Volume 36 — North Carolina Reports

The bill stated that David Dickey brought an action of covenant against the plaintiffs, as the representatives of thony Harman, deceased; and hi his declaration assigned five several and distinct breaches of the covenant declared on; that he afterwards died, and Goodbread, as his administrator, revived and carried on the suit; that Dickey first, and then his administrator, summoned many witnesses, to establish and support the several breaches of covenant assigned in the…

<p>A bequest in the following words: “I have one bond on John, given the 3rd of January, 1837, for $300, I will and bequeath to my son J. L’s children,” will pass a bond on John Simpson for $300, dated the 13tb of January, 1837, where it appears from testimony dehors the will, that the testator had but the one bond.</p> <p>A suit in equity fora legacy due to minors, must be brought in their name, and not in that of their guardian, though where the legacy is a debt against the guardian, and one object of the bill rs to obtain an injunction against its collection, he may also be a party.</p>

The bill was filed in October, 1839, and stated that Mrs.. Sarah Stone, late of the city of Raleigh, died in the summer of the year 1838, leaving a will, made in June, 1834, where-, in were contained the following clauses: “ I consider the most benevolent plan that loan pursue towards my negroes, will be the following: I desire that they shall all be sold in families; that husband and wife, where I own both, and their small children, shall be put up together.

Upon the pleadings and proofs in this case, it appeared, that on the 27th of April, 1837, the defendant, John Atkinson, executed to the plaintiffs, as trustees of sundry creditors of the said John, and for securing the payment of debts due to these creditors, a deed, whereby he assigned to the said plaintiffs a large quantity of produce, several specific articles of personal property; and then, by general words, “all tire goods, wares and merchandize in his store; and all…

The bill charged that Joseph Thomas died some time in the year 1819, leaving a will, in which were contained the following clauses: “ 2nd, I give and bequeath to my beloved wife, Hannah Thomas, for and during the term of her natural life, the following property, viz. old Primus,” &c., also that part of my plantation that I bought of Mr. Beard, &c. “Item 8th.

Samuel Gregory died sometime in the year 1824, leaving a will, in which he bequeathed as follotvs:- « j g-jve unt0 my four children, Maria, Frederick, Mackey and Mary Lucilla Gregory, all my property, to be equally divided when my son, Frederick Gregory, arrives to the age 0f twenty-one years old.

<p>If the putative father of bastard children procure a private Act of Assembly to be passed to alter their names and to legitimate them, and the aot, after reciting that they are his illegitimate children, declares that they shall be legitimated and made capable to take, possess, enjoy and inherit any estate, either real or personal, which may be devised or descend to them, in as.full and ample a mariner, to all intents and purposes, as if the said children had been born in lawful wedlock, it makes the children legitimate to the person who is recited in the act to be their father, though there is no express declaration that they shall be legitimated to him.</p> <p>The agency of the father in procuring such an act to be passed, cannot affect its construction, but it may be material to give effect to it, and make it operate on his property.</p> <p>Whether the Legislature can, by a private law, before the death of the owner of an estate, annul the capacity of one person to succeed, and confer it on another without the consent of the owner — Qu? But if it can, it is not presumed to have so intended, without an explicit manifestation of such intent. On the contrary, the general principle is, that private acts are in the nature of assurances at common law; and, therefore, that their operation is meant to depend on the consent of ■ those persons who are in esse, and whose estates are the subjects of the acts.</p> <p>The case of Drake v. Drake, 4- Dev. Rep. 110, distinguished from this and approved.</p>

The bill stated that Annis Moore, being possessed of a considerable personal estate, died, some time in the year 1834, after having made a will, in which she gave divers specific legacies, and then bequeathed as follows: “ It is also my will and desire, that the balance of my property shall be divided between Lucinda Godley, Annis Nelson, Marina Forest and Annis and John Alexander Brinkley, to draw one share; also Marina and Nancy Hardie to draw one share.” The bill then…

In 1835, a mercantile firm was formed and did business at Franklin, in Macon county, under the name of Joseph Welch & Co. It was composed of the following known and open namely, James Truitt, Robert Hall and Joseph Welch. In August, 1835, Isaac Truitt went to Charleston, in South Carolina, to purchase goods for the firm; and in its name, and with its means, he made purchases to a considerable amount.

On the 22nd of February, 1828, a marriage having been agreed upon, and being about to be solemnized, between Littleberry Wilcox and Mrs. Martha Hudson, the said parties executed an indenture with Samuel Johnston, a trustee for that purpose selected, whereby all the property then belonging to Mrs. Hudson, was conveyed' to the said Johnston, his executors, administrators and assigns, in trust for her, the said Martha, until the intended marriage should take effect; and from…

Arthur Green died some time in the year 1830, leaving a will, in which were contained the following, among other clauses: “ Item 1st. I lend unto my beloved wife, Eleanor Green, during her natural life, all my land and plantation where I now live, including house and all the household furniture, and every thing appertaining thereto, and all the kitchen furniture, stock of horses, hogs, cattle, and all and every other stock that I may die possessed of, being in and upon the…

