Volume 38 — North Carolina Reports

The bill in this case was filed by the administrator, with the will annexed, of Benjamin Hester against the children several brothers and sisters of the testator, claiming under a particular bequest in the will, and the children of the deceased’s brother Francis, who were the residuary legatees and devisees of the testator ; and thereby it was prayed that the court would settle the construction of the will, declare the rights of these conflicting claimants, and have the…

<p>This cause was removed' from Randolph Court of Equity at Fall Term; 1842-, to the Supreme Court on- the affidavit of the plaintiff. ■</p> <p>The Bill,- which was filed in February, T839, stated that in the year 1-836-, upon the petition of the heirs of one Stnithermatv, adecree'was made by the Court oí Equity for the County of Randolph for the sale of a certain parcel of land situate in that County, for the purpose of partition ; and that, at the sale made by the clerk and mafeter in conformity to the decree, the defendant Hicks became the purchaser on twelve months’ credit at the price of $l'74‘ 75, up-the' payment" of which the clerk and master was to ma^e him a conveyance — that for the purchase money the defendant gave his bond to the clerk and master, and the Arnold, was his surety therein — that, at the expiration of the credit, and upon the failure of the defendant to pay the debt and the demand of the clerk-and master, the plaintiff discharged the bond and took it up. The Bill further charges, that when the plaintiff became surety, as before stated, the defendant Hicks was in doubtful circumstances, and, that as an inducement to the plaintiff to become his surety, he agreed, that if he, Hicks, should not pay the bond at its matuiity, then the plaintiff, upon making the payment, might take the land and receive a conveyance from the clerk and master: And the bill prays, that accordingly the clerk and master may be decreed to convey the legal title-to the plaintiff, or, if not, that the land may again be sold, and out of the proceeds of sale the sum paid by the plaintiff be re-imbursed to him, together with interest and the costs of this suit.</p> <p>. The clerk and master, as well as Hicks, was made a party defendant, and in his answer admits the payment of the bond by the plaintiff and submits to any decree the Couit may make. The answer of Hicks admits all the allegations of the bill except as to his insolvency and the special agreement charged by the plaintiff, which he expressly denies. This answer further alleges, that the land is of greater value than.the purchase money and interest; and insists, that the plaintiff is entitled to nothing more than to have the money paid to him. To this answer there was a replication. Depositions were taken and the cause set down lor hearing upon the bill, answers, proofs and exhibits.</p>

This cause was trausmitted by consent of parties from Wayne Court of Equity at Fail Term, 1842, to the Supreme Court for hearing. The facts are fully stated in the opinion delivered in this cou/t.

<p>Where a bond has been given on the settlement of an account and the obligor complains of errors in the account stated, he can only be relieved upon a clear exhibition of such errors.</p> <p>If the defendant denies that there is any error, as far as he knows, and avers that the stated account was left in the possession of the plaintiff, the latter must either produce the account, or prove its loss, its contents, and the errors complained of.</p>

Cause removed from the Court of Equity of Cleveland County, at Fall Term 1843, by consent of parties, to the Supreme Court.

This was an appeal, by permission of the court, from an interlocutory order of the Court of Equity of Northampton county, at Spring Term, 1843, his Honor Judge Manly presiding, dissolving the injunction which had been obtained by the plaintiffs in vacation.

<p>Silence in an answer as to any matter charged in the bill does not amount to an admission of the fact.</p> <p>When an answer is believed to be designedly defective, for the purpose of imposing on the plaintiff the burthen ofprovingwhat thedefendant is, in conscience, bound to admit, the proper course is to except to the answer and compel the defendant to put in a complete one.</p> <p>When in justification of conduct, not equitable, charged in the plaintiff’s bill, the defendant alleges that the plaintiff had improperly pleaded at law the statute of limitations to some of his claims, it is incumbent on him to show that it was uneonscicntious in the plaintiff to avail himself of such plea-</p>

<p>A.-having a judgment at law against B. a contract was made between them, by which, as B. understood it, he was to pay the amount on a note or bond due by A. to another person. B. accordingly so paid the amount and had a credit endorsed on:the note of A, for the amount of the said judgment. But A. declaring his understanding to be that B. was to pay the whole amount of the note which was greater than that of the judgment, and alleging feat he claimed no1 benefit from fee credit which had been placed on the note, issued an execution on his jndgment, wherenpon B obtained an injunction. Held, upon these facts appearing in the bill and answer, that the conrt would not dissolve the injunction upon motion, but would continue it antil the hearing.</p>

The bill in this case, which was filed in September, 1841, sets forth, that on the 21st of February, 1840, the defendant Lindsay contracted with the plaintiff to sell him 400 bushels of corn, to be delivered the next day, for 1280 pounds of bacon, to be delivered by the plaintiff on the 15th of April following; that the plaintiff then gave his covenant to Lindsay lor the delivery of that quantity of bacon on the day mentioned, and, at the same time, Lindsay executed to the…

<p>A voluntary conveyance of land, before our Statute of 1840, oh. 28, though for the meritorious purpose of providing for a wife or children, was, by the Statute 27 Eliz. c. 4, fraudulent and void against a subsequent purchaser for a fair price, whether the purchaser had notice or not of the prior conveyance.</p> <p>Even where the contract of purchase is executory and the purchaser is informed of a prior meritorious settlement, that settlement is a nullity as against the purchaser, who has a right to call for the legal title.</p> <p>The case of Clanton v Burgess, 2 Dev. Eq. 13, cited and approved.</p>

This was a bill filed in order to have a proper construction of a deed of trust made by James Frazier to the defendant, Purnell, and to have the trust fund applied under the direction of. the court. .The material parts of the deed upon which the construction was asked were these : The deed recited “that whereas Robert C. Bond and M. H. Pettway were sureties for the said Frazier to a note to James Moore for the sum of-seven hundred and fifty dollars, and R. C. Bond and R. 3.

Transmitted by consent of parties from the Court of Equity of Caswell county, at Fall Term, 1843, to the Supreme Court.

Canse transmitted by consent of parties to the Supreme Court f-om the Court of Fjquity oí Motgomery county, at Fall Term, 1843.

This cause was transmitted to the Supreme Court, by consent, from the Court of Equity of Richmond county, at •Fall Term, 1843. The following facts appeared from the pleadings and proofs. In the year 1792, William Love the elder, died, having made his will, and bequeathed to his wife Mary for lile four slaves, therein named, with remainder after her death to her four children, William, Ann, Richmond and the present plaintiff, Erasmus Love. Ann Love married Peter II.

This cause was removed on affidavit to the Supreme Court, from the Court of Equity of Brunswick County, at the Fall Term, 1843.

This cause was removed by consent from the Court of Equity of Guilford county to the Supreme Court, at Fall Term, 1843. The bill set forth, substantially, the following facts : in April, 1S36; William Hannei purchased from his father-in-law, Nathan Armfield, a tract of land, which is described, at Pr'ce °f ft >500; and gave therefor one bond for .$1,000, payable December 25th, 1836, and another bond for $500, payable December 25th, 1837.

This ctiuse was removed by consent from the Court of Equity of Randolph county, at Spring Term, 1843, to .the Supreme Court. The bill wns filed by the plaintiff', as executor of Simeon McMasters, dec’d, and set forth that the said Simeon, after .having duly made his last will and testament, of which he appointed the plaintiff executor, died about the year 1840.

<p>A testator devised his land to his wife for life, and then devised as follows : “ T give and devise the land, after the death of my said wife, to my nephew J. A. and his heirs, he paying to my two other nephews, E. <& G. A., as they respectively arrive at the age .of twenty one years, the sum of £100 each. And should it so happen that the said E. and G. should be of age, before my nephew J. A. be in the possession of the said plantation and land, in that case, he, the said J. A., is not bound to pay the aforesaid sums of money finally, until two years'from the day of taking possession.” Held that these legacies were a charge upon the land.</p> <p>Held further, that, where this land had been sold to one, who had notice of the lien, and he had afterwards sold it to another who had no notice, whatever remedy there might be against the latter, the court would first decree the legacies to be paid by the first-.vendee, who had the notice.</p> <p>The filing of a bill in Equity is the commencement of the suit, and the time, within which presumption of satisfaction is to arise, must be_reckoned back from that period.</p> <p>The case of McLin v McNamara, 2 Dev. & Bat. Eq. 82, cited and approved.</p>

This cause was removed on affidavit of the defendant from Washington Court of Equity, at Spring Term, 1843, to the Supreme Court, ■ The bill was filed in August, 1841, for the partitition of a tract of land, described in the pleadings.

This cause was removed by consent from Davidson Court of Equity, at Fall Term, 1S43, to the Supreme Court. The facts, as they appeared from the pleadings, were these. Sarah Loftin. in February, 1818, for .$750, sold to Thomas Jones, (the father of the plaintiffs and the testator, under whose will they claimed,) the slaves Fan and her children Ham and Joe; and she then executed to him a bill of sale for the said slaves.

This cause was transmitted to this court by consent from the Court of Equity of Macon county, at Fall Term, 1843. The material facts of the case, as exhibited by the bill and admitted by the answer, were these : On the 27th of April, 1838, John Dobson, Thomas Milsaps and Seth W. Hyatt, entered 200 acres of vacant land in Macon county, and had it surveyed in August, 1839.

This cause, having been set for hearing, was by consent transferred from Caswell Court of Equity, at Fall Term, 1843, to the Supreme Court. The pleadings exhibited the following facts: The defendants, Jones, Anderson, & Co. brought an action at law against the plaintiff, Motley, and the defendant, Cobb, for a balance due for the price of manufactured tobacco, sold to Motley and Cobb as copartners, and the plaintiffs at law obtained judgment for the sum of $982 29.

This cause was transmitted for hearing to the Supreme Court from the Court of Equity of Mecklenburg County at the Fall Term, 1843. The facts appearing upon the pleadings and proofs are fully set forth in the opinion delivered in this court.

Cause transmitted from the Court of Equity of Washington county, at Spring Term, 1843. It appeared from the bill that, in 1835, the plaintiff by her agent Thomas S. Armistead, sold to the defendants a tract of land and agreed to convey the same in fee, at the price of $800 ; payable in three equal instalments of $266 66§ on the 1st of January of the years 1836, 1837 and 1838.

This was ¿in appeal from an interlocutory order, made in the Court of Equity of Randolph County at Fall Term, 1843, his honor Judge Manly presiding, dissolving the injunction which had been obtained in this case.

Appeals from two interlocutory orders made ill this cause at the Fall Term, 1843, of Cleaveland Court of Equity, his Honor Judge Dick presiding — the one dissolving the injunction and sequestration theretofore obtained by the plaintiff against the defendant Abraham Washburn, and the other refusing to dissolve the like injunction and sequestration against the defendant Josiah Washburn.

<p>Where the creditor of a deceased debtor alleged, that the defendants were fraudulent donees of certain property of the said debtor — Held that the plaintiff was bound to have the representatives of the debtor parties before the court, although it was alleged in the bill that the debtor had died in an» other State, and had no representative in this State.</p> <p>The case of Dozier v Dozier, 1 Dev. & Bat. E<j. 96, cited and approved.</p>

This was an appeal from an interlocutory order of the Court of Equity of Rowan county, at the Spring Term, 1844, dissolving the injunction, which had been granted in the case. The matter disclosed by the bill and answer is fully stated in the opinion delivered in this court.

