 10th July, 1835.

BEFORE WARDLAW, CI-L, AT CHESTER, This case will be understood from the circuit decree, which is as follows: Wardlaw, Ch. On November 24,… Held: annual interest was not recoverable on Robert Kennedy’s bond after the 24th November, 1829, and it is respectfully submitted he erred therein; that the parties to said bond, by its terms, agreed annual interest should be paid, until the whole debt and interest were satisfied and paid — and the Commissioner’s report as to the amount…

BEFORE DUNKIN, CH., AT CHARLESTON, For a full understanding of the case reference should be had to the same case as reported in 8 Rich. Eq. 190. The relators under the leave then given _ amended their bill so as to raise the question, whether the Act of 1834 was constitutional. His Honor held that the Act was constitutional, and from his decree an appeal was taken. The Equity Court of Appeals referred the case to this Court where it was now heard.(a)