Volume 39 — North Carolina Reports

<p>This was a petition to re-bear a decree made in this Court between the same parties, at December term, 1832, 2 Dev. Eq. 264. The Bill was for an account of the issues and profits of land, of which the plaintiff and defendant were tenants in common, the defendant having had the actual occupation. The defence was the Statute of Limitations. The Bill was filed in Granville Court of Equity, in February, 1829, and a partition had been made of the land held in common, in November, 1826.</p>

This case, after being set for hearing, was transmitted from Franklin Court of Equity to this Court, at June Term, 1837. Tbe plaintiff is the widow, and the defendant the administrator, of the late William Dunn, and the bill is. brought for the correction of an error in u marriage settlement, executed by the deceased, for the benefit of the plaintiff.

<p>Devises of real estate, by a parent to a child, are not to be brought Into hotch-pot with land not disposed of by the will, but the land descended is to be divided, as if that were the whole real estate, -of whic'h the parent had ever been seized.</p>

Cause removed from the Court of Equity of Chowan County. The case presented by the pleadings is this: Mary Bissell, by her will, made the following dispositions: “ i direct that my servant women, Molly and Maria, Maria’s two children, named Mary and John, arid three other children, Nancy, Priscilla and Lucy, all of whom are my property, be made over to the American Colonization Society, or to any individual authorised-by the American Colonization Society to receive them, on…

<p>A devise that land should be sold, and “ the proceeds laid out in building convenient places of worship, free for the use of all Christians, who acknowledge the divinity of Christ and the necessity of a spiritual regeneration,” is void for uncertainty.</p> <p>A devise to a religious congregation is valid, if .the Court can seo, with certainty, what congregation is intended.</p>

Transmitted by consent from the Court of Equity of Pasquotank County, at the Fall Term, 1845. At the Fall term, 1839, of the Court of Equity for Pasquotank County, Alphia B. Harrell, his wife and others, tenants in common of several tracts of land, filed their petition under the Act of Assembly, to have them sold for the purpose of partition.

This cause, having been set for hearing upon the Bill and answer, was transmitted, by consent of the parties, from the Court of Equity of Orange County, at the Pall Term, 1845, to this Court.

This cause, having been set for hearing, was removed by consent, to this Court, at the Fall Term, 1845, of Pasquotank Court of Equit3r. The present plaintiff and another persbn, who were tenants in common of a tract of land, filed their petition in a Court of Equity for a sale of the land for the purpose of partition; and a decree was made accordingly, a sale had, and the money paid into the office of the Clerk and Master.

Appeal front a decree of tke Court of Equity of Halt-fax County, at the .Fall Term, 1845, his Honor Judge Settle presiding. The case was as follows: A petition was filed in the Court of Equity, under the statute, for the sale of a tract of land, for partition among tenants in common. The sale was decreed; and when it was reported, the purchaser opposed the confirmation of it, upon the ground that the petitioners’ title was not good.

Cause removed from the Court of Equity of Pasquotank County, at the Fall Term, 1845.

<p>If a debtor, who is indebted to the same creditor on different accounts, does not make the application of a payment at the time such payment is made, be cannot do so afterwards.</p> <p>If the debtor fails to make the application, the creditor may do so at any timo afterwards before suit brought.</p> <p>Where neither debtor nor creditor makes the application of the payment, the law will apply it to that debt, for which the creditor’s security was most precarious.</p>

This cause was transmitted to this Court from the Court of Equity of Chatham County, at the Fall Term, 1842. The bill is filed by William Horton, against Edwin R. Horton, who was the guardian of the plaintiff, for an account. The facts are., that Joseph Horton was first appointed the plaintiff’s guardian by the County Court, and entered into a guardian bond, in which the present defendant and another person were bis sureties.

This cause was removed, by consent, from tbe Court of Equity of Bertie County, at tbe Fall Term, 1845, to tbe Supreme Court. The Bill set forth that, in the year 1838, the plaintiff, intermarried with Mary Johnson; that, previous to tbe said marriage, a marriage settlement was entered into by the said parties, in which the defendant was made a trus-tee.

The case appeared upon the pleadings, to be this : Moses Carter, of the County of Hyde, in the year 1835, made his will, and thereby gave to the defendant, his brother, all his real and personal estate, (amounting in value to about -$800, as the answer states,) “ with the exception of one hundred dollars, which I will to B. H. S. Liverman, (the plaintiff) to be appropriated to the use of schooling and educating the said Liverman, in that way and at that time, that shall…

This was an appeal, both by the plaintiffs and the defendant, from certain interlocutory orders made by the Court of Equity of Guilford County, at the Fall Term, 1845, his Honor Judge Dick presiding.

Cause removed from the Court of Equity of Hertford County, at the Fall Term, 1845. The facts of the case appeared to be these : On the 23d of August, 1821, Elisha Darden, of Hertford County, being entitled to a considerable estate, and aged and infirm, conveyed to Col. Carr Darden, of the same County, all his estate, real an$ personal, including therein twenty-two slaves.

Cause removed from the Court of Equity of Haywood County, at the Fall Term, 1845. The case, as far as .concerns the questions determined, in the Supreme Court, was as follows : On the 30th day of August, 1842, the plaintiffs made their entries, in the office of the entry-taker of vacant land in the County of Haywood.

Cause removed from the Court of Equity of Wake County, at the Fall Term, 1845, The bill states that the plaintiff kept a retail shop in Raleigh, and that a iad, by the'name… Held: for the use of the plaintiff, and that Farrow should be declared a trustee for him. The bill was answered, so as to put in issue the various charges of dishonesty by Farrow, and the fact that the land was paid for with money purloined from the plaintiff: and much evidence was read to those points.

The case made in the bill is, that the defendant is the executor of John H. Blount, and as such, sold Ms personal estate at public sale ; and that he procured one.

<p>Canse removed by consent from the Court of Equity of Guilford County, at the Fall Term, 1845.</p> <p>The Bill was filed to obtain a construction of the Will of James McMurray. By his Will, the testator, after giving to his wife some perishable property, bequeathes as follows :, “I also give and bequeath to her my negro girl Mary, to be enjoyed by her during her natural life, and at her death, I allow the said negro to be sold, and her issue, if she should have any, and the money arising from the said sale, to be equally divided among all my children that are then living.” At the time of his death, James McMurray left seven children surviving him, two of whom, to-wit, Jane, who intermarried with William Denny, and Polly, who intermarried with William Doak, died before the widow, the tenant for life. The plaintiffs are the children of Jane. The widow is dead, and tho Bill claims, that the plaintiffs, the children of Jane Denny, are entitled to one-seventh part of the proceeds of the negro Mary and her increase, as standing in the place of their mother, and representing her in the division of the property.</p>

The Bill charged that the defendant had been employed by them, as their clerk Snd agent in a certain store owned by them, in Surry County; that he had mismanaged their concerns wilfully and corruptly; that he had been guilty, in 'the course of his employment, of divers frauds upon them, which were specified; and, among other things, that he was in the habit, during such term of employment, of using his private funds in “ iniquitous, usurious” operations with their customers,…

The case, as presented by the pleadings, was this : On the 8th of April, 1834, the defendant, Bryan Jones, conveyed to the other defendant, Scott, sundry pieces of land, a stock of merchandize, and several slaves, including two, named llenry and John ; in trust to sell, and out of the proceeds of sale, pay a debt for $910, due from the grantor to his mother, Sarah Jones, and then to pay all the other debts of the grantor.

The following case was presented by the Rill and answers. The plaintiff, as the equitable assignee of a judgment for about #800, interest 'and costs, which had been recovered by Samuel Houston against William McGee in his life-time, issued an execution on the same, and indemnified the Deputy Sheriff of Duplin, (one Hussy,) to levy on and sell five certain slaves, as the property of William McGee, to satisfy said execution.

Cause removed from the Court of Equity of Person County, at the Fall Term, 1845, by consent of the parties.

Cause removed from the Court of Equity of Orange County, at the Fall Term, 1845.

