Volume 37 — North Carolina Reports

This was afi appeal from an interlocutory degree of his Honor Judge Bailey at Spring Term, 1841, of Dnplia Court of Equity, overruling a demurrer filed by the defendant. The case commenced in 1836, by an information filed in the Court of Equity of Duplin County, in the name of the State by Edward Stanly, Solicitor in the second judicial district.

<p>.This was an appeal from an interlocutory décree of the Court of Equity of Anson county, his honor Judge Pearson presiding. The complainant, Alexander Little, filed his bill against Solomon Marsh, at the Spring Term, 1841, of Anson Court of Equity. In this bill the complainant alleged that at March Term,. 1838, of Anson Superior Court of Law, a number of judgments were obtained against one William Ashcraft, of the county of Anson, at the several suits of Richard Kingsland & Co. and others (particularly mentioning them,) amounting to upwards of eight thousand dollars; that executions issued on the said judgments returnable to September Term,. 1838, of the said Superior Court; and that the sheriff of Anson county levied the said executions on the following negro slaves, as the property of the said James Ashcraft, viz. Clarissa and her five children, Sanford, Matilda, George, Ann and Harriet; and that the said sheriff did, on the 12th day of September, 1838, sell said negroes at the court house door in the town of Wades-borough, to satisfy said several judgments; and that the complainant became the last and highest bidder for the sum of one thousand four hundred and fifty-five dollars.</p> <p>The complainant further charged .that the defendant in the said exeoutions, viz. .the said James Ashcraft, married the daughter of the defendant, Solomon Marsh, several years ago; and that upon the marriage of the said James Ashcraft with the daughter of this defendant, or in a short time thereafter, the defendant gave the said woman Clarissa, who was at the time a small girl, and who is the mother of the said Sanford, Matilda, George, Ann and Harriet, that were sold by -the sheriff as aforesaid, to the said James Ashcraft or his wife, and executed and delivered a deed of gift or bill of sale, or some other instrument of writing, whereby the defendant, Solomon Marsh, conveyed all his interest and title in said negro girl Clarissa .unto the said James Ashhcraft or his wife; and that said negro girl Clarissa remained in the possession of the said James Ashcraft for fifteen or twenty years, during which time she had the five children before mentioned; and that the said James Ashcraft continued in the possession of the said negro slaves, exercising all acts of ownership over them, paying taxes for them and receiving credit in part on account of his interest and property in said slaves, until the said James Ashcraft became embarrassedin his circumstances, and until a--short time before the levy and sale were made by the Sheriff as aforesaid., when the said James Ashcraft and the defendant, .combining and confederating together how to injure and defraud the creditors of the said James Ashcraft, came to an understanding and agreement 'of some kind, whereby the said James Ashcraft surrendered up the possession of the said negroes 'to the defendant Solomon Marsh and at the same time surrendered up and delivered over to the said Solomon Marsh the deed of gift or .bill of sale for the said Clarissa, the mother of the said children, which bill of sale or deed of gift the complainant charged had never been recorded.</p> <p>The complainant further set forth, that the said James Ashcraft resided in the immediate neighborhood of the defendant ever since the marriage of the said James with his daughter, and that it was generally understood and believed in the neighborhood that the said slave Clarissa and her said children were the property of the said James Ashcraft; and that the said Solomon Marsh never pretended to claim the said negro slaves from the time he gave them to the said Ashcraft until about the time the said executions were levied ky Sheriff as aforesaid on said slaves; and that, so far from claiming the said slaves as his, the defendant’s own property, the complainant was informed and believed, that the defendant did, on some occasion, when enquiry was made of him as to the title to said slaves, say, that he expected the title to them was in one Joseph White, inasmuch as said White was security for the said Ashcraft, and he expected that the said White had taken a deed of trust for said negroes .to save him harmless, or words to that effect.</p> <p>The complainant further charged, that after the levy made by the Sheriff; and before the day of sale, the complainant, upon learning that the defendant pretended to claim the said slaves, proposed to the defendant that if he, the defendant, would shew to the complainant the deed of gift or bill of sale, which the defendant had executed to .the said James Ashcraft or his wife, for said slaves, then, in case the writing did not convey the title to the said Ashcraft or any title liable to execution for debts of said Ashcraft, the complainant would release the levy so far as he was concerned in the executions against said Ashcraft; but that the defendant refused to do so or to give the complainant any satisfaction in any manner as to the same.</p> <p>The complainant further set forth, that he, together with Robert .Strange and Thomas S. Ashe, Esquires, were counsel and attorneys for the plaintiffs in the executions against Ashcraft, and that they jointly gave the Sheriff a bond of indemnity to sell the said slaves, and that the Sheriff did sell the said slaves, and that the complainant became the purchaser for the sum of $>1455, and took and now has the said slaves in his possession. The complainant further set forth that the defendant was present at the sale, and forbid the same; but the complainant was informed, and was informed so on the day of sale, that the defendant had procured one Jesse Llewellen, a man of property, and a friend and neighbor of the defendant, (who is now dead) to bid off the said slaves for him, the said Solomon Marsh, and that in consequence thereof the said Llewellen did bid several times for the said negroes or some of them. The complainant further set forth that the said Solomon had since sued the complainant at law in an action of Tresspass vi et armis, claiming said slaves as his own and seeking to recover damages of the complainant for wrongfully selling the same. The complainant further charged, that although the defendant Solomon Marsh did actually make, sign seal and deliver a deed of gift or bill of sale for said girl Clarissa to the said James Ashcraft or to his wife, yet that the said deed of gift or bill of sale never was recorded as required by law, and that the complainant was unable to avail himself of the benefit of his defence in a Court of Law for want of the said recording of the said deed of gift or bill of sale. The complainant, then, after asking that the defendant might be required to answer on oath particularly and specifically all the matters charged in this bill, prayed that the said defendant might be compelled by a decree of the Court to have the deed of conveyance made by the defendant to the said Ashcraft surrendered up to be recorded, or that he might be compelled to convey all his title and interest in said negro slaves to the- complainant, and that he should be perpetually enjoined from his action at law against the complainant; and that the complainant should receive such other and further relief as to the Court should seem meet.</p> <p>■ This bill of complaint was sworn to in due form. At the same term the defendant put in his answer. In this answer he admitted that he had understood tjiere were several judgments obtained against James Ashcraft about the time charged in the bill — but the amount thereof, or by whom, the defendant did not know, nor did he recollect at what particular term of Anson Court; and he supposed, but did not know, that executions issued on the said judgments. He also admitted that James Ashcraft, several years ago, married his daughter Eunice, and resides within a few miles of the defendant, in Anson. The defendant, for further answer, stated, that after the said James Ashcraft was married, and, he thought, after he had two children, and his wife was in much need of a nurse, the defendant, being the owner of a negro girl named Clarissa, then some ten or twelve years old, placed the said girl with the defendant’s said daughter, to assist her in taking care of her children, and intending for his said ^auS^ter t0 have the services of the said Clarissa to her separate use, and for the said slave and her increase to be enjoyed by the children of the said Eunice ; and to carry out this intention, some time thereafter, the defendant could not now state how long, he executed a paper writing to that effect, which he handed to his said daughter, therein conveying and securing the said slave, Clarissa, to the separate use of his said daughter, he thought, for life, and after her death to her children equally ; this paper writing was never delivered to James Ashcraft at all, nor in his possession, as this defendant believed, and he knew it was not intended that said Ashcraft should take any benefit under it; and defendant handed this paper writing to his daughter, Eunice, he thought, about twelve or thirteen years ago ; the defendant could not recollect the precise time, but he believed said paper was signed ánd handed to her about that time ; and she retained the possession of it until about the month of January or February, 1837, according to the best of the defendant’s recollection, at which time the said Eunice handed back the said paper writing to the defendant, upon application. And the cause of the defendant’s so applying to his daughter for it was, that it was understood among the said slaves, (to wit, Clarissa and her children,) that the said Ash-craft was going to convey off to Mississippi all his own ne-groes, and he then had five valuable ones; and, it was believed, that in doing so he would also run off privately with them, Clarissa and her children, and thereby Eunice and her children would be defeated of their claim to the property altogether ; and to prevent this, the defendant took back said paper writing, which, (as he thought,) was destroyed. He averred that he had it not in his possession, and was not able to produce it, which he certainly would readily do, had he the said paper to produce; for it was no intention whatever of defeating any of Ashcraft’s creditors, which caused the defendant to take back the said paper writing; for the slave, Clarissa, and her children, were never liable, directly nor indirectly, for Ashcraft’s debts, by the said paper writing, which the defendant delivered to his daughter as aforesaid. And the defendant further averred, that, at the time he took back from his daughter the- said paper writing, the said Ashcraft had five or more valuable negroes of his own, a considerable store of goods, and much other valuable property, and, the defendant believed, more than sufficient to have paid all his debts, if the same had been prudently managed. The de_ iendant farther stated, that some time thereafter Clarissa and her children, under apprehension of being sent off to- the South with Ashcraft’s own slaves, as the defendant understood and believed-, ran away of their own accord and came to the defendant’s house, where they remained till seized by the Sheriff of Anson County, and taken off and sold, as charged in the bill. And the defendant further stated, that the said Ashcraft did send off his own slaves to the South, and they have never returned, as the defendant understood and believed. The defendant, further answering,- stated, that Ashcraft, when he married the defendant’s daughter, had but very little property, if any, besides a horse, and, aided by his father, he procured a tract of land ; and the defendant had but very few slaves indeed,'and was altogether unwilling to make title to a slave to him, and opposed to putting ene in his power, or under his absolute eontrol, though the defendant was willing and desirous to assist his daughter in taking care of and nursing her children, and his whole object was to secure the services of the slave, Clarissa, to the separate use of his daughter, and for the said slave and increase to go to his daughter’s children ;■ and the said paper writing, which he signed and handed to his daughter, as aforesaid, was to that effect, and so expressed upon the face of it, to the best of the defendant’s recollection and belief; and the said slave, Clarissa, was not to be subject to the debts, disposition, or control of the said Ashcraft.</p> <p>The defendant, further answering, admitted that the slave, Clarissa, was permitted to remain at the house of the said Ashcraft, from the time she first went there, as aforesaid, until she ran away, as before stated, with her children, and came to the defendant, and during the time she remained at Ash-craft’s, said Clarissa had four of the children stated in the bill; and defendant said he thought it likely said Ashcraft might have paid taxes for the said Clarissa, but he did not know ; an<^ bought it most probable that said Ashcraft exercised some control over Clarissa and her children, while at his house, for such was to be expected; but the defendant did not admit that said Ashcraft ever obtained any credit on account of having said slaves at his house, for no person ever could have relied, with any certainty, or had any assurance that said Ashcraft had any title or held any interest in said slave Claiissa, and her children, for he never had any title or interest in or to said Clarissa and children. And the defendant denied that there ever was any combination or understanding between said Ashcraft and himself, in regard to taking said Clarissa and her children back, as charged in the bill; and so far from it, the defendant stated that a misunderstanding and unfriendly feeling existed between the said Ashcraft and himself, from the time he first set up merchandize in Anson until the present time, and the said Ashcraft had never been at the defendant’s house on a visit since; and although he kept store for some years, the want of friendship was such that the defendant never traded nor bought goods at his store. And the defendant denied that the said slaves, Clarissa and children, and the said paper writing, were surrendered up to him by said Ashcraft, as charged in the bill; but alleged, on the contrary, that the said slaves left Ash-craft’s house in the night time, and Ashcraft was much displeased thereat, and came to the defendant’s and said that he (Ashcraft,) knew nothing of it, as the defendant had heard and believed; and the said paper writing was handed back by the said Eunice, as before stated, without the knowledge of the said Ashcraft — and the defendant admitted that the said paper writing was not recorded before it was destroyed, as aforesaid. The defendant denied that he ever informed any person, to his knowledge or belief, that the title to said Clarissa and children was in Joseph White, or any other person, nor does he recollect that he ever mentioned to any person that the title of the said slaves was in his daughter, or any other person, to the best of his recollection and belief, or say any thing upon the subject, or that the subject was ever . talked about. The defendant admitted that the complainant applied to know about, or to see the title to .Clarissa and children, the day of the sale, and the defendant assured him that said Ashcraft never had a title of any kind to said slaves, and that his daughter had none then ; he also admitted that Clarissa and her children were sold by the Sheriff of Anson, at Wadesborough, some 17 miles from the defendant’s residence, and were purchased by the complainant at $1455, or thereabouts, as charged. The defendant also admitted that he was present at the sale of the-said slaves, and forbid the sale thereof, as he believed he had the right to do ; but he denied most expressly that he employed Jesse Llewellen, or any other person, directly or indirectly, to' bid for said slaves, for him or any other person. The defendant admitted that he had since sued the complainant for the said slaves. Clarissa and children, and that suit was now pending in Anson Superior Court of Law. The defendant, further answering, averred that he fully believed that the whole cause of the said negroes coming into his possession was to avoid being sent off, and that was his entire object in taking up thé paper writing, before alluded to, from his daughter, and not on account of any embarrassment under which the said Ashcraft was then laboring, or with which he was threatened, for the defendant, in fact, knew but little about his circumstances, but knew he had much property, and fully believed him good for all his debts, and still believed he was; but the defendant’s entire object was to prevent the said slaves from being sent off from the State, and his daughter and children being deprived of their just rights,- for the defendant never expected that said Clarissa and children would be made, or be attempted to be made, liable for Ashcraft’s-debts. He further stated, four of Clarissa’s children were born, as he believed, while she was at Ashcraft’s house, and one, named Harriet, was born at the defendant’s house after her return to him.</p> <p>This answer was duly sworn to.</p> <p>At this term a motion was made for an injunction to stay proceedings in the suit at law, which was refused by the Court.</p> <p>At the Fall Term, 1841, the following interlocutory decree was made: “ On motion and argument, and it appearing to the Court that since the last Term a judgment has been obtained at law, in an action of trespass, by the defendant against the plaintiff for the sum of and upon consideration of the bill and answer, it is ordered, adjudged, and decreed, that the defendant be enjoined from taking out any execution upon his judgment at law, until the further order of this Court.” From this interlocutory decree, the defendant prayed an appeal, which was allowed, upon condition that the defendant- should not, in the mean time, take out any execution upon his judgment at law, but await the decision of the question-in- the Supreme Court.</p> <p>contended that a parent may put negroes in possession of his child, and suffer them to remain during his life, and they are not, on account of such possession, liable to creditors; for a title from a parent to a child- can only pass by deed — that the plaintiff had notice that Ashcraft had no title,-and therefore could not complain — Parker v Brook, 9 Yes. 582 — that a wife can assert her right under a direct gift to her, for her separate use, against any purchaser who has notice, 3 Bro. Ch. B.. 381. Kirk v Paulin, 7 Yin. Ab.- 95, s. 43.- Bennett v Davis, 2 P. W. 316. That where there is a- gift from a father to a married daughter, a presumption arises that it is for her separate use, Graham v Londonderry, 3 Atk. 393.</p> <p>insisted that, if an injunction had been granted, the defendant would not have entitled himself, by his answer, to have it dissolved, because he shewed he had parted with all his title ; therefore he could not oppose the granting of the injunction — that there being no trustee, even admitting all the defendant said to be true, the legal title still passed to the husband, whether burthened with a trust or not was immaterial, as the trust, if there was one, might be enforced against the purchaser — that the defendant’s answer exhibited so much doubt, prevarication, fraud, and corruption, that the Court ought to grant the injunction —that the deed ought to be produced, or its loss fully proved — -that the words used in the deed should be particularly set forth, that the Court might see whether it created a sepa rate estate in the wife. See Rudisil v Watson, 2 Dev. 431 ■ — that a gift of personal property is prima facie absolute, and that, when deeds are suppressed, all things are presumed against the spoliator. Grounds and Rudiments of Equity, 146, 148. 1 Oh. Ca. 291. 1 Tern. 207.</p>