<p>From the pleadings in this case, it appeared that Nathan Thatch 'died in the year 1832, leaving a will, in which, after providing for the payment of his debts, and the working of the then growing crop, he devised and bequeathed as follows: “ I will, that all my perishable estate be sold. I will that all my lands be rented out, and all my negroes be hired out, until my youngest daughter Sarah becomes fifteen years old— and I will that my children that have not been educated, be educated and boarded out of the estate; and I will that my mother be supported out of my estate during her natural life; and that my two plantations near Bethel M. House shall belong to my four daughters, Rosanna, Mary, Jane and Sarah; and I also give the plantation that I now reside on to my son, Benjamin Thatch. And I likewise will, that at the time my youngest daughter, Sarah Thatch, arrives to the age of fifteen years, that all my negroes and perishable estate shall be divided between all my children, and money likewise to be divided. In case that any of my children should be married before Sarah arrives at fifteen years of age, then my will is, that his or her board shall be stopped, and no further charge be paid for him or her until Sarah arrives to fifteen, when he or she shall receive his or her proportionable The testator had no wife at the time when his will was made, and left no widow surviving him, but his five children Were all living at his death. Maiy, one of the testator’s daughters named in his will, intermarried with the plaintiff in December, 1835, and shortly thereafter died some time in the year 1836. Sarah, the youngest-daughter, died shortly after the death of the testator, intestate, unmarried, and before she had arrived to the age of fifteen years; at which age she would have arrived, had she lived, in October 1838. The plaintiff, after the death of his wife, took out letters of administration on her estate; and in March, 1839, filed this bill, in which he claimed that the legacy of the “negroes and perishabie estate” and “money” to the children of the testator, was a vested one, and that after the time When the youngest daughter Sarah would have arrived at the age of fifteen years, had she lived, the said negroes, money and perishable estate, were divisible among the children then living, and the representatives of those who had theretofore died. The answers, admitting-the facts as above stated to be true, insisted that the legacy was contingent, and that as the plaintiff’s idtestate had died before the period at which the property was to be divided, she was entitled to no share thereof.</p> <p>The legacies to all the children vest at the death of the testator, but the period for “division” is postponed until the youngest child would have attained the age of fifteen years.</p> <p>1. The land is certainly devised in presentí, to the children; two of the plantations to the four daughters by name, and the homestead to. the son; yet, by the preceding clause of the will “the land is all directed to be rented out, as well as the negroes to be hired out,” until S.arah “ becomes” fifteen <fec. The interest of Mrs. Anderson in the land was vested. The negroes seem, in the testator’s mind, to have been coupled with the land; and the perishable estate is to be “ divided” as the negroes: Hence it is inferred that all three follow the express disposition which is made of the land.</p> <p>2. The terms used by the testator throughout, shew he supposed his children were to take his estate, as a matter of course, without express words of devise or bequest, and the main purposes of his will are to' designate when the enjoyment shall commence in severalty, and how the property (of all kindsj shall be partitioned among his children respectively. Indeed all the others are secondary and temporary — such as charging the estate with maintenance of his mo* ther — renting the land and hiring the negroes for a definite time — .education of children &c. Thus he says “ my two plantations shall belong to my four daughters,” Sea. — “ all my negroes and perishable estate shall be divided between all my children, and money likewise be divided” — “ when he or she shall receive his or her proportionable part”; all of which terms consist with the idea that the testator supposed his children all tenants in common at his death, and that he was merely directing the allotments among them, and designating when they should take the property into possession. This view is fortified by the fact that</p> <p>3. He makes no limitation over of the property in any contingency. — neither in the event of death, marriage, birth of issue, nor any subsequent occurrence whatever. If then the interests of the deceased legatees were not vested, the surviving brothers and sisters do not succeed to their rights as their next of kin, nor as legatees under the testator’s will, but as next of kin of the testator, upon the ground that he died intestate, as to those parts of his estate,- when it is manifest, that he designed by his will to dispose of all his earthly interests.</p> <p>4. Whatever a testator does not give away by will, descends to his heirs, or is to be divided among his next of kin. Two fifth parts of this estate are certainly not bequeathed to the defendants. If, then, they be not willed to Mary and Sarah, deceased, they are not disposed of by will, but go, at his death, to the testator’s next of kin, of whom Mary and Sarah were two. But a testator shall not be presumed to have died intestate as to any thing, if the contrary can be inferred.</p> <p>5. If the terms of the alleged contingency, “ until Sarah, nry youngest daughter, becomes fifteen;” “at the time my youn£est daughter, Sarah Thatch, arrives to the age of fifteen years;” “until Sarah arrives to fifteen, when,” &c.'are to be taken literally, none of the legacies can ever vest: for Sarah died before she attained the age of fifteen, and of course never arrived at that age. And if a benign interpretation must be resorted to in favor of the defendants, it must also be allowed to others.</p> <p>6. In cases of doubt, the courts incline in favour of the vesting of legacies. 1 Roper on Leg. 378.</p> <p>' 7. If the legacies did not vest at the testator’s death in the legatees, they are given to the executors in trust until Sarah would have attained fifteen. But they are charged with the maintenance and education, in the mean time, of all the legatees. This shews, by the common rules of construction, that they are vested. 1 Roper on Leg. 388,390. The cases on the subject are well collected in 1 Roper, from 375 to 400.</p> <p>8. The provision that in case of the marriage of any of the children, there should be no further charge in his or her favour until Sarah becomes fifteen, does not conflict with the views before expressed, since a married child is, at that time, to take as if there had been no marriage. It is then submitted, that the legacy to Mary, the deceased wife of the plaintiff, was a vested interest in all the personal property of the testator, and that, upon her death, it was transmitted to the plaintiff as her administrator and husband.</p>

The bill was filed in March, 1840, by the plaintiff, as administrator de bonis non, with the will annexed of Jesse Cotton, Senior, to obtain the advice of the court in executing the will of the testator, who died in the year 1802, having devised and bequeathed as follows: “ Item.