<p>Cause removed from the Court of Equity of Warren County, at the Fall Term, 1845.</p> <p>The case as exhibited by the pleadings and process, was as follows:</p> <p>On the 31st day of January, 1843, the defendant, Mieajah T. J. Alston, by a deed, to which he and the defendants, Spencer H. Alston and Christopher B. Allen were parties, conveyed to the said Allen all his property, real and personal, consisting of eleven slaves, - which he owned absolutely and in severalty, oí a negro woman named Caroline, of wliom the said Micajah owned three undivided fourths, and the said Allen owned the other fourth, and of three other slaves, being a woman and her two children, which the said Micajah owned for the term of his life : The said effects conveyed, consisted further of all the said Micajah’s household and kitchen furniture, namely, 4 beds, bedsteads and furniture, a cradle and cradle bed, 2 tables, 1 press, 1 dozen chairs, looking-glass, disbes, plates, knives and forks, cups and saucers, pots, pans, and ovens, and six old trunks ; also, 3 head of horses, 8 head of cattle, 1 waggon, corn and fodder, 4 cows, and 21 pigs, and also the plantation on which Micajah lived, which he had leased for the year 1843, and a negro boy whom he had hired for the same period, and about 1,200 or 1,500 lbs, of bacon : upon trust to secure and pay certain debts therein recited to be owing from the said Micajah to the said Spencer, that is to say, one debt of $284 47, due by bond dated the 20th of July, 1841; one other of $54 34, due by bond bearing date the 15th of December, 1842 ; one other debt of $1,475 GO, by bond bearing date the 30th day of January, 1843, and payable one day after date; and one other of $408, or thereabouts, besides interest, due on a bond, given by the said Micajah as principal and Spencer as surety, to John II. Alston, which had then been due about a year ; with power and directions to the trustee, in case Micajah should fail to pay all those debts on or before the 1st day of March, 1843, at the request of Spencer, to sell the property to the highest bidder for ready money, having-first advertised the time and place of sale fourteen days, and out of the proceeds of sale discharge the expenses and debts, and then pay the surplus to Micajah or his order. Spencer H. Alston is the brother of Micajah and Allen his brother-in-law. '</p> <p>At the time of making the deed, the defendant, Micajah, was indebted to the plaintiff, Hawkins, on his bond. then due, for $500, the price of land sold him ; on which the plaintiff instituted suit, in which he recovered judgment in October, 1843, for the pi’incipal sum, and $36 for interest, besides costs. The plaintiff then issued a fieri facias, on which the Sheriff returned nulla bona to April, 1844 ; and thereupon, the plaintiff filed this hill against the said Micajah and Spencer, and the said Allen, and therein states that he cannot obtain satisfaction of any part of his debt, unless it be out of the effects so owned by Micajah and conve3red to Allen, and charges that the said conveyance was intended to delay and hinder him of the recovery of his debt, and prays that the same may be declared fraudulent and void against him, and that satisfaction may he decreed to- him out of the propeily, or out of the proceeds or value thereof in the hands of Allen and Spencer H. Alston. The bill charges, that the value of the property conveyed was more than sufficient to pay all the just debts of the said Micajah, if fairly disposed of; hut that Micajah declared, that he Avould never pay the debt to the plaintiff, and he executed the deed in question Avith the express intention to defeat the plaintiff, .and upon a contrivance between the three parties to it to encumber and cover all Micajah’s property with that A'ieAvAnd, as evidence thereof, the bill further charges, that the debts mentioned in the deed of trust were not due from Micajah to his brother Spencer, or, if s.ny part of them Avas due, it did not exceed one half the amount therein mentioned : And, furthermore, that in a short tóme after the deed Avas made, namely, on the 10th of April, 1843, Ayhile the plaintiff was prosecuting his suit, ¿he defendants proceeded to make a pretended sale of the property conveyed, at the residence ofMicajah,inthe country, without due notice, and Avhen but few persons were present; and that, at the sale, the defendant, Spencer, purchased all the negroes and the other property without competition, and for very low prices, much below the true value, and not amounting tq the debts recited in the deed. The bill charges, that the few persons, who were present at the sale, were induced not to bid by the belief, that the sale was a matter of family arrangement, and that such belief was produced by the contrivance and conduct of the defendants or some of them; and that in fact the defendant, Spencer, having no bid against him, purchased at his own prices, not exceeding one third of the value of the property, and that, notwithstanding such ruinous sacrifices, the said Allen did not suspend the sale, nor did the said Micajah request him to do so, but the sale proceeded upon a previous design of those parties, until the said Spencer bought every thing in, upon the terms mentioned. The bill further charges, that the purchases of the defendant, Spencer, were intended for the benefit of his brother Micajah and upon a secret trust for him, while the property should, at the same time, be covered from the claims of the plaintiff and his other creditors; and that, in fact, all the .property or nearly all of it continued in the possession and enjoyment of the said Micajah after the sale as before, during tbe year 1843, and that then the defendants Spencer and Micajah removed the slaves out of this State to parts unknown, and the said Micajah was preparing to remove himself and his family, and settling where the slaves had been carried. The bill further charges, that, if tbe said Spencer did not purchase wholly in. trust for Micajah, yet that he did so, as to all the property that might remain after Spencer should, by re-sales of part of it, or otherwise, be satisfied for the debt really due to him, if any; and that he has been thus satisfied and yet holds slaves, money and other things in trust for Micajah, to a greater value than the principal money, interest, and costs due to the plaintiffs. Tire bill then specially interrogates tbe defendants as to the several matters charged, and, particularly, what debts Micajah owed Spencer, when and how contracted, and upon what considerations respectively: why Micajah conveyed so much property, being all be had, to secure the debt, if any, to his brother, when much less than half of it was of value sufficient, if fairly sold, to pay the debts mentioned in the deed, even if the said debts were all just: what was the value of the several slaves and other property, what the said Spencer gave for them, whether the prices were not less than half the values, and how it happened that ho was able to purchase at such a great under value all the slaves and other effects : why Allen, the trustee, continued the sale, when he discovered the property was selling so great]}' below its value : whether the sale was thus continued with the acquiescence of Micajah, or whether he mo.de request to his brother or the trustee to defer the sale until better prices could be had: And whether, in fine, it was not intended, that Micajah should still have the enjoyment of the property purchased by his brother, or some part of it. and whether the purchase was not for the benefit of Micajah, citherin whole or in part.