This bill states that, in October 1843, the plaintiff purchased a tract of land of the defendant, Owen, containing abont 127 acres, at the price of $300, for which he gave his bond and the other defendant signed it as a witness; that at the time of his purchase one David Brooks was living on the land, and it was agreed between the plaintiff and the defendant, that the latter was to put the former into possession in time to enable him to sow a crop of wheat and that he failed…

<p>A deed in trust was made for the purpose of securing or satisfying a number of debts — among others one debt is described as being a debt due “to Lucy F. Jinhins for about ihesumof $1000 on account of the guardianship of John Blaclcnallfor the said Lucy F. Jinhins.'’ It appeared afterwards, upon the settlement of the guardian accounts, that the sum ac. tually due to Lucy F. Jinkins, at the time of the execution of the deed, was $1481 99 cents — Held that the whole of this amount was secured by the deed, and not merely the sum of $1000,</p>

This cause being set down for hearing, was transmitted by consent from Wake Court of Equity, at Fall Term, 1843, to the Supreme Court.

<p>A testator bequeathed certain negroes to his wife for life, and made no specific disposition of them after her .death. He had other negroes, and, after making several other bequests, he bequeathed as follow: “All my negroes that are hot given away by this my last will shall be equally divided be tween W. E. and M.” Held that the remainder in the negroes given to the wife for life passed by this residuary clause to W. E. and M.</p> <p>As to personal estate, a residuary clause carries not only évery thing not disposed of, hut every thing that turns out not to be disposed of.</p> <p>The cases of Speight v Gatlin, 2 DeV. Eq. 5, and Taylor v Lucas, & Hawks 315, cited and approved,</p>

This cause was set for hearing at the Spring Term, 1844, of Davidson Court of Equity, upon the bill and answer, and transmitted by consent to the Supreme Court. Thp bill was filed for the purpose of obtaining the construction of the court upon certain parts of the will of Henry McGuire.

This cause, having been set for hearing on the bill, answers and proofs, was transmitted by consent of parties from the Court of Equity of Carteret County, at Spring Term 1S44, to the Supreme Court. The bill asks partition of a tract ofland lying in the county of Carteret.

This cause, after having been set for hearing, was transmitted by consent from the Court of Equity of Davie county, at Spring Term, 1844. The facts, as they appear upon the pleadings, are as follow: The plaintiff and the defendants Thomas Foster and Armfield eatered into copartnership, as traders in merchandize in the year 1837, and continued the business until April, 1839.

This cause was transmitted from Craven Court of Equity, at the Spring Term, 1844, by consent of parties, to the Supreme Court. The following are the facts, appearing from the pleadings and proofs : The plaintiffs are the four infant children of Gatsey Harris, deceased, and sue by their father, Lovick Harris, as their next friend.

This cause, having been set for hearing, was removed from the Court of Equity of Buncombe county, at Spring Term, 1844, to the Supreme Court.

This cause, having been set for hearing, was removed by c'onsent from the Court of Equity of Bladen County, at Spring Term 1844, to the Supreme Court. The bill sets forth that Joseph Kemp died m the' year' 1821, having first made and published in writing a last will and testament, which Was duly admitted to probate by the propel1 authority, and the executors therein having refused to qualify as such, William Kemp was appointed administrator with the will annexed.

This cause having been set for hearing, was transmitted by consent from the Court of Equity for Halifax County at the Spring Term 18-14, to the Supreme Court. The following are the facts disclosed by the pleadings: Mrs. Martha M. R. Brownlow, being seised in fee of two tracts of land situate on Roanoke, in the counties of Halifax and Northampton, intermarried with Tippoo S. Brownlow, by whom she had issue.

This cause, having been set for hearing, at the Spring Term, 1844, of Wayne Court of Equity, was transmitted by consent to the Supreme Court. The following are the material facts of the case : The defendant,, and Sarah B. Whitfield, a widow, being about to intermarry, entered into articles on the 6th of April, 1826, and were then married.

<p>This cause having been set for hearing, was transmitted from Randolph Court of Equity, at Spring Term, 1844, by consent of parties, to the Supreme Court.</p> <p>The bill states that John Coltraine had executed to Wily liam Coltraine (the plaintiff) four several bonds of $500 each; that he the said William Coltraine purchased of Man-love A. Causey a tract of land at the price of $2000, and paid the purchase money, by endorsing to him the aforesaid four several bonds ; that the said Manlove A. Causey, being greatly indebted, and much harrassed with ca. sa's by his creditors, with a view to defraud his aforesaid creditors, did, without any bona fide, consideration, assign the aforesaid four bonds which he thus held on John Coltraine, to the defendant Ennolds Causey, under a secret trust that they should hold the proceeds of the same for the benefit of the assignor, his wife and children. The bill further states, that Manlove A. Causey died in September, 1840, and that the plaintiff administered on his estate. Upon the coming in of the answer of Ennolds Causey, in which he stated that only two of the bonds had been assigned to him, and that the other two had been assigned to Levin Kirkman, the plaintiff, amended his bill, and therein alleged that the said other two bonds were in the hands and custody of Jane S. Causey, the widow of Manlove Causey, and of Levin Kirkman, the father of said Jane S. for safe keeping for the use of said Man-love or his representatives, and to be delivered when they should be demanded; and further, that, if the said two bonds were endorsed by said Manlove to the said Levin, the endorsement was without consideration, and in trust for said Manlove; or that, if the same were upon consideration, that it was a security for the payment of some inconsiderable sum of money due, or alleged to be due, from the said Man-love to the said Levin, or some other person. The prayer of the bill is, that the defendants respectively be decreed to surrender the aforesaid several bonds to the plaintiff, as administrator of Manlove A Causey, in order that the proceeds may be held by him, when collected, as assets for the benefit of the creditors of his intestate, and for general relief. The defendant Kirbman, in his answer, says that he was a creditor, by open account, of M. A. Causey, to the amount of $447 32i cents ; and that one John Kirbman was another creditor by bond for $20; that M. A. Causey assigned to him as collateral securityfor those debts two of the said bonds mentioned in the bill, due December, 1843 and and 1844, to collect and pay the said two debts. He submits to account, and pay to the plaintiff, -as the administrator, the balance of the said two bonds, after deducting the aforesaid claims. Ennolds Causey, the other defendant, in his answer says, that he is a bona fide assignee of the plaintiff’s intestate of the other two bonds mentioned in the bill. But he now insists, that if he was to be considered an assignee of the said bonds upon the terms mentioned in the bill, still a decree ought not to be rendered against him in favor of the plaintiff, and he moved the court to dismiss the bill as to him.</p>

This cause was removed for hearing to the Supreme Court from Mecklenburg Court of Equity, at Spring Term, 1844. The following facts were disclosed by the pleadings and proofs: The plaintiff’s father, James Paxton, soon after mailing his will and leaving his wife, Mary Paxton, executrix, died in the year 1781.

This cause was transmitted to the Supreme Court by consent of parties, from Granville Court of Equity, at Spring Term, 1844.

This was an appeal from certain interlocutory orders made in the Court of Equity of Lincoin County., at Spring Term 1844.

This cause, having been set for hearing, was transmitted by consent from the Court of Equity of Granville county, at Fall Term, 1843, to the Supreme Court. The facts alleged in the pleadings are as follows: The defendant is the administrator of Miss Ann Smith deceased ; and the bill was filed in September, 1842, by the plaintiff, as administrator of Maurice Smith, the residuary legatee in her will, for an account of the estate and payment.

This was an appeal from an interlocutory order, made by his Honor Judge Pearson, at the Spring Term, 1844, of Halifax Court of Equity, dissolving the injunction which had been granted in this case.

<p>Appeal from' an interloutory order made by his Honor Judge Battle, at the Spring Term, 1843, of Montgomery Court of Equity, dissolving the injunction,- which ha'd been* granted in the case.</p> <p>The following facts are stated in the pleadings i E. L. Morgan,-being seised of the land in controversy in' this cause,- and being desirous of borrowing the sum of $500,-on the 9th of October,-1839, made a note payable to A. H Saunders and G. Coggin for that sum,- negotiable at the' Bank of Cape Fear, at Fayetteville, which Saimders and' Coggin endorsed for his accommodation, and- re-deliveréd to' Morgan, that he might have it discounted. He offered it for discount, hut the hank declined taking it,"and he then prevailed on an individual to discount it in part, that is, to advance him $150, on it. On the 9th day of October, 1839, Morgan also executed to T. L. Cotton a deed for the land in controversy, in trust to sell the same and pay the debt mentioned ih the note, or repay to Saimders and Coggin whatever sums they might be compelled to pay on the note.-</p> <p>In the early part of the year 1840, the plaintiff and" Morgan were upon a treaty for the purchase-of the land at the price of $725, the plaintiff being informed by Morgan of the deed to Cotton, and it being agreed,- if the contract was made, that out of the purchase money that debt should be discharged. On- the 10th of March, 1840, the parties, Hall, E. L. Morgan, Saunders and Cotton, met to adjust finally the contract, and- the payments thereon. The defendant, Nelson Harris, was also present, and assisted in making the computations for the settlement; and then the plaintiff, by assuming debts for E. L. Morgan, or by cash, paid the whole prjce 0f |725; except the sum of $152; for which he executed his note, which he afterwards paid. Among the debts paid or assumed by Hall for E. L. Morgan, were some to Nelson Harris. Out of the money paid him on the 16th of March, Saunders and Cotton then received the sum due on the debt secured by the deed of trust, but they did not re-convey to Morgan, nor convey to Hall, as all parties thought the deed became inoperative by the payment of the debt. After the settlement was closed, Hardy Morgan, the father of E. L. Morgan, delivered to the plaintiff a deed from E. L. Morgan to the plaintiff, purporting to be a bargain and sale in fee for the land, and bearing date the 2d day of March, 1840. At the same time, Hardy Morgan took the note given by plaintiff for $152; and it was agreed between the parties that out of the money due thereon, when paid by the plaintiff, H. Morgan should pay a debt which E. L. Morgan owed to one Delamothe, and for which Nelson Harris was bound as surety. For the debt to Delamothe a judgment was taken in the Superior Court of Montgomery, which began on the 5th Monday, which was the 2d day of March, 1840 ; and afterwards, but it does not appear on what day, a fieri facias issued thereon, tested as of the 1 st Monday of March, 1840, under which this land was sold by the sheriff in July, 1840, and purchased by N. Harris at the price of $50, and he took the sheriff’s deed. He then instituted an action of ejectment against Hall, who had gone into possession, and recovered against him. Thereupon Hall filed this bill against Harris, E. L. Morgan, Saunders, Coggin and Cotton, and therein charges, that the contract was concluded between E. L. Morgan and himself on the 2d day of March, 1840, and that at that time, the deed to him was drawn and executed by E. L. Morgan and left with H. Morgan, to be delivered when the plaintiff should have paid the purchase jnoney, or secured it satisfactorily; and that the 16th of March ensuing was then fixed on as the time of meeting, when the creditors of E. L. Morgan could assemble, and Hall would be prepared to pay their demands. The bill also states, that although N. Harris and other persons informed the plaintiff on the 10th of March, that a debt was due to Delamothe, yet he was not informed that it had been reduced to judgment, otherwise he would have insisted on its being discharged out of the cash payment he then made. The bill then states, that the plaintiff hád offered to pay toN. Harris the sum he had given at the sheriff’s sale, and requested from him a conveyance or release, which he refused to make, and was about suing out a writ of possession and turning the plaintiff out. The bill then insists that N. Harris, after being privy to the contract and settlement between the plaintiff and E. L. Morgan, and getting payment of Morgan’s debts to him through the plaintiff, ought not to be allowed to disturb the plaintiff, even if Harris has the legal title under his purchase; and that, at all events, N. Harris ought not to be permitted to use his judgment at law, unless and only as the means of obtaining an indemnity for the sum paid by him, or not without paying to the plaintiff the sum paid out of the plaintiff’s purchase money in discharge of the debt secured by the deed of trust. Wherefore the bill prays a conveyance of the legal title from Cotton, the trustee, and also a release from Harris, upon such terms as the court may deem just, and, in the mean while, for an injunction against the judgment in the action of ejectment.</p> <p>The answers of all the defendants, except Harris, substantially admit the bill and submit to such a decree as to the court may seem right. The answer of Harris states, that he had no agency in making the contract between E. L. Morgan and the plaintiff. He admits that at their request he made an account of the payments by the plaintiff and ascertained the balance of the purchase money; but says that he did so merely as scribe at the request of the parties. He likewise admits that, E. L. Morgan agreed that certain sums which he owed Harris should be discharged out of the price 0f the land,' and that they were discharged either in money or the bond oí the plaintiff The answer then denies, that the deed to the plaintiff was executed on the second of 1840, or that the contract or purchase was completed on that day or at any time before the deed was delivered on the 10th of March; because the defendant states, that on the trial at law it was proved by several witnesses, that about the middle of the week of Montgomery .court, the plaintiff said, that he had not purchased the land, and that he did not thjnk he should conclude a bargain for it, as he doubted the title Morgan could make him. Therefore the answer insists, that the contract was pot finally made until the 16th of Mpr.ch ; at which time the plaintiff made his payments and accepted the deed. The defendant further states, that he then distinctly informed the plaintiff that judgment had been obtained in the Superior Court the preceding week for the debt to Delamothe, and that he had consulted counsel and been advised that the land was hound from the rendering of the judgment on the 2d day of M arch, and, therefore, that the plaintiff must see to the payment of the debt.</p> <p>The answer further insists, that the deed of trust was not good against the creditors of Morgan, because tbe note was not discounted by the bank, as wps contemplated by the parties wlyen it was made, and, moreover, if that should be otherwise, because, upon the plaintiff’s purchase, it was not agreed or understood that the legal title of the trustee should he kept on foot for the benefit of the plaintiff, or to be conveyed to him or any other person; hut it was considered by .all the persons present, that as the debt was paid, the legal tifie conveyed by the deed of trust was worth nothing, and extinguished.</p> <p>The defendant admits that he refused to accept from the plaintiff the sum he had given for the land at the sheriff’s sale, and insists that he "obtained by that sale a good title both at jaw and in equity under a judgment and execution creating a lien on the land, prior or preferable to the title delayed by the plain tiff under his purchase from E. L. Morgan himself on the 10th of March, 1840.</p> <p>Upon the coming in of the answers, the defendant H moved upon his, to dissolve the injunction obtained against" his judgment at law, and his Honor, thinking that whatever equity the bill contained had been fully answered, allowed the motion; but he also allowed the plaintiff to appeal therefrom.</p>

