Volume 40 — North Carolina Reports

Cause removed from the Court of Equity of Yancy County, on affidavit of the plaintiff at the Spring Term, 1845. The bill is filed to rescind a contract for the purchase of a lot of land, in the town of Burnsville, in the County of Yancy, and to enjoin the collection of a sum of money due therefor.

Cause removed by consent of parties from the Court of Equity of Rockingham County. James Mateer made his will on the 4th of April, 1844, and appointed his sons, “ Andrew and John, his executors.” At that time, and at the time of his death, 'which happened in May 1845, the testator had three children, namely, the two sons above mentioned, and a daughter named Margaret, then the wife of Joseph D. Watson.

Case removed from the Court of Equity of Granville County at the Fall Term 1847, by consent of parties. The facts of the case are fully stated in the opinion in this Court.

Cause removed by consent parties Equity of Bladen County, at the Fall Term, 1847. The bill alleges, on the plaintiff mads an entry in the office of the entry taker of Bladen County, of four hundred acres, and caused it to be surveyed, when it was ascertained that there were but sixteen and a half acres liable to entry ; that he caused a plat to be made, and procured a grant to issue, on the 5th of January, 1844.

Cause removed from the Court of Equity of Rockingham County, at the Spring Term, 1846,’by consent of parties. James Patrick, the elder, had three children, named Mary, James the younger, and’David S.; and on the 17th of May, 1842, he executed three deeds of gift to them. By one, he conveyed to his daughter Mary a slave called Louisa, and several articles of household furniture.

The bill is filed to eompel the specific execution of a contract, and for an injunction. The following facts are admitted by the pleadings. One Raiford Hooks was the owner of a couple of lots in the town of Goldsboro-^ which, in 1840, he contracted to sell to the complainant,, for the sum of one hundred and fifty dollars, payable in three several instalments, and secured by three several bonds or notes.

Petition in this Court to rehear an interlocutory order. James Matthews, by his last will, devised as follows : “ Also, I will at my death, that all my moveable property shall be sold and the monej' arising from .such sale shall, after' the payment of all my lawful debts, be divided between Tandy Mattheivs, Betsy James, and John Matthews, but what share shall be coming to Betsy James, shall be paid to her children when of age.” There is a similar bequest of all the money due…

Cause removed from the Court of Equity of Wake County, at the Fall Term, 1847, by consent of parties. The bill is filed by Hugh Rogers, George W. Lowe, and John C. Rogers, against the same John C. Rogers, and Walter L. Otey.

Cause removed by consent of parties from the Court of Equity of Rockingham County, at the Spring Term, 1847. The defendants, Stephen Smith and. David Smith, are the sons of the plaintiff, William Smith, and the former, Stephen, is the son-in-law of the defendant, Andrew Martin, the elder.

<p>A. by deed conveyed to his grand-children a number of articles of small valuó, such as “old iron, an old horse, two or three hogs, linen wheel,” <?c and others, specifically enumerating and describing them, and , then the deed says, “ and all and every article of property which I own, whether enumerated or mentioned, is hereiu conveyed. Held, that none of the slaves, which A. owued, passed by this conveyance.</p> <p>Where a deed of gift is fraudulent against creditors, and the property conveyed by it is sold under executions at the instance of the creditors, the surplus in the hands of the officer, remaining after satisfying the executions, belongs to the donees.</p>

<p>Cause removed from the Court of Equity of Orange County, at the Spring Term, 1847, by consent of parties.</p> <p>The plaintiff in his bill, as administrator of Thomas D. Crane, prays an account against the defendant, as an agent. The defendant admits the agency. Replication was taken to the answer, and upon the hearing, the Court decreed an account, and an order was made referring the case to the Clerk and Master to take an account. A report was made, and exceptions filed by both parties, and the cause transferred to this Court.</p>