</p> <p>The defendants answered together. Allen, the trustee, states that he had no interest in the subject matter of the controversy, and that he was merely trustee; that he sup • posed the debts mentioned in the deed to be true debts, «and that, after due advertisement at several public places, he made the sale, for the purpose of satisfying those debts, upon the terms prescribed in the deed. All thcdefendants state that it was conducteS in the usual manner of sales to the highest bidder for ready money, and fairly, and without any attempt by any or either of them to prevent competition or induce other persons not to bid. They annex to their answer an account of the sales of the property, from which it appears that tlio defendant Spencer purchased every thing that was sold, at prices, which amounted in the whole, to the sum of $1,740 50. The price of a woman Hester and her child was, for example:, <$250 ; that of a boy Trim, $22 ; that of three-fourths of Caroline, $150 ; that of a boy George, $50 ; those of woman Grace and her two sons, for the life of Micajah, $125 ; and those of other negroes in proportion. The prices of four beds, bed-steads and furniture, amounted to #17 50 ; of a wagon and harness, #10 ; of three horses, #15; and 8 head of cattle, #10; and of 500 lb. of bacon $20. The answers admits, that the prices, might be something below the value of the property, but not so much below it as is charged in the bill.</p> <p>The defendants. Mieajah and Spencer, state, that the debts from the former to the latter were due upon bonds, as described in the deed ; and that said bonds were exe • euted in part for moneys advanced by said Spencer, at different times, cither as loans to said Mieajah, or to pay debts for him, or for debts for which the said Spencer was bound as surety for Mieajah; all of which they aver were justly due and remained unpaid at the time of executing the said deed of trust. They further answer, that the conveyance was made with the view'' of certainly securing the payment of those debts, and not to cover Micajall’s property or to defeat the plaintiff or any other creditor : And they deny that Spencer purchased any part of the property, upon any secret trust, or otherwise, for •the use or benefit of Mieajah, or that there was any agreement or understanding to that effect, either when the deed was executed, or at the sale, or at any other time ; and they say, that Spencer purchased bona'fide for his own use and benefit alone, and that the defendant, Spencer, is under no promise, nor in any way bound, in ¡consequence of his purchases, to render any aid or assistance to his brother Mieajah, but that such aid and assistance as he may render him, will be voluntary op his part.</p> <p>Replication was taken to the answer, and the parties proceeded to proofs. It was sufficiently established, that notiee was given of the time and place of sale as required in the deed; and that the whole sale took place at the residence of Mieajah Alston, jn Halifax, and was attended by about five and twenty persons, among whom were three persons, Mr.» Bachelor, and Mr, Marcus A. Allen, and Mr. J. N. Faulcon, who 'were creditors of Micajah Alston — of whom the former has not, and the two latter have been, examined in the cause. One or two low bids were made during the sale by other persons, but there "was no serious competition against Spencer Alston for any thing, and he purchased all at the prices specified in the account of sales set forth in the answer. Pour or five witnesses, who wore at the sale, say that they saw nothing unfair in conducting it, and that the articles were exposed and cried openly and sufficiently, and that there were some persons present, who pursued the business of buying and selling slaves, and that no persuasion or other means were used by either of the defendants, as known to or discovered by the witnesses, to induce any person not to bid. Two witnesses for the plaintiff state, however, that an impression prevailed in the coftipany, that the property was to be purchased, in part at least, for the benefit of Micajah Alston, and one of those witnesses, Marcus A. Allen, says that was his own impression, produced from the manner of the sale, and from the declaration of Micajah to him, “ that he might rest satisfied; for that, notwithstanding the sale, his debt should be paid” — which prevented him from bidding. All the witnesses state, that the properly sold very low, and several of them say, for not more than half price. W. Skinner, a witness for the defendants, deposes that he was present at the sale, and that, as far as he is a judge of sales, this was fairly conducted. But he says the negroes sold very low; that, before he left the place, he gave Spencer Alston $337 50 for 3-4-ths of Caroline, for whom the latter had given that day $150 ; that the negroes, to which Micajah was entitled in severalty and absolutely, were worth $2,050, and that the woman and two boys (of whom one was 13 years old,) to which he was entitled for life, were worth $800, if he had owned the absolute property; that Micajah continued in possession of all the negroes and other property, except Caroline, until the latter part of the year 1843, when Spencer Alston sold to the witness, Hester and her child, at the price of $500, and the boy Trim at the price" of $400, and sold another woman and child to some other person, but at what price be did not know ; and that he sent the remaining negroes, excépt one, to the South, by John Alston, a brother of the parties, and that one was taken by Micajah. who also removed from this State, but to what parts the witness does not know.</p> <p>The defendants also offered evidence of the debts mentioned in the deed of trust. That, to John II. Alston is admitted by the plaintiff, and appears to have been due .on a bond for $404 80 dated 19th October, 1841, given by Micajah and by Spencer as bis surety, and to have been paid by Spencer, June 13th, 1844. The defendants further proved three bonds given by Micajah to Spencer, of the dates and for the sums mentioned in the deed. Neither of them has a subscribing witness, and the proof is by tlae band writing of the obligor. It is established that the defendant, Spencer, on the 9th of March, 1841,'gave his bond to Yarborough and Perry for a store account or bond of $239 83, which Micajah Alston owed them, and that he paid it in August following. It is stated by several witnesses, that Micajah was a younger brother of the defendant Spencer, and that he made Spencer’s iiouse his home for about four years, from 1834 to 1839, except about one year, during which he was absent in Mississippi in 1837 or 1838, and that, just before he set out on that trip, he purchased a horse from Spencer at the price of $150 j and that in 1841 or 1842, after Micajah’s marriage, he purchased a horse from another person at the price of $175, to discharge which his brother Spencer advanced $75, and gave his note for the residue, as Micajah told a witness. It is also stated by two or three witnesses, that Micajah Alston said, that, when he wanted money, he was in the habit of applying to his brother Spencer and that he supplied him, and that sometimes Micajah said, he owed his brother a large debt and then would deny that he owed him much.</p>