This was a bill of injunction, filed in Person Court of Equity, at June Term, 1843, praying that the defendant (William A. Lea, ancestor of the present defendants) might be restrained from erecting a certain mill, on the ground that it would be injurious to the health of the relator, and the neighborhood generally.

<p>The authority of an agent to collect a note or bill, does not authorize him to indorse the note or bill, either in the name of his principal, or on his account. Much less is an agent authorized to endorse another paper for the debtor, enable the latter to raise money to pay the debt to the principal.</p> <p>Before an agent can insist that his principal has adopted, as Ms own, acts, which the agent had no authority to do, it is necessary to shew that the principal was fully apprised of all the facts and circumstances attending the transaction.</p> <p>The. cases of McElwee v. Collins, 4 Dev. & Bat. 209. Taylor v. Smith, 2 Hawks, 465; and McBrayer v. Roberts, 2 Dev. Eq. 50, cited and approved.</p>

This was an appeal from an interlocutory decree of the Court of Equity of Mecklenburg County, his Honor Judge Manly presiding.

Cause removed from the Court of Equity of Martin County, at the Fall Term, 1844, having been first set for hearing.

<p>Eveiy trustee for sale is bound by his office to bring the estate to a sale, under every possible advantage to the cestui que trust; and, when there aieseveral persons concerned, with a fair and impartial attention to the interests of all concerned.</p> <p>He is bound to use, not only good faith, but also every requisite diligence and prudence, in conducting the sale.</p> <p>If such trustee is wanting in reasonable diligence in conducting the sale, as if he contract under circumstances, shewing haste and improvidence, or so manage the sale as to advanee the interest of one oi the partie=, to the injury of another, he will be personally liable to malte good to the party, suffeiing from his misconduct, the amount oi his loss.</p> <p>Nor will equity, in such a case, assist a purchaser, however innocent, in compelling a conveyance of the title.</p> <p>When a trustee sells at auction, he must make due advertisement, and give due notice to the parties interested. Otherwise the sale will be avoided. The case of Hunt v. Bass, 2 Dev. Eq. 232, cited and approved.</p>

<p>This was an appeal from an interlocutory order of the court of equity of Orange County, at the Fall Term, 1844, his Hon- or Judge Pearson presiding, by which the demurrer filed by the defendant to the plaintiffs’ bill, was overruled, and he ordered to answer.</p> <p>The following is the case presented by the pleadings:</p> <p>The bill was filed by the next of kin of Sarah Freeman, deceased, late the wife of Richard Freeman ; and states, that, by her marriage settlement, she was entitled, to her separate use, to a considerable number of slaves and other personal estate, consisting of money and debts, and other things to aeonsiderable value ; that she wished and intended, that, after her death, her slaves should not serve any person in a state of servitude, but should be freed or held by some person in a state of qualified slavery, and have all the other parts of her personal estate. The bill states, that the defendant, Newlin, is a member of the religious society, called Quakers, and that all the members of that society are opposed, and that the defendant is opposed, upon a religions principle, to slavery, and that the defendant will not hold slaves as property and for his own use; and that he had taken an active agency in procuring the manumission of slaves and had taken conveyances of slaves absolute, apparently, but had suffered such slaves to enjoy the privileges of freemen. The bill then states, that the testatrix well knew the said Newlin and the religious principles above mentioned of himself and the other members of his religious society, and that, in fraud of the laws of the State and the public policy, she made her will, and therein bequeathed to the' said Newlin all her slaves and other estate, but with the intention and understanding, that the said Newlin should hold the negroes, not for himself, but for their own benefit and advantage, and for the purpose of their enjoying a qualified freedom^ and that he should hold the residue of the estate in trust for the said negroes. The bill also states, that the plaintiffs contested the probate of the will, and that, upon the trial of the issue, devisavií vel non, the present defendant proved, as part of his case in support of the instrument, that the testatrix had declared the intentions above mentionod as to her slaves after her death, and that she knew that he was a quaker,- and designed to bequeath the said slaves to a member of that society, who would not hold them as slaves, and therefore gave them to him.</p> <p>The bill then charges, that the bequests of the will were made upon a trust for the benefit of the slaves themselves, and that they might be kept here in a state of qualified slavery, should have the benefit of the other parts of the personal ‘ r estate, and that such a purpose was unlawful and contrary to p0ijCy 0f ^ gtate, and that a trust of the slaves and other personal estate results to the plaintiffs, as next of kin. The bill, therefore, prays a discovery, an account and relief.</p> <p>The defendants put in a general demurrer to the discovery and relief for want of equity.</p> <p>Upon the argument of the demurrer, his Honor held, that Freeman, the husband, was a necessary party; and, also,that the allegation, and an interrogatory founded thereon, “that the defendant had taken an active agency in procuring the manumission of slaves, and had taken conveyances of slaves, absolute, apparently, but that such slaves were to enjoy the privileges of freemen,5’ was impertinent, and that the defendant was not bound to answer thereto, because it would subject him to prosecution and penalties. But the court allowed the plaintiff to amend the bill by making Freeman a party, and by striking out the allegation and interrogatory above mentioned, upon the payment of all the costs up to that time. And then the court overruled the demurrer, but allowed the defendant an appeal to this court.</p>

Canse removed to this Court for hearing, from the Court of Equity of Buncombe County, at the Fall Term, 1843.

<p>A devise to A. and 11 if she dies leaving no issue,” then " to my children, B. &c., will operate as a good executory bequest to the children, B. & C., if A. should die without leaving any issue at the time of her death.</p> <p>It is a general rule in equity, that all persons interested must be made parties: plaintiffs or defendants.</p> <p>There are four modes of taking an objection for want of parties; by demurrer on record, demurrer ore terms, by plea and by answer. But the defendant, taking such objection, must always apprise the plaintiff of the persons, who should be made parties.</p> <p>The effect of an objection, successfully taken, for the want of parties, is not that the bill is to be dismissed, but that it stands over with leave to amend by adding the necessary parties.</p>

This cause, havingbeen set for hearing, on the bill, answers, exhibits, and proofs, at the Fall Term, 1844, of Sampson Court of Equity, was then removed by consent to the Supreme Court.

Cause removed from Carteret Court of Equity, at Fall Term, 1843. This was a bill filed by the plaintiff as administrator, with the will annexed of Richard P. Oliver, asking the advice of the court as to the proper construction of the said will. The qUestjons presented are stated in the opiuion delivered in this Court.

<p>The facts, upon -which the plaintiff in a Court of Equity seeks relief, must he forth in the stating part of his will.</p> <p>The plaintiff cannot rely upon the interrogatories to supply defects in the stating part of his bill,</p> <p>A defendant is not bound to answer an interrogatory, not warranted by what has been stated by the plaintiff, as the ground of his complaint.</p>

The plaintiff filed this bill, to obtain a decree for a specific execution of a contract, made in the year 1835, by Robert Hamilton, with him, for the sale of a tract of land lying in the county of Ashe, called the old fields of New River; also, for an injunction, restraining the defendants from proceeding at law on two of the bonds securing a part of tlie purchase money.

Canse removed from the court of equity of Jones County, at Fall Term, 1844. The plaintiff as administrator of Kilby Jones Ferrand, deceased, filed this bill, praying the advice of the court, as to the distribution of the personal estate of his intestate.

<p>The right of a surety to have contribution from his co-surety, in Equity, is not founded upon any principle oí' contract, but is the result of natural justice.</p> <p>When one surety brings a bill for contribution against a co-surety, he should at least allege that the principal is insolvent, so that he can have no redress against him. For the equity oí a plaintiff, seeking contribution from a co-surety, lies in the insolvency of the principal.</p> <p>Where money is advanced b3r the principal to one of the sureties, to discharge the debt, before the debt is actually discharged, the co-surety may lile his bill in equity for an account and for relief.</p> <p>But if the money is paid by the principal, after the debt has been discharged by the sureties, to one of two sureties, to reimburse both, then the co-surety has his remedy against the surety, receiving the money, by an action at law for money had and received, and, theiefore, cannot support a suit in equity.</p> <p>The cases of Williams v. Helm, 1 Dev. Eq. 159. Rainey v. Yarborough, 2 Ired. Eq. and Bell v. Jasper, 2 Ired. Eq. cited and approved. 3MÍ S'??</p>

The facts disclosed by the bill and answer were as follows. On the 26th of October, 1839, William W. White, gave a bond for the sum of $1,641 16, in which Johnson Busbee and the plaintiff joined, as his sureties; and which came by assignment to the Trustees of the Rix Hospital Fund.

<p>L is a rule in Equity, on the subject of injunctions, that, where, by the answer, the plaintiff’s Whole equi'y is denied, and the statement in the answer is credible, and exhibits no attempt to evade the material charges of the bill, the injunction will be dissolved.</p> <p>Where a party referred matters in contest between himself and another to arbitration, and, alter the award was made, he had full time and opportunity to examine it, and then gave his bond for the amount awarded against him, he cannot afterwards have relief upop the ground of errors in the award Equity is no more bound to take care of those, who can take care themselves and will not, than is a court of law.</p> <p>The case of Moore v. Hylton, 1 Dev. Eq. 429, cited and approved.</p> <p>Appeal from an interlocutory decree of the Court of Equity of Iredell county, at the Fall Term, 1844, bis Honor Judge Manly presiding, ordering the injunction heretofore granted in this case tp be dissolved.</p> <p>The matters contained in thebill of injunction and the answer thereto are stated in the opinion delivered in this Court.</p>

Cause removed- by consent from the Court of Equity of Moore county, at the Fall Term, 1844.