<p>To support a bill of injunction by the purchaser of land against the vendor to restrain the collection of the purchase money, upon the ground that there were prior liens upon the land (as, for instance, for taxes due,) tha plaintiff must set forth in his bill, as nearly as he can, the amount of such liens ; and where he alleges he gave more for the land than he otherwise would have done, in consequence of misrepresentations made by the vendor or his agent' at the time of the sale, he must sot forth what he believes to be the amount of the injury he has sustained by reason of such misrepresentations.</p> <p>Where a purchaser is entitled to compensation merely, he cannot enjoin the vendor from collecting the purchase money, or at most he can only enjoin him for the sum which he alleges' distinctly in his bill to be due to him for such compensation.</p> <p>It is the usual course in injunction cases, that all the parties defendant shall answer, before a motion.can be made to dissolve ; but that rule may be dispensed with under peculiar circumstances, as where the party not answering is not charged in the bill with any particular knowledge of the facts alleged, and the parties, who have answered, wore so charged.</p> <p>Where land'was devised to a trustee, in trust “ for the sole and sepárete uso of A B. until such time as the then existing debts of her husband should have been by him discharged and satisfied, and in that event to be conveyed to him Held that, when the husband died without having discharged such debts, the equitable fee simple rested either in the said A. B. or in her for life and after her death in the heirs at law of the testator; and that, in either case, the purchaser of the land, sold under a decree of a Court of Equity, to which the said A. B. and the said heirs were parties, acquired a good title in fee.</p>

Case transmitted from the Court of Equity of Person County at the Fall Term 1847, by consent of parties.

Cause removed by consent of parties from the Court of Equity of Wake County, at the Fall Term, 1847. The information is filed to ascertain the fund, out of which the Bank shall pay the tax, imposed by the act of incorporation. The charter was granted in the year 1833, and amended in 1836.

Cause removed from the Court of Equity of Jones County, at the Fall Term, 1847. The bill states,' that, in the year 1839, the defendants, who were merchants residing in the State of Alabama, applied to the testator, Joseph Whitty, to aid them in obtaining a loan of money from the Bank of Newbern, for the use of the firm ; to which he agreed, and a note for $5,000 was drawn and discounted, at the said Bank, for the sole use and benefit of the defendants.

Cause removed from the Court of Equity of Stokes County, at the Spring Term, 1847, by consent of parties. By a will made in September 1843, Robert Tucker devised as follows. To bis wife Elizabeth lie gave 100 acres of land. To his daughter Susannah Martin $50, to accrue from the sale of his land and to her daughter Sarah, 50 acres of land. To the children of his daughter Elizabeth Norton, he gave two parcels of land, to be equally divided between them.

<p>Appeal from a decree fro forma, of the Court of Equity of the County of Anson at Spring Term, 1847, sustaining a demurrer to the plaintiffs’ bill, his Honor Judge Battle presiding.</p> <p>The facts alleged in the bill and the grounds of the demurrer are set forth in the opinion of the Court.</p>

Cause removed from the Court of Equity of Chowan County, at the Spring Term, 1847, by consent of parties. William McNider was indebted to the defendant in the sum of $932 80, and to secure it he gave a bond and procured the plaintiff, Pipkin, to join in it, as his surety. After the bond had been sometime due, Pipkin, understanding that McNider was somewhat embarrassed, informed the defendant of it, and requested him to put the bond in suit, and collect the debt.

Cause removed from the Court of Equity of Orange County, at the Spring Term, 1846, by consent of parties. The facts of this case are not controverted, and are as follows: Dr. Umstead, formerly of Orange County, died in the year 1829. having made his last will and testament. In it, he gives to his friends. Catlett Campbell and Thomas .

Cause removed from the Court of Equity of Carteret County, at the Fall Term, 1847, by consent of par ties. Jabez Weeks, the elder, by his will, executed on the 23d day of February, 1828, bequeathed as follows: “Item.

<p>Where a guardian bona fide transfers to another, for a full consideration, a debt due to his wards, the assignee is entitled to the same remedy in Equity to recover the debt, which the wards would have had.</p> <p>The Court expresses irrelevant matters, and interlarding bills and answers with unavailing epithets, and with matters that have no-bearing whatever on the-controversy.</p>

Cause removed from the Court of Equity of Caldwell County, at the Spring Term, 1S44, by consent of parties. The bill charges, that the plaintiff and William Howard were the bastard and only children of one Polly Howard, and that William Howard died in August 1840, intestate, and without any lawful issue.

Cause removed from the Court of Equity of Edgecombe County, at the Spring Term, 1847, by appeal of the plaintiffs. Reddin Lynch died intestate, leaving Nancy his widow, and the plaintiff Elizabeth, his only child in tender infancy. Administration of his estate was taken by David Bradley, and the widow intermarried with the defendant, Willie Bradley.