The following case was presented by the pleadings: The plaintiff charges, that, in February 1839, he and one David E. Bowers, his partner, became indebted to the mercantile firm of A. Y. Walton and J. W. Y. Walton, of Charleston, South Carolina, which was conducted in the name of J. W. Y. Walton, and gave the note of the firm for the amount, to-wit, 1344 65.

<p>Cause removed from tbe Court of Equity of Davie County, at the Pall Term, 1845.</p> <p>The plaintiff was indebted to Christian Sheek in the sum of #2000, for which Thomas Foster was surety; likewise to several other persons in considerable sums, for which Foster and James F. Martin were his sureties, or one of them was ; and to Foster himself in the sum of #500, and to Martin in the sum of #250, and to other persons. Being so indebted, he executed on the 4th day of May, 1840, to the defendant, Thomas S. Martin, an assignment of all his property, in trust to secure, and, by a sale, to pay, the debts above mentioned. Among the estates conveyed was Nail’s “ interest in a lot and steam saw-mill in Mocksville,” which was subject to an encumbrance for the debt to Christian Sheek. Thomas Foster was at that time Sheriff of Davie County, in which the parties lived.</p> <p>The bill was filed in April, 1842, by Nail alone, against Martin, the trustee; and, as far as it is legible and intelligible, it purports to state, that, at the time of executing the deed, there were a considerable number of judgments and executions against Nail, in the hands of certain constables, and also of Foster, the Sheriff, which had a lien on the property, preferable to the deed ; that some of those executions were for some of the debts mentioned in the deed; and that, by sales thereon by the constables and the Sheriff, the whole of the property conveyed was disposed of, (except the lot and steam sawmill,) and thereout the whole of the executions satisfied, and that a surplus of the proceeds of those sales remain - ed in the hands of Foster’, as Sheriff, amounting to #218. .The bill further states, that on the 24th of August, 1840, the plaintiff, with the consent of the defendant, sold to John Sheek his interest in the lot and saw-mill, for the sum of $38'4 33, over and above the encumbrance of C. Sheek; and that, for that sum, John Sheek then made his noté to the plaintiff, and he delivered it to the defendant, who accepted it as a part of the trust fund, instead of the lot and saw-mill; that the defendant allowed Foster to use the note, in a settlement between him and John Sheek, of their own accounts, upon an agreement by Foster with the defendant, who was then a clerk in a store of Foster, and his agent, that he, Martin, might take that amount and the other sum of $218, held by Foster, out of the store or any funds of Foster’s In his hands ; and that he accordingly did reimburse himself, or that, if he did not, he was guilty of gross negligence in not doing so. The bill further states, that, although the debts, that were in judgment and execution, were all satisfied, yet several others remain unsatisfied ; and that, after applying thereto the effects in the defendant’s hands as aforesaid, or that ought to' be in his hands, ther# will be a surplus resulting to the plaintiff. The prayer is, that the defendant may come to an account of the sums due upon the debts mentioned in the deed, of the funds in his hands or that ought to be, and that they may be applied, in the first instance, to the balance due on the debts, and the residue be decreed to the plaintiff.</p> <p>The answer states, that the deed of trust was arranged between the plaintiff and Thomas Foster, who was chiefly interested in it, as the principal creditor and surety of the plaintiff; and that the defendant was not privy to it, until it had been prepared and he requested to execute it, as a formal trustee, upon the promise of Foster- and the plaintiff, that it should give him no trouble. It states that, in point of fact, no part of the property was ever in the defendant’s possession or power; for that, when the deed was executed, all the property was subject to executions, under which it was sold and exhausted, except the sawmill and lot, and that the defendant knew of no surplus, of the proceeds of those sales, being in Foster’s hands after satisfying the executions.</p> <p>With respect to the sale of the lot and saw-mill, the answer states, that the plaintiff and Foster informed the defendant, that they could make an advantageous private sale of it to John Sheek, which would extinguish C. Sheek’s large debt, for which Foster was bound, and they requested the defendant to come into the arragement; and that he replied that he had no objection, if all the parties, who were interested, desired it; that thereupon the plaintiff and Foster made the sale, as they informed him, to their satisfaction, and the defendant had nothing to do with it, and supposed the price paid and applied properly by those parties, and never suspected to the contrary, or heard of the note of John Sheek for $384 33, until after November 1840 ; that in November 1840, Foster executed to the defendant an assignment of his stores and other property, in trust to pay specified debts, far beyond the value of the effects; and that, sometime after-wards, the plaintiff and Foster brought to him Sheek’s note for $384 33, cancelled, and informed him, that it had been given for the saw-mill, and that the money on it, had been, by the consent of the plaintiff, paid to Foster, and that Foster (who had become insolvent) wished, if he could, to secure it, or as much of it as exceeded the debts to Foster, for the benefit of the plaintiff’s trust fund; and to that end Foster then agreed to place in the defendant’s hands, notes and accounts, not included in his previous assignments, to cover the amount that might be due from him in respect of Sheek’s note. The answer states, that the defendant was desirous of securing in that way, debts which Foster owed to him, and also this trust fund, which the plaintiff had improperly allowed Foster to misapply; and that he endeavored to obtain from Foster an assignment of debts for those purposes, according to his promises ; that Foster did deliver to him some notes and accounts for his own debts, which nearly all proved worthless ; and also other notes and accounts on account of the debt he might be found to owe by reason of Sheek’s note ; that the defendant immediately brought suits thereupon, .and that upon the trials, judgments were rendered in nearly every case, against the plaintiff, upon proof or Foster’s acknowledgement of payment; so that not enough was recovered on them to pay the aggregate of the costs on them. The answer finally insists, that the defendant Is not answerable to the plaintiff in respect to Sheek’s note, as the transaction was that of the plaintiff himself and not of the defendant; and that if he would be liable under any circumstances, he is not under those existing, because he has never received any effects under the deed, and, also, because there are balances due to the creditors provided for in the deed, besides Foster, to a larger amount than the bill claims as the surplus due from Foster on both parts of the case.</p> <p>The answer then offers, that, if the plaintiff thinks it worth his while and will indemniiy the defendant against the costs, he may prosecute a suit against Foster or any other persons he may elect, in respect of any of these' claims, and submits, that, as he has no funds and Foster and the' plaintiff are both insolvent, he is not bound to bring any such suits without an indemnity.</p> <p>The plaintiff examined several witnesses. One is John Sheek, who says, that when he purchased the sawmill, he gave his note to the present plaintiff, who delivered it to Foster, upon an agreement between them, that Foster should account for it upon the settlement of Nail’s trust. The witness says he afterwards paid Foster the note, and heard Foster tell Martin, that he, Foster, was to account for the note upon the trust.</p> <p>James S. Martin states, that he heard the plaintiff several times state to Foster, that he had more money in his hands, than he had claims to cover, and request a settlement; that Foster became utterly insolvent in the summer of 1840, and executed an assignment before November Court in that year, which, however, will not yield the creditors a dividend of more than fifteen cents in the dollar, and that the defendant could not have recovered any thing from him, by a suit brought after May, 1840 ; that, after Foster made his assignment, the plaintiff and Foster came to a settlement, on which, with the assistance of the witness, they found the balance due from Fester to the trust fund to be $216; and that there is still due upon the debt to the witness, and on those for which he is surety, provided for in the deed, about the sum of |800.</p> <p>A witness proves, that the defendant held a bond given by the witness to Foster for $170, which the defendant told him Foster had transferred to him, in part of a debt which Foster owed the defendant for wages on his own account.</p> <p>Another witness, who is a constable, proves that the defendant placed in his hands a number of notes, payable to Foster, with directions to warrant on them, in the , name of Foster, to the use of Martin, as trustee for Nail; that he did so, but failed in nearly every one by proof of settlements, and that he did not collect on all enough to pay the costs of the warrants dismissed at the plaintiff’^ costs.</p>

Cause removed from the Court of Equity of Beaufort County, at the Spring Term, 1845. The following case was presented by the pleadings:. Joseph W. Guilford made his will in the year 1837, and' thereby appointed tbe plaintiff his executor, and died in the year 1840. The widow of the testator dissented from his will and has since married Lewis. The testator left a son (G. W. Guilford) who is unprovided for, and was born after the making of his father’s will.

<p>Where a contract is shewn to be grossly against conscience, or grossly unreasonable, ns that the price given bore no proportion to the real value of the property conveyed, this may, with other circumstances, authorize the interference of a Court of Equity.</p> <p>But where these circumstances are not proved, and no complaint ¡s made by the party, now alleging that he was circumvented, for more than twenty years after the contract was entered into, the Court will not interfere, to set aside the contract.</p>

<p>Cause removed from the Court of Equity of Lincoln County, at the Spring Term, 1845.</p> <p>The Bill is filed for the purpose of obtaining from the Court directions to the plaintiff, how to distribute property in his hands, which he holds as representing Alexander Moore, deceased. Alexander Moore, by his wall, gave to his wife, Elizabeth Moore, considerable property, both real and personal, during her life, and, at her death, to be disposed of as she might think proper, among her children. Elizabeth Moore, by her will, gave a certain portion of the property, so devised to her, to the children of her deceased son, James Moore, naming them. The plaintiff is the administrator with the will annexed of Alexander Moore, and he may be the executor of Elizabeth Moore, though it is not stated in the Bill, nor is her will exhibited. The Bill then states, that, after selling a large portion of the personal property, preparatory to dividing it among those who were entitled, he was “ by some of the legatees ordered to pay over none of the legacies or bequests, &c.” ; “ that some of the negroes are claimed by Margaret Moore, relict and widow of James Moore, dec’d. who is the guardian of the children of A. Moore, dec’d. The other children claim that the negroes shall be sold and divided among the other children of Alexander Moore“ that James Moore and William Moore, sons of A. Moore, died after thé making of the will and before the testator. William left five children ; and John Moore died many years before, leaving” ;— with a space, to insert, as we presume, the names of his children, but setting out none. The Bill then proceeds: “ Robinson Moore is still living, Alexander is still living, John Rhinehardt married Ann, Michael married Polly, since dead; William Scott married Rosanna, both dead; they left issue William Scott, who died without issue. Alexander Rankin married Elizabeth, still living” — not stating the period when any of the foregoing died. The Bill then prays, that '• the proper parties may be made defendants, and if there are others than those set forth, they may be made parties, &c.” — “ that the clerk may be ordered to issue his State’s writ of subpoena to the proper defendants, &c.” Answers were filed by several persons, and replication taken, and the cause set for hearing.</p>

<p>A Bill of discovery does not ask relief, but, generally, only seeks the dibcovery of facts, resting in the knowledge of the defendant, or of deedd or writings in his possession or power, in order to maintain the right or till? of the party asking it, in some suit or proceeding in another Court.</p> <p>"Where, a verdict has been recovered at law, the defendant in that action cannot have relief in Equity, upon the ground that he can now produce cumulative proof as to the facts on which his defence rested at law.</p>

Case removed from the Court of Equity of Cleaveland County, at the Fall Term, 1845. In 1832, Peter Mauney was seised of the land in fee, which is the subject of this controversy, and contracted to sell it to the defendant, Leguire, who went into possession. Leguire did not pay any part of the purchase money, and Mauney brought an action of ejectment against him in Rutherford Superior Court.

Cause removed from the Court of Equity of Wayne' County, at the Fall Term, 1845, The following is the case presented by the pleadings and proofs: In the year 1817, Edward Sasser, who had married a daughter of Benjamin Howell, gave to the latter 'his bond for #415 77, payable two days after date. In November, 1828, Benjamin Howell made his will, and died in 1829.