This was an appeal from an interlocutory order, made in this case by the Court of Equity of Cherokee County at Fall Term, 1841, his Honor Judge Manly presiding.

This was an appeal from an intérlocutory decree of the Court of Equity of Edgcomb County at Fall Term, 1841, his Honor Judge Dick presiding, ordering the injunction which had been granted in the case to be continued until the hearing. The pleadings and facts are sufficienly stated in the opinion delivered in this Court. Michael Hearne held as executor. Clapp v Fogleman, 1 Dev. & Bat. Eq. 466. The husband could only claim as administrator of his wife. Roper on property, 201.

This was a case transmitted by consent to the Supreme Court from the Court of Equity of Haywood County, at Fall Term, 1841, where, after the bill and auswershad been filed, and depositions taken, and exhibits also filed, the case had been set for hearing. The pleadings and proofs are stated in the opinion delivered in this Court. contended, 1st, That the plaintiffs were not entitled to a decree, because proper parties were not before the Court.

<p>This was a case removed to the Supreme Court by consent of parties at Lincoln Court of Equity, Fail Term 1841, the cause having been previously set for hearing upon the bill, answers, depositions and exhibits at that Court. The pleadings and facts are set forth in the opinion delivered in' this Court.</p>

This was a case removed to the Supreme Court, from the Court of Equity of Mqore Coqnty, at Fall Term, 1841, on affidavit of one of the parties. The proceedings and 'facts, upon which the opinion of the Supreme Coqrt is founded, are set forth in the opinion of the Court.

<p>This was a bill filed at the Fall Term, 1839, of Caswell Court of Equity, to which the .defendant Eskridge answered at Spring Term, 1840, and, at the same Term, judgment. pro confesso was entered against the other defendant Lips-combe. At Fall Term, 1841, depositions having been taken, the cause was set for hearing and transmitted by consent to the Supreme Court. A statement ,of the pleadings and material facts will be found in the opinion delivered in this Court.</p>

This was a bill filed at the Fall Term, 1840, of Montgomery Court of Equity, by the plaintiff as executor of Henry Delamothe, praying the advice and direction of the Court in the construction of the will of his testator. All the persons who claimed under the will, and also the Trustees of the University of North Carolina, were made parties defendant, and severally put in their answers, submitting to any decree the Court-might make in the premises.

This was an appeal from an interlocutory decree of his Honor Judge Pearson, made at the Fall Term, 1841, of Moore Court of Equity. The matter and grounds of the decree appealed from are stated in this Court. the opinion delivered in e

This,was an appeal from the decree of the Court of Equity of Surry County, at Fall Term, 1841, his Honor Judge Bailey presiding. The pleadings and proofs are sufficiently stated in the opinion delivered in this Court.

This was a bill filed at Fall Term, 1840, of Edgecomb Court of Equity, by the widow, children and some of the grand .'children of Josiah Freeman deceased, all of whom were legatees in the will of the said Josiah, calling upon the defendant, who is the administrator with the will annexed, for an account of the estate, and for its distribution accord-t f r* t i ing to the directions of the testator.

This was a bill filed at Fall Term, 1838, of Caswell Court of Equity. The defendant answered and replication to his answer was entered — depositions were taken, and the cause having been set for hearing, was at Fall Term, 1831, on the affidavit of the defendant, transmitted to the Supreme Court. The material allegations of the parties and the facts proved are stated in the opinion delivered in this Court. cited Buck v Bawlinson, 1 Bro'. Par. Ca. 138.

This bill was filed at Richmond Court of Equity, Fall Term 1837. An answer was put in, replication to it filed, and depositions taken. At Fall Term, 1840, the cause was set for bearing, and at Spring Term 1841, by consent of parties, transmitted to the Supreme Court. The pleadings and facts proved, are stated in the opinion delivered in this Court.

<p>A. by his last will gave to each of his children, to wit, Hetty, Louisa, Levin, William, Elizabeth, Susannah, Moses and Calvin, certain ne-groes and other personal property, which he had previously conveyed to them respectively by deed. Louisa, being married, the property so given to her had, before the testator’s death, been sold by execution for the debts of her husband. Hetty died in the life time ot the testator, leaving seven children. In another clause of the will, the testator devises as follows: “My will and desire is, those who have received a part of my estate will account to the balance of my children for what they have received; then it is my will and desire that all the balance of my property not given away shall be equally divided among the heirs of Hetty, Louisa, Levin, William, Elizabeth, Susannah, Moses and Calvin, to them and their heirs foxever.” The husband of Hetty held the property given to his wife in her lifetime as his own. JHeWby the Court, 1st, that Louisa must account in the division directed by the last clause for the property advanced to her by the testator and sold for her husband’s debts — 2ndly. That Hetty’s lih.eirs” or children must, in such division, account for the property received by their mother in hex lifetime, and that the other children must likewise respectively account to Hetty’s children for what they received. Sdly. That - Hetty’s children are entitled to claim'only as a class and not per capi-ta, and therefore take among them but one child’s share.</p>

This was a cause transmitted to the Supreme Court from the Court of Equity of Sampson County at the Spring Term, 1835, having been, previously set for hearing. The plaintiff and the defendant administered on the estate of Josiah Blackman, deceased, and certain creditors of the intestate instituted suits both at law and in Equity against them for the recovery of their demands.

Upon the hearing of these .causes heretofore — reported, 2 Dev. & Bat.

This cause, in which there was a decree in favor of the plaintiff at June Term, 1839, and a reference to the master to take an account, (see 2 Dev. & Bat. Eq. 241,) now came again before the Court upon a petition for a re-bearing, and UP011 exceptions to the report. The grounds of the application for a re-hearing and of the exceptions are stated in' |]ie opinion of the Court.

This was a suit in Equity, commenced in the Court of Equity for Rutherford county, at the Fall Term, 1839. After answers had been put in, various orders made and testimony taken, the cause was set for hearing and transmitted by consent to the Supreme Court. The facts disclosed by the pleadings and prooís are set forth in the opinion delivered in this court.

This was a bill filed in Halifax Court of Equity, at Spring Term, 1841, in his own name against the defendants Spier Whitaker, executor of Jesse H. Simmons, dec’d, and Redding J. Hawkins and his wife, administrators of James Halliday, dec’d. At the Fall Term, 1842, the defendants, Hawkins and wife, filed their demurrer to the bill, and, at Spring Term, 1842, his Honor Judge Settle presiding, the demurrer was overruled, and the defendants, Hawkins and wife, ordered to answer…

This was an Injunction Bill, returnable to September Term, 1824, of Jones Court of Equity. At the coming in of the defendant’s answer the injunction was dissolved, and the bill was retained as an original bill. After various orders and the taking of testimony, the cause was set for hearing at Spring Term, 1842, and then ordered, by consent of the parties, to be transmitted to the Supreme Court.

This was a bill filed in Onslow Court of Equity, at Fall Term, 1839, by the plaintiff against the defendant as the administrator of Charles Thompson, who was the administrator of Elizabeth Ward, claiming that the plaintiff was one of the distributees of Elizabeth Ward- — that the said Charles Thompson owed him as administrator of the said Elizabeth, on a settlement of his administration accounts, at least $500 — that the said Charles had bought his note a' mounting to about…

This cause was removed by consent from Moore Court of Equity, at the Fall Term, 1841, to the Supreme Court. The object of the bill and the facts disclosed by the pleadings and proofs sufficiently appear in the opinion delivered in this court.

<p>The bill in this case dismissed for want of proof to support its' allega^ tions.</p>

This pause was removed by consent from the Coprt of Equity of Chatham county, at Spring Term, 1842, to the Supreme Court. The substance of the pleadings and the facts offered in proof sufficiently appear in the opinion delivered in this court.

<p>On a bill alleging that the plaintiff’s negroes had been formerly sold at public auction, and purchased by the defendant under an agreement that the plaintiff might redeem them by re-paying the purchase money and interest, and that in consequence of such agreement being known the defendant was enabled to purchase at very inadequate prices, and praying that the plaintiff be permitted to redeem, the court cannot decree for the plaintiff, unless upon proof of a distinct agreement to redeem, or upon plain evidence of undue advantage taken of the plaintiff, or imposition on him.</p> <p>Mere proof of a friendly intention on the part of the defendant to favor the plaintiff by letting him have the use, upon advantageous terms, of such negroes as he might buy, cr even of a purpose to let him have the negroes back, if he should be able in a reasonable time to repay the price given and the interest, will not entitle the plaintiff to a decree.</p> <p>A fair and full price given for property and no security taken for the sum thus advanced, strongly implies an absolute and not a redeemable purchase.</p>

This cause was transmitted by consent to the Supremo Court from the Court of Equity of Burke county. The bill was filed by the plaintiff at the Spring Term, 1839,.of Burke Court of Equity, alleging that the plaintiff and the defendant were tenants in common of a certain tract of land, and prayed for a partition to be made in the mabner prescribed by the Act of Assembly, in such cases made and provided.

This cause was transmitted to the Supreme Court from Rockingham Court of Equity, by consent of parties, at the Fall Term, 1838. The pleadings and facts proved are stated in the opinion delivered in this court.

<p>A demise to executors to hold certain property and its proceeds, until the testator’s six sons should become free from debt, and when that event occurred, to malte a division among them, or set off to each respectively his proportion of the property as he became free from debt, does not convey such an interest to the sons as enables them to dispose of the property, or such as to subject it to the claims of creditors, before the event, on the occurrence of which they are to take possession of the property, shall have first happened.</p>

This cause was transmitted to the Supreme Court by con. sent of parties, from the Court of Equity of Burke county, at, Spring Term, 1842. It had been there set for hearing upon -the bill, answers, exhibits and depositions taken in the case. The material facts are stated in the opinion delivered in this court.

This was a case transmitted from the .Court of Equity of Pasquotank county, at Spring Term, 1842; by consent of parties, to the Supreme Court. The facts and the questions involved aré stated in the opinion delivered in this court.