Arthur Rhodes made his will June 23rd, 1836, and therein gave to his wife, Amelia, his manor plantation, fifteen slaves, by name, with his household and kitchen furniture, (except a bed and furniture) and his stocks of horses, cattle, sheep and hogs, and his farming utensils, for her life ; and after her death he directed the land to be sold, and he gave the proceeds thereof and the said negroes to his son Edmund Rhodes, and. his grand-children, the children of his deceased…

Cause removed from the Court of Equity of Wayne County, at the Fall Term, 1847, by consent of parties. The case is fully stated in the opinion delivered in this Court.

<p>Where a bill is filed to set aside a purchase made by a lunatic, and, upon the report of the Clerk and Master, it appears, that the price given was not grossly extravagant, and moreover that the lunatic has it not in his power to make compensation to the vendor, if the contract should be set aside, the bill will be dismissed.</p>

Cause removed from the Court of Equity of Caswell County, at the Spring Term, 1848.

Cause removed from the Court of Equity of Person County, at the Fall Term, 1847.

Cause transmitted from the Court of Equity of Pasquotank County, at the Fall Term, 1847. William T. Bryant, being more indebted than be was worth, on the 15th of February, 1840, made a deed to the defendant Russell for all bis property and effects, upon trust to pay out of the proceeds certain debts named, in the order in which they are mentioned in the deed. The first is a debt of $2,000 to J. C. E. for which Mathew Cluff and Malachi Russell were sureties.

of the Court of Equity of An-son County, directing a demurrer, which had been filed» to be taken off the file, his Honor Judge Bailey presiding.

This case came on to be heard upon the exceptions to the report of the master, to whom it had been referred to take an account, &c. The nature of the exceptions will be seen in the opinion of the Court. Francis Locke, by his will, devised to Esther Pinxston, during her life, certain shares of Stock upon the State Bank of North Carolina, and after her death to her children.

<p>Cause removed from the Court of Equity of Rocking-ham County, at the Spring Term, 1848.</p> <p>The bill in this case was filed in the Court ofEquity for Rockingham County and made returnable to spring term 1841, by Thomas L. Boyd, and Mitchell Carter, both of the County of Wythe in the State of Virgina, against Pendleton Jones, and Pleasant Black of the County of Rockingham in this State, and Thomas Smith, of the County of Wythe aforesaid. It stated in substance, that, on or about the 4th. day of November, 1837, the defendant Smith sold to the defendant Jones a wagon and team, for which Jones executed to him a bond for the sum of seven hundred dollars, with the defendant Black as surety, payable on or about the 15th day of Januaay 1838 ; that said Smith being indebted to the plaintiff Boyd by judgment, on which an execution had issued, which was then in the hands of the sheriff of Wythe County, offered this bond in part discharge of the debt, which the officer refused, unless Boyd would consent to it; that Boyd, upon being applied to, declined taking it for reason that he knew nothing of the circumstances of the obligors ; that the plaintiff, Carter, hearing of this, and meeting with Boyd, stated to him that he was well acquainted with the defendant Black, and that he was a man of property and had the reputation of being a gentleman ; that Boyd still declined taking the bond, unless Carter would say that it was good, and that the latter thereupon took the bond and endorsed upon it, “ This is a good bond, Black is good and a gentlemanthat Boyd then received it from Smith, with his endorsement, in part satisfaction of the execution ; and that all this was done before the bond fell due. The bill stated further, that, after the bond became due, the plaintiff Boyd, for the purpose of having it collected, enclosed it in a letter addressed to Emanuel Shober, an attorney at law, living at Salem in this State ; that the letter was stolen from the post office or the mail, and the bond taken thereout and destroyed or concealed so that Boyd never heard of it afterwards ; that Boyd then informed the defendants, Jones and Black, of the loss of the bond, and demanded payment of it, which they refused, when, being in want of money, he sued Carter on his guaranty, and recovered a judgment in Wythe County Court, which Carter paid on the 11th of February 1839, under an execution against him.</p> <p>The bill then charged that after the payment of the money by Carter to Boyd,the plaintiff Carter frequently applied to the defendants for payment of the bond, offering to indemnify them against every liability that might accrue in consequence of its loss, but they and each of them refused to pay the same or any part of it. The prayer is for payment of the bond with the interest accrued thereon, the plaintiff offering to give any indemnify the Court might require, to protect the defendants from any further liability on the bond.</p> <p>The defendant Smith failed to appear and answer, and the bill was takenpro confesso against him.</p> <p>The defendants Jones and Black filed their answer and therein admitted the execution of the.bond as stated in the bill and that it had not been paid, but they denied all knowledge of the assignment of the bond by Smith, to Boyd, the guaranty of Carter, the loss of the bond, and the recovery by Boyd against Carter on his guaranty and his payment of the same, and they required strict proof of all those allegations. They insist, as a defence, that if the plaintiffs could recover at all their only remedy was at law: and that at all events the bill could not be sustained in the joint names of Boyd and Carter, when it appeared from the bill itself, that Boyd had been paid the full amount of the bond, and had no further interest in it. They insisted also that Carter was not a guarantor of the bond, and that the recovery against him by Boyd was wrong, and that if he, by negligence or by conspiracy with Boyd, suffered a judgment to be taken against him, he ought not now to recover from the defendants. The answer of the defendant Black insisted further, that the plaintiffs, by delaying to apply to his principal for payment for an unreasonable length of time, had discharged him.</p> <p>Replications were filed to the answers, and proof taken which fully sustained all the allegations of the bill, not admitted by the answers.</p>