<p>A testator devised to his wife a large real and personal estate, and then directed as follows: i( It is my wish that my widow and cousin Barbara Richardson should continue to keep house together \ but should they not, 1 wish my executor to pay over to cousin Barbara Richardson $1,000, or that amount out of the property left my wife.” The parties continued to live together until the death of the widow. Held, that, on the happening of that event, B. R. was entitled to receive the legacy of $1000.</p>

<p>Cause removed from the Court of Equity of Lincoln County, at the Fall Term, 1845.</p> <p>The following is the case :</p> <p>The bill is filed against Andrew Motz, President and Stoclc-holder of the High Shoals Manufacturing Company, against Samuel R. Simpson, Eli Hoyle, and John Motz, Directors and Stock-holders, against Michael Hoke and I-Icnry W. Burton, Executors of Robert H. Burton, dec’d. and against Henry Fullenwider. It charges that Robert-Ii. Burton, dec’d, had been President of the Company, and, while so, by virtue of the authority of his office, and various resolutions, passed by the said Company, for and on behalf of the Company, made a contract with the defendant Henry Fullenwider, to furnish them with a certain quantity of ore, for the use of their furnace. It alleges, that although the contract was made with Henry Fullenwider, yet, in fact and truth, it was made between tbe company and Fullenwider and tbe plaintiff, he being a partner with Fullenwider, equally interested with him in-the contract, and entitled equally with him to all its benefits ; and this was well known to Robert H. Burton, anti to the Company, who recognized him as such.</p> <p>The bill then sets forth that a great quantity of ore was raised and delivered by him and Fullenwider, and upon the death of Robert PI. Burton and the appointment of A. Motz as President of the Company, he demanded a settlement of accounts arising under the contract set forth, and the payment to him of his share of what was due to him, but that his demand has been.refused, on the ground that the contract was made by the Company with Henry Fullenwider, and that they had claims against him, to an amount equal, or more than equal, to what was due on the contract for' the ore. Fullexiwider is entirely insolvent. The bill further alleges, that he obtained from Fullenwider orders upon the Company for the sum of $600, which were presented to A. Motz, the President, who said he could not accept them without consulting M.’ Hoke, and that they were returned to him, and he claims them as equitable assignments, which the Company arc bound to pay.</p> <p>The answers admit the contract with Fullenwider, but, deny that the plaintiff was any party to it; admit the-plaintiff did assist in raising and delivering the ore, but. not under any.-contract with the Company; and if he was interested, it was in consequence of some subsequent agreement with Fullenwider; and allege that Fullenwider is indebted to the Company to the amount of what they owe under the contract; but, if, upon a final settlement between the Company and Fullenwider, it should be found any thing is due to him on the contract, they are willing to' pay it over to the plaintiff.</p>

<p>A Court of Equity will not interfere to enforce the performance of a contract, after the lapse of forty yoars from tho time when it should have been executed.</p>

Cause removed from tbe Court of Equity of Mecklenburg County, at the Fall Term, 1845.

<p>Cause removed from the Court of Equity, of Davie .County, at the Fall Term, 1845.</p> <p>The following case was presented by the pleadings.</p> <p>The plaintiffs are tlie infant children of Claudius B. Wheeler and Anne his wife. They sue by their.next friend, and state in their bill, that their maternal grandfather, Nathan Chaffin, made a deed of settlement, for their benefit, in the following words, to-wit:</p> <p>State of North Carolina, Davie County. December 27th, 1838.</p> <p>' Know all men by these presents, that I, Nathan Chaffin, of the County and State aforesaid, have this day given to the children of my daughter, Anne J. Wheeler, which she now has-or may hereafter have, the following slaves, viz ‘. Sam,” &c. (naming them) “ which slaves are to remain in possession of my son-in-law, C. B. Wheeler, and his wife Anne J. Wheeler, to their own proper use, until the eldest child gets married, or arrives at the age of twenty-one years, for boarding, clothing and tuition of the said children, Avhich is to be agreeable to the property which they may have. _ And then the above slaves and increase to be equally divided bctAveen said C. B. Wheeler, his wife Anne J. and said children, so as for tlie said C. B. Wheeler and his Avife Anne J. to have a child’s part of said property, which they are to have, hold and possess, as long as they shall live ; and then to descend to the children of the said Anne J. Wheeler; and the said C. B-Wheeler and his wife Anne J. are to deliver each child’s part of the property to each child, when they get married or arrive to the age of twenty-one; and if all the children should die without having a ehild or children, then, after the death of the said C. B. Wheeler and his Avife Anne, the property to revert to my estate and be equally divided between my children, N. S. Chaffin, Elizabeth Chaffin and Mary W. Taylor, or their children after their death, which slaves I warrant and defend the title unto the above persons above expressed. If the said Anne J. Wheeler should have a child or children, after the division of the slaves, as above expressed, then the children, that have received their property allotted them, in the division as above, shall pay over to those born after the division, as above expressed, so as to make all the children of the said Anne J; equal in property.”</p> <p>'Which instrument was properly executed by the grantor, attested, proved and registered.</p> <p>The Bill goes on to state, that their father, C. B. Wheeler, became much indebted ; and under judgments and executions against him, certain of the slaves, covered by the above deed of settlement, were sold by the Sheriff as the property of their father, when their maternal uncle, N. O. Chaffin, became the purchaser ; that he has since made a conveyance of the said slaves to Giles Pearson, in trust for certain of his creditors. The plaintiffs further state, that Pearson is about to sell the said slaves,, to satisfy the trust; and that they are apprehensive that some person may purchase them, and remove them beyond the jurisdiction of this Court. And the plaintiffs further state, that their father has conveyed five others of the said slaves to William Locke, in trust for the benefit of certain other of his creditors ; and that Locke is about to sell the said five slaves; and that they are apprehensive the purchasers will take them beyond the limits of the State. The plaintiffs, in their bill, insist that their father was only a trustee unde]- the above deed of settlement, for their use and the use of any subsequent born children of their mother, and that he had no interest in the said slaves to convey to Locke, or that was subject to be sold by the Sheriff for his debts. The plaintiffs, in their bill, pray that the trust fund may bo secured for their benefit; and that the defendants may be enjoined from making absolute sales of the entire interest in the said slaves ; and also for general relief.</p> <p>Writs of injunction were granted, and, on the answers comiug in, the injunctions were ordered to be continued to the hearing. The defendants have answered, and they admit that the complainants are the infant children ■of Claudius B. Wheeler and Anne his wife. They admit that Nathan Chaffin executed the deed of settlement mentioned in the bill; and they insist, that, by the said deed, C. B. Wheeler had an estate for life in the slaves therein mentioned. They admit all the other material facts and charges, as set forth in the bill. But Locke and Pearson say, that they only intend to sell such interest in the said slaves conveyed to them in trust, as C. B. Wheeler had under the said deed of settlement ; which, they are advised, is for his life-time. They, however, submit to any decree the Court may deem right. The case was set for hearing on the bill and answers.</p>

Cause removed from the Court of Equity of Henderson County, at the Fall Term, 1845.

<p>A Rill should contain a statement of the title of the plaintiff and defendant, so that the pleadings may shew the titles claimed by the parties, without lao'king for it in the evidence alone.</p>

This cause, having been set for hearing, was transmitted to this Court from the Court of Equity of Wake County, at the Spring Term, 184G, The pleadings presented the following case : In November 1798, Joseph Peace and the defendant, William Peace, entered into co-partnership as retail dealers in dry goods and other merchandise, in Raleigh, and carried on their business actively and prosperously until the year 1832, when their stock of goods and shop were burned.

This was an appeal from certain interlocutory orders made in the course of the proceedings on this petition in the Court of Equity of Beaufort County, at the Fall Term, 1843, his Honor Judge Pearson presiding. The following are the facts of the case presented to this Court. Daniel Latham was duly found to be a lunatic. He had a wife and some children, and was deeply involved in debt. The Court appointed the petitioner, Thomas Latham, to be his committee.

This was an appeal from a decree of the Court of Equity of Anson County, at the spring term, 1846, his 'Honor Judge Dick presiding, by which decree a demurrer, which had been filed by the defendants to the plaintiff’s bill, was sustained and the bill dismissed with costs.