The plaintiffs, who were’ merchants in the city of New York, sold to the defendant, Lovick Lambeth, a parcel of goods, for which he failed to pay; and they thereupon sued him at law, and recovered a judgment against him for $1,292:46 cts., with interest and cost.

Alexander Grier was appointed guardian to the plaintiffs, four in number, and executed one bond with the defendants, as his -sureties, for the faithful performance of his duty to his four wards.

Henry Leak, by his will, after giving several specific legacies in slaves, &c., and several pecuniary legacies, bequeathed as follows; “ Ninthly.

The bill was filed to enforce the Specific performance of an agreement for the purchase of a tract of land, entered into between the plaintiff and Patrick Kelly, the ancestor of the defendants.

<p>The bill was filed in August, 1832. It stated, that in October, 1819, the defendant’s intestate, Doctor Stephen L. Fer-rand, then residing in Salisbury, delivered to his brother, William P. Ferrand, who resided in the neighborhood of Newbern, a memorandum of sundry articles of furniture which he wished William to purchase for him in one of the Northern Cities, and have sent to him. That William could not conveniently go to the north at the time, and proposed to the plaintiff) then resident in Newbern, and extensively engaged in trade, to take the order and fill it, as he was then about going to the north — informing him that he could not pledge himself that his brother Stephen would take the articles, but that he believed he would, if they were elegant, and at prices which would afford a reasonable profit to the plai'ntiff. The bill further stated, that the plaintiff, being well acquainted with Stephen L. Ferrand, believed that he could execute the commission to his satisfaction, and, accordingly, notwithstanding the risk of a rejection, he purchased in Philadelphia many of the articles contained in the list, and imported them into Newbern; and that during the succeeding winter, he forwarded those articles, and others of equal quality which he had before purchased and had on hand for sale, by wagons, to Stephen L. Ferrand, at Salisbury; and, at the same time, delivered to William P. Ferrand a bill, with the prices, for the information of his brother. The bill stated that those prices were but a moderate advance upon the cost, So as to yield but a slight profit, as the plaintiff was ready to shew by the original bills or invoices. To the bill, was appended a copy of the account of the furniture, at very high prices, amounting to $944 85 cents. The bill stated, that upon the arrival of the furniture, Doctor Ferrand refused to accept it, being dissatisfied both with the costly character of it, and also with the prices, as too high even for, furniture of that character: but that after some delay, he did accept it, “ without stipulating for any alteration of price.”</p> <p>The bill then further stated, that at the times of sending the furniture, the plaintiff also sent various articles of merchandize to be sold upon account of the plaintiff; and that at various times afterwards, up to October, 1824, he sent up to said Stephen large quantities of groceries which he undertook to dispose of for the pi an tiff; and of which an account was annexed to the bill, without any prices affixed.</p> <p>The bill stated that Dr. Ferrand from time to time remitted sundry sums, which the plaintiff was ready to admit; but no particular credits were admitted. It further stated, that notwithstanding all the exertions of the plaintiff to bring about a settlement, the account of the mutual dealings was never adjusted; and that “ the said Stephen never once furnished any regular account of sales, of the large amount of articles sent to him for sale,” but occasionally, when they met, or by letter, promised to come to Newbern, and there make a settlement in full. The bill then stated three letters between those parties: one from the plaintiff, dated July 24th, 1829, in which he says: “From your last letter, I have been expecting you down from time to time until my patience is exhausted. Will you, upon the receipt of this, forward me the account of sales of the balance of the articles you had on hand when you were here last, together with the balance of your account in cash, or a check? The accounts between us have really remained unsettled longer than I could have wished.” Also one from Dr. Ferrand, dated October 5th, 1829, in which he says: “ your letter I received some time since, but have been unable to answer it, from great bodily indisposition. As to money, there is none here; and I should like to have a settlement with you, to know if I am in due to you; and for the purpose of doing so, I shall visit Newbern in the winter, where I expect to remain several months:” That on the 26th of April, 1830, the plaintiff again wrote to Dr. Ferrand as follows: “Your favour 5th of October, 1829, came to hand, in which you say that in the winter you will visit Newbern for the purpose of settling the accounts existing between us. As the winter has passed, and not hearing from you since on the subject, I am really at a loss to know how to account for it. Will you be so good, on the receipt of this, (as to send) the remaining aecount of sales, and say that I may draw on you for the balanee?”</p> <p>The bill then stated the death of Dr. Ferrand in November, 1830, and the administration of the defendant on his estate; and it did' not appear that any thing more passed until the filing of the bill. The prayer was for the production of all letters between the parties, the invoices and accounts of sales of the various articles sent for sale; and that a proper account of all the mutual dealings between the plaintiff and Stephen L. Ferrand might be taken.</p> <p>The answer stated that the defendant had no such knowledge of the transactions to which the bill related, as would justify him in admitting or denying any of the allegations, except to admit that there were dealings between the parties between the years 1819 and 1824, as he found among the intestate’s papers sundry receipts, drafts, &c., evidencing payments of money to complainant or to his order, which he begged leave thereafter to exhibit. All knowledge of the letters stated in the bill was also denied.</p> <p>Upon the hearing of the cause it was referred to the Master to take an account of the matters of account stated in the pleadings. The master made his report to this term; and therein charged against the defendant,- the furniture at the price of $944 85, with the further sum of $1,133 60, for interest thereon for 20 years from the 30th of December, 1819 • — making, for principal and interest due therefor, the s.um of $2,078 45. The report also charged the further sum of $3,217 42, for sales of merchandize on account of the plaintiff, charged at prices proved to have been average prices at Newbern, about the periods these parcels were sent. The report credited the defendant with a commission of $160 84 on the sales, and with sundry payments between May, 1822, and May, 1827, so as to shew a balance due to the plaintiff upon the whole account, including the price of furniture and interest of $1,832 08; with which it charged the defendants.</p> <p>An account was filed in the cause by the plaintiff, purporting to be the account between the plaintiff and Dr. Fer-rand, and to have been stated by a clerk of the plaintiff, now deceased; and shewing a balance on 2d of May, 1825, #2,295 921-2; in which there were the following entries: “This due on account sales rendered on the 14th May, 1822,” #701 49 1-2; and “ amount of sales of sundry articles made out this day, the balance due,” $2,187 51. This latter account of sales was annexed thereto in the hand writing of plaintiff’s deceased clerk, and shewed the sales at Salisbury at prices considerably lower than the articles were charged at in Newbern.</p> <p>Besides the merchandize charged by the Master to the intestate, the plaintiff also claimed for other parcels, alleged to have been sent for sale on the plaintiff’s account; and to charge the defendant therewith, the plaintiff proved the receipts of sundry wagoners, expressed to be for the goods; and that they were to deliver them to Ferrand in Salisbury; and that the wagoners were now dead; and, in one instance, a witness further proved that he met one of those wagoners near Newbern, on his way up the country, and was told by him that he was loaded for Dr. Ferrand; and that the witness himself proceeded to Newbern, and thence to Salisbury, also with goods from the plaintiff to Ferrand; and that near Salisbury, he met the same wagoner, and was then told by him that he had delivered his load to Ferrand. In another instance, the plaintiff proved that, in the wagons, with part of the furniture, he sent, in March, 1820, a barrel of sugar and bag of coffee; which, as well as the furniture, Ferrand refused to receive; and that the wagoner then stored all his load with a merchant in Salisbury, on account of the plaintiff. The Master refused to charge those articles to the defendant, for want of evidence of the delivery to Ferrand.</p> <p>The plaintiff excepted to the report, for those refusals of the Master, and insisted that the evidence was sufficient. The defendant excepted, because the Master included the furniture bill in the account; and because he allowed inter.est thereon.</p>