<p>When one purchases land irom a vendor, whose title is afierwards ascertain" ed to be detective, and the purchaser by his own means supplies ’ the defect and secures his title, he has no claim in equity upon the vendor, for what he has expended in so perfecting his title.</p>

Cause removed from the Court of Equity of Wayne County, at the Fall Term, 1844. The case was as follows: The complainant charges,- that as administrator of Joab Newsom, he paid and discharged debts of his intestate, to an amount great!y exceeding the assetts, .which came to his hands, and that he was induced to make these advances from a full belief, that the assetts would reimburse him.

Cause removed from the Court of Equity of Ro wan, county, at the Spring Term, 1844. The bill sets forth, that Joseph Kincaid died in August 1840r and-that, by the proper tribunal, the plaintiff was duly appointed administrator upon his estate; that, some twenty years before the death of the intestate, he, being much embarrassed in his circumstances, a constable levied an execution upon ar negro Woman, named Lucy, and at the sale, the defendant,.

Cause removed from tbe Court of Equity of Surry County, at the SpringiTerm, 1843. The facts are set forth in the opinion delivered in this court.

Cause transmitted from the Court of Equity of Warren County, at the Fall Term, 1844, to the'Supreme Court. The facts are thus disclosed by the pleadings: Sterling Johnson was twice married. By his first marriage he had the following children, Anthony M. Johnson, John P. Johnson, Willis Johnson, and Littleberry Johnson.

<p>A., being indebted to certain infants, of whom B. was the guardian, agreed B., tjiat he would give his note to C., for a debt which B. owed the latter, and accordingly did so, talcing from B. a discharge for the debt due to his wards for that amount. Held that C. having no notice of this arrangement between A. & B. was not responsible to the wards for the amount so received from A.</p> <p>Merely signing, a paper as an instrumentary witness, creates neither a legal nor a natural presumption, that such witness knew the contents of the paper. The eases of Piummer v. Baskeroille. 1 Ired. Eq. 353, and Lockhart r. Phillips, 1 Ired. Eq. 343, cited and approved.</p>

Cause removed from the Court of Equity of Northampton County, at the Spring Term, 1844.

<p>Cause removed from the Court of Equity of Mecklenburg County, at Spring Term, 1843.</p> <p>The case, presented by the pleadings and evidence and proceedings in the cause, is fully stated by the Judge delivering the opinion.</p>

<p>Case transmitted front the Court of Equity of Guilford County,- at the Spring Term, 1843, to the Supreme Court for hearing. , !</p> <p>The bill states, that the Defendant is the1 Agent of the1 Bank of Cape Fear at Salem, and that- the notes negotiated there are made payable to the' defendant. The notes are delivered to the defendant,- to be1 offered-for discount, and are-generally sent by dealers, who reside in other places, to the' defendant, a considerable time before they are discounted ; especially when there- are many applications. The plaintiff, McLean, lived in Greensborough, and on the 10th of Septem1839, he sent a note, made by himself and other plaintiffs, as his sureties, for §400, to John C. Blum of Salem, to be 0g-ere(j for ¿pscount • which came to Blum’s hands and was by him delivered .to the defendant. Understanding that Blum had left home on a long journey, and not having heard from him, the plaintiff, McLean, on the 24th of September, (which was the weekly discount day) sent a messenger, with a letter to the defendant, requesting him to send him the money on his note, if discounted, and, if it was not, to let him know when it would be. The bill charges, that the defendant sent thereto a verbal reply, that the plaintiff had no note in bank, but that, if he would send one, it should be discounted. On the next discount day (1st October) the plaintiff, accordingly, sent another note for §400, and got the money on it. In January following, the plaintiff discovered, that the defendant held both of the notes for §400, each, and claimed the payment of both, which the plaintiff resisted upon the ground, that but one of them had been discounted, and that he had received but one sum of $400, deducting therefrom the discount. Upon learning that the defendant claimed the two debts, the plaintiff applied to Blum to know, whether he received the money upon the first note or could give any explanation of the matter, and was informed by Blum that he had delivered the note to the defendant, and that he never received any money on it, but left home about the time, and was absent for five or six weeks, and that some days after his return the defendant informed him, ¿here was some mistake in the bank with respect to the discounting for the plaintiff two notes for the same amount and the same sureties, very nearly at the same time, and asked him, Blum, whether he knew any thing about it, and upon Blum’s answer, that he did not, the defendant left him without saying more. The bill further states, that the plaintiff applied to the defendant himself for some explanation of the transaction, and to be informed when and to whom the defendant paid the money, and the defendant then showed him an account in a book in the bank, purporting to be an account of'new loans made by the bank on the 17th of September, 1839, in which the plaintiff’s note, September 10th, appears as one oí six then discounted, with a memorandum opposite to it, that the money was received by John C. Blum. The bill states, that the plaintiff then asked the defendant, whether he had any evidence, that he had paid the money to Blum, and whether he had any recollection of it himself; and the- defendant replied, that he did not remember paying Blum the money, and had no other evidence of it except his books5 but that his books could not be mistaken. The bill further states, that, to a suggestion, that possibly a mistake had been committed by the defendant by having counted the bills and set them apart in the expectation that Blum would call for them, and thereupon making a memorandum, that Blum had received the money, when in fact-he had not, and that it might be ascertained'how it probably was by the state of the defendant’s cash account, .the defendant still replied, that his books could not be mistaken, though he admitted, at the same time, that he had a considerable surplus of cash beyond the sum required by his cash account, and admitted also, that, in a list of debts due to the agency, which he had made out in November, 1830, the debt of the plaintiff was inserted at $400 only.</p> <p>The plaintiff paid the note of the 1st of October, and, having been sued on that dated September 10th, 1839, he filed this bill against Shuman, the agent, to be relieved against it by injunction.</p> <p>The answer states, that on the 17th of September, 1839, Blum presented for discount the plaintiff’s note for $400, dated September 10th, at 90 days, and miso a letter requesting the money to be paid to Blum; that it was discounted that day, and the proceeds paid immediately to Blum. The defendant admits, that, in a few days thereafter, the plaintiff’s messenger, by the name of Thorn, applied with a letter for the money, and that the defendant,, after looking among a file of notes, that remained in bank to be discounted, informed Thorn, that the plaintiff’ had no notes in bank to be discounted, and directed him to say to the plaintiff, if he wanted more money senc^ ano^ier note; for, as the note offered by Blum had been already discounted, the defendant understood the p[ajn(:¡ff t0 want a new loan. The succeeding week the plain•tiff sent a note for $400 by another agent, which was discounted. The defendant admits, that he has none of the several .letters of the plaintiff, directing the payment of the money to Blum and his other agents; and he says, that it has been his invariable practice to destroy all such papers, because the possession of the note is the highest evidence of the debt, and that he has paid the money on it, without the aid of letters or orders for the money.</p> <p>The answer then states, that, in confirmation of the defendant’s remembrance of the whole transaction, the bank books sustain him, and that he is certain they are correct; that the discount book shews in his own writing, among the new discounts of September 17th, the note of the plaintiff' of September 10th, at .90 days, and that the money was received by John •C. Blum. The defendant admits that he prepared a list of debts to the bank of .Salem, in November, 1839, for the purpose of making his half yearly return to the principal bank, ..and therein at first he charged the plaintiff’s debt at $400; but he says that he afterwards discovered his mistake by comparing the books, and corrected his return by making the debt ¡$800, being for two notes of $400, each.</p> <p>The defendant admits, that there was an excess of cash on .hand; but says that it had been accumulating for several .years, .and that in the beginning of 1839 it was about $300, ,and that in closing the accounts of that year it was found to ¡be about the same.; which satisfies him, that he paid this money to Blum, as the excess would otherwise have been about ..$700.</p> <p>Replication was taken to the answer, and the parties proceeded to take proofs; and, when ready, the cause was transferred to this court for hearing.</p> <p>John O. Blum, who was the cashier of the bank for eleven .years immediately preceding .the plaintiff’s coming jn, and who if now a director, was examined and states, that he has no recollection of having received or offered the plaintiff’s note of the 10th of September, though he has no doubt, from the statements of both the plaintiff and defendant, that he did. He-says, that, at the time, he was very busy in preparing to leave home for Philadelphia, to lay in a stock of merchandize, and having no interest in the matter, he did not charge his memory respecting it. He however denies positively having, received any sum whatever on the plaintiff’s note, on the 17th of September or at any other time ; and he says that he is absolutely sure he did not, for he had no excess of cash, and, if he had received the money, he could not have-forgotten it. The note of September 10th was shown him and is exhibited, having on the back the word “ offered," which he says is in the writing of the defendant, and is the usual memorandum on notes that are offered and approved, but not discounted on one offering day and are kept for another day, when they take their turn. He states, that he received from the defendant on the 17th or 18th of September in the bank, a small sum of money, which the defendant owed him upon their private dealings, and some exchanges, but none on any other account; and that he left home on the 19th of September, and was absent about five weeks. About two or three weeks after his return, the defendant told him, that some error existed about McLean’s notes, two appearing to be discounted for him for the same sum in a short time, and asked the witness, if he recollected any thing about it, and the witness informed him that he did not. To the question by the defendant: “When you returned from the north, was I not the first person who mentioned that some error in discounting McLean’s notes had taken place ?” the witness answers, that the defendant informed him, that there was some error in the discounts for McLean, and that he was the first person who'did mention it to him.</p> <p>3. H. Dobson states, that, on the 17th of September, 1839,, , he was in the bank at Salem, and some money transaction oc-curred between the defendant and Blum, in which he thought the defendant’s conduct was similar to his acts towards the in discounting notes for him before that time; which he explains by saying, that the defendant counted out the jjan]c notes in parcels of $ 100, and then took the discount from one of the parcels; and he says, that on that occasion the defendant counted out four parcels, which Blum took; and he did not see Blum pay the defendant any money in exchange or otherwise. He says upon cross examination, that he did not know the sum paid to Blum, nor on what account, as the parties conversed in German', which he did not understand ; and that upon discounting notes, defendant generally uses an interest table to ascertain the discount, and he cannot recollect that he had it when he paid the money to Blum.</p> <p>J. E. Thorne deposes that, on the 24th September 1839, he went to the bank at Salem, for the purpose of ascertaining whether a note of his own had been discounted, which had been offered fiye or six weeks before. He carried a letter from the plaintiff to the defendant, requesting him to. pay to the witness the proceeds of his note for $400, which had been sent to the bank the week before. He states that, after the defendant had read the ietter, without making any remark, he searched in several places for the plaintiff's note, for some time ; at first, in a drawer from which he had taken the deponent’s note ; then he looked carefully through a desk in anothet part of the room; and then mentioned, “that he could not find any note of McLean’s ,” that the defendant shewed anxiety and searched the same places again, and took up several bundles of filed notes, or papers that looked like them, and examined them, turning up the end of each so as to see the name on it; and that, after he had made this second search, he turned to the deponent and said, “that he had no note of McLean’s in his possession ; and he said further, that “ the money was ready, and if McLean would send the note he could have the money.” Of all this the witness informed the plaintiff, on his return to Greens, borough. The witness says, that he is positive as to what occurred, because it was the first time he was ever in a bank, and the misunderstanding arose so soon afterwards, that the circumstances were impressed on his memory.</p> <p>Joseph Rankin states, that, on the first of October, he carried the plaintiff’s second note in a letter directed to the fendant, and requesting him to send the money by the witness and that, as soon as the défehdant read the letter, he took out of the desk a bundle of money and handed it to the witness and when lie began to look over it the defendant told him was right, and that there was the sum of $400, except that the/discount was taken out. Fie says the money ,was right and in a single parcel.</p> <p>A witness, W. J. McElray, states that he was in the bank when Thorn delivered the plaintiff’s letter, and that he saw the defendant then look into a drawer, in which he usually keeps notes offered for discount, and after examining a bundle of notes, he thinks the defendant said, if Mr. McLean wishes a discount, he must send in a new bond. He cannot state, whether the defendant did or did not say, that McLean did not owe any bond there; though he recollects nothing of if.</p> <p>Mr. Gilmer, an attorney, states that at the request of the plaintiff he had, in December 1839, an interview with the defendant and Blum, upon this subject; that Blum denied receiving any money for the plaintiff from the defendant; and that, when the witness informed the defendant of that denial he showed the witness the entry of the discounts of September 17th, on which it appeared that Blum had received it. The witness asked the defendant, if he had any recollection that Blum received the money; to which he replied, that he had not, but that he relied on his book. He said, he would not have made the entry, if he had not paid the money to Blum; and that his books could not be mistaken ; but that Blum got the money, though he had never paid it to McLean. The witness fflso then told the defendant what Thorn said, which was what he has stated in his deposition ; and the defendant admitted, that he told Thorn “that McLean had no note in bankbut he said, he meant that he had no note to be discounted. The witness told him, that Mr. Shober, a director of the bank, had told him, that in the list of debts made out by the defendant, there was but one debt of $400 against Me Lean, and he requested the defendant to let him see that list; but the defendant declined doing so, and said he had discover - ed the mistake, and that in the list sent to ■Wilmington, Mc-Lenrj,g debt was $g()Q.</p> <p>Upon the foregoing evidence the cause was heard, and, as • there was such a conflict between the recollection of Mr. Shuman and Mr. Blum, the Court was desirous to obtain further information upon the point, whether there were two discounts for the plaintiff, or only one, which an inquiry would afford; and it was referred to the Master to make that inquiry, with directions to inspect the books of the agency containing all entries in relation to the notes, and all returns made by the agent to the principal bank, which would include the transactions of the agency of the 17th of September, and 1st of October 1839, or any other in which either of the notes, or the amount thereof, or the profit upon the discount thereof, was or ought to be included, and to collate such returns with the books of the agency in their present state. The Master reported copies of the entries on the discount book for September 17th and October 1st., on which the two notes of the plaintiff appear, and it is stated in the margin of the entry of the former day, that Blum received the money. The note is stated to be1 dated September 10th, at 90 days, and to be discounted September 17th for $400, with 92 days to run from that time, and the discount for 92 days is taken, to wit, $6 13. From the principal bank was obtained the return of the list of debts dated November 30th, 1839, which states McLean’s debt to be $800; and also the half yearly statements of the "Cash account,” “Billsand Notes discounted,” “ Profit and loss,” and “ Account Current,’’ between the agency and the principal bank — all shewing exact balances. With respect to the “ weekly returns” of the agent, the President of the hank states, that they are mere generalities and give no details, which could elucidate the subject of the inquiry, and he does not send them.</p> <p>The Master also examined the defendant upon interrogatories, and Mr. Shober, one of the directors.</p> <p>Mr. Shuman states, that no book was kept which shewed the notes offered, but only those discounted; and that nótes not discounted often lie a great length of time in his hands.— He says that he did not carry the discounts weekly into the leger; but that months elapsed without his.posting the books, until it became necessary, in order to make his half yearly returns and settlements with the principal bank. That when, with that view, he was posting the accounts into the leger in November, he discovered that there were two discounts for McLean, and upon seeing the second, it struck hi's memory that some difficulty had occurred about a note being inquired for as-in his hands, and not being found 'among the notes of. fered for discount; and that, not having a suspicion of any dishonesty, he went to Blum, who had then returned home) and mentioned the difficulty, and requested him to tell the defendant what he recollected about it; to which Blum answered, that he had no distinct recollection of any transaction of that kind. He states that he invited Blum to examine the books, which he promised 'to do; but that he did not, until the defendant was obliged to post them with a view to making up his accounts, and then he posted the second discount. His first list of debts was made out before that additional entry in the leger, and was- not altered until January 1840, after this controversy had arisen; but the list sent to Wilmington was made out after the posting was completed by adding Me Lean’s second note.</p> <p>He says, that his half yearly accounts did not balance, but there was always an excess of assets — which' excess was not taken notice of in the books. Finding the charges against him on the books, he merely balanced them. He is 'utiablo to say, what was the excess in May 1839, or November of that year, or at any time before May 1842, since which time the surplus has been noted.</p> <p>It was then $849 68</p> <p>In November, 1842, 792 71</p> <p>In May, 1843, 1400 12</p> <p>In November, not noted.</p> <p>In May, 1844, 1343 52</p> <p>Mr. Shober states that he was one of the Board of Direetors on the 17th of September, and that McLean’s note was offered on that day.' It was approved by the board, but not (j¡scountec¡¡ as the amount, to which they meant to discount, was full before they came to McLean’s; but it was approved and the defendant wrote “’offered” on it, as a memorandum that it was to be discounted at some other time, when the agent should have funds. But he says also, that the board was not particular with the agent; and that had he, after the adjournment of the board, received payments enough, the directors would have sanctioned his discounting the note that day. He says, that it is the practice for dealers to deposit their notes with the agent, and leave them in his hands, for weeks and months for discount. That in examining the half yearly accounts, when there were large surpluses, he has several times discovered errors in charging debts as still outstanding, which had been paid ; so that, upon giving the proper credit on them, the surplus would be nearly exhausted.</p>