<p>Cause transmitted by consent from the Court of Equity of Halifax County*' at tbe Spring Term, 1848. '</p> <p>' This is a bill filed by the plaintiff, as administrator with the will annexed of Rebecca Hill, to obtain a construction by the Court of certain clauses in the will. The points presented are stated by the Chief Justice in delivering the opinion of this Court.</p>

<p>This was an appeal from a decree of the Court of Equity of Wayne County, at the Spring Term, 1846, his Honor Judge Manly presiding, by which decree a demurrer filed by the defendants was sustained and the plaintiff’s bill dismissed.</p> <p>Charles Croom, the elder, died in Wayne county, having first made his will, and therein, amongst other things, bequeathed as follows: “ I give and bequeath to my five sons and daughters now in the Western countries, viz; Charles Croom, Isaac Croom, Nancy Coor, Sarah Cook, and Jemima Hollowel,to them I leave fifteen negroes, by name, Will, #c. Those fifteen negroes, I give to be theirs at my death and my wife’s, either to divide the negroes or sell them and divide the money equally — these I give to them with all the further increase. I hereby appoint my son Charles as .guardian to daughter Nancy Coor. The legacy I leave her is to be free and clear and independent of her. present husband, Thomas Coor, or in any wise not to be subject to his debts, engagements, or control but to be wholly under the management of the guardian, Charles Croom, to act with it as he thinks best for her profit; and, at her death, all the negroes or other property arising from them to go to her six children Charles, Thomas, &c.” Mrs. Croom, the testator’s widow, died in February, 1844, and thereupon a division of the negroes was made and a share allotted for Mrs. Coor and her children, and delivered to an agent for Mrs. Coor and her brother, Charles Croom, who were residents of Tennessee. After that had been done, John Wright had the negroes, that had been allotted as Mrs. Coor’s share, seised under original attachment against the husband, Thomas Coor, and they were afterwards sold on the execution and purchased by Wright, who had notice of the provisions of the will of Charles Croom the elder, and of Mrs. Coor’s claiming under it, but yet took the negroes into his, Wright’s, possession, claims them as his own and refuses to deliver them either to Mrs. Coor or to Charles Croom for her.</p> <p>The bill is filed by Charles Croom and by Nancy Coor by the said Charles, as her next friend, and by Mrs. Coor’s six children against Wright and Thomas Coor, the husband, and, after setting forth the foregoing facts, states that it was the intention of the testator, in that clause of his Will, to vest the legal title of one-fifth of the negroes in the plaintiff Charles Croom, for the separate use of Mrs. Coor during her life, clear of her husband’s control, and after her death in trust for her said children ; but that the plaintiffs are advised, that the terms used by the testator are so vague and inapt as not to pass the title to him, oí-, at the least, that it is doubtful whether lie, C. Groom, can maintain an action at law for the slaves, and that it is thereby rendered necessary for the plaintiff to apply to this Court, to have the rights of the parties under the will declared and secured by proper conveyances.</p> <p>The defendant, Wright, put in a demurrer for want of equity, which, upon argument, was sustained, and the plaintiff appealed.</p>

Cause removed from the Court of Equity of Person County, at the Spring term, 1846. The following facts appear from the pleadings. Henry Baily died in the year --having made and published in writing his last will and testament, which, after his death, was by thé surviving executor, James Drumright, one of the plaintiffs, duly proved before the proper tribunal.

Cause transmitted from the Court of Equity of Davie County, at the Spring Term, 1845.

This cause was transmitted by consent from the Court of Equity of Halifax County, at the Spring Term, 1846.

Cause transmitted by the Court o-f Equity of Guilford County, at the Spring Term 1846, to the Supreme Courts, by consent of parties, the cause having been set down for bearing upon the bill, amended-bill, answer and amended answer. This is a bill for dower, filed by the widow of the late Absalom T, Humphries, and by her second husband. against the devisees of the first husband and others.

<p>Cause removed from.’ the Court of Equity of Northampton County, at the Spring Term 1846.</p> <p>The following appeared, from the pleadings and proofs,, to be the facts of the ease.</p> <p>In October, 1836, Samuel Spruill was appointed the guardian of Robert Cannon, an infant. He gave bona in the sum of $15,000 with tbe plaintiffs as Ms sureties, with three other persons, who have since beeome insolvent or removed out of the State. In a few days Spruill received about $3,500 for his ward; and on the 8th of March, 1837, he took from one Junius Amis a bond for the sum of $1,758 12 1-2, payable to Samuel B. Spruill3 “ guardian of Robert Cannon,” and bearing interest from’ date. Spruill was indebted to the defendant, Bowden, on notes for about $1,200, and, upon being required to make payment, he agreed to let Bowden have the bond of Amis at 10 per cent, discount, in discharge of his notes to Bow- » den as far as they went, he, Spruill, receiving the difference, between seven and eight hundred dollars, in cash. Upon this agreement, Spruill endorsed the bond in blank and delivered it to Bowden, who afterwards received the money from Amis. Spruill was known to be embarrassed, and afterwards became insolvent and was removed ; and the succeeding guardian sued him and the present plaintiffs on their bond, and recovered judgment in February, 1842, for $G,211 22, which the plaintiffs have nearly paid. The plaintiffs then filed this bill against Bowden, Spruill, and their three co-sureties, praying that Bowden may be compelled to account for the money received from Amis, and apply it, as far as necessary, in satisfaction of the sum still due the ward on the judgment. and the residue to reimbursing to the plaintiffs the sum paid thereon by them. The bill states that the money, for which Amis gave his bond, belonged to the infant Cannon, and that Bowden knew that fact when he took the bond, and that, in truth, the bond was the property of the ward.</p> <p>Bowden answered and stated, that he did not know or admit, that the bond of Amis was given in consideration of money or effects, belonging to Robert Cannon ; and, if such -was the fact, he denied, that he had such knowledge, at the time he purchased and paid for the said bond. “On the contrary,” he says, “he then believed that the bond was the property of Spruill, and that he was well-authorized to sell and dispose of the same. It is true, the bond was payable to said Spruill, as guardian of Robt. Cannon, on its face; but it is, as this defendant hath understood, a frequent practice of persons, who are guardians, to take bonds for their personal claims in the same way, and that was, as this defendant had understood from the said Spruill, the practice pursued by him. Besides, the bond was executed by but one obligor, and the defendant knew that, by law or uniform custom, guardians take sureties for money due their wards. If the face of the bond be sufficient in law to charge him with notice, that it was the property of the ward, he must submit to be thus charged; but no such notice was in fact conveyed to this defendant thereby, nor did he have, such notice from any other source.”</p> <p>The defendant proved by a witness, that he enquired of the witness, what the circumstances of Amis were, and was told by him, that he was then surety for others, and the witness also stated, that, on the same day on which the defendant got the bond, Spruill wanted to sell it to him, and that the witness asked 12 1-2 per cent, discount. And he proved by another witness, that, some short time after Bowden got the bond, Spruill said that although the bond was payable to him as guardian, he had funds amply sufficient to pay his ward.</p> <p>It appears by the accounts, returned by Spruill as guardian, to the County Court, in February 1837, that there was then a balance of cash in his hands of $3,223 87, and the sum was increased each year until his removal in 1840.</p>

Cause transmitted by consent from Granville Court of Equity, at tlie Spring Term 1846. The following facts appear upon the pleadings and proof: The bill charges that the, defendant, Hawkins, advertised for sale, as trustee of the other defendant, a number of negroes : that the plaintiff attended the sale, when a negro woman named Daphne and her infant child were offered: that he became the purchaser.

The following caso appears from the record : The plaintiff obtained a, decree in the Court of Equity against William Moore for $3,285 08, and having made the requisite affidavit, ho sued out a scire facias against Banner, suggesting therein, according to the act of 1806, that Banner was in possession of certain slaves, belonging to William Moore, and concealed them, and also that William Moore had fraudulently conveyed to Banner certain other slaves without any valuable…

Cause removed from the Court of Equity of Columbus County, at the Spring Term 1846.