The plaintiff, in his bill, stated that his- father, William Smith, in. the year-1829, agreed, by parole to sell him a certain tract of land- therein described, in consideration of the sum of $80, and the plaintiff’s doing his father’s shoemaking during his life.- That in pursuance of this agreement, and with the consent of his father, the plaintiff-entered upon the land and improved the same by building houses upon it to the value of $200;. that he paid the price in money…

The bill stated that in the year 1834, the defendants, Lewis Kidd and Moses Kidd gave to Samuel Smitherman, the intestate of the plaintiff, a bond or note — but which the plaintiff did not know — for the sum of $325, payable on the 25th of October, 1834.

This bill was filed at the September Term, 1838, of Guilford Superior Court.' The plaintiffs were Robert Ryan and Samuel Sullivan; and the defendants Robert Parsons, James Parsons and Jonathan Parker; and the case made by the bill was as follows: In the year 1827, the defendant Parker, purchased a tract of land from the plaintiff Sullivan, at and for the price of $600; and it was agreed, between the parties, that Sullivan should receive in payment of part of the purchase…

On the 23rd of August, 1833, Sarah M. Wiggins, by her and next friend, S. B. Carroway, filed hei bill of ^e Court of Equity for the coiinty of Washington, against John Walker, and Benjamin Maitland and Jordan Walker; which said Benjamin and Jordan were the executors of Thomas Walker, deceased.

This was a case which had been set for bearing in Guilford Court of Equity, upon the bill, answers and exhibits, and transmitted by order oí that Court to the Supreme Court.

<p>This bill was filed, returnable to the Spring Term, 1831, of Washington Court of Equity, in the name of Anthony Armistead. At that term, the death of Anthony Armistead vvas suggested, and leave given to his personal representato file a Bill, of' Revivor, which was done, returnable to the next term,, at which last' term the answers of the defendants were filed. No replication was put in to the'answers — at Spring Term, 1833, the cause was set for hearing upon the bill, answers and exhibits, and transmitted by order of the court below, upon the affidavit of the plaintiff to this court for trial. The material allegations in the bill and answer, together with the proof upon which the court relied, are set forth at length in the opinion of the court delivered by his Honor, Judge Daniel.</p>

This bill was filed leturnable to Fall Term, 1838, of Randolph Court of Equity, and at that term the answers of the defendants were filed, replication thereto taken, and commissions to take depositions ordered. At Spring Term, 1840, the cause was set for hearing and transmitted to this Court by consent. The facts of the case appear in the opinion of the Court.

This bill, which was filed returnable to Spring Term, 1833, of Hertford 'Court of Equity, charged that one John Nichols w&s', about the year 1824, duly appointed by the Court of Pleas and Quarter Sessions of Hertford county, guardian to the plaintiff.

This was a bill filed by the complainant, in forma pauperis, (by order of a Judge,) returnable to the Fall Term, 1838, of Halifax Court of Equity. At the Fall Term, the answer of the defendant was filed, replication taken thereto, and an order for commissions. At Fall Term; 1839, the cause was set for hearing. At Spring Term, 1840, an issue was submitted to the jury, which they found in favor of the plaintiff.

This was a bill filed returnable to the Spring Term, 1837, of Sampson Court of Equity, to which an answer was put in at the same term. Replication was filed to the answer, and commissions ordered to take testimony. At Fall Term, 1840, the cause was set for hearing, and ordered to be transmitted to the Supreme Court. The facts disclosed by the pleadings, are stated in the opinion of the Court.