This was an appeal from two interlocutory decrees made at Spring Term, 1842, of Cherokee Court of Equity, his Honor Judge Bailey presiding. The questions presented are fully stated in the opinion delivered in this^court.

<p>The Court of Equity will grant injunctions to prevent undoubted and irreparable mischief; and it may thus act on the application of indi viduals, not only in the case of a private nuisance, but, where the individuals suffer special injury, in the case of public nuisances also.</p> <p>But the court will only exercise this power in a case of necessity, where the evil sought to be remedied is not merely probable, but undoubted. And it will be particularly cautious thus to interfere, where the apprehended mischief is to follow from such establishments and erections (as, for instance, a public mill) as have a tendency to promote the public convenience.</p>

This cause was transmitted by consent of parties to the Supreme Court, at Spring Term, 1842, of Person Court of Equity. The facts are set forth in the opinion of the court.

This cause was transmitted, by consent of parties, to the Supreme Court, from the Court of Equity of Bertie county, at Fall Term, 1841.

<p>This was an appeal from the decree of his honor Judge Settle, at the Fall Term, 1841, of Beaufort Court of Equity, sustaining the defendant’s demurrer and dismissing the plaintiff’s bill.</p> <p>The bill, which was filed at Fall Term, 1839, was at the instance of the Solicitor for the State in the second judicial district, by and at the relation of the wardens of the poor of Beaufort county, against William B. H. Gerard. The bill charged that Charles Gerard, late of Edgcomb county and State of North Carolina, died seized and possessed of certain tracts of land, lying in the county of Beaufort, and by his last will and testament, duly executed, and admitted to probate in the Court of Pleas and quarter Sessions of the said county of Edgcomb, at November Term, 1797, devised and bequeathed unto his mother, Dinah Simon, to have.and to hold for the term of her natural life, the said tracts of land, which were particularly set forth in the said last will and testament, and in the deeds and conveyances there referred to, copies of all which were appended to the said bill, and prayed to be taken as part thereof — that by the said last wilL and testament he further devised the said lands, after the death of the said Dinah, unto Benjamin Simon for the term of his natural life, and, after the death of the said Benjamin, “ to tire poor of the county of Beaufort, on the express following conditions and no other, that is to say, that they shall never be sold but be held as a stock belonging to the said poor, subject to be rented, cultivated or leased, as the wardens or managers of the poor may deem most advisable, but never to be let for a longer term of time than seven years, and no more timber to be cut than is necessary for the use of farming &c.” — that after the death of the said Charles Gerard, which took place some time in Biarch, 1797, the said Dinah Simons remained in possession of the said lands until the period of her death sometime in 1818 — that the said Benjamin died in the lifetime of the said Dinah — that in 1819 the wardens of the poor took possession of the said lands, and rented them to divers persons for the period of seven years, for the use of the poor of the said county, according to the intent and meaning of the said will, and that their lessees entered and took possession of the said demised premises — that shortly after the expiration of these several leases, the defendant, William B. H. Gerard, entered and took possession of the said lands, claiming to be the heir at law cf the said Charles Gerard, and thereby lawfully entitled to the same, and has sinee continued and is now in possession of the same — that the relators hoped to be allowed by him to manage and lease out the said lands to the use of the poor, according to the intent pi the will of the testator, and frequently requested of him that he would allow them so to do: but that he had absolutely refused to do so,.or to give any account of the rents and profits of the same, so that the charitable intentions of the testator were likely to be wholly frustrated. The bill then prayed that the said charity might be'eslablished, and the defendant be declared a trustee, for the benefit of the poor of the said county of Beaufort, of the said lands, subject to the control and management of the said wardens, according to the intentions of the testator as before set forth, and that he might render an account of the rents and profits of the said lands for the time he has had possession thereof, under the direction of the court, and might pay over the sum which might be found due to the said wardens to he applied according to the said will, and for such other and further relief «fee.</p> <p>To this bill the defendant put in a general demurrer, and the plaintiff joined in demurrer. Upon argument the de-mimer was sustained and the bill dismissed, from which decree the plaintiff appealed to the Supreme Court.</p> <p>The trust is too indefinite — the “ poor of Beaufort county” have no capacity to take. In this respect this case differs from Griffin v Graham, 3 Hawks 96, for there the devisees had a legal capacity to take. In Moggridge v Tháckwell, 7 Yes. Jun. 36, the court adopted this distinction: that when the charity bequeathed is through the medium of trustees, where all the trustees are dead, or, some being dead, the discretion is wholly or partially gone, or the surviving trustees refuse to act, or some are willing to act and others refuse to act; in all these cases' the court distributes the fund by means of a scheme; but when the object is charity, without a trust interposed, “ the constitution,” in the. language of Lord C. J. Wilmot,” finds a trustee in the King, as parens pair ice, who executes it by sign manual, exercising a discretion with reference to the intention of the testator.” Here no trustees are interposed (unless the court should regard the wardens as trustees, which would be fatal to the bill as framed)'— it would, therefore, in England, be a case for the exercise of the royal discretion by sign manual — which cannot be done</p> <p>The courc here cannot go to the extreme length to which the Court of Chancery goes in England, for there, if the quest indicate a charitable purpose, but the objectis against the policy of the law, the court will lay hold of the charitable intention and apply it to some purpose, agreeable to law. 2 Story’s Eq. Com. 414. And it matters not whether it can be carried into exact execution — the court will execute it cy pres. 2 Story’s Eq. Com. 415, 420.' Cy pres execution is not admitted here. McAuley v Wilson, 1 Dev. Eq. 276. This jurisdiction in charities is hardly reconcileable-with sound principles or the exercise of judicial authority. Ibid. 394. Again the Court of Chancery will not-establish a trust for indefinite purposes of benevolence, although there is an existing trustee, as in Morris v the Bishop of Durham, 2 Story’s Eq. Com. 406.</p> <p>Our act concerning charities, Rev. Stat. e. 18, which is the only statute on the subject now in force, contemplates only the case where trustees are appointed, or persons to whom are confided the management &c. of the property. This is not a bill filed against trustees to enforce a trust — - the defendant is not a trustee, but claims in his own right adversely, and is in adverse possession. The bill is, therefore in the nature of an ejectment bill. Story’s Eq. Plead. 374. By the statement of the bill the defendant is a trespasser. This case is left as before the statute, or, at least, is left to the ordinary jurisdiction of the court, which well might be exercised, if there was a trustee and a definite legal trust.</p> <p>The charges in the bill are too vague. It does not charge that the defendant is the heir at law, but merely alleges that he entered and took possession, claiming to be the heir at law. This is not a sufficient averment that he is in fact the heir at law, for the allegation is quite consistent with the defendant’s being a mere trespasser. He must be heir in fact and law, to enable the court to convert him into a trustee. Certainty to a common intent at least is required. Story’s Eq. Plead. 206, 213.</p> <p>The counsel also contended that the devise attempted to create a perpetuity, and was therefore void, as being contrary to our constitution.</p> <p>Two principal objections are made to the decree prayed in this bill.</p> <p>That the legal estate in the lands did not descend to the defendant, the heir of the testator, but was well devised away to the wardens of the poor or elsewhere.</p> <p>2d, That the charitable purpose of the testator is too vague and indefinite to be effected by the court: that it is out of the statute.</p> <p>In answer to the first objection, it is contended that the legal estate was not devised away, but did descend on. the defendant; because</p> <p>1st, Tlie heir is not disinherited by a simple intent that he shall not have: the intent must be that some other competent person shall.</p> <p>2d, The gift is not directly, or in terms to the wardens of the poor, but to “the poor of the county of Beaufort,” “ to be held as a stock belonging to said poor,” &c. But “the poor,” beiug a fluctuating and indefinite body, having no corporate existence, cannot take. 2 Thos. Coke, c. 33, p. 253; Lewin on trusts, 72; powers are given to the wardens but no estate.</p> <p>3d, If considered as a devise to the wardens it is still void. The wardens are what has been called a quasi corporation,, and if this gift is to them it is obviously in their corporate capacity — as officers, not as individuals; 3 Peters, 153. They cannot take as individuals, because contrary to the intent — not as a corporation, because, 1st, Corporations are out of the Stat. of Wills. 2d, The powers of a corporation are limited to those granted in its charter. Bank of Augusta v Earle, 13 Peters 587: and'a power to hold lands is no where given to the wardens of the poor. They do not even own the poor-house which they superintend. 1st Rev. Stat. c. 89, s'. 12. Churchwardens in England cannot hold lands. 2 Thos., Coke, c. 33, p. 253. 3d, Corporations cannot take upon a trust foreign to the objects of their institution. Jackson v Hartwell, 8 Johns. Rep. 425. The wardens are the channels fixed by law to conduct the public bounty to prescribed objects: in that capacity they are responsible, accountable, and within control. As the distributors of individual donations, they would be unaccountable, and have no guide but their caprice. That was not the intent of the law. Could they, for instance, contract with laborers, or purchase slaves to cultivate this farm? In Inglis v Trustees of Sailors Snug Harbor, 3 Peters 99, the gift was to the Chancellor of the State of New York, the Recorder of the City and other.officers and their successors: it was admitted they could not take in their corporate capacities.</p> <p>4ih, The devise is not to the wardens by their corporate name, but to the “ wardens or managers of the poor,” and is . void in law for misnomer.</p> <p>In answer to the second objection, it is contended that the charitable purpose is sufficiently defined to be “within the control of the court” — the test in several of the cases cited below:— Qmnany v Butcher, 1 Turn. & Russ; 31 G'ond. En. Chan. Rep.; and in the language of the Stat. 1 Rev. St. c. 18, is “such as is allowed by law.” The Stat. 43 Eliz., was in force in this State at the time of making’ this will, Griffin v Graham, 1 Hawks 96; and is found in 1 Rev. Stat. c. 18, with such alterations only as conform it to the actually existing state of the English law; 2 Story, Eq. Ju. — Courts of Equity, in this State, possess the same powers over the subject as the English Courts of Chancery; and, also, the powers of the Lord Chancellor as administrator of the prerogative of the King. Griffin v Graham, ut. sup.) and this case must be decided as it would be in England. The preamble to the 43 Eliz. enumerates as charitable purposes “the relief of aged, impotent, and poor people;” but “poverty itself is sufficient;” Com. Dig. Uses. N. 1. To show that devises infinitely more indefinite and vague than this have been upheld, and what is conceived to be the true rule on this point, the court is referred to Com. Dig. Uses, N. 1, N. 11; and particularly to Moggridge v Thackwell, 7 Ves. 87; Farmer v Mills, 1 Mer. 94, which were cited and approved in Griffin v Graham; Ellis v Selby, 1 Mylne & Craig 286, 298; Baker v Sutton, 1 Keen, 224, 233; Legge v Askill, 1 Turn. & Russ. 260; Omnany v Butcher, Id.; 2 Story, Eq. Jur. §1156, 57, 69, 70, SI; 1 Yern. 225; Attor-fíep Gen. v Comber, 2 Sim. & Stor. 93; 1 E. C. 0. R. 363; the gift was “to the widows and orphans of the parish of I/.” established in favor of the poor widows and orphans of l_ jn gen¡ v Matthews, 2 Lev. 167, Henry Frier by will appoints trustees to pay an annuity “ to three parishes of L. for the poor of the parishes.” The residue he declares they shall be seized of “ for the use of the poor in general forever:” held good. In At. Gen. v Clarke, Amb. 422, the legacy was to “the poor inhabitants ot L.” In At. Gen. v Ranee, Id.,, to “ the poor.” In At. Gen. v Herrick, Id. 712: to “ pious and charitable uses.” Inglis v Trustees of Sailors Snug Harbor, 3 Peters 119; and opinion of Story, J., 153; opinion of Story, J., 3 Peters, App. 484. Waldo v Casey 16; Yes. 206.</p> <p>Compared with many, if not all of the above cases, the purpose here is precise and certain. It is for tho relief of the poor of Beaufort county, to be administered by the wardens of the poor — the public almoners of the country— which shows that the legal poor are its peculiar, if not exclusive, objects — in a manner definitely fixed by the will of the testator. As to the cases where trusts have been held void for indefiniteness: In Morrice v Bishop of Durham, 9 Yes. 399; James v Allen, 3 Mer. 17, the purpose was “ benevolence” and not charity, at all. In Yesey v Janson, 1 Sim. and Stu. 69;- 1 C. E. C. R. 36, the discretion of the executors was left totally uncontrolled. In Omnavy v Butcher, ut sup., the objection was made that the gift being to “ private charity,” forbade its being administered by public authority.</p> <p>5th, There is a class of cases where the trust to be performed was unlawful, and therefore held void. Haywood v Craven's Bx'rs, 2 C. L. Rep. 557; Huckaby etux. v Jones, ,2 Hawks 120; but that cannot be the case here. If it be objected that the devise creates a perpetuity, the answer is found in the argument of the Counsel for the defendant in Griffin v Graham, and the opinion of the court in that case. Finally, it is submitted that the defendant, even if the legal estate has been devised away from him, being in possession, is yet a necessary and proper party to this bill, and on that ground, even, will be decreed to answer.</p> <p>6. Í conclude that the legal estate still remains in the defendant, the heir of Chas. Gerard — that the general purpose of the testator is charity — that it is not too indefinite — that it is-not unlawful — that the court will, therefore, establish the charity and effectuate it by declaring the defendant a trustee and assuming its administration. Com. Dig. Chancery 2, N. 2; 2, N. 4. , In At. Gen. v Downing, Amb. 550, 571, devisees to use of a charity, died in the life of the testator, and the heir was declared á trustee. In At. Gen. v Tethered, Id. 351, the devisees were incapable of taking in succession. Baptist Association v Mart's Ex'rs, 4 Wheat.; 3 Peters 119, 153. And this is done, not only on the special doctrine of charities, but on the maxim of equity that no trust shall fail lor want of a trustee.</p> <p>I cannot conclude without calling the attention of the court to the special favor which has always been shown to informations to establish charities, and invoking its aid, if it be necessary, in this case. 2 Story, Eq. Jur. §1144, 1163,- and athorities cited. And, sensible that this argument is imperfect, I invoke to its aid the benignant maxim, which has been long acted upon by the courts. “ Optima, ratio quae pro religione facit. The court, therefore, will not dismiss this bill unless there be some clear and decisive objection to any relief — unless it be beyond the just powers of the court to effectuate in any manner, the charitable intention of the testator.</p>