<p>Two brothers proved the will of their father in common form. Afterwards? this probate was set asido at the instance of the widow and an issue of devisavit vel non was made up. While this was pending, one of the sons acting for the other, as he alleged, as well as for himself, entered into a written compromise with the wi^ovv, by which the property was agreed to be divided in a particular manner. Both the sons took the property assigned to them by the compromise and held it for eleven years/ Held, that after this act and long acquiescence, they cannot now repudiate the compromise and be permitted to claim under the provisions of the will.</p> <p>Our act of Assembly, Rev. Siat. c. 50, s. 8, which makes void all contracts for the sale of slaves not reduced to writing and signed, does not require»when the contract is by an agent, that it should be signed by the principal or by the agent in the name of the principal.</p> <p>The statute of limitations does not apply in the case of a vendee bringing a bill for the specific performance of a contract. Tho only question, as to tijne, is a question of diligence.</p>

Cause transmitted by consent from tbe Court of Equity of Orange county, at the Spring term, 18-16.

Cause removed from the Court of Equity of Guilford County, at the Fall Term, 1846. The facts of the case are stated in the opinion deliver-. ed in this Court.

Cause removed to this Court by consent from the Court of Equity of Anson County, at the Spring Term, 1845. This is a bill to redeem a mortgage, and for an account.

Cause removed to this Court from the Court of Equity of Anson County, at the Spring Term, 1846. The pleadings and proofs presented the following cas'e. On the 1st of December, 1834, the defendant, Hough, borrowed from the other defendant, Mask, the sum of $400, and as a security therefor he conveyed to Mask 100 acres of land on Pedee river in fee, by a deed absolute on its face.

Cause removed from the Court of Equity of Orange County, at the Fall Term, 1845. The following cuso is presented by the pleadings and proofs.

Cause removed from the Court of Equity of Rutherford County, at the Spring Term, 1846. Thomas Hall was seized in fee of a tract of land, containing about 100 acres, in Rutherford, and on the 24th of September 1823, leased it to William Owens for the term of thirty years thereafter rendering r'ent, and Owens entered into the premises. The bill charges, that the land consisted partly of cultivated and partly of wood land, and that the lease was for the purposes of farming only.

Cause transmitted by consent of the parties from the Court of Equity of Richmond County, at the Fall Term, 1846. The bill was filed in August, 1843, and prays the payment of a lost bond. It states that previous to the month of December, 1836, the defendant was indebted to the plaintiff in the sum of $60, and, for the purpose of securing the same, executed to the plaintiff a bond for that sum, with another person as his surety, who has removedi from this State.

<p>A Clerk and Master ought not to refer back to the Court a point, which the Conrt has expressly referred to him, or which is necessarily involved in the enquiry, which he was directed to make. The clerk and master should decide every question directly, and leave it to the parties, if dissatisfied, to bring the matter up fot the decision of the Court by an exception.</p> <p>A debt, legacy or distributive share of the wife is under the control of the husband, so far as to empower him to release, assign or receive them. But if, in his lifetime, he neither releases, conveys nor receives her choses In action, but leaves them outstanding, they belong to the surviving wife.</p> <p>Therefore, where a husband gave his bonds to the executor or administrator of the father of the wife, of whose estate she was a legatee or distributee, and the husband gave his bonds to the administrator for certain purchases he made at the administrator’s sale, and also for money loaned to him out of the funds of the estate, there being no agreement that these were to be regarded as payments of the distributive share of the wife ; Held, that, ■after the death of the husband, the wife was entitled to recover the whole of her distributive share.</p>

<p>Appeal from an interlocutory order, made in the Court of Equity of Rutherford County, at the Fall Term 1846, his Honor Judge Caldwell presiding.</p> <p>The object of the bill is to obtain an injunction and relief against a judgment at law. The parties reside in Rutherford, and the defendant kept a retail shop, in which the plaintiff had dealt for several years. The bill states, that on the 27th of January, 1841, the plaintiff paid the defendant all he then owed him on account, and took a receipt in full. It is annexed to the bill as an exhibit A, and is in the following words: “January 27th, 1841. Received of William Thompson in full for a judgment and all accounts up to this date.” (Signed,) “ M. Mills.”' The bill further states, that the plaintiff then went to Henderson County, and worked there about IS months having left his wife and family at his residence in Rutherford ; and that, upon his return home, the defendant demanded from him a debt of $ L20 70, for dealings which he alleged the plaintiff’s family had in his store during the plaintiff’s absence: that the plaintiff was very drunk at the time, and that the defendant availed himself of that opportunity to obtain an undue advantage of him, and insisted that the plaintiff should give his bond for the said sum; and that he did so, while drunk, and under the belief, from the defendant’s representations, that the demand was just.</p> <p>The bill further states, that, becoming sober, the plaintiff enquired of his family, what dealings they had, during his absence with the defendant; and was informed by them and believes, that not an article was purchased by any member of his family, excepting only two pieces of tobacco ; and that, in a short time afterwards, he went to the defendant and informed him of what his family had told the plaintiff, and requested him to produce his books containing the account, so that he might see the items and the amount of it; but that the defendant refused to let him see his books, or to give him any satisfaction upon the subject, pretending however, at some times, that the bond was taken for the dealings of the plaintiff’s family as aforesaid, whereas they had no such dealings; and at other times pretending that it was taken, partly, for a book account, and partly, for a balance due on a note for $100, which the plaintiff had given the defendant for the price of a mare, whereas, the plaintiff had discharged the note by paying on it, at one time $85, and at another $20 ; and also, he had paid $10 on account, and had received no credit therefor.</p> <p>The bill then contains several interrogatories; particularly, whether the parties did not settle all accounts on the 27th of January, 1841 ; and whether the defendant did not give the plaintiff the receipt or acquittance of that date exhibited with the bill: whether the defendant did not demand the bond for dealings of the plaintiff’s family subsequent to the said settlement of January 1841, or for what other cause. And it calls on the defendant to set forth a copy of his account, for which the bond was taken.</p> <p>The answer admits that the plaintiff made the payment of $35, on the note for $100 given for the mare, and, denies that he made any other. It states, that the plaintiff had been dealing with the defendant for ten or twelve years, and was generally in his debt, and that he may have made payments of <f20, and $10, though the defendant says he has no recollection of any such, and that, if they were made, they were credited on accounts existing at the time.</p> <p>The answer states, that on the 1st of August, 1842, the plaintiff was indebted to the defendant in the sum of $120 70, upon accounts, in part for dealings of the plaintiff and in part of his wife and family, and including a a balance of $15, due on the note for the mare, and inter, est thereon $ and that the settlement was made and the bond given of that date, when the plaintiff was not iu the least drunk, and “ with a full knowledge of all the facts.” The defendant denies, that the plaintiff ever applied for an inspection of the defendant’s books; and states, that on all occasions the defendant declared the consideration of the bond to have been as herein set forth, The answer then proceeds : “ Respondent doth not know, whether exhibit A, is a copy of a receipt executed by him to complainant, as he had no opportunity of seeing the original, and has no recollection of giving a receipt of that date. Since the last settlement with complainant, respondent did not deem it necessary to preserve the accounts, for which the said bond was given ; and, consequently he cannot now set out an exact statement of all the articles furnished complainant; but he recollects, that the same was for a variety of articles of mer. chandize, and for work in a blacksmith’s shop, and fop the balance of the note and interest, as aforesaid.”</p> <p>An injunction was granted on the bill, while, on the answer, the defendant moved to dissolve.. But the Court refused the motion, and ordered the injunction to stand fo the hearing, but allowed the defendant an appeql,</p>

<p>Á suppression of competition' at an execution sale by the representatives of’ the defendant, that he was buying for the plaintiff, by means of which he purchased the land of a distressed man for a very inadequate price, will' authorize a decree for the plaintiff, on a bill to redeem the land on paying Che sum for which it was sold, on the ground of an undue advantage taken' of Ins necessities, and a fraud practised1 in getting the title in that way, and then claiming-it for his own benefit.</p>

Cause transmitted to this Court by consent of the parties from the Court of Equity of Wilkes County at the Fall Term, 1846. The facts of this case seem to be these, as collected from the pleadings and exhibits. Sarah Gordon was in 1834 of an advanced age and owned some slaves and other property; and among them was a negro man, named Jim, and a woman named Harriett. She had a numerous family of descendants. Two of her sons were then dead, namely, Nathaniel and John.