This was an appeal from an interlocutory decision of the Court of Equity of Wake County, at the Spring Term, 1845, his Honor Judge Dick presiding. The. following facts are agreed on between the parties. James Wyche was, for many years, a resident of Granville county, having his domicil there.

<p>This cause was set for hearing, and by consent transmitted to the Supreme Court, at the Spring Term; 1845, of Wake Court of Equity.</p> <p>The bill charges, that the plaintiff, in January, 1837, entered into copartnership with the defendant and Thomas G. Whitaker, for the purpose of merchandizing, which was to continue ten years; one half of the capital to be advanced by the defendant, and the other half in equal portions by the plaintiff and Thomas G. Whitaker: that he is entirely ignorant of mercantile matters and illiterate, and soon became uneasy and desirous to close the business, and proposed to his partners to dissolve the firm. To this proposition the defendant, Langdon, refused his assent, and persuaded the plaintiff that he could not retire from the firm without a violation of duty and subjecting himself to damages, and that the firm had done a very profitable business ; that the defendant was to be the acting partner, and he had accordingly managed the business of the firm, laid in their stock of goods, and contracted the debts: that, having implicit confidence in his skill and integrity, he fully believed and relied upon his statements; and that the defendant, availing himself of his superior knowledge of the business of the firm, of the plaintiff’s ignorance and the confidence he knew he reposed in him, persuaded him, the plaintiff, to purchase from the defendant his interest in the firm:: that, to induce him to do so, he made out a statement in writing, showing a large profit, to wit, $ 2,900 or $ 3,000, and this statement he averred to be true, and the plaintiff, trusting to his assertion and believing the statement to be true, did purchase from the defendant his undivided moiety in the firm, at the price of $ 1000, which he paid to the defendant. By their agreement, the plaintiff bound himself to indemnify the said Langdop against all liability on account of the debts of the firm, and the said Langdon at the same time assured the plaintiff he would correct any errors that might exist in the statement. The bill further states that the plaintiff has paid all the debts due by the firm, and that he purchased out his othei; copartner, Thomas G. Whitaker, upon the same terms. The bill then charges, that, instead of $ 7,200, the amount stated in the paper writing as being the amount of the debts due from the firm, there were near ,f 10,000 due; all of which were contracted by the defendant, Langdon, and among them one for $ 5,646, due the Literary Fund, and represented in the statement tobe $ 4,000, and also several which were not entered upon the books of the firm: that the statement was erroneous in the amount of debts set forth as due to the firm, as many of them had been receive(j ^ ^ ¿efen¿ant fUÍ¿ the debtors not credited on the books, and that the plaintiff had been cheated into making the purchase of said Langdon, as the business was a losing one and not profitable. The bill prays that the contract, by which he purchased from the defendant his interest in the firm, may beset aside, and the defendant decreed to refund to him the $ 1000 he paid him, and account with him for the assets of the firm, or that Langdon may account with and pay him what he owes the firm, and also the debts of the firm which he collected before the sale.</p> <p>The defendant admits the copartnership, and the sale by him to the complainant of his interest in the business, at the price of $> 1,100, and that he made a statement of the situation of the firm. He alleges that having heard that the complainant was dissatisfied, he expressed his entire willingness to dissolve the partnership, provided he should receive back the capital he had invested, namely, the sum of $ 1,000, with interest on it: denies that, by the articles or agreement of the parties, he was to be the active partner, but that Thomas G. Whitaker was to manage the business, and that he had nothing to do with it, for twelve months before selling to the defendant: and says that the statement, which he submitted to the plaintiff, was drawn up by the defendant, at the request of the plaintiff, and that he took it from the books and from the information of the plaintiff and Thomas G. Whitaker, and knew nothing more of the affairs of the firm, than as disclosed by the books, and nothing more than was known to the plaintiff. He did*represent to the plaintiff, that the firm had done a good business and he so believed; for as far as he knew, nothing had been lost by speculation or bad debts, and the stand was known to be an excellent one, and he'denies expressly, it was in his power, from the manner in which the books were kept and the entries made, to exhibit the true condition of the firm, and avers that, in making the 'statement, he had to rely upon information derived from the plaintiff and Whitaker, and this fact was fully known to the plaintiff: that as to the out ing debts, mentioned in the statement, they were put down at a gross sum, made up from the books and the information of the plaintiff and Whitaker, the acting partner, he, the defendant, having no knowledge of them.</p> <p>' The plaintiff replied to the answer, and the cause has been sent here for trial.</p> <p>The statement referred to by the parties, and called the blue paper, is an exhibit in the case. It contains a list of debts due to the firm, but none of debts due by the firm. It states the situation of the firm as follows :</p> <p>Value of goods, with 25 per cent, on cost, $3,631 07</p> <p>Accounts,...... 3,555 93</p> <p>Value of Store,..... 300 00</p> <p>Notes, ...... 1,480.00</p> <p>Judgments, 845 00</p> <p>Cash, 500 00</p> <p>$10,312 10</p> <p>The debts are charged at the round sum 7,500 00</p> <p>Leaving a balance of $3,812 10</p> <p>as excess of assets, above liabilities, except the stock, which was $2,000.</p> <p>Thomas O. Whitaker, one of the firm, states, that no entries appear upon the books in the hand writing of Langdon after March, 1838, and that, after that time, the books were kept by him and the clerks, Langdon not having any thing to do with them: that, in March, 139, Langdon came to his house and brought with him the books of the firm, including those which had been kept by the witness and the clerks: that from the said books, Langdon, in conjunction with the witness, made the various estimates, which appear in figures on the blue paper, representing that the assets of the firm on hand amounted to $10,312 10 cents: that the indebtedness was computed at $6,000, from the memory of Langdon and the witness, the books not having entries of the debts from the firm ; to which, at the suggestion of the defendant, was added in the estimate, $1,500: that Crowder was sent for by _ , , , .Langdon, and came before they got through the statement; tj2a£ £^0 ¡j^qqo was borrowed of the Literary Fund, to pay off the debts due by the firm to the North for their stock of goods, and were applied to that purpose, and that he sold out his interest in the firm to the plaintiff. He says also, that $600 was put down to co ver bad debts, according to their conjectural amount: that, since the statement, it was found the debts •of the firm exceeded $7,500. At the time when the estimate was made, the defendant and Langdon based their computation on what they recollected of their debts: that they spoke of the several items in the presence of the plaintiff, who seem: ed ignorant of the amount of indebtedness, and whose information, in relation to it, was principally derived fromthe defendant and Langdon : that the object of the meeting was to agree upon a dissolution of the partnership, when each proposed to sell to the other; Langdon, from the start, saying, he could not take less than his capital, and interest on it; and, •after various propositions he proposed to Crowder, to sell to him for $1,100: Crowder took him aside and asked his opinion ; he advised him to take more time and not make a contract of the kind hastily. The parties separated for the night, under the belief, as he thought, that the partnership was to be dissolved, and he prepared notices to that effect. The next morning, Crowder proposed to him to join him in purchasing Langdon out, which he declined; Crowder then said he had made up his mind to make the purchase. He told Crowder he thought the statement made the day before was correct, and in that estimate the Literary Fund debt was assumed to be $5,000.</p> <p>Lewis Crowder, the son of the plaintiff, stated that he was a clerk in the store the first year, aud that Langdon carried on the business for the first three or four months, and directed the manner in which the books should be kept, was present at the time T. G. Whitaker was, and Langdon said, if there was any error he could rectify it.</p> <p>Henry Fi?ich stated, that he was also a clerk in the store, and, for the last twelve months before Laugdon sold to the plaintiff, Langdon had been absent and had nothing todo with the business, and that during that time Crowder or Whitaker, one or the other, was at the store every week : that from the books he could not understand what was the amount of debts due by the firm: that he assisted in making an inventory of the goods on hand just before the dissolution ; T. G. Whitaker' and Langdon being present part of the time, and the two sons of the plaintiff also assisted ; that he heard the defendant say he had gone over the books, and there was no error in the amount he had given Crowder in his calculations.- The de-' fendant also examined the books, and found no mistake in the' list of accounts-due the firm. He cannot tell why the proper entries were not made on the books. During the twelve months that Langdon was absent, Crowder and Whitaker,who are brothers in law, were frequently together and con-" versed about the business of the firm and examined'the books.The plaintiff, Crowder, purchased out Thomas G. Whitaker,the 30th August, 1841, and he witnessed the articles.</p> <p>Allen Adams testifies only as to" the note to .the literary Fund. It was originally for $6,000. He was the surety, and' sometimes signed in blank, and the notes were sometimes-brought to him by Whitaker, once by Langdon, and sometimes by Crowder’s sons; were signed- by the partners individually, and renewed, he thinks, every three months, as well before, as after the purchase by Crowder.</p> <p>Willis Whitaker states, that the parties met at his house' as he understood', to consummate the trade between the plaihtiff and the defendant. The former asked if they, Langdon and Whitaker, had brought the paper containing the calculations, and was answered they had not, as they did not consider it necessary. The plaintiff then asked it the calculations' were correct, and was answered that they were substantially so, with some' intimation from them, that from the'data they' had to go upon, there might be some small errors. He understood Crowder was to give Langdoh $1,100 for his interest,. the agreement was drawn up by Whitaker at the request °f oi^er partners ; but not signed until the next morning. Crowder is an illiterate man, can read and write a little, but ]mows nothing of book-keeping. Nothing was said about correcting any errors, and Crowder observed, he supposed he was to have the goods at the New York cost, to which Lang-don replied, he, Crowder, had his interest for $ 1,100. Witness had frequently heard Crowder say, that he wished to get Langdon out of the firm, and has heard him say in the same conversations, he wished to get out himself, as he felt much uneasiness and anxiety, as to Langdon’s connection with the firm, stating that he could not bring Langdon to a settlement, nor could he understand how he was managing the business of the firm.</p> <p>Among the exhibits in the case, are the statement made by Langdon and called the blue paper, the articles of agreement between the plaintiff and the defendant, and the articles between the plaintiff and Thomas G. Whitaker.</p>