<p>The plaintiff’s bill in this case dismissed with costs, the allegations therein not being sustained by the proofs.</p>

This cause was transmitted from the Court of Equity of Onslow county, at Spring Term, 1842, by consent of parties, to the Supreme Court for bearing, The pleadings and proofs are stated in the opinion delivered in this court.

<p>This .cause was transmitted, by consent, from the Court of Equity of Washington county, at Spring Term, 1842, to the Supreme Court. '</p> <p>The plaintiff’s bill,, which was filed at the Spring Term, 1842, of Washington Court of Equity, charged: That Peter O. Picot, the father of the plaintiff, having made a last will and testament in due form of law to pass real estate, departed this life in the ymar 1833 — that of the said will he appointed Julian Picot, Sen., the executor, who, at November Term, IS33, of Washington County Court,, proved the said will, and took upon himself the burthen of executing the same — that the said executor assented to the legacies given in and by the said will, and delivered the legacies, to which she was entitled, to the legatee, Marietta — that the said testator, at the time of his death, left his father Julian Picot, his mother Hannah, his wife Marietta, and the plaintiff, surviving him — that his widow, Marietta, in about two months after the death of her husband, gave birth to a daughter, Elizabeth, who died about twelve months thereafter — that Hannah Picot, the mother of the testator, has been dead several years, and that Marietta, the widow of the said testator, intermarried with the defendant, Robert Armistead, in the year 1841, both of whom, as well as Juliau Picot, the grandfather of the plaintiff, are still alive. - The bill further charged, that the testator charged the debts that wer.e due to him with the payment of the debts he owed, and gave to his father, Julian Picot, whatever balance might remain of the debts, which were due to him, after paying the debts he owed — that the residue of his estate, which consisted of ne-groes and other personal property of the value of ten thousand dollars, and real estate of the value of three thousand dollars, he bequeathed and devised as follows: “I wish my wife Marietta to have the use of the same during her life or widowhood. If she marries, then I give her the one half of this balance of my estate, to her and her heirs; the other half to myr child or children living at my death. If my wife does not marry, then, at her death, my will is, that the portion given her for life be given to my child or children living at my death. If my child or children should die before they arrive at the age of twenty-one or marriage, then I give their estate to my wife ior life, remainder to my father for life, remainder to my mother for life, remainder to thesurvi-vor in fee simple,” a copy of which will was appended to the said bill and made part thereof. The bill further charged that the said Marietta, after the death of her said husband and before her intermarriage witli her present husband, sold a large portion of the personal estate, which was bequeathed to her during her life or widowhood, and after her said intermarriage received large sums for the hire of negroes, amounting in all to eight hundred dollars or some other large sum of money — that by virtue of the said will, in connection with the marriage of the said Marietta and the death of the said Elizabeth, the plaintiff is entitled to one half of the sales of the said property and hires of negroes, and that he had, by his guardian, since the said intermarriage, called upon the said Robert to account with and pay over to his said guardian one half of the said sales of property and hire of negroes, which the said Robert refused to do, insisting that he, in right of his said wife, was entitled to three fourths of the proceeds of the said sales and hire of negroes — and that he was entitled to retain the remaining fourth, or the greater part thereof, in payment of expenses incurred by his said wife before her intermarriage with him, in boarding, clothing and educating the plaintiff. The bill charged, that if any such expenses were incurred by the said Marietta, she did not intend, at the several times, when she paid them off, nor at any other time before her intermarriage with the said Robert, to make a charge for the same against the plaintiff— and that if she did intend to charge and did actually charge the plaintiff therewith, she ought not to be allowed them in this court, forasmuch as the plaintiff had no income whatever out of which they could have been paid, the plaintiff having no interest in any estate whatever, except what he derived under the will of the said Peter O. Picot. And the bill then prayed for an account, for a decree for what should be found due the plaintiff, and for general relief.</p> <p>The following is a copy of the will of Peter O. Picot referred to in the bill;</p> <p>ss. State of North Carolina, Washington county.</p> <p>My last will and testament is as follows: That my debts shall be paid out of the debts due me; then all the judgments, bonds, notes and accounts due me I will and bequeath to my father, Julian Picot, his heirs and assigns. The balance of my estate I dispose of as follows: 1 wish my wife, Marietta, to have the use of the same during her life or widowhood. If she marries, then I give her the one half of this balance of my estate, to her and her heirs — the other half to my child or children living at my death. If my wife does not marry, then, at her death, my will is, that the portion given her for life be given to my child or children living at my death. If my child or children should die before they arrive at the age of twenty-one or marriage, then I give their estate to my wife for life, remainder to my father for life, remainder to my mother for life, remainder to the survivor in fee simple. For it will be seen that they, my children, will have some estate in possession on the marriage of my wife. Should my child or children either arrive at the age of twenty-one or be married, then I will that the one-half of my estate before given them be immediately delivered to them, their heirs and assigns. I leave my wife the guardian of my children, and my father the executor of my estate. Signed &c. Oct. 15th, 1832.</p> <p>(Signed) P. O. PICOT.</p> <p>(Attested by two witnesses.)</p> <p>The defendants, Robert Armistead and Marietta his wife, answerred, and admitted all the material allegations in the plaintiff’s bill, and insisted that, according to the true construction.of P. O. Picot’s will,.on the death of Elizabeth, the whole of her share of the estate went over to the said Marietta, under the remainder limited in the said ¡will, first for life, and contingently in fee if she survived the father, Julian Picot,</p>

<p>Where two persons engage in a common risk as sureties for a third, and one of them subsequently takes an indemnity from the principal debt- or, it enures to the benefit of bolh.</p> <p>The case of Fagan v Jackson, 4 Dev. 263, cited and approved.</p>

This was an appeal from an interlocutory decree of his Honor Judge Pearson, at the Spring Term, 1842, of Rowan Court of Equity, dissolving an injuction, which had been obtained by the plaintiffs. The facts presented by the pleadings are stated in the opinion delivered in the Supreme Court.

This cause was removed for hearing by consent of parties from the Court o£ Equity of Bladen county, at Fall Term, 1841, to the Supreme Court. The facts and questions raised in the case are stated in the opinion of this court.

<p>This was an appeal from certain interlocutory decrees made by his Honor Judge Settle, at the Spring Term, 1842, of Northampton Court of Equity.</p> <p>The bill was filed, at Spring Term, 1842, of Northampton Court of Equity, by William D. Bradley, Executor of Mary Jones, against Sugars Jones and others, and its allegations (so far as regards the questions brought to the Supreme Court) were, that the said Mary Jones departed this life sometime in the year 1842, after having duly made and published her last will and testament, which was proved in Northampton County Court, at March Term, 1842, by which the plaintiff was appointed her executor, and that he qualified as such — and a copy of the will was annexed to and prayed to be taken as a part of the bill — that in and by the said will the testatrix bequeathed as follows: “ I give unto my son Willie Jones’ children one sixth share in my negro woman Mary and all of her children. I give unto my daughter Polly Carpenter one sixth share in my negro woman Mary and all her children.” “I give unto my son Richard Jones and my son Allen Jones and my son Sugars Jones anc} my son 'William P. Jones one sixth share a piece in Mary and and her children” — that the said negro woman Mary had been bequeathed to the said testatrix by the will of her father, George Norwood, in the following words, to wit, “ I lend to my daughter Mary Jones negro girl Mary her life, after her death, to be equally divided among the heirs of her body forever” — that in the will of the said testatrix there was also the following clause: “ all the balance of my estate, that is not given, to be sold, and the money arising from the sales I give unto my son Sugars Jones one fifth part of the same, and all the balance I give unto my son William P. Jones” — that there was found among the effects of the said testatrix specie and bank notes, amounting to about six hundred and forty dollars, which were claimed by the said residuary legatees, and their claim was opposed by the distrib-utees of the said Mary Jones, alleging that as to this fund she had died intestate. It was also alleged that the slave Mary mentioned in the will of Mary Jones had a grandchild. And the plaintiff as executor, prayed that, as there were conflicting claims under these two wills, and he was ignorant as to the proper construction to be put on them, the court would advise how he should settle with the several claimants, and the proper parties were made.</p> <p>The defendants answered and admitted all the material facts stated in the plaintiff’s bill, and submitted to any decree the court might make in the premises.</p> <p>The case coming on to be heard upon the bill, answers, and the wills referred to, his Honor declared that, by the will of George Norwood, the testatrix, Mary Jones, was entitled in absolute estate to the slave Mary and her children mentioned in the pleadings, and that said slaves are disposed- of by the will of the said Mary — that the slave the grand-child of the said slave Mary did not pass by the will of the said testatrix, under tire clause bequeathing the said slave Mary and her children, but was disposed of by the residuary clause of the said will — and that, by the said residuary clause, all the property of the said testatrix, (including the specie and bank notes,) uot specifically bequeathed by the said will, passed to the defendants Sugars Jones and William P. Jones; and a decree was made accordingly.</p> <p>One of the defendants prayed an appeal from so much1 of the decree as declared that the testatrix Mary Jones, under the will of her father, took an absolute estate in the slaye Mary. Others of the defendants prayed an appeal from so much of the decree, as declares that the grand-child of the slave Mary did. not pass under the bequest of Mary and her children — and also from so much oí the decree as declared that the specie and bank notes, in possession of the testatrix at the time of her death, passed to Sugars Jones and William P. Jones, as residuary legatees; which appeals were allowed by the court.</p>

<p>To a bill brought by one surety against his eo-surety for contribution, their common principal, or, if he be dead, his executor or administrator should be made a party defendant.</p> <p>A surety has no right to call upon his co-surety in equity for contribution, without shewing that he could not obtain satisfaction for the amount he has paid from their common principal.</p>

Under the decree in this case (see the case 1st. Ired. Eq. R. 475) at the the last term, the land therein mentioned was sold, and did not produce enough to satisfy the amount ascertained by the master’s report to be due to the plaintiffs. The. plaintiffs’ counsel now moved for an execution against the defendant, to .enforce the payment of the balance of the debt remaining due. This motion was opposed by .the der-fendant’s counsel.

This cause was removed by consent from the Court of Equity of Wake county, at Spring Term, 1842, to the SaPreme Court, to be heard upon bill and answer.

This cause was transmitted by consent of parties from Warrren. Court of Equity, at the Spring Term, 1842, to the Supreme Court. The bill had been originally an injunction but, upon the coming in of the answers in the court be-¡0w, the injunction was dissolved, and the bill continued over as an original bill. The material facts of the case are set forth in the opinion delivered in this court.

<p>The Act of Assembly, Rev. St. c. 46, s. 23, allowing to executors and aclndnis-trators nine months from the time they qualify, to plead to any original suit brought against them, does not apply to suits in Equity.</p> <p>An act of Assembly prescribing rules of practice does not apply to Courts of Equity, unless those courts are named in the act, or the proceedings therein be within the mischief for which the act was meant as a remedy.</p> <p>In Equity an executor is chargeable with assets, only upon his admission of them, or upon the report of the Master that he has them.</p> <p>The filing of a bill, or even a decree to account, does not bind the assets, so as to prevent an executor from paying other creditors in equal degree, unless it be a bill in behalf of all creditors and a decree thereon for an account.</p> <p>The cases of Mitchell v Robards, 2 Dev. Eq. 478, and Allison v Davidson, 1 Dev. & Bat. Eq. 46, cited and approved.</p>

This was an appeal from an interlocutory order of the Court of Equity of Stokes county, at Spring Term, 1842, his Honor Judge Dick presiding, refusing a motion to dissolve the injunction which had been granted in this case. The facts are set forth in the ■ opinion delivered in this .court.