This was a bill filed in Burke Court of Equity by the plaintiffs Thomas S. Walton and Margaret his wife, and Sarah L. Murphy, Harriet F. Murphy and John H. Murphy, infants, by the said Thomas, their guardian, against James Erwin, who had formerly been the guardian of the said Margaret, Sarah, Harriet and John, calling for an account of his guardianship.

<p>A testator by his will devised, among other things, as follows: “ I ■ leave all my lands not given away, to be sold at six and twelve months credit; after my debts are paid, the residue of my estate ,to be divided between my wife, daughter and son,” and he appointed an executor “to sell his lands before mentioned,” and to execute his will in all respects, it was held that the testator intended a sale of his real estate at all events, either to create a fund for the payment of debts, in room of a part of the personal estate, or for a division between the wife, daughter and son; and that therefore, in this Court, the fund is con- ■ sidered as converted, out and out, into personalty.</p> <p>Held further, that where, in this case, the executor had refused to qualify and an administrator with the will ahnexed had sold the lands, and a Court of Law had decided that he had no power to convey a legal title, yet as the administrator had disposed of the proceeds of the sale according to the directions of the will, the heirs at law of the testator were but trustees for the purchaser, and should be decreed to convey to him the legal title.</p> <p>A ciecuee in notU/íer0se" divest a ti-tut the°pen!oú who has the title, and who is hTthede^ cee, to convey,</p> <p>when land {,y aTeítat0 be .converted out and ont</p> <p>into personalty, the share of a ■wife belongs in the view of this court to her husband as other perponalty.</p>

This was a bill filed in Bladen Court of Equity, in the name of Daniel Shaw, as guardian of Penelope Green, a lunatic, against the defendants, praying to have a certain bond delivered up to the plaintiff, or that the defendants may account to the plaintiff for the principal and interest. The defendants answered, depositions' were taken, and, at the Fall Term, 1839, of Bladen Court of Equity, the cause was set for hearing, and ordered to be transmitted to the Supreme Court.

This was a case transmitted to this Court for trial, from Caswell Court of Equity. The allegations of both parties, ,and the proofs, are fully stated in the opinion of the Court.

<p>This was a bill filed in Macon Court of Equity by the plaintiff against the defendants, the widow and heirs at law of Darling Belk, dec’d. Answers were filed, replication entered, and the depositions taken, when, at Fall Term, 1840, of the said court, the cause was set for hearing and transmitted to the Supreme Court.</p>

This was a bill filed in Halifax Court of Equity, and after the answers were put in, depositions taken, and the cause set for hearing, the case was transmitted to this court. - The facts are stated in the opinion ot the court.

This was a case transmitted to this court from the Court of Equity of Jones county, where, at the Fall Term, 1840, it had been set for hearing upon the bill, answer, exhibits and proofs. The facts are stated in the opinion of the court.

<p>This case came originally before this Court upon demurrer, which was overruled. See 2 Dev. &r- Bat. Eg. 138. Th« cause was then remanded, and the defendants, Long, Hardie and Hargrove answered, and the other defendants let the bill be taken pro confesso against them, and set for hearing ex parte. Having been set for hearing in Rowan Court of Equity upon the bill, answers, judgment pro confesso, exhibits and interlocutory order, the case was, at the Fall Term, 1840, transmitted to this Court for a determination. The only ground upon which the. defendant now resisted the plaintiff’s recovery was, that the judgment at law of Campbell & Brown against Long, sought to be enforced by this bill, (see former case) were dormant at the time the bill was filed, and that Campbell’s judgment is still so.</p>

This was an appeal from an interlocutory order of the Court of Equity of Lincoln county, made in the cause by his honor Judge Pearson, overruling a motion to dissolve the injunction, which had been granted, and directing the injunction to be continued until the hearing. The facts, so far as they are relevant to this question, are stated in the- opinion of the Court.

The bill in this case was filed in the Court of Equity of Montgomery county. After the case had been set for hearing in that Court, it was transmitted to this Court, in which a decretal order declaring the rights of the plaintiff, was piade at December Term, 1835 ; but the Court then dedined to make a final decree for the want of necessary parties, and remanded the cause for that purpose.

<p>Where the plaintiff does not prove to the satisfaction of the Court, that his contract has been obtained from him by mistake, or by imposition, misrepresentation, fraud or surprize on the part of the defendant, this Court cannot relieve him, although they may believe he has been hardly dealt with.</p> <p>That the plaintiff entered into his agreement to avoid a controversy at law; that he was ignorant of the law, and was alarmed by the defendant issuing against him a writ of ne exeat, when it does not appear that the defendant sued out that process with an improper object, constitutes no ground for relieving him from a contract voluntarily and deliberately entered into.</p>

This was a bill filed at ¡Spring Term, 1836,. of Iredell Court of Equity, by William Graham, administrator of Betsy McKnight, against Alexander and George Torrance, executors of Ann Torrance, dec’d., and Margaret Torrance and Samuel McKnight.