<p>This cause was commenced in September, 1841, in Rutherford Court of Equity, and, having been set for hearing at the Spring Term, 1845, of that Court, was by consent of parties transmitted to the Supreme Court.</p> <p>The following appeared from the pleadings and proofs in the case, to be the material facts.</p> <p>On the 12th day of February, 1818, the plaintiff intermarwith Phebe Simmons, in Rutherford county, where they both resided. She was a widow, and had, by a former marrjage. four children, all of whom were grown and married, and had removed from their mother’s. The defendant, Squire Simmons, was one of the children, and resided orí the same tract of land, and five or six hundred yards from his mother. The exact difference between the ages of the plaintiff and Mrs. Simmons does not appear, but it was considerable, and it seems probable that she had a child as old as the plaintiff, and it is stated by the witnesses, that she was not a robust woman, but of rather feeble health, and subject to occasional attacks of hysterieks. The plaintiff had little or no property, (it is said only one mare) but Was a blacksmith, and industrious and skilful in his trade, though he sometimes drank ton much, but not habitually, as far as appears 5 and his situation* habits and character, were well known by Mrs. Simmons, as he had been brought up, and then lived within a mile of her residence. Mrs. Simmons was in very moderate circumstances. She owed about $200 at the time of her second marriage ; and she then oWried and possessed two female slaves,, of whom one was thirty-seven years old and had ceased childbearing, and the other was a girl, named Poll, about sixteen yenrs'old. Besides those slaves, she had one or two horses, a few cattle and hogs, some little household stuff, and implements of husbandry j and seems to have been entitled to dower in a small piece of land, on which she resided. On the 11th day of February, 1818, Mrs. Simmons conveyed by deed of gift to her soil, Squire Simmons, the two negroes E.bsolutely and in possession, reserving, however, to herself) the first living child, which the girl Poll might have. After the marriage of the plaintiff) he resided with his wife, in the house previously owned by her, until her death in 1828 ; and he retained possession of the two slaves and several children, horn* during that period, of the woman Poll. But soon alter the death of his mother, the defendant Simmons got the negroes into his possession, and-set up, a claim to them under the con-veyance to him of February llth, 18,18. The plaintiff then instituted an action of detinue against Simmons for the ° groes, upon the ground, that the conveyance to the defendant was a fra'ud upon his'marital rights and void add was given therein against the plaintiff, in December, 1834, because the deed constituted a good title at law, and could he treated as infected with fraud, in a Court of Equity only.— Upon that decision having been made, the plaintiff filed a bill in the Court of Equity against Simmons, impeaching the deed as fraudulent, upon the ground of the deception thereby practised on him, and the defendant answered, and orders were made and proofs taken in the cause; but by a fire in 1839, the court house of Rutherford was burnt,' and all the papers arid records of the Court of Equity, including the bill, answer and proofs in that cause, were destroyed. The présent bill was filed in May, 1841, and charges that the plaintiff had addressed1 Mrs. Simmons for more than a year before the Inárriagéj and that they had been engaged for several weeks, and that it was known to the defendant, Simmons: that Mrs. Simmons had1 notoriously the possession and property in the slaves during the'courtship and long before, and continued in the possession and apparent ownership of them at the time of the marriage, and that the plaintiff was thereby induced to believe,’ and did belie’ve, that the slaves belonged to his said intended wife at the marriage, and would by that event be vested in* him as a provision for his wife, himself and their family, if they should have any; and that the plaintiff knew nothing to' the contrary until the defendant got the'negroes into his possession after the death of his mother, when, for lhe fiiyst time, he discovered that the deed had been made. The bill further charges, that it' was expressly designed by the intended wife' and her son, to deceive tbe plaintiff, as to the title of the ne-' groes, as the plaintiff had, upon inquiry, ascertained, that it' was agreed between them at the making of the deed on the’ day before the marriage, that its existence should be kept a secret, and that the' donor should still keep the' negroes in her' possession as the apparent owner :' and that, accordingly,' the ' deed was never published, but remained unknown by any person, except the parties and subscribing witness, until the defendant, Simmons, caused it to be proved and registered in jy¡-arc^ ig28, during the extreme and dying sickness of his mother. The bill further states, that shortly before filing the present bill, the defendant, Graham, took a conveyance from the other defendant for one of the children of Poll, by the name of Jacob; and that he, Graham, had been the Attorney and Solicitor for Simmons in the previous suits, and knew of the plaintiff’s title, and paid no valuable consideration for the negro. The prayer is, that the deed from the wife may be declared fraudulent and decreed to be delivered up to be cancelled, and that it may be decreed, that the defendants convey to the plaintiff1 the said negroes and their increase, and account with him for the profits.</p> <p>The answer of Simmons states, that the match between the plaintiff and his wife was a very unfit one, as she was much the older and was exceedingly infirm, and that he had no property and was dissolute in his life: that the courtship was not of long continuance, and was unknown to himself or to the other children of the intended wife, as was also the marriage : and that her infirmities continued after the marriage during her life, and that the plaintiff treated her at all times with neglect and indifference, and sometimes with cruelty. So that, the defendant states, he fully believes the plaintiff’s sole object in soliciting and consummating the marriage, was to get the slaves and other little property belonging to the other party.</p> <p>The answer states, that during the minority of the defendant, and after he came to full age, up to his marriage at five and twenty, he resided with his mother and attended to her and her affairs, and that she often declared, as was well known in the family, her intention to give the negroes to this defendant in return for his services; that the execution of this intention had been deferred from time to time; but that on the 11th of February, 1818, his mother told him, “ th at life was uncertain, and she wapted then to make him a bill of sale for her two negroes;” and she then did so, and also delivered them into his hands, in the presence of John Parker, who came the subscribing witness to the" deeds. The answer proceeds to state, that the mother then told Parker to say nothing about the bills of sale for awhile, as she did not wish to offend W. K. Hunt, who had married one of her daughters, and who, she was afraid, would abuse his wife, if he should know that she had conveyed.the negroes to her son; and that there was no concealment for any other purpose spoken of. The answer further states, that the defendant was unwilling to take the negroes away, “as his mother’s condition required their services, and that after he got the deeds he said to her, that he would leave them and lend them to her until he should call for them.” The answer denies, that the defendant .then knew or believed, that his mother intended to marry again, much less, that she would marry the plaintiff; and also denies, that he was present at the marriage, or had heard that it was to take place, and states that his first knowledge upon the subject was when he heard of it the day after its celebration. The answer states, that the reasons for not registering the deed, at the first, were, that the defendant was ignorant of the legal necessity for it, and that he wished to comply with his mother’s injunction on that point, on account of keeping it from her son in law, Hunt; and that, afterwards, he had another reason which was, that he became desirous of saving his mother from the insult and violence she would probably receive from the plaintiff, if he knew that she had made the deeds to him. But the answer further states, that the deeds were never concealed from any one, who desired to know the truth about the title ; and that the plaintiff, during the coverture, became acquainted with their .existence — for that upon some occasions, he' threatened to sell some of the negroes, and that his wife would tell him, he could not sell them, for they belonged to her son, the defendant; and that his mother, when Poll had several children, told the defendant to take one of them, named Sol, (which the bill stales the plaintiff himself gave by parol to the defendant, but which the defendant denies to have receivas a gift from the plaintiff) and carry him, the said Sol, home, and raise him there, and that he did so, and the plaintiff acquiesced therein, and did not pretend to claim the said boy afterwards in the lifetime of his mother.</p> <p>The answer further states, that the present bill was not ■filed for more than two terms succeeding the burning of the court house and the original bill and proceedings in the suit between these parties, and that such delay in filing the present bill is a bar to the same, as evidence of an abandonment .of the plaintiff’s claim. The answer also states, that the defendant has had adverse possession of the slaves from the year 1828, and insists upon the statutes of limitation of 1715 and 1820, as bars.</p> <p>The answer of the other defendant admits, that he was of counsel for Simmons in the previous suits brought by Logan .against him for the negroes, including Jacob, and states that, about eighteen months after the burning of the court house, •finding that the plaintiff had not renewed his suit, he took a deed from Simmons for' the negro Jacob, on account of his fees in those suits, and took him into possession. And ft insists on the laches of the plaintiff in filing, his present bill, and on the statute of limitations in the same manner as the other defendant’s answer does.</p> <p>The parties have taken many depositions; but, except so far as their contents are embodied in the beginning of the statement of the case, the only material parts are the following: Parker, the subscribing witness to the deeds from Mrs. Simmons (who makes his mark) deposes, that after she had executed the deeds and delivered them and the negroes to her son, he, the witness, asked her, if she was going to cut herself out of the negroes altogether, and she replied, “ Squire says, he will lend them to me until he calls for them and then her son said, “ yes, mother, you shall have the use of them your life time, or until 1 call for them :” that Mrs. Simmons at the same time said, she always intended Squire to have the negroes, because he had been such a particular good boy to her; aud that she further said, she did not wish any thing said for a while about the bills of sale, but to keep them secret, because her son in law, W. K. Hunt, and Squire Simmons were not at a good understanding, and she was afraid .a disturbance. The witness states, that he then took the bills of sale and kept them until they were proved for registration ■in March, 1828, and did not make them known: and that his residence was within a mile of Logan’s during that time.</p> <p>A witness deposes, that upon one occasion the plaintiff, being intoxicated, was correcting one of the negroes, and that his wife interfered, and he struck her with a whip ; but by-several witnesses it is stated, that he was an affectionate, kind, «and attentive husband, and during his wife’s illness, procured such medical advice as she desired.</p> <p>One of the persons, who was present at the marriage, states, that it took place at Mrs. Simmons’ house, on the 12th of February, 1818, and that neither of her children was there, and that there were only two others besides himself and the parties : but it is stated by several witnesses, among whom is the sheriff of the county, that it was understood in the neighborhood'for several days, that the marriage was to be then celebrated.</p> <p>A witness, by the name of JM. Curry, states, that a year or two after the marriage, the plaintiff employed him to shingle Ills house, and the witness proposed also to build a piazza to it, when the plaintiff replied, “as soon as your old aunt dies, it dont belong to me.” The witness then said, “I know that; but you have got property enough with her, to leave the children good buildings.” To which the plaintiff again replied, “none of the negroes here are mine; they belong to Squire Simmons.” And the witness said thereupon, “ surely you did not know this before you married this old woman, because you could not have married her for love ;” and the plaintiff answered, “yes I did; she was a pretty likely old woman, aqd I thought we could do pretty well together.”</p> <p>Another witness, Hides, states, that four years after the marriage, upon an inquiry of the plaintiff, why he should be working from home, when hé had so many negres there, the said to the witness, “there are negroes enough there, 'but they áre not mine, and I am as hard put to it as you are.”</p> <p>¡jaat¡ the son in law before spoken of, states that he lived within a mile of the parties during the period of the coverture, and that the plaintiff treated his wife well; and that, until the deeds to the defendant Simmons were registered, he never heard of their existence, nor of any claim to the negroes but that of the plaintiff, who, as he believed, became the owner of them by his marriage.</p>