This case was transmitted to the Supreme Court by consent of the parties, from Warren Court of Equity, at October Term, 1842. The facts are set forth in the opinion delivered in this court.

<p>This cause was transmitted by,consent of parties from the Court of Equity of Iredell county, at the Fall Term, 1842, to the Supreme Court. The facts of the case are stated in the opinion delivered in this court.</p>

This cause was removed by consent of parties from the Court of'Equity of Carteret county, at Fall Term, 1842, to the Supreme Court. - The bill was filed by the plaintiff, as administrator with the will annexed of Eben Harker dec’d., to obtain the opinion of the court upon certain questions arising on the construction of the said will.

<p>Where upon the petition of the guardian of a lunatic, under the act of Assembly, Rev. St. c. 57, s.-3, a Court of Equity directs a sale of the lunatic’s property, no creditor of the lunatic can seize any portion of the property un-</p> <p>der an execution, the teste of which is subsequent to the date of the decree. Such a decree is substantially a decree in rem, and subjects the property to the control of the court, who will enjoin all creditors from interfering with it, except under the direction and with the sanction of the court. .</p> <p>Even a purchaser at a sale under an execution so sued out by a creditor, after the decree but before injunction obtained, will acquire no title to the property ho purqhases, so as to defeat the right of the Court of Equity to make such disposition as it may think proper of the lunatic’s estate.</p> <p>Anamendmentto an injunction bill, after it is sworn to, cannot affect an injunction which is ordered to issue upon the bill as amended, and after it has been amended and re-sworn to.</p> <p>The guardian of a lunatic may bring a suit in Equity, either in his own name as guardian, or in that of the lunatic.</p> <p>Upon the petition of the guardian of a lunatic for the sale of his property, the Court of Equity may upon affidavit award an injunction without a bill.</p> <p>The case of Shaw v Bwmey, 1 Ired. Eq. Rop. 148, cited and approved.</p>

<p>This cause was transmitted for hearing by consent of parties, at Fall Term, 1S42, of Warren Court of Equity, to the Supreme Court. The facts of the case are stated in the o-pinior. delivered in this court.</p>

This bill was filed at Fall Term, 1842, of Jones Court of Equity, by two of the plaintiffs, as executors of Isaac Brown, deceased, and by two others of his heirs and next of kin, against the defendants, who were the other heirs and next of kin. The object of the bill was to obtain the advice of the court upon a certain clause in the will of the said Isaac. Brown.

<p>This-cause'was transmitted, by consent of parties, from Buncombe Court of Equity, at Spring Term, 1842, to the Supreme Court. The matters contained in the pleadings and proofs are set forth in the opinion delivered in this court.</p>

<p>This cause was heard at the Fall Term, 1842, of Oleave- ]and Court of Equity, his Honor Judge Pearson presiding, when a decree was pronounced in favor of the plaintiff.— From this decree the defendants appealed to the Supreme Court. The facts of the case ape fully stated in the opinion delivered in this court,</p>

This cause was transmitted by consent from the Court of Equity of Jones county, at Fall Term, ]S42,to theSuprem-e Court. The facts are stated in the opinion delivered in this court.

This was an appeal from an order made by his Honor Judge Pearson, at tire Fall Term, 1841, of Richmond Superior Court of Equity, in a case which thus appears upon the record. Mary Bostick &. others, ex parte. Petition for sale of land coming on to be heard, John Giles, esquire, Attorney for the petitioner, moved that the Clerk and Master be directed to distribute the money arising from the sale of the land, which had been collected by the Clerk and Master.

This cause was transmitted by consent, from Granville Court of Equity, at Fall Term, 1842, to the Supreme Court. The bill was filed by the plaintiff, as administrator with the will annexed of Benjamin Hester, dec’d., to obtain the advice and direction of the court in the execution of his trust as such administrator, and the several claimants under the will were made parties defendants.

This cause was transmitted by consent from Johnston Court of Equity, at Spring Term, 1842, to the Supreme Court. The facts of the case are stated in the opinion delivered in this court.

This cause was transmitted by consent, from the Court of Equity of Rockingham county, at the Fall Term, 1842, to the Supreme Court. The tacts are stated in the opinion delivered in this court.

<p>The slaves of a female ward will go to the representatives of her husband, though he married while the slaves were hired out by the guardian, and died during the term for which they were hired.</p> <p>Where such slaves are held in common with others, to whom the same person is guardian, and after the marriage, by agreement between the husband and guardian, the slaves are again hired out and the husband becomes the hirer of one and gives his note for the hire to the guardian, this does not affect the right of the husband or his representatives.</p> <p>The case of Pettijohn v Beasley, 4 Dev. 512, cited and approved.</p>

<p>This cause, at Spring Term, 1842, of Buncombe Court of Equity, was transferred by consent to the Supreme Court. The facts are stated in "the opinion delivered in this court.</p>

This canse was removed from the Court of Equity- of Perqnimons county, at Fall Term, 1842, to the Supreme Court by consent of parties. The facts are stated in the opinion delivered in this court.

This cause was transferred by consent of parties, at the Fall Term, 1842, of the Court of Equity, of Stokes couhty to the Supreme Court. The facts are stated in the' opinion delivered in this court.

<p>This case was transferred to the Supreme Court from Wayne Court of Equity, at Fall Term, 1842, by consent of parties.</p> <p>The facts will be found stated in the opinion delivered in this court.</p>

<p>This cause, having been set for hearing upon the bill and answers, was transmitted,' by consent of parties, from the Court of Equity of Northampton county, at Fall Term, 1842, to the Supreme Court.</p> <p>The bill was filed by William T. Maclin and Mary his wife, and charged, that in .the year 1835, Absalom P. Smith died, having first duly made his last will and testament, whereof he appointed Absalom B. Smith executor; that the WIH was duly proved, and the said Absalom B. Smith qualified as executor — and the said will w.as prayed to be ■taken as a part of the said bill — that the said testator left surviving him the plaintiff Mary, and the defendants Virginia, John and Octayius, his only children — that the testator by his saM will devised and bequeathed to his said children a large property, real and personal, which he directed to be'kept together by the executor or such guardian as might be appointed to them, until the oldest child should arrive to the age o.f. 22 years, and in the meantime that the .profits arising from the said joint property should be applied ,to the joint use and benefit of .the said .children, and that the expenses of each of every kind should be borne out of the same — and also directed that his children should receive liberal educations, so as to fit them to move in an .elevated sphere o.f life — that over and above the said joint property, .the testator bequeathed to his -said children a residuum of alibis property-undisposed of in other parts of his will, after the payment of his debts, equally to be divided among them, and free from .any limitations or restrictions whatever — that he also devised to his said children and his widow a tract of land in Northampton county, called the Haynes land, equally to be divided among them, and not subject to any of the limitations annexed to the said joint property. The bill the.n charged that the defendant Absalom, as executor, received all the said property into his possession — that he paid off all the debts and demands against the estate— and that in 1838, he was appointed guardian to the plaintiff Mary and to the defendants Tirginia, John and Octavius, who are infants — that the said Absalom hath received large sums of money out of the profits of the joint estate, the rent of the Haynes land, and also an account of the residuum devised to the testator’s said children — that in September, 1S40‘ the plaintiff Mary intermarried with the plaintiff William — that previous to her intermarriage all her necessary expenses were paid by the said Absalom as her guardian, but that since that time the said Absalom hath refused to allow any thing for her support out of_the proceeds of the said joint property, and that he hath refused to account and pay over what was due to her. The bill then prays an account and decree for the balance, and also that the Haynes tract of land may be sold &c.</p> <p>The material clauses in the will of Absalom P. Smith referred to in the bill are the following : “ 12th. It is my will and desire, and I hereby direct that all the before mentioned property, both real and personal, given in common to my said four children be kept together for their joint benefit, until one of my said children shall have arrived at the age of twenty-two years, and in the meantime the proceeds and profits of the same, after keeping up the plantations I have given them to be devoted, or at least so much thereof as is necessary, to educating, schooling, clothing apd boarding, and other necessary expenses of my said four- childen. until they shall arrive at the age aforesaid, and whenever any of my said children shall attain to the said age of twenty-two years, it is my desire that at the end of the year in which he or she shall attain to their said age of twenty-two years, his or her share of all of the said property real and personal before given to all of my said children in common together with the increase and profits of the same, shall be set apart and allotted in severalty to him or her for his or her own use and benefit, the balance of the said property to be kept together for the benefit of the rest of my children, until they attain their respective ages of twenty-two years, at the end of which year each is to draw his or her share of the said property in manner and form aforesaid.” And the I9th clause in these words: “ It is my will and desire that my children be sent to such school as \yill enable them to acquire the best education, and fit them to move in an elevated sphere, affording to each the same opportunities as near as may be.”</p> <p>The defendant Absalom B. Smith answered, and in his answer, after admitting the death of the testator, the probate of the will and his own qualification as executor, stated that he had received all the testator’s estate into his possession and having paid off the debts, was appointed guardian to the plaintiff Mary and the other three children, and of the latter was still guardian' — that in both capacities of executor and guardian he had endeavored to comply with the provisions and trusts of the testator’s will, and had made to the proper court regular, and according to his judgment, proper returns of his actings and doings; and he annjexed to this his answer a complete and full account of every matter and thing in any wise connected with the plaintiff’s demand. In regard to the devise and bequest in the 12th clause of the will, the defendant annexed to his answer an account of the nett profits of the property therein contained during each year — and also an account shewing the amount expended during each year on the several children; and he stated that by these accounts it would appear that some of the children had expended larger sums than others — that whether the expenditures of each ought to be equalized so that no one should exceed the one-fourth of the profits, the defendant did not pretend to determine — that being of different ages the proper schooling, clothing, &c. of some were necessarily more expensive than those of others. The defendant further stated, that the plaintiffs now claim out of the profits aforesaid a sum sufficient to support the plaintiff Mary according to her condition and rank in society, and if this claim be allowed there will not be enough left to effectuate the trusts in respect to the remaining children — that when the eldest shall arrive to the age of twenty-two, the other children will be nearly or quite grown; so that the fund will be utterly insufficient to support them according to that rank and station which their fortune in expectancy will entitlethem to assume. The defendant further stated, in relation to the 19th clause of the will, that, whether, if to accomplish the purpose therein expressed the said fund should prove insufficient, as in the defendant’s opinion it certainly would, he had any power or authority to touch any other fund, the'defendant was at a loss to determine, as no provision is expressly made to that end— that perhaps it was not in the contemplation of the testator that this fund would prove insufficient, for soon after his death it amounted to nearly two thousand dollars a year, but it was now reduced by decline in the prices of produce and other causes to little more than half that sum. The defendant stated that he had no objection to the sale of the Haynes tract of land, as prayed in the plaintiff’s bill. The defendant further stated, that he believed that the plaintiff Mary was indebted to him for an excess of advances beyond what she was entitled to, but averred that he was and had ever been ready to come to an account with the plaintiffs, and submitted himself to the direction of the court.</p> <p>No answer was putin for, the infant defendants. The cause being set for hearing, was transferred to the Supreme Court.</p>

This cause having been set for hearing at the Fall Term, 1S42, of Moore Court of Equity, was transmitted by consent ■of parties to the Supreme Court. The matter in contest is sufficiently set forth in the opinion delivered in this court.

This was an appeal by the defendant Sitton from a decree of bis .Honor Judge Bailey, at the Spring Term, 1842, of Haywood Court of Equity. The facts disclosed by the pleadings and proofs are stated in the opinion delivered in this Court.

Cause transferred to tbe Supreme Court from Halifax Court of Equity, on affidavit of one of the defendants at Spring Term, 184-2.

This cause, after having been set for hearing upon the bill, answers, proofs and exhibits, was transmitted from Chowan Court of Equity, by consent of parties, at Spring Term, 1842, to the Supreme Court. The allegations of the bill and answers and the facts of the case are fully stated in the opinion delivered in this court.

This cause was transmitted to the Supreme Court from the Court of Equity of Anson county, at the Fall Term, 1842, on affidavit of the plaintiff. The facts appearing fiom the pleadings and proofs will be found in the opinion delivered in this court.

This was a bill filed by the plaintiff, as -administrator of Aaron Lazarus, dec’d -for the -settlement of a partnership, which had existed between the said Lazaras and the defendant Taylor to carry on a mill for plaining lumber in-the town of Wilmington. The bill was filed at Spring Term, 1842, of New Hanover Court of Equity, and the defendant having answered, a reference was made to the Clerk and Master to state the accounts of the copartnership.