<p>This case came on to be heard upon exceptions to the master’s report, which exceptions sre sufficiently set forth in the opinion of the Court.</p> <p>The bill was filed in the Court of Equity for the County of Caswell by Robert Love, Marmaduke Kimbi’ough and his wife Sarah, Benjamin D. Purley and his wife Margaret, Samuel Love and his wife Mary and Martha Love by her father and next friend, Samuel Love, against John. C. Love, executor of John Love, deceased, and John Me* Kissack and his wife Elizabeth Elmira, in which the plaintiff claimed as legatee under the will of the said John Love and prayed for an account from the executor and the payment of their respective legacies. The defendant John C. Love filed his answer, and thereupon an order was made that the master should take an account between the parties, which was accordingly done; and upon the coming in of his report, exceptions thereto were filed by the plaintiff and the cause was transmitted to this Court. The case made by the bill and answer, so far as is necessary to a proper understanding of the report and the exceptions thereto, is as follows. John Love died in the year 1844 having' previously made and published his will, wherein, among other bequests, he bequeathed as follows, 6th I give to my daughter Elizabeth Elmira McKissack a negro girl named Beck, to her and her heirs.</p> <p>7th, I give to my son- John C. Love a woman named Lyn and all her increase except a girl named Thene.</p> <p>8th, It is my will that if I do not sell Thene my son John C. Love have her to him and to his heirs, &c. My will is that my stock of horses, half of my cows, wagon, sheep and hogs be sold, my just debts paid out of the said money, and the balance to be divided between my four ®hildern,namely,Robert, Sarah, Mary and Elizabeth ; all the balance of my estate, viz. stock that is not mentioned above, also my household and kitchen furniture I give to my son John C. Love and his heirs, &c.” John C. Love was appointed executor, and, after probate of the will, was duly qualified and took upon himself the burden of its administration. The bill charged that the girl Beck given to Elizabeth E. McKissack had a child named Sally,, born in the testator’s life time, which did not pass under the will and for which the executor was bound to account, and had failed to do so ; that the testator left, as- part of his personal’ estate, a number of horses,, stock of cattle, hogs and sheep, an ox cart, a quantity of provisions, and many articles raised on the farm, for which the executor had also failed to account; and that he had likewise neglected and refused to account for the children of Lyn born in the testator’s life time-, as it was alleged that he was bound to do. The executor in his answer stated, that he was, and had at all times been,.ready to account with the plaintiff for every part of his testator’s estate to which they were entitled; that he had sold' the horses and half the cattle and other stock,and returned an account of the rules thereof to the proper Court; that the ox cart was his own property, that half the cattle and other live stock was given him by the will, and that he claimed all the crop and provisions on hand at the testator’s death, by virtue of a contract made with the testator in his hie time, to the effect that if he would live with the testator and manage his business, he, the defendant, should have all that he could make, after supporting the family, and that he had fully complied with said contract in every particular. He admitted that he had children of Lyn, born before the death of the testator, in his possession, claiming them as his own, under a bequest in his testator’s will.and he utterly denied the right of the plaintiff to them or any part of them. As to the child Sally, alleged to have been born of the woman Beck before the death of the testator, he answered “ that he had understood and had no reason to disbelieve, though he did not know of his own knowledge and therefore did not admit, that negro woman Beck, given in the will to Elizabeth McKissack.had a child named Sally,born before the death of the testator; and he further stated