<p>The surety for an appeal, in an action at law, from the County to the Superior Court, cannot have the case rei-examined in a Court of Equity, upon the allegation that the verdict and judgment at law were unjust;, unless it also appears that by concert and collusion between the plaintiff and defendant at law such unjust judgment was suffered, for the mere purpose of charging the surety, when the principal was not really chargeable by reason of his insolvency:</p> <p>Or unless he alleges a ground upon which the defendant at law himself could have had the judgment re-examined in a Court of Equity.</p> <p>Where a defendant appeals irom the County to the Superior Couit, and then dies, whereupon the suit is revived against his executor or administrator, and'the debt or demand established against the latter, but the plea of fully administered is found in his favor, the sureties for the appeal are bound for the amount of the debt or demand so ascertained, and judgment must be rendered against them accordingly; although the plaintiff only takes judgment guando against the executor or administrator, or sign judgment and pray process against the heirs or devisees.</p>

This was a bill filed in Moore Court of Equity, at Spring Term, 1837. Answers were put in, replication made, depositions taken, the cause referred to the Clerk and Master, a report made and confirmed, and the cause set for hearing and removed to the Supreme Court at the Fall Term, 1840. In the Supreme Court, a petition was filed to rehear the interlocutory order referring the case to the Clerk and Master, and the petition was granted.

This was a bill in Equity, filed in the Court of Equity of Lincoln county, at September Term, 1839. The allegations and prayer of the bill are set forth in the opinion of the Court.

<p>This was a bill filed by the plaintiffs against the defendant in Chatham Court of Equity. The defendant put in his answer, to Which there Was a replication; a reference to the master and a report were made, and exceptions filed to the report. At Spring Term, 1838, the causé was set for hearing, and transmitted by consent of parties to the Supreme Court. The facts, as appearing from the pleadings and proofs, are stated in the opinion of the court.</p>

This was an appeal, by leave of the Court, from an interlocutory decree of the Court of Equity of Johnston county, made at Spring Term, 1840, by his honor Judge Nash, overruling a demurrer which- had been filed to the complainants’ bill. The allegations of the bill and the causes of demurrer are set forth in the opinion of the Court.

<p>A deed, whether for valuable consideration or not, but good and effectual at law, except for want of registration, and which is lost before registration, will be set up in Equity and a decree made for another conveyance by the bargainor or his legal representatives.</p> <p>But, before such a decree can be made, the plaintiff must clearly prove that such a deed once existed, its legal operation and its loss.</p> <p>In the case of a deed thirty years old, proof of its execution is dispensed with. But to render such a deed admissible, there must be some account of its proper custody, and also evidence that the party has been in possession under it. And the pioof of execution is only dispensed with here on the ground that the attesting witnesses may be dead.</p> <p>There is no legal presumption, nor ought there to be an inference in fact, from the mere circumstance of a person attesting a paper writing as a witness, that such witness was aware of the contents of the paper, and is therefore bound by it, when it affects his interest.</p> <p>The force of circumstantial evidence depends on the number, tendency, agreement and conclusive nature of the circumstances in themselves, which may be adduced to establish a conclusion, and also on the important fact that there are not opposing circumstances, equally undeniable, which are inconsistent with that conclusion; and further, that nothing in the party’s power appears to be withheld, which, if produced, would shew the facts on which the conclusión is founded to be different, or authorize an opposite deduction from them.</p>

This was a hill filed in Stokes Court of Equity at April Term, 1840, and at the coming in of the answers at October, 1840, the cause was, by consent, set for hearing upon the bill and answers, and transmitted to the Supreme Court. The facts and the questions submitted by the bill and answers will be found in the opinion of the court.

This was a bill filed in' Bladen Court of Equity, to which answers were put in, and replication having been entered, and depositions taken, the cause was, at Fall Term, 1840, set for hearing, and by consent of parties transferred to the Su preme Court..

This was a bill filed at Northampton Court of Equity, and which,- after an answer had been filed, replication entered, and depositions taken, ‘ was set for hearing . at Fall Term, 1840, of that court, and by consent of parties, transferred to the Supreme Court. The allegations and proofs are stated in the opinion of this court.

This was a bill filed in Orange Court of Equity, by the complainants, as legatees of William Cain, dec’d, against the executors and other legatees of the said William and other persons, who were appointed trustees for certain purposes by the will of the testator. The cause came on for hearing at the Fall Term, 1839, before his honor Judge Bailey, who made a decree therein, from which an appeal was taken to the Supreme Court.

This was a bill filed in Caswell Court of Equity. A subpoena and copy of the bill were served on each of the defendants except Thomas R. Richmond, and as to him service was acknowledged and an answer filed by A. D. Richmond, who was no party to the suit, but styled himself “ agent and attorney in fact for Thomas R. Richmond.” The cause, having been set for hearing at Fall Term, 1840, of Caswell Court of Equity, was transferred by consent to the Supreme Court.

This was a bill filed in Person Court of Equity, at Spring Term, 1836. The cause, having been regularly set for hearing at Fall Term, 1839, was transferred by consent of parties to the Supreme Court. The statement of the case is included in the opinion delivered in this Court.

This was a bill filed at March Term, 1841, of Burke Court' of Equity by the complainants, as administrators with the' will annexed of John Carson, dec’d, praying the court to pu¿ a proper construction on the said will, that they might he governed thereby.

This was a bill transferred from Johnston Court of Equity to the Supreme Court at Spring Term, 1841. The facts as appearing on the pleadings, proofs and exceptions tq the master’s report are fully stated in the opinion of this court.

This was a cáse removed by consent from the Court of Equity of Wake County to the Supreme Court. The facts’ of the case are sufficiently stated in the opinion delivered in this court.

This was a bill in Equity, in which it was alleged that Robert J. Dinkins was the guardian of Rufus K. Dinkins, an infant; and gave bond with the plaintiffs as his sureties. — . that in the year 1834, he, the said Rufus K. Dinkins, recovered a judgment against the said Robert J. Dinkins and the said Stephen Fox and others, plaintiffs in this suit, for the sum of $1517 24 and costs of suit — which sum has been collected by execution, and paid by the plaintiffs — that the said…

This was a bill filed at Fall Term, 1839, of Orange Court of Equity. Answers were put in, replications made; and the cause set for hearing and transmitted to the Supreme Court. The facts are set forth in the opinion delivered in this court.