This case was before the court at December Term, 1841, when all the questions presented, except one, were decided. The facts will be found at large in this volume of the Re ports, ante, p. 58. The only facts, necessary to state in re-to the question reserved and now determined, are these.

<p>This was an appeal by the defendant Outland, from a decision of his Honor Judge .Pearsojst, at Spring Term, 1843, of Northampton Court of Equity, 'disallowing a motion made by the defendants on their answers coming in for a dissolution of the injunction, which had been obtained in this case. The bill was filed to enjoin the defendant Out-land from collecting a judgment in Northampton Superior Court of Law for about $159, which had been obtained by the defendant Outland against the present plaintiff. The allegations of the bill were briefly these:</p> <p>On the 30th of May, 1842, Outland assigned the judgment to the defendant, Giles Futrell, in part payment for a negro then conveyed by him to Outland. The negro had been previously levied on by virtue of executions issued by a justice of the peace against the goods of Giles Futrell and the other defendant, Sanders Futrell, who was surety for the debts, and this was communicated at the time of the sale by Giles F. to Outland, between whom it was agreed, that said Giles should collect the debt from Hewett, and therewith pay the executions levied .on the negroes. Instead of doing so, the said Giles in a few days assigned to Sanders Futrell the judgment againt Hewett, in payment of a debt to Sanders, and he also executed a deed of trust of all his other property to one Powell for the purpose of securing other sums which he owed Sanders; Under that deed the property has been sold for less than the debt mentioned in the deed, and Giles Futrell is insolvent. On the 8th of June, 1842, the constable was about seizing the negro and offering him for sale under the executions, before levied on him, and in order to prevent it Outland was obliged to- pay the debts due on the executions, which amounted to $210. On the first of October following, Hewett paid the judgment against him to Sanders Futrell,-and took his receipt. Subsequently thereto Outland sued out another execution on the judgment in his name and delivered it to the sheriff, with directions to levy the money and pay it to him, and when informed by the plaintiff, (as the bill states) that he had paid the debt to Sanders Futrell, and requested to re-call the last execution and acknowledge satisfaction of the judgment, he insisted that as he had not got a clear title to the slave, the said Giles and Sanders were not entitled to the judgment, but that it belonged to- him. The plaintiff then filed his bill, in March, 1843, against Outland, and Giles and Sanders Futrell, praying to be relieved in the premises, and, in the mean time, for an injunction.</p> <p>The answer of Outland admits the material statements of the bill. But it is therein alleged, that, on the day of lhe purchase of the negro, this defendant and Giles Futrell informed Sanders Futrell of the terms of the contract, and the latter fully assented thereto, and perfectly understood, that,according to the agreement, the money due on the judgment against the plaintiff was to be applied towards discharging the encumbrance of the executions on the negro. This answer further states, that on the 30th June, he, Outland, heard that Giles was about to execute the deed of trust for the' security of Sanders, and enquired of the latter as to the truth thereof, and expressed his anxiety that, for his safety, the executions against the negro should be satisfied or the debt secured, and received for answer from Sanders, that he, Out-land, might make himself easy, as there was enough of Giles Futrell’s property to pay all his debts, and that ho, Sanders, would discharge the executions, so that Outland should'lose nothing by his purchase: and, again, that, alter execution of the deed, when Outland expressed his uneasiness to said Sanders, the latter shewed him the assignment to himself of the judgment against the plaintiff, and said that he, Outland, was in no danger, and repeated his previous promises to take the debts on himself: That the sale under the deed of trust took place in the summer of 1-842, and Sanders became the purchaser at very low prices, as he, Outlaw considered himself secure by the engagements of Sanders, and did not bid for the property; and that then Sanders Futrell refused to reimburse to him the money he had paid on the executions. The answer then states, that this defendant, Outland, upon finding himself thus deceived-, directed the sheriff to levy the debt from the plaintiff and pay the money to him, Outland, and that after he had given those directions, and after the sheriff had informed the plaintiff of them, he, the plaintiff, paid-the money to Sanders Fu-trell, who gave to the plaintiff a receipt and a bond of indemnity for making such payment, and also gave the sheriff-an indemnity for not levying the money on the execution then in his hands, and returning nulla bona. The answer then admits that'Outland from the next term sued out an alias ji. faon which the sheriff was about acting for his benefit; when the plaintiff filed his bill, and the defendant insists, that the plaintiff paid the money to Sanders- Futrell collu-sively, and that by reason of the indemnity to the plaintiff and the agreements between him and Sanders Futrell, this is, in effect, the suit of the latter, and, therefore, that there is the same equity against both of those persons. Each of the Futrells put in an answer, but as they are in no wise material to the present question between the other parties, it-is unnecessary to notice them.</p>

This case was removed from the Court of Equity of Wake County, at Spring Term, 1843, to this Court for hearing.— It was an information filed by the Attorney Q,eneral in behalf of the State, in pursuance of an act passed in 1837, against the Cape Fear Navigation Company. The facts, as disclosed by the pleadings, the proofs and the admissions of the parties,, are set forth in the opinioii delivered in this Court.

This was an appeal' from an interlocutory order of the Court of Equity of Lincoln county, at Spring Term, 1843, his Honor Judge Dick presiding, directing the injunction which had-been obtained in the case to be continued until the hearing.

<p>This cause was removed to this court by consent of parties, from Caswell Court of Equity, atySpring Term, 1843. The facts stated in the plaintiff’s bill are as follows :</p> <p>In November 1835, the parties made a written contract, whereby the plaintiff agreed to sell to the defendant a tract of land containing 166 acres, and situate in Caswell connty, on which the plaintiff then resided, at the price of $1700, payable on the 25th of December, 1836, at which time the plaintiff was to give the defendant possession, and make him a good title. In December, 1836, the plaintiff let the defendant into possession, on the payment of $300, which was all he could make at that time. On the 25th of February, 1837, the defendant made a further payment of $833, and the plaintiff then made him a deed for the land, containing an acknowledgement of the payment of the whole purchase money, the plaintiff being ignorant of the effect of that clause at law, and expecting the defendant to pay him the residue of the price and interest, as he might be able.— But upon demand, the defendant refused to make any further payment, and being sued therefor, he pleaded in bar the release contained in the deed. Besides the stipulation to convey the land, the plaintiff bound himself to have certain repairs of the dwelling house on the land, that were then going on, completed.</p> <p>In April, 1840, the plaintiff filed his bill praying that the release might be put out of his way, and that an account might be taken of the purchase money and the payments made therefor, and that he might have a decree for the balance that might'be found due to him in respect thereof,</p> <p>The defendant pleaded the release in his deed, and upon that the cause was Brought to this court and the plea overruled. 1 Ired. Eq. 346. The defendant then answered, and the parties proceeded to proofs, and now the cause comes back, upon an order of removal, for hearing. The answer states that the defendant, at the time he made the contract, resided in Mecklenburg county in Virginia, and did not know the boundaries of the land, that he wished to remove from Mecklenburg, and purchased the land from the plaintiff for a place of residence, that during the treaty the plaintiff represented to the defendant that the dividing line between North Carolina and Virginia, which is the northern boundary of the land in question, was about forty or fifty yar(js to the north of the dwelling house, and so included a parcel of land, (which turns out to be eight or ten acres, according: to the-defendanl’s allegation,) and a fine spring , , , ° thereon and convenient to the dwelling house, which was that used by the plaintiff and expected to be used by the defendant, and that without having the use of that spring the defendant will suffer great inconvenience : That on the south side of the dwelling house a public road runs within a few yards, so that there is on that side no convenient situation for necessary out-houses for a family: And that unless the defendant had believed that the line, forming the northern boundary, had been as by the-plaintiff was designated, as before stated, and included the land containing the spring and the area specified, he would not have made the purchase : That at'the time the defendant'paid the sum of $300, and took possession, he did not know, that the line did not run as it had been represented to him, but that he then believed, that it did : That soon afterwards, he learned from the neighbors, and believes, that the line did not so run, but that it ran within three' feet of the- dwelling house and through some of the out-houses, and left out the spring, which belonged to one Alexander Kent, and that the plaintiff had offered to purchase it from Kent, and could not.— The answer then states, that the defendant has not had a survey made of the land, and he cannot therefore state) whether or not the tract contains 166 acres, exclusive of that contained between the line on the north and the line shewn to him as aforesaid, but that at all events, the loss of the spring and of the slip of land on the northern side of the tract very much impair the value of the land, as a place of residence, and would have prevented the defendant from purchasing, had he known the true state of the boundary and title. 11 Blit” the answer proceeds, “having sold his residence in Virginia, in consequence of his supposed purchase as aforesaid, and paid $300 of the purchase money after his removal, and before lie was apprised of the imposition which had been practised oir him, he could not conveniently rescind the contract, though he determined to resist the payment of the amount promised, for the reason of the false representations aforesaid. This defendant did not call for a deed, but the plaintiff, anxious to consummate the imposition which he had begun, had it prepared and tendered it, with the acknowledgment of the full payment of the purchase money, and the defendant after paying the further sum of $S33, received said deed.” The answer further states, that the.plaintiff did not have the work done on the house, specified in the contract, and that the defendant had been compelled to pay about $30 for completing it: And also, that between the period of the sale and possession taken by the defendant, the plaintiff cuta large quantity of valuable timber for sale, and sold the same for considerable sums, of all which the defendant had no knowledge until he came into possession. And for this reason and the'misrepresentations of the plaintiff, the defendant insists he can have no relief.</p> <p>The answer further states, that the defendant has discovered, that the deed made by the plaintiff conveys only a life estate, and not' the fee, and insists that for that reason- also the plaintiff is not entitled to a decree.'</p>

This case, having been set for hearing at the Spring Term, 1843, of Rowan Court of Equity, was then, by consent of parties, removed to the Supreme Court. It was a suit instituted in behalf of Reese Johnson by his committee against Ann Kincade, falsely called Ann Johnson, for the purpose of having declared the nullity of a marriage defacto between the parties.