<p>Cause removed from the Court of Equity of Granville County, at the Fall Term, 1846.</p> <p>In December 1841, the defendant, the executor of Mary Jones, deceased, offered at public sale two tracts of land, as having been the property in fee of the testator, which he was authorized to sell. As to one of the tracts, the bill states that the defendant declared, that he would sell only such interest as his testatrix had, and at the risk of the purchaser. As to the other, containing 100 acres, the defendant announced, that it was the property of the testatrix, although he had been unable to find any deed for it, and that he would warrant it to the purchaser.- This latter piece, the plaintiff purchased at the price of $303, and he immediately gave his bond therefor and took a conveyance and entered into possession of the land. The bill states that in the course of the next summer, further doubts arose as to the title to the land, and that there was some negotiation between the parties about rescinding the contract; but that, finally, the defendant, in November 1842, declined doing any thing further, and thereupon, the plaintiff offered to surrender the deed and demanded his bond, and abandoned the premises. The defendant afterwards took a judgment on the plaintiff’s bond, and he then filed the bill to have the contract rescinded and the judgment perpetually enjoined.</p> <p>The bill states, that search has been made, in the Register’s office, and that no evidence of any title in the testatrix can be found, and that the plaintiff believes none exists.</p> <p>It further states, that upon consulting counsel upon the question of title, it was discovered, that the deed, which the defendant made, conveyed but an estate for the plaintiff’s life, although the defendant contracted to convey in fee, and the warranty is to the plaintiff and his heirs. The bill charges, that the plaintiff is an illiterate man, and that the deed was prepared by the defendant or under his direction, and was accepted by the plaintiff, not knowing the deficiency therein and in the confidence that it was according to the contract.</p> <p>The answer denies, that the defendant undertook to covenant, that the land had belonged to his testatrix. On the contrary, the defendant says, that, in respect to a small tract, he refused to make any covenant,because he could not discover any trace of right in the testatrix except possession ; and the purchaser was to take a conveyance without warranty. With respect to the other tract, which the plaintiff purchased, the defendant admits it was otherwise. He says that he discovered that his testatrix never had a deed for it; but that, understanding that one William Jones had taken a conveyance for it from a former owner upon some trust for the testatrix, he had applied to him to know how the truth was ; and that William Jones admitted that he held the title under an engagement to convey it to Mary Jones, and accordingly he executed a deed to the defendant, as the executor and devisee of Mary Jones. Believing, from those circumstances, that the land really belonged to his testati’ix, and that the purchaser would never be disturbed, although he wds unable to trace the title back beyond William Jones, the defendant states, that be publicly made known to the plaintiff and other persons present, the state of the title, and in order to enhance the price by satisfying bidders of their security, he agreed that he would make a deed for the fee and give therein his own covenant of warranty, binding him arid his heirs to indemnify .the purchaser, if he should be disturbed in the possession. And the answer positively avers, that it was understood that the purchaser was to have no other security for the title, but the conveyance of the defendant in fee, with his covenant against an eviction by superior title.</p> <p>The defendant admits, that, as he is advised, the deed made by him, is only for a life estate, and that, by the terms of the sale, he was to make one purporting to convey a fee, with general warranty. But he says that neither the plaintiff nor he being versed in drawing conveyances, application was made to a merchant, residing at the place of sale, and supposed to be competent thereto, and that tbe deed was drawn by him as the friend of tbe parties ; and that it was executed by the defendant in the -belief, that it was a deed for the fee simple : that be had no suspicion to the contrary, until the plaintiff, after the judgment at law, informed him of the defect: and that then the defendant offered to make any deed plaintiff might wish, which would carry out the agreement between them, but tbe plaintiff declared that he Would not take one.</p> <p>The answer further states, that the plaintiff had sold and conveyed a part of the land, about five acres, to Benjamin Sims, who claims and occupies it.</p> <p>The defendant filed, with his answer, the deed to hifcn by William Jones; and also another deed to the plaintiff, and submits to be bound by it or to make a conveyance in fee with any covenants, to which the Court shall declare the plaintiff entitled.</p>

Cause removed from the Court of Equity of Pasquotank, County at the Fall Term, 1846. The plaintiffs state that they are the children and heirs at law of Anthony Markham, and that a judgment was rendered at June Term, 1828, of Pasquotank County Court, and the land, the subject in controversy, sold under the execution issued thereon and purchased by Thomas L. Shannonhouse, the father of the defendants, who are his heirs at law.

Cause removed from the Court of Equity of Randolph County, at the Fall Term, 1846. The facts on which this Court pronounced its decision-are fully set forth in the opinion here delivered.

Cause removed from the Court of Equity of Rutherford County, at the Spring Term, 1846.

<p>A notice to take a number of depositions, on the 1st, 2d» 3rd, 4th, 5th, Gth» 7th, 8th, 9th and 10th, of a particular month, does not, of itself, furnish si ground for suppressing the depositions.</p> <p>Where, under this notice, the plaintiff took twenty-six depositions on the 1st and 2nd of that month, and the only one of the defendants, who complained, was present on those days, there can be no reason whatever fo suppressing those depositions on the ground of the indefiniteness of the notice.</p>

Cause transferred to, the Supreme Court by consent, from the Court of Equity of Edgecomb County. The facts of the case are stated in the Opinion delivered jn this Court.

Tbe bill states, “that, by deed bearing date the 10th clay of December, 1840, J. S. Smith, the father of the plaintiff, did convey and assign to her, the plaintiff, in remainder, certain lands lying on Price’s creek in Orange county, which will mor.e fully appear, reference being had to the said deed, registered in book D, page 39G, in the Register’s office of Orange; that the land designated in said deed,, as the Price’s creek tract, was once owned by Francis-Jones, the…

Cause transmitted by consent from the Court of Equity of Orange County, at the Spring Term 1S47.

Cause transmitted by consent from the Court of Equity of Guilford County, at the Fall Term, 1846.

<p>Where in administrator files a bill to recover back a chose in action, which he had assigned before administration was granted to him, when it appears that there was no creditor of the intestate and that the next of kin had assented to the contract of assignment, a Court of Equity will grant him no relief.</p> <p>MEMORANDUM. — By an Act of the General Assembly, passed at the Sesáon of 1846-7, the Judges of the Supreme Court were directed to hold an annual term of the said Court, at the Town of Morganton, on the first Monday of August.</p> <p>James R. Dodge, Esquire, of Surry County, was appointed by the Jesdges Clerk of that Court in May 1847.</p> <p>The Attorney General and the Reporter both attended at this Term.</p>

The bill states, that WiU liam Mills died intestate, “ leaving seven children,” and that “the said heirs met, and by common consent divided the personal estate of said intestate, by which division a boy, named George, and a girl, named Nelly, fell to the share of Asa Edney: that the value thereof exceeded one seventh part of the said personal estate, and that “ the said Edney then executed four fortytfive dollar bonds to the other heirs for the overplus, and that all of them…

The bill charges, that the plaintiff entered into an agreement to sell to the defendant, Raper, three negroes, for the sum of $2,000, to be paid by an order on one W. H. Thomas, out of funds then in his hands, belonging to' Raper ; and articles of agreement were executed by the parties on the 18th of March, 1844.

The plaintiff alleges in his bill, that Charles McDowell and Thomas Butler, as administrators of William C. Butler, dec’d. filed their bill in equity against him and John H. Greenlee, returnable to the Fall term, 1843, of the Court of Equity for Burke Countythat a copy and Subpoena were served upon him, returnable to the succeeding Spring Term, 1844, at which time he appeared, and employed as his solicitor, W. J. Alexander, Esquire..

<p>After an injunction has been ordered to stand to the hearing, it seems to be irregular, in effect to reverse that order, by dissolving the injunction, or motion, before the hearing.</p> <p>Where an appeal has been taken from a County to a Superior Court of Law, a Court of Equity has no right to decide whether the appeal was properly allowed or not. That is a question of law, which can only be decided by a Court of Law.</p> <p>An appeal from an order of the County Court, establishing a road or bridge, will lie for any person aggrieved thereby, either as it may affect his franchises or other property, or on the ground that he is subject to pay taxes in that County.</p>

Cause transmitted by consent from the Court of Equity of Davie County, at the Spring Term, 1847. The following case was presented by the pleadings and proofs.