This was a bill in Equity, filed in Cumberland Superior Court, at Spring Term, 1841. Answers were put in, and other pleadings had until the Fall Term, 1840, when the cause was removed to the Supreme Court. The facts and state of the pleadings are sufficiently disclosed in the opinion of the court.

This was an appeal from the decree of his Honor Judge Pearson, at the Spring Term, 1841, of Caswell Court of Equity. The defendant pleaded to the plaintiff’s bill; the plaintiff demurred to the plea; and the presiding Judge overruled the demurrer, sustained the plea, and directed the bill to be dismissed, From this decree the plaintiff appealed to the Supreme Court.

This was a suit in Equity, which, after having been set for hearing in Stokes Court of Equity, was transmitted, by consent, to this court for a final decision. All that is necessary to be known of the case is to be found in the opinion delivered in this court.

This case, having been set for hearing at the Court of Equity of Stokes County, at the Pall Term, 1840, was by consent of parties transmitted to the Supreme Court. All that is necessary to be known of the case is disclosed in the opinion of the court.

This was an appeal from a decree of his honor Judge Settle at the Spring Terra, 1841, of Northampton Court of Equity. The facts, so far as they have relation to the judgment of this court, are stated in the opinion delivered.

This was a bill filed in Mecklenburg Court of Equity. The plaintiff had obtained an injunction from a Judge out of court, and at Fall Term, 1840, of the said court, a motion was made by the defendant to dissolve the injunction, and his Honor Judge Settle, upon hearing the motion, ordered the injunction to be dissolved with costs. From this decree the plaintiff, by leave, appealed to the Supreme Court. The facts of the case are stated in the opinion delivered in this court.

This was a suit transmitted from the Court of Equity of Guilford County, a,t Fall Term, 1840, to the Supreme Court? by consent of parties. The pleadings and proofs in the cause are fully set forth in the opinion delivered in this Court.

This was an appeal from a decree of his Honor Judge Battle, pronounced on the hearing of this cause before him at Spring Term,. 1841, of Haywood Court of Equity. The pleadings and proofs are stated in the opinion of the court.

This was a suit in Equity, which, heing set for hearing at Spring Term, 1841, of Wayne Court of Equity, was transmitted by consent of parties to the Supreme Court. The pleadings and proofs are stated in. the opinion of this court.

This was an appeal from the decision of his Honor Judge Dick, made {fro forma) at the Spring Term, 1841, of Cumberland Court of Equity, sustaining the several demurrers oí the defendants to the plaintiffs’ bill, and ordering the same to be dismissed. The allegations of the bill and causes of demurrer are stated in the opinion delivered by this court.

<p>This was a bill filed in Cabarrus Court of Equity, in July, 1838, to set aside a deed for negroes, executed in the year 1825, by the plaintiff’s intestate to the defendant, who was one of her sons. The grounds alleged for this relief werethe incapacity of the intestate, and fraud and imposition on the part of the defendant. The defendant denied the fraud, imposition and incapacity imputed by the bill, and averred that there was a fair and bona fide consideration for the deed, which he set forth in his answer. He also relied upon the lapse of time from the date of the deed to the filing of the plaintiff’s bill. Replication having been made and depositions taken, the cause was set for hearing, and at Spring Term, 1841, removed, on, the affidavit of the plaintiff, to the Supreme Court. The testimony was voluminous and need not be here inserted, as the court decided it to be insufficient, in point of fact, to sustain the plaintiff’s bill.</p> <p>The case was argued at length, with great zeal by the counsel on both sides, and the reporter regrets he has not room to insert their arguments.</p> <p>As to the degree of incapacity, required to avoid a deed, the plaintiff’s counsel cited Buff alow v. Buff alow, 2 Dev. & Bat. 241. Griffiths v. Robins, 3 Mad.[Ch, Rep. 191. Clark-son v. Hanway, 2 Peere Wms. and the cases there cited. Mad.' Ch. Prac. vol. 1st, p. 280, 281. Harding v. Handy, 6 Con-den. Ch. Rep. 286. Bridgman v. Green, Wilmot’s Cases, 61. Chesterfield v. Jansen, 2 Yes. 155. Whelan v.- Whelan, 3 Cowen, 537. Huguenin v. Basely, 14th Yes. 273.</p> <p>As to the operation of the length of time in a case like this, they cited Purcell v. McNamara, 14 Yes. 91. Aylward v. Kearney, 2 Ball & Beatty, 463. Medlicott v. O'Donnell, 1 Ball & Beatty, 166. Alden v. Gregory, 2 Eden, 280,285. Pickering v. Lord Stamford, 2 Yes. jr. 280. Booth v. Lord Warrington, 1 Bro. Ch. Ca. 455. Butler v. Haskill, 4 Dessaussure, 707. Mad. Ch. Pr. 1 Yol. 256. 1 Fonbl. Eq. 333. Edwards v. University, 1 Dev. & Bat. Eq. 325.— Blue v. Patterson, 1 Dev. &. Bat. Eq. 457. 1 Yes. jr. 160, 328. Roche v. O'Brien, 1 Ball & Beatty, 330. Gotaland v. DeFaria, 17 Yes. jr. 20. Hatch v. Hatch, 9 Yes. jr. 292.</p> <p>as to the degree of incapacity, cited Fonbl. Eq. 1 Book, 2 ch. 3 sec. Lewis v. Peed, 1 Yes. jr. 19. 1 Story’s Eq. 239, 245. As to the lapse of time, 2 Sch. & Lef. 630. Edwards v. University, 1 Dev. & Bat. Eq. 325. Gatlin v. Barden, 1 Dev. & Bat. Eq. 74. Cain v. Bloodgood, 7 Johns. Ch. Rep. 90. Hoveden on frauds, L vol. p. 23.</p>

This was a case transmitted by consent of partios, from Richmond Court of Equity, Spring Term, 1841, to the Supreme Court for a hearing. The pleadings and proofs are stated in the opinion of the court.