<p>This cause having been set for hearing upon the several bills, answers, proofs and exhibits, was, by consent of parties, transmitted to this Court from the Court of Equity of Caswell County, at Spring* Term, 1843.</p> <p>The following facts appear from the pleadings and proofs to constitute the case:</p> <p>In 1822, Henry Crowder, Mary Crowder, Giles Crowder, and John Crowder, the four infant children of Robert A. Crowder, then of Mecklenburg county in Virginia, became entitled to a sum of money under the will of an uncle, and' in order to its collection, their father was duly appointed by the County Court of Mecklenburg their guardian, and, as such, entered into-bond in the sum of $20,000' with Thomas B. Puryear and another person, who is since dead', as his sureties, and- then received the legacy belonging to his children. Afterwards, Robert A Crowder removed to Caswell county in- this State, and brought his children with him.— Becoming much embarrassed by debts, to a greater amount, as it afterwards appeared, than all his property would discharge, he o'n the 3d’ of .April 1838, executed a deed of trust for all his estate to Nathaniel J. Palmer, and Edward H. Robertson, of Caswell, upon trust to sell, and out of the proceeds thereof, to pay his debts in the order therein named'. The deed enumerates a great number of debts for'certain sums due by judgment, bond, note or account to different persons'who are named, among whom the said' Robertson, one of the trustees, is mentioned as a creditor and also as a surety for Crowder for several of the debts to other persons. ■ The deed proceeds as follows : “Ancl whereas the said Robert A. Crowder may be, and doubtlessjs, now indebted to other individuals or companies in divers small amounts, or in amounts which are not now recollected', or the persons to whom thev are due. If so, whether they are due by bonds, bills, notes, accounts, judgments or otherwise, they arehere-by intended and are to be as fully secured and paid out of the property herein conveyed or its proceeds, as if they were specially named in this deed:'My trustees however being satisfied that they are bona fide due and were contracted before or at the time of the execution hereof, and then they are fully authorized to pay the same, as the other debts particularly named. Now, in consideration of an honest desire of the said Robert A. Crowder to secure and pay all the debts before mentioned, or, if not mentioned, which may be by him now justly owing or contracted, and in the further consideration, &c.” The deed then directs the order of payment as follows : First and secondly, judgments then rendered or that might be rendered- during Caswell County Court, then sitting, and the expenses of executing-the trusts. “Thirdly, the debts on which the said Robert A.-Crowder, or Farly and Crowder have given a surety or'endorser.— Fourthly, all other debts now owing by the said Robert A. Crowder, in equal proportion, if there be not a sufficiency to pay the whole.”’ Mary Crowder, one of the children, intermarried with Lewis Webb and died, and her husband administered on her estate, and, in 1838, Webb, as administrator of his deceased wife, and Henry Crowder,- another of the children, who had then come of age', instituted in Virginia against Thomas B. Paryear an action of debt on the guardian bond, in the name of the justices to whom it was payable for their benefit as relators, and therein recovered in October 1839,. against Puryear, one of the sureties, the sum of $1840 94; On the 26th March, 1839, Godfrey Crow-der, who was the father of Robert A. Crowder, and resided in Mecklenburg, made his will, which was proved in January 1840, after the testator’s death, and therein directed the remainder of his estate to be sold, and his executor John Nelson to apply a certain share thereof “to the payment of the legacies, which accrued to Henry, Giles, Mary, and John Crowder, children of Robert A. Crowder, from the estate of their deceased uncle, Henry Moody, and which is in the hands of Robert A. Crowder, as their guardian, so far as shall be necessary to discharge s,aid legacies with the accru ing interest, and the balance, if any, I give to be equally divided between the said Henry, Giles, Máry, and John Crow-der, children of my son Robert A. by his first wife.” The original bill in this case was then, May 1840, filed at the instance of Lewis Webb, and Henry Crowder, against Palmer and Robertson and Robert A. Crowder, setting forth the foregoing facts, except the will of Godfrey Crowder, and his death, and that they were unwilling to raise their judgment out of the property of Puryear, the surety, if they could have satisfaction thereof out of the estate of Crowder, the guardian himself, and they prayed an account of the trust fund created by the deed and to be let in for a due proportion thereof, as being entitled thereto under the provision in the deed for all debts contracted by Robert A. Crowder before the date of-the deed and not therein named, and as being entitled in that class of debts, for which the debtor had given sureties.</p> <p>The trustees and Crowder answered. They state, that the principal object of the deed was to secure the debts due to the defendant Robertson and others, for which he and others were sureties in Caswell, and to prevent the sacrifice of the property by forced sales on executions, which would soon be obtained, and that the general clause was intended to embrace only such small debts as might have escaped the debtor’s memory, and not those from him to his children, for they were large and not forgotten, but were remembered, and were expected by him to be provided for by his father, God-frey Crowder, by a donation in his will for that purpose of such property as his father had intended for him, Robert A. Crowder, before his embarrassments ; and they insist that the provision made in the father’s will, as before mentioned, for his four grand children, was intended to be in satisfaction of their claim in the premises, and that the children must take the same accordingly, if sufficient to cover their whole demand, or pro tanto, if not sufficient. The answers likewise claim a.reasonable deduction for the education and support o.f the children by their father, not exceeding the interest accrued on the money in his hands. And the trustees submit, whether, if the plaintiffs be entitled at all to a part of the funds in their hands, they are to be paid equally among tke iagt c[ass 0f creditors, or are to be preferred as having debts, for which the debtor had given sureties.</p> <p>The bill was afterwards, October 1841, amended by consent, by making Thomas B. Puryear and the other two children, Giles Crowder and John Crowder, plaintiffs, the latter two being infants and s.uing by T. B. Puryear as their next friend ; and is filed on behalf .of these plaintiffs and all other creditors of Robert A. Crowder, and it makes John Nelson, the executor of Godfrey Crowder, a party defendant, and sets out the will of the testator as before quoted, and charges that the sum to which the children of Robert A. Crowder may be entitled thereunder, was intended as a satisfaction of their respective demands on their father as their guardian, and calling on Nelson accordingly to account therefor, and submitting to receive under the deed of trust, as their debts, the balance due from-their father to them, after deducting the legacy from the grand-father. The bill further states, that after filing the original bill, the plaintiffs therein, Webb and Henry Crowder, finding the delays that wore likely to arise in the prosecution of this suit, raised .upon execution against Thomas B. Puryear the money recovered by them at law, in Virginia, and those persons submit that Puryear shall be substituted for themselves in the claim under God-frey Crowder’s will, to the extent of indemnifying him for the sum so paid by him, if sufficient therefor,.</p> <p>To these proceedings Nelson made no defence. But in February., 1832, Thomas B. Puryear filed his bill in the Court of Chancery in Virginia, against Nelson, as executor of Godfrey Crowder, and against Webb and Henry Crowder, and also against Giles and John Crowder, and therein charged the appointment of Robert A. Crowder as guardian oí his children, and that he gave bond with Puryear as his surety ; that he wasted the estate of his wards and afterwards became insolvent; and that Webb and Henry Crowder instituted their action against Puryear for the recovery of what was due to them; and that, with the view of protecting and in demnifying Puryear from loss, and insuring the payment of their estates in their father’s hands aforesaid, to the four children, Godfrey Crowder, their grand father, made the disposition of his will in their favor, as before set forth ; and it charges, that the plaintiff therein, Puryear, had paid to' Webb and to Henry Crowder their recovery, and was entitled to- stand in their place in respect of the said legacy under G. Crowder’s will, and also that he was entitled to have the shares thereof belonging to the two other children, Giles and John, applied in discharge oí their father’s debt to them, in exoneration of himself, as surety therefor; and he prayed the proper accounts and relief in the premises.</p> <p>To the bill all the parlies defendant put in answers ; that of John Crowder, who was still an infant, being put in by his brother Giles, who had then come of age. And on the 20th May, 1842, it was therein declared that under the will of Godfrey Crowder, Henry Crowder and Lewis Webb, as administrator of Mary Webb, had a right to receive'their due proportion of the fund directed by the testator to be applied to the payment of the debt in the said will mentioned to be due by Robert Crowder, as the guardian of the said Henry, Mary, Giles and John ; that the plaintiff, Puryear, had paid the said debt to said Henry and Mary, and that he was entitled to stand in their place. ' And it was decreed that Nelson, as executor, should accordingly account before a commissioner, who should ascertain the amount subjected by the will of -the testator to -the payment of the said children of Robert A. Crowder. The Master afterwards reported the sum.then in the hands of the executor and due to the four children, and that there would be a further sum of $861 84 (or $215 46 each), due to them on the 10th of February, 1833. And thereupon it was decreed on the 15th of October, 1842, that Nelson should pay to 'Thomas B. Puryear, the sum of $902 94, with interest on $872 32, part-thereof, from the 10th of February, 1842, till paid,-that being the sum in the hands of the executor due to Henry Crowder and the late Mary Webb, of .the fund directed by the will of the testator to bo applied to the payment of the debt due to tiiem by Robert A. Crowder, their guardian; and leave was reserved to the plaintiff, Pnryear, to apply for further directions as to the other funds coming into the hands of the executor, which may be subject to the payment of that debt.</p> <p>After the foregoing decree in Virginia, the defendant, Palmer (the other defendants, Crowder and Robertson being dead, and Palmer being their representative) put in a further answer in this cause, in which he relies on the Virginia decree and the facts ascertained therein, and insists that Pur-year and the two children, Giles and John Crowder, shall look to that fund, as lar as it will extend, before they can come on the funds in his hands, if they can do so at all.</p> <p>By an exhibit recently filed, it appears that an action was also instituted in Virginia, against Puryear, on the guardian bond, for the benefit and at the relation of Giles Crowder and John Crowder, in which the debt to them was on the 19th of May, 1843, found to be $1802 05, with interest at 6 percent. on $1010 02, part thereof, from 1st January, 1839, “subject to a credit for $1492 07, paid thereon on 10th of February, 1843, by John Nelson, executor of Godfrey Crow-der, deceased.”</p>

<p>Creditors of A. recovered judgments at law for their debts against A’s administrator, but it was found that the administrate of A. had no assets. Judg-mets were therefore entered quando. Afterwards, on a bill filed by the next of kin of A. against his administrator, it was declared by the court that certain negroes, which the administrator had in his possession, and claimed as his own under a deed absolute on its face from A., were held by the said administrator only by way of mortgage as a security for a debt, and the ad" ministrator was decreed to deliver over the said negroes to the next of kin of A. upon their payment of the debt and interest, and they were, in pursuance of such decree, delivered accordingly; Held on a bill, now filed by the said creditors against the said administrator and the next of kin, that the negroes were subject to the claims of the creditors, after deducting the amount due to the administrator on the said mortgage.</p> <p>These negroes, or the right of redemption, were not assets at law, and therefore the creditors are not concluded by a judgment at Jaw that there were no assets, from now asserting their claims in equity.</p> <p>The plaintiffs have a right to ask a decree in such a case, against the next of kin ; although it might not have been necessary ,to make .them parties to. the suit,</p> <p>In the suit of the next of kin against the administrator, it seems the court should have directed an account of the intestate’s debts, before decreeing a distribution among the next of kin. Such is the practice in England.</p> <p>Nor will the statutes of limitations bar the plaintiffs’ claims, although more than seven years had elapsed before the bringing of this suit, because the plaintiffs had brought suit within the proper time and obtained their judgments, to be satisfied out of .any assets that might thereafter occur.</p>

<p>Notice of a deed of trust, not registered according to law, raises no equity at gainst a creditor. _</p> <p>A creditor may honestly obtain a security, by way of mortgage or deed of trust, for a debt known or believed to exist, though unliquidated, and a preference, thus gained by one creditor over another, for what may turn out to be due, is not unfair.</p> <p>So, mere delay, either iu' settling or collecting the debt, will not, of itself, impeach the deed, since forbearance may arise from many motives, besides that of giving a false credit to a debtor, and in many instances may be attributed to the most benevolent and praise-worthy motives.</p> <p>Thus, where upon a dissolution of copartnership between' two brothers, a deed' of trust was given by one to the other for an estimated balance supposed to be due, and no settlement was made nor any attempt to proceed under the deed was made for thirteen years, the creditor brother being in'the meantime resident out of the State, it was held that the deed was not on that account fraudulent, the brothers both stating in their answer, that the amount, since ascertained to be due on a' settlement, was more than sufficient to cover the property secured by tho deed of trust.</p> <p>A man, who is appointed to a public office, for the faithful performance of the duties of which he is bound to give sureties, may properly indemnify such sureties by a deed of trust'orrbis property.</p> <p>íhe circumstance that'possession of the property, conveyed by a deed of trust, is to be retained by the maker of the deed until it is wanted for the purposes of the trust, is not in itself an evidence that the deed is fraudulent.</p> <p>If a sale under a deed of trust to sell for the benefit of creditors is, by the terms of the deed, to bs delayed so long, or if the proportion, in point of value of the consumable articles conveyed over those of a different character were such, as to induce the court to believe, that it was the object or an object of the deed to provide for the maker permanently or temporarily, and not for his creditors, the court would pronounce the deed void.</p> <p>"Where the parties to a deed of trust for the satlsfaation of creditors do not definitely express the debts that are due, or to become due, creditors have a' right to demand an enquiry, and, although they charge fraud in the deed» and the charge is not established and their bill dismissed, yet they aie not bound to pay any costs to the defendants.</p> <p>answer^ directly responsive to the bill, must be received as true, in the absence of testimony contradicting it.</p> <p>The cases of Davidson v Cowan, 1 Dev. E<j. 470 ; Moore v Collins, 3 Dev. 170, and Cannon vPeebles, Sired. 449, cited and approved.</p>

<p>This was an appeal from an interlocutory order of the Court of Equity of Iredell County, at Fall Term, 1842, his Honor Judge Nash presiding, refusing the motion to dissolve the injunction, which theretofore had been obtained in the case, and directing the injunction to stand over until the final hearing of the cause.</p> <p>The facts disclosed by the bill and answers are stated in the opinion delivered in this court.</p>

<p>Where a creditor obtains a judgment in another State against a debtor residing there, and the property of the debtor is removed to this State, a creditor, who attaches it in this State, without fraud and for a bona fide debt, shall held it against such judgment creditor.</p> <p>A creditor, who has obtained a judgment at law in another State, cannot receive the extraordinary aid of a Court of Equity in this State to enforce such judgment.</p> <p>Courts of Equity in this State will only lend their assistance in enforcing the satisfaction of judgments at law obtained in their own State.</p>

This bill was filed in Rockingham Court of Equity, and answers having' been putin, fhe cause was set for hearing llP0!1 the bill and answers, and at Spring Term, 1843, of that court, was ordered by consent of parties to be sent to the Supreme Court for hearing.

<p>Where the cliildren of a person, who had died intestate, appoint an Attorney to collect moneys, which were due to their father in his life-lime, and collects them accordingly, such'attorney, cannot, when he is called upon to account for what he has received, object that it belonged in law to the administrator of the deceased father.</p> <p>Receiving the money, as belonging to his principals, he cannot afterwards deny their right to it.</p>

The bill was filed by the plaintiff for the settlement of his father’s estate, and the payment of such balance as might be found due to him. -The defendants were the other legatees, who were also the executors of the father. The material facts relating to the question determined by the Judge below will be found stated in the opinion delivered in this court.

<p>Where a testator authorized his executors to sell all his land, and, undertaking to act under that power, they sold land which the testator had acquired after the publication of his will, Held that the purchaser, having no knowledge1 of that defect in their power, was entitled to be relieved in equity from the bond he had given the executors for the purchase money.</p>

This cause, after having been set for hearing upon the bill and answers, was, at the Spring Term 1843, of Stokes Court of Equity, oidered by consent of parlies to be transmitted to the Supreme Court. The bill was filed by the executors of Casper Stultz to obtain the opinion of the court, as to the proper construction of the will of their testator, and all the legatees were made parties defendant, and' put in their answers.