Cause transmitted from the Court of Equity of Bunco'mbe County, at the Fall Term, 1844. The bill was filed in April, 1837, against William Hawkins, Charles Hays, and Mallory B. Patton, and the case is as follows : In 1827, William Hawkins was appointed the guardian of Benjamin Hawkins, an infant, and gave a bond in the sum of $3,000, with Charles Hays as his surety.

<p>Where a testator in his will, after giving seme small legacies, gave to his wife “ all his estate, be it real, personal or perishable,” and by a codicil devised to his wife a leasehold estate in the town of Salem, for his wife “ to inherit and keep in possession during her life, and to dispose oí as she pleases, under the rules and regulations of the town of Salem”' — Held, that, whatever might be the effect of the provisions of the codicil, if it stood alone, yet even if that did not give the wife the absolute interest in the leasehold estate, as the estate would then remain undisposed of, after the dealh of the wife, she would ce entitled to it under the general residuary clause in the win.</p>

This was a bill for a perpetual injunction. The Court of Equity of Halifax County, in which the bill was pending, at the Spring Term, 1845, his Honor Judge Dick presiding, ordered the injunction to be dissolved, and from this order, by leave of the'Court, the plaintiff appealed. At the same term-by consent of the parties, the whole casé' was set for hearing upon the bill, answers and exhibits, and transmitted to the Supreme Court.

Cause removed from the Court of Equity of Cleveland County, at the Fall Tqrm 1843. This cause came on, upon a motion to set aside the sequestration and ne exeat, which had been ordered by a Judge of court upon the bill and affidavit of the plaintiffs. Thefollowing is the case as presented by the bill and answers.

This was an appeal from an order of the Court of Equity of Moore County, at the Spring Term, 1845, his Honor Judge Pearson presiding, overruling a demurrer, which had been filed by the defendants, and directing them to answer over, The plaintiffs state in their bill, that William Martin died ^ yeaj, having made his will in writing, in which he appointed several persons his executors, all of whom died intestate, except Archibald McBryde and Atlas Jones, who are also dead ;…

This Cause was transmitted, by consent of parties, frotó the Court of Equity of Warren County, at the Spring Term, lSi§t ^e ^°^°'v^no case now appeared upon the pleadings and evidence; the case having been before this court at a former terrr|) when, certain questions having been decided, the court ordered the case to be remanded, with leave for the plaintiffs to amend their bill.

<p>Cause transmitted from the Court of Equity of Surry County, at the Spring Term, 1845.</p> <p>The following facts constitute the case:</p> <p>The plaintiff, Christman, was the guardian of his brother,</p> <p>Moses Christman, and, as a part of his estate, had in his hands the bond of Thomas B. Wright, one of the defendants, to which Armstrong and Martin, the other defendants, are sureties. At November Term, 1838, the said bond was by the plaintiff given up to the defendant Wright, who, at the same term, .executed and delivered'to the plaintiff his bond for the amount pf the first, without any surety, but executed a deed .of .trust, for a tract of land called Mount Airy, to one Jackson Williams, to secure to the said Christman the payment of the said last mentioned bond. At the time this second bond and the deed of trust'were executed, several judgments had been obtained in the County Court of Surry, of which Armstrong, the defendant, was clerk, and of the existence of which he was apprised, and under these, or some of them, Mount Airy was sold. Other judgments to a very large amount were obtained in other courts against the said Wright. At the time this arrangement took place, Wright was in the possession of a very large property, which, upon sale, produced upwards of $40,000, all of which was sold, and left Wright entirely insolvent. No part of the property of Wright was appropriated to the payment of the plaintiff’s debt or any part of it, nor did he make any effort beyond taking the deed of trust, to subject any portion of it to the payment of his claim. Moses Christ-man is dead, and the other plaintiff, Hayne, is his administrator. The plaintiffs charge, that Christman was induced to give up the bond, which he field upon the defendant Wright, malie the arrangement he did in November, 1828, through the fraud of the defendants, particularly of the depen(jant Armstrong; that he and Martin, becoming acquainted with the heavy responsibilities of the defendant Wright, and ■being alarmed for their own safety, conspired together with Wright, to induce him to give up the bond, in which they were sureties, and take the single bond of Wright, secured by the deed of trust; that Armstrong knew of the judgments obtained in Stokes and Rockingham, and also those in the County Court of Surry, and that the liens of the latter would overreach the deed of trust, and render it of no account to him; that Armstrong first proposed the arrangement to him, and, after much persuasion, he was induced to accede to it, from his tire confidence in the integrity of Armstrong, and of his knowledge of business, he himself being young and not much acquainted with business, and he asks that the old bond may be set up, and Armstrong be decreed to pay it, Martin being insolvent. -</p> <p>The defendants, .Armstrong and Wright, deny positively, that the arrangement was made by their advice or at their suggestion. The defendant, Armstrong, alleges, that, until Friday morning of Surry County Court, he had not any idea, that Wright was at all embarrassed; that he was a man of large property. At that court, judgments to the amount of $5,000 were entered up against him, and Wright told him, he expected to be pressed and sued, as well for his own debts as for those where he was surety, and that he must tell Christ-man to bring his bond to court, and they the obligors must confess-a judgment on it to Christman ; that, he accordingly did so inform Christman, who appeared not inclined to take a judgment, and, after some time, himself proposed, in the place of the judgment, to take a deed of trust on the Mount Airy estate. To this, he, Armstrong, positively refused his assent, observing, if he was to be held bound for the debt, a judgment must at that court be confessed by them all; that Wright was at first unwilling to give the trust, but yielded to the wishes of the plaintiff, Christman, who appeared to prefer the securityof the trust, to the personal security of the defendants, Armstrong and Martin ; and accordingly, at his instance, the arrangement was made, and the old bond surrendered up; that the Mount; Airy estate was worth at least $10,000. He denies that he had any knowledge at that time of the Stokes and Rockingham judgments against the defendant, .Wright; admits he knew of those obtained in the County Court of Surry; and avers, that, to his belief, the plaintiff, Christman, also knew of their existence, for one of them was-obtáined by him ; bul he avers that he had the utmost confidence in the ability of the defendant, Wright, to pay them out of the money he believed he had on hand, and out of debts due him. He alleges, that if the plaintiff, Christman, has lost his debt, it is by his own negligence; as, although the Surry judgments overreached the trust, yet he could easily have had the executions issuing on them levied on other property of Thomas B. Wright, of which there was an abundance, whereby the Mount Airy estate would have been freed from the lien and rendered available to discharge his claim. Whereas, he suffered those executions to be levied on it, and made no effort to relieve it, and suffered it to be sold ; and the balance of Wright’s property was sold to discharge judgments subsequently obtained. He further states, that in most of the judgments obtained at the November Term of Surry County County, the defendant Wright was but a surety to principals, who were themselves able to pay, or, in cases where he was co-surety with others; they were also able to pay ; and that he was well justified in believing that Wright would be able to discharge his liability without any sale of property. He denies that it was at his Suggestion, or that of Wright, that the arrangement complained of was made, or that either of them used any persuasion to induce the plaintiff 10 enter into it, or that he was guilty of any concealment whatever.</p> <p>The answer of the defendant, Wright, is very much in accordance. with Armstrong’s. He states, that, becoming uneasy about his circumstances, he was anxious to secure his sureties in the bond to Christman, and told the plaintiff and his sureties, that, ill ordet to secure them, they must all confess judgment on the bond ; and that he explained to Christman, why he wished it, and why it would be better for him, Christman/ tQ ta|,e tjie juc|g-ment than the trust, as he would thereby bind the property of all of them. But that Christman preferred the trust on the Mount Airy estate, taking his bond withó'fft a surety ; that at the time the arrangement was made, he was possessed of property, which was afterwards sold under exe-' cutions, most of them subsequently obtained, for more than $40,000. He denies all fraud or combination with the defen-' dants to induce the plaintiff to enter into the arrangement j but that it was his own voluntary choice.</p>

Cause transmitted from the Superior Court of Law of Meck- . lenbürg County, at the'Spring Term, 1S44. The facts of the casé appeared to be these.