This was a bill filed in Guilford Court of Equity, at Fall Term, 1837, and having been there set for hearing, was, at Spring Term, 1841, transmitted by order of that court to the Supreme Court. The pleadings and proofs are stated in the opinion of this Court.

This ease was transmitted from Surry Court of Equity, at Spring Term, 1841, to the Supreme Court, by consent. The pleadings and proofs will be found in the opinion of this court.

<p>This suit was transmitted from Orange Court of Equity, at Spring Term 1841, to the Supreme Court by consent. The pleadings and proofs will be found stated in the opinion of this court.</p>

This suit was transmitted from Guilford Court of Equity at Fall Term, 1840, to the Supreme Court by consent of parlies. The pleadings are stated in the opinion of this court.

This was a bill filed by the complainant, at Spring Term 1839, of Johnston Court of Equity.

<p>On a motion to dissolve an injunction, usually the court can look at nothing but the answer and the exhibits filed and admitted by the answer. If the facts and circumstances, which make the plaintiff’s case are denied, the injunction falls of course.</p> <p>The summary remedy on injunction bonds, given by the act of Assembly, (1 Rev. St. c. 32 s. 13) upon the dissolution of the injunction, apply only in cases of injunctions to restrain-executions on judgments at law. In other cases of injuction, the proper remedy is by a suit at common law on the bond.</p> <p>After a bill and answer have been filed in court', it is irregular to grant an injunction in the case upon a petition to a judge’in vacation. If an injunction is desired because of any new matter arising, such matter should be disclosed by a supplemental bill.</p>

This was a case trausmitted by consent from the Court oí Equity of Davie County, at Fall Term, 1840, to the Supreme Court for hearing. The pleadings and facts are set forth in the opinion of this court.

An account having been heretofore directed in this case, (see 2 Dev. & Bat. Eq. Rep. 60,) and the master having now made his report, exceptions were taken by one of the defendants, and these exceptions now came on to be heard. The ture of the exceptions and the evidence in relation to them are stated in the opinion of the court.

This was a bill filed at the Spring Term, 1840, of Gran-ville Courfof Equity.

<p>A. by will, dated in 1838, devised his slaves to trastees, to be removecf soon as practicable to Africa and there settled in some colony, under the patronage and .control of the American Colonization Society, with a proviso, that in case any of the said slaves should refuse to be so removed, the slave so refusing should be sold and the proceeds of the sale should be added to the fund created for the removal and support of such of the slaves, as should be removed with their consent. — - He then devised as follows: “It is my will and desire that the land* and plantation about three miles west of Raleigh and' the several lots- • of land comprizing my tan yard .establishment, together with all my crop, stock of every kind, plantation tools and carriages, implements.'’ for tanning and currying, household and kitchen furniture belonging to me at the time of my death be sold by the said (Trustees), or the surviver of them — and the proceeds of such sale shall1 constitute' a fund to defray the expenses incidental to the removal of’ my slaves-to some colony in Africa under the patronage and control of the American Colonization Society, and for the establishment of said slaves in such colony after their removal to the same.” The testator then devised all the residue of his estate in the State of North-Carolina to the .same trustees, for the purpose of erecting and endowing an Infirmary or Hospital for the sick and afflicted poor of the City of Raleigh1.— It was held — 'First, that a stock of leather, which the testator had in hisi tanning establishment at the time of his death, passed under the clause1 devising certain property to be sold and the proceeds to constitute a fund for the removal and establishment of his slaves; Secondly, that not only so muehof the fund provided by this clause, as is necessary for the removal of the slaves, but the whole fund is appropriated to their removal, and also to their comfortable settlement in Africa — and that none of it falls into the residuum. Thirdly, that this devise is good as a devise to a charitable purpose, and it is not against the policy of this State to* permit the emancipation of slaves, provided they be removed and be . kept removed out of the State.</p>

This was an appeal, by leave of the court, from an interlocutory decree made by his Honor Judge Nash, at Fall Term, 1841,'of Washington Court of Equity, dissolving the “injunction and annulling the order oí sequestration, theretofore made in this case. The question involved is fully stated ju opinion of this court.

This was a cause transmitted from Rowan Court of Equity, at Spring Term, 1841, to the Supreme Court by consent of parties. The pleadings and proofs are stated in the opinion delivered in this court.

<p>■This .case came up from Orange Court of Equity, Th.e facts are stated in the opinion of the Court.</p>

<p>This was a case transmitted from Johnston Court of Equity. The facts are stated in the opinion in this Court.</p>

This was a cause removed from Mecklenburg Qourt of Equity, at Fall Term, 1838, to the Supreme Court on the affidavit of the defendant. The pleadings and proofs are stated in the opinion of this court.

<p>When two parties meet to conclude a contract for the purchase ef land, and, the deed being present, one says “ I offer this deed to you,” and the other replies, “Iaccepi,” this amounts to a delivery, although the deed does not pass from the hand of the one to that of the other, but remains in the possession of a third person, the friend and agent of each.</p>