This cause was set for hearing, and at the Spring Term 1843, of Wake Court of Equity, was transmitted, by consent of parties, to the Supreme Court. The facts are stated in the opinion delivered in this court.

This cause having 'been set for hearing at the Spring Term 1843of Wayne Court of Equity, was at that Term transmitted, by consent of parties, to the Supreme Court, upon the bill, answers and report of the master. The bill was filed by the plaintiff, as executor of Charles Hopton, and the legatees in the said will mentioned were made parties defendant.

This cause, at Spring Term, 1843, of Northampton ’Court of Equity was set for hearing, and ordered, by consent of parties, to be transmitted to the Supreme Court. The facts will be found in the opinion delivered in this court.

<p>A delivery of a deed to a third person for the-use of the grantee, makes it ef-feetual fronrthe instant of such delivery, although the person is not the a gent, hut a stranger to the grantee, provided the grantee afterwards assents to it.</p> <p>Where the grantor inserts in his deed a release for the purchase money, when he has not actually received it or taken' a security for its payment, Equity will give him- relief.</p>

This cause, after having been set for hearing at the Court of Equity for Surry County, at Spring Term 1843, was then, by consent of parties, ordered to be transmitted to the Supreme Court, to be heard upon the bill, answer and proofs. The opinion delivered in this Court embraces the facts admitted by the pleadings or proved by the depositions.

<p>This was a bill for an injunction to stay proceedings on a judgment at law and for relief, filed in Nash Court of Equity, and the injunction, on motion of the defendants, having been dissolved, the cause was continued over as an original bill. Having been set for hearing, it was, at Spring Term, 1843, ordered, by consent of parties, to be transmitted to the Supreme Court.</p> <p>On the hearing, the following appeared to be the facts :</p> <p>Thomas Bryant administered on the estate of Guilford Atkinson, deceased, and, in the year 1827, came to a settlement of his accounts with the plaintiff, who was then the guardian of Sally G. Atkinson, an infant child and next of kin of Guilford Atkinson. Upon that settlement Bryant paid the distributive share of the infant, partly in money, and partly in bonds taken by him as administrator, which the guardian accepted without endorsement. In 1832. Drake resigned the office of guardian, and Bryant, who was the grand-father of the infant, was appointed in Drake’s stead, mi<^ 011 A”Susi> 1832, they canoe to a settlement, and found a balance due the ward from Drake of $1646 99, for which he executed his bond payable to Bryant as guardian. Drake had previously collected the bonds, which he had received from Bryant as administrator, except three, namely, one on E. York $14 44, due 25th Dec. 1826, one on John Taylor for $24, given in November, 1823', and another on John Taylor and E. York for $2 60, given in March, 1829. For those debts Drake claimed a credit in his settlement with the succeeding guardian, but the latter did not then allow it, because the bonds-or judgments rendered on them could not then be returned to him, inasmuch as they were in the hands of the constable to whom the bonds had been delivered for collection. But Bryant gave Drake his engagement in writing, “that, as the said debts had not heretofore been paid, I am to credit the said Drake’s bond of this date for the whole amount of said claims, including compound interest thereon, or such part as may not be paid, if returned to me by said Drake.” In 1837. the ward married ; and her husband received from Bryant the plaintiff’s bond, and transferred it by delivery to the defendant Ricks, who instituted an action of debt on it'in the name of Bryant, and obtained judgment thereon. At the trial, Drake offered to return the bond of York,, and judgments on the bonds of Taylor, and claimed a credit for them, but the court held that they could not be allowed as payments or sets off, as they had not been returned before the pleas pleaded, and the plaintiff at law refused to allow the credit or make any deduction. Thereupon Drake filed the present bill for relief and an injunction for the amount of those debts, according to Bryant’s agreement, and therein alleges that the debts were lost to him by reason of the insolvency of Taylor and the removal of York from this State to Alabama, and offers to deliver the bonds and judgments as he had be-for done. Ricks and Bryant answered separately. The material parts of their answers are that York was solvent find did'not remove to Alabama until 1S2S, or 1829, and that Taylor also was solvent up to that time, and that Drake might therefore have collected the debts with ordinary diligence, “and they insist that after so great a length of time, from August 1832, to the trial of the suit at law in 1838, the plaintiff Drake cannot return the debts, but by his laches made them his own.</p> <p>Upon the coming in of the answers the injunction was dissolved with cosib.</p> <p>In April 1829, Drake obtained judgments before a justice of the peace against Taylor, on which several executions were issued and were returned nulla bona. And it is established by satisfactory evidence, that Taylor was insolvent during the whole time Drake held his bonds. He was the brother-in-law of Bryant, and they lived near each other, and all his property had been sold. A son-in-law purchased his land and some of his slaves, and allowed him the use of them, for the support of his family, and there is no evidence that he owned any property, except that at one time out of the proceeds of the crop he purchased a mare for the use of the plantation, but at what time does not appear, nor that it was known to Drake or his constable.</p>

This cause having been set for hearing in Davie Court of Equity, at Spring Term 1843, was removed by consent of parties to the Supreme Court. The facts are stated in the opinion delivered in this Court.

This cause having been set for hearing, was transmitted by' consent from the Court of Equity of Chowan County, at Spring Term 1843, to the Supreme Court. ' The followiug case was presented by the pleadings and proofs: In December 1829, there were judgments against Jesse Hudgins, then of Gates county, to much more than the value of all his property, and sales were appointed to be made on the executions on the 21st day of that month.

This cause having been set for hearing in Rockingham Court of Equity, at Spring Term, 1843, upon the bill, answer and proofs, was removed by consent of parties to the Supreme Court to be heard. The facts stated in the pleadings will be found at large, 1 Ired. Eq. Rep. 419, amotion to dissolve the injunction which had been granted in this case having been determined at June Term, 1841, of the Supreme Court.

<p>Under the act passed in 1839, Rev. Stat. c. 37, s. 34, registration is an essential ingredient in a mortgage or deed of trust, to make it that instrument or constitute it a deed or security, as against a creditor or purchaser.</p> <p>Therefore notice of an unregistered mortgage or deed of trust constitutes no ground for relief in Equity against one who takes a subsequent mortgage or deed in trust, and first registers it, unless the first morgagee or trustee has been prevented from registering by the fraud of the other.</p> <p>Where a statute declares that a deed or other instrument shall not be valid “ at law,” it does not mean simply that it shall be held invalid in a court of law only, but invalid in all courts. “ At law,” is not an expression, which in a statute signifies merely a legal tribunal as distinguished from an equitable jurisdiction, but, generally, our system of jurisprudence, whether legal or equitable.</p> <p>In these cases where notice of an unregistered deed will entitle the party to relief in Equity, it must be clearly shewn that such notice of the contents of the instrument, as to the subject and purposes of the conveyance, and of the intention to rely on it as a conveyance, substantially reached the party, ■in pais, as would bo derived upon those points from the registry itself.</p>

This cause was transmitted to this Court, by consent of parties, from Stokes Court of Equity at Fall Term, 1838. The facts will be found in the opinion delivered in this .Court.

<p>The deposition of a defendant, against whom a decree is prayed, and who is interested in the event of the suit, cannot be read for his co-defendants.</p> <p>A party, who is interested, cannot be a witness, though it is admitted he is insolvent.</p> <p>The question, how far a party is a competent witness, must always be raised at the hearing, and when the deposition is offered to be read in evidence.</p> <p>A preliminary order of Court, suggesting that a defendant has no interest in the suit, is always necessary, to authorize the reading of such deposition in behalf of his co-defendants.</p> <p>When, upon the petition of the sureties of a guardian under the act of Assembly, new sureties are ordered to be given, the obligation of the bond given by the new sureties extends to the entire guardianship, retrospective as well as prospective. Such a bond is at least an additional and cumulative security for the ward.</p> <p>The right of contribution exists between co-sureties, when, the principal is insolvent, and that, whether they are so by separate instruments or by the same instrument.</p> <p>Where sureties are liable by virtue of different and separate penal bonds, each set of sureties is liable in proportion to the amount of the penalties of the bonds respectively.</p>

This cause was transmitted by consent of parties from Guil-ford Court of Equity at Fall Term, 1838, to the Supreme Court for a hearing: after having been delayed for a report and other causes, it came on for hearing at this Term. The matters involved in the case are stated in the opinion delivered in this court.

This cause was transmitted for a final hearing from the Court of Equity of Edgcombe county, at Fall Term 1842, to this Court. The facts are stated in the opinion here delivered.

<p>Where, on a petition for a sale of land for a partition because it could be not actually divided, one of the defendants, who had purchased several shares, alleged that the partition could be made without prejudice to the interests of the co-tenants, and the cause was set for hearing upon the petition and answer; Held that; the answer being thus taken to be true, the Court could not decree a sale, notwithstanding it appeared that by ari actual partition, neither of the co-tenants would get more' than twelve acres of land. The Court cannot determine, as it is not stated, what would be the value of each lot, when divided off, nor to what purposes, whether agricultural or otherwise, it might be applied.</p> <p>Prima facie, each party is entitled to actual partition, and it is incumbent on him, who asks for a sale, to shew that his advantage will be promoted by it, and that no loss will be worked to any other party.</p>

<p>An administrator in this State is only accountable for the assets of his intestate, which were in this Stale at the death of the intestate.</p> <p>A husband has no right to dispose by will of a remainder in a slave, belonging to his wife after the expiration of a life estate.</p> <p>The cases of Poindexter v Blackburn, 1 Ired. Eq. Rep. 286. Hardie v Col-ton, Ibid, 61, and Revel v Revel, 2 Dov. & Bat. 271, cited and approved.</p>

This cause, having been set for'hearing at the Spring Terra, 1848, of Burke Court of Equity, was, by consent of parties, transmitted to the Supreme Court to be heard. The matters involved are stated in the opinion delivered in this court.

This cause was ordered to be transmitted to the Supreme Court from the Court of Equity of Surry county, at Spring Term, 1843, on the affidavit of the defendant. A statement of the case is embraced in the opinion delivered in this court.

This case had been referred by order of the Court to a commissioner to make certain enquiries — and the report was now made. The defendant excepted, because the commissioner had not set foith the evidence adduced before him.

<p>This cause was transferred by consent from the Court of Equity of Iredell county, at Spring Term, 1843, to the Supreme Court. The facts are Set forth in the opinion delivered in this court.</p> <p>cited Thynne v Thynne, 1 Ver-il on 296. Oldham v Litchfield, 2 Vernon 506. Chaymber-lin v Agar, 2 Ves. & Beames 262. Gresley’s Eq. Ev. 208; Strickland v Aldridge, 9 Ves. 519. Mestaer v Gillespie, 11 Ves. 638. Phil. Evid. 577, and Cowen’s note 1483. 2-Story’s Eq. 746.</p>

<p>This cause was transmitted by consent from the Court of Equity of Caswell county, at Spring Term, 1843, to the Su preme Court.</p> <p>The facts are stated in the opinion delivered in this Court.</p>

<p>This canse was transmitted by consent from the Court of Equity of Northampton county, at Spring Term, 1843, to the Supreme Court. The facts are stated in the opinion delivered in this court.</p>

<p>This cause was removed by consent from the Court of Equity of Onslow county, at Fall Term. 1842, to the Supreme Court.</p> <p>The bill was filed by the plaintiffs as the executors of William Jones, deceased, praying the advice and direction of the court as to its construction and execution by the executors. The following is a copy of the material parts of the will: “Item 3d. It is my desire that all of my property, real and personal that may be left after my debts are satisfied, I devise to my wife during her natural life. 4th. I give to my son, J0!’11 S. Jones, one dollar. 5th. I give to my son John S. Jones’ children the sum of six hundred dollars out of the annual income of my estate for the support and benefit of his children, to be paid annually by my executors. 5th. I give to my son, Allen B. Jones, six hundred dollars annually, and he is to remain with his mother to assist her and attend to her business during her life. In case that he does not comply with the above request, I then give him three hundred dollars per annum, to be paid by my executors annually. 7th. At the demise of my wife I lend unto my son, Allen B. Jones, the one half of my real and -personal estate, including the piece I now reside on, and the lands adjoining it. If my son Allen should demise without lawful issue, 1 then give the property to my son JohnS. Jones’ children, to be managed by my executors in that way ■they may deem proper to the benefit of his children.” The bill stated in substance that the testator at his death left a •widow, who is still alive, and two sons, Allen aud John, the latter of whom had at that time several children, and that more had since been born to him; that the income of the estate was not more than sufficient to pay the two annuities of $600, and if applied to that purpose, the widow would be left destitute of the means of support; and then prayed the advice of the court upon the several points arising on the construction of the will and their duty in the premises, which will be found in the opinion delivered in this court. The different parties who were interested were made defendants, and put in their answers, and claimed according to their respective interests.</p>