•This was an appeal from an interlocutory order of the Court .pf Equity of Buncombe County, at the Spring Term, 1845, ,his Honor Judge Manly presiding, by which order it was directed, that the injunction granted in this case by a judge in the vacation, should be dissolved.

This was a bill filed in Anson Court of Equity, by one executor against a co-executrix for an account and settlement of the estate of their testator. It was referred to the Master to state an account, and the case now came before this court upon exceptions to the Master’s report. The matter of these exceptions is stated in the opinion here delivered.

Cause transmitted from the Court of Equity of Orange County, at the Spring Term, 1844.

This was an appeal from an interlocutory order of the Court of Equity, at the Fall Term1, 1844, his Honor Judge’ . Manly presiding, directing an injunction,- which had been1 granted1 by a Judge in the vacation, to be dissolved in part.

Cause removed from the Superior Court of Law of Caswell County, at the Spring Term, 1845, by consent of the parties. The bill states, that John Richmond died in the year 1841, having, in the year 1880, duly made and published his last willand testament, and which, after his death was duly proven, and letters testamentary granted by the proper court to the defendant Vanhook.

<p>A clerk of a court has no right to certify a record and thereby authenticate it under his private seal.</p> <p>A guardian bond is not a record, and, betore it can be read as evidence in any ease, it must be proved like all other bonds.</p> <p>Where a ward brings a suit in equity against the sureties of his guardian, all who have been sureties to that guardian, either in the fust or renewed bonds, should be made parties, that their respective portions of contribution for the delalcation of their principal may be adjusted by the court in one suit.</p> <p>The principle is settled, that, where the intention is manifest, a Court of Equity will always relieve against mistakes in agreements, as well in the case of a surety as of others.</p> <p>The ease of Armislead v. Bozman, 1 Ired. Eq. 123, cited and approved.</p>

<p>Cause removed by the consent of the parties from the Count of Equity of Mecklenburg County, at the Spring Term, 1845.</p> <p>This bill was filed to compel the defendant to convey to the' plaintiff a tract of land, therein described, alnd to enjoin him; from prosecuting a suit at law, brought to recover possession of it. The facts of the case are as follows : The plaintiff, intending to enter the land in que’stion, went, on the 17th of February, in the year 1842, to the house of the entry-taker, Who was absent, and applied to his wife to take from him an entry thereof. She at first refused, but, at length, made an entry upon the entry-takers book to that effect, and on the 8th June following, the plaintiff obtained a grant for the land. On the same day, and before the plaintiff procured this entry to be made, and with his knowledge,- the defendant applied to’ the entry-taker to enter the same land for him, and paid his fee, and the entry-taker promised so to do upon his return to his house, and which he accordingly did, and the defendant took out a grant, prior in date to the plaintiff’s. When the latter procured the entry-taker’s wife to make the entry for him, he handed her a paper describing the land, but it Was not signed by him, nor was it left at the house of the entry-taker, but was carried away by him and handed to that officer, about three weeks thereafter. The entry-taker proved, that his wife' had often taken locations for him, and that he had authorised her to enter them on his books in his absencej but that this was the first She had ever made,- and that when. he made the defendant’s entry, he saw the entry of the plaintiff made by his wife, and the defendant’s entry next to it. The defendant had brought an action of ejectment against ° . . the plaintiff, to recover possession of the land. An injunction was granted, and, upon the coming in of the answer, replica-' tion was taken.</p>

<p>Cause removed from the Court of Equity of Buncombe County, by consent of the parties, at the Pall Term, 1844.</p> <p>The following facts were disclosed 'by the pleadings and proofs.</p> <p>On the 10th day of November, in the year 1836, the defendant, for the consideration of $300, executed in writing, under his hand and seal, an agreement with the plaintiff, to make hjm a good title in fee to a tract of land of one hundred acres, more or less, it being the land which the defendant purchased of David Roberts, lying in Buncombe county, on the waters of flaw Branch. The purchase money was secured by notes of hand, payable in instalments in three years from the date of the agreement. It was, at the same time, by a separate instrument, further agreed by and between the parties, that Henry Wells was then to be let into possession, and to hold the place for three years, by paying 125 bushels of corn per ann.um as rent; “ but that the said 125 bushels of corn per annum is ¡to go to pay for the place at cash prices, if the,said Henry Wells pays for the place in three years ; if not, the annual payment of t'he corn is to be the rent, and the said Henry Wells is to give up the possession of the place to Robert P. Wells, with all improvements, &c.” The plaintiff in his bill states, that he has paid to the defendant and his assignees of the said notes, the principal money and interest; that the entire payment was completed in the year 1840 ; that he then called for a legal conveyance of the said land from the defendant, which he refused to execute. The prayer of the bill is for a specific execution of the said contract.</p> <p>The defendant in his answer, admits the written contract of purchase or lease as stated in the bill. And he further says, that the plaintiff failed to pay the notes within the three years; that, on the 11th day of November, 1S39, it was further agreed between them, that the payments which had been made should go as rent, and not as payments on the notes; and that it was then further agreed on, if the plaintiff would go on and pay off the said notes, independent of the rent already paid, that the' defendant would let him have the land, and execute a deed for the same, but he says that the consideration was intended to be $350, and $300 was by mistake inserted in the written agreement. There is a replication to the answer.</p>

Cause removed from the Court of Equity of Rowan County, at the Spring Term, 1845, having been set for hearing upon the bill and answer. The facts, being the same as those reported in the former Pase, are succinctly referred to in the opinion delivered in the present case.

<p>This was an appeal from the Court of Equity of Beaufort County, at the Spring Term, 1843, his Honor Judge Bailey presiding, overruling a demurrer, which had been filed by the defendant to the plaintiff’s bill.</p> <p>The bill alleged, that, sometime in 1836, one Hilen Godley died intestate in the county of Beaufort, possessed of some personal property; that at June Term, 1836, of the County Court of the said county,, letters of administration on the cstaie of the said Godley were duly issued to Henry Harding, defendant; that the said Godley, at the time oí his death, was justly indebted to the plaintiff in the sum of $97 97 cen[Sj anc¡¡ that, after the death of the said Godley, and the taking of the administration by the said Harding, the plaintiff sued out a warrant, returnable before a single magistrate, in his name as plaintiff, against the said Harding, as administrator of the said Godley, for the recovery of the said debt; that, on the trial of the said warrant, the administrator pleaded "fully administered,” when the plaintiff, having established his claim, the' justice gave judgment in his favor for the sum of $97 97 cents, with interest and costs, and returned the papers, as required by law, to the next Term of the County Court of Beaufort; that, at the said term, the said Harding pleaded “ fully administered,” when the plaintiff admitted the plea, and the judgment of tho justice was affirmed, and a scire facias issued against the heirs; that a judgment on this sci.fa. was obtained against the heirs ;.that executions issued on this judgment, from term to term, when the sheriff finally relamed, that the lands had been sold for $25, enough to pay the costs, but not enough to pay any portion of the debt; that there aro no other lands, descended to the heirs, on which an execution can be levied. The bill then states, that no portion of the said debt has been paid ; that, about the year IS40, a large amount of personal property, consisting of slaves, bonds, notes, money, &c. of the estate of the said Godley, came to the bands of the said Harding, as administrator, to be administered, and that he has now in his possession an amount thereof, more than sufficient to pay all the just debts of his said intestate. The bill then averred that the plaintiff had now no remedy at law against the said administrator, and prayed that he might, out of the assets, so received since the judgment at law, be decreed to pay to the plaintiff' his debt, $*c., and for further relief.</p> <p>To this bill a general demurrer was filed by the defendant, lor want of equity in the plaintiff, and, the judge below having ■overruled the demurrer, an appeal was, by leave of the rior Court, granted to this court.</p>

<p>This was an appeal, by permission of the court, from an interlocutory order of the Court of Equity of Sampson county,at the Spring Term, 1845, his Honor Judge Pearson presid-iog*</p> <p>The plaintiff states in his bill, that.- at the July Term of Duplin County Court, lie obtained a judgment against Dixon Sloan for the sum of $395, upon which an execution issued, and that no property of said Sloan, either real or personal, could be found to satisfy it.</p> <p>The bill then states, that Arna B. Chesnut, Ceorge W. Robinson, and David Murphy are, each, judgment creditors of the said Sloan, and that no property can be found, with which to satisfy them.</p> <p>It charges, that] Dixon Sloan being largely indebted, executions were duly issued, and were levied on certain negroes, whose names are set forth, and which, on the 19th of May, 1841, were sold by the sheriff of Duplin, when certain of them were purchased by the defendant Faison, and the remainder by Daniel C. Moore. On the same day, Dixon Sloan bargained and sold others of his si ayes to the said Faison, upon an agreement, that he, Faison, should convey the negroes purchased by him, at the sheriff’s sale, to David D.Sloan,oneof the defendants, in trust, for the use of Catharine Sloan, the wife of the said Dixon, during her life, and after her death, to the use of her children, the other defendants. This transfer, it is alleged, was made in fraud of the creditors of t]ie said Dixon, and to cover them from all executions against hirs.-the said Dixon.</p> <p>The bill further charges, that Dixon Sloan was indebted to divers other persons, and that John C. Moore, being his surety, a mortgage deed was, on the 20th July, 1841; executed by the said Sloan, conveying a number of negroes, to the said Moore, to secure and pay said debts: and that, on the 1st of April, 1842, the same Dixon Sloan, mortgaged by deed to the said John C. Moore, other certain negroes, for the purpose of securing another creditor. It then charges, that all the debt's, so secured by the said mortgage, were paid by the said Moore, by the sale of a few of the said negroes so conveyed. The bill prays, that the plaintiff and the said Arna B. Chesnut, Robinson, and Murphy, may have satisfaction in the first place, out of the negroes mortgaged to John C. Moore, which remain in his hands after discharging the debt» so secured : and if that fund should prove insufficient, then ottt of the groes conveyed to David D. Sloan, by Faison, in trust for Dixon and her children.</p> <p>To this bill the defendants severally demur, and for cause of demurrer say ; 1st. That Arna B. Chesnut; George W. Robiiison and David Murphy, are not parties to the bill, and yet, the plaintiff Parish, prays relief for them; and the 2nd. That Ih'e bill charges; that the sale, made by the sheriff of Sampson, Was fraudulent and void, as against the creditors of the said Sloan, as being made without consideration; though it alleges; tile sale was made, to pay debts due from him; and 3rdly. That the bill is multifarious in this, to wit, that it seeks to subject the eqüity of redemption, of said Sloan in the slaves, mortgaged to Daniel C. Moorfe, to the payment of the plaintiffs claim, and also the slaves sold by the sheriff of Duplin to William Faison, although the titles of the several defendants b the two sets of slaves have no connection whatever, and, the several defendants have no interest in comrfion, in the mat.ter in controversy. No more of the bill is set forth, than is -required to show the application of the several causes of demurrer assigned. The demurrer was overruled, and the defendants allowed an appeal to this court.</p>

The bill was filed in May, 1844, and a supplemental bill 011 ^e 15th of June, 1844.

Cause removed from the Court of Equity of Chatham county, by consent of the parties. The bill is filed to procure a division of certain property, bequeathed to the plaintiff, Eliza Alice, together with others, by the last will of Thomas Hill, deceased. By his will, Thomas Hill devises, as follows:í!

danse removed from the Court of Equity of Orange county, at the Spring Term, 1845, by consent of the parties. The following appeared to be the facts of the case, as presented by the pleadings and proofs: John McMurray became indebted to the Bank of the State of North Carolina, in the sum of $12,900, and, in July, 1837, gave a promissory note therefor, with William McMurray, one of the plaintiffs, John Barnett, the defendant, and one Samuel Mitchell, as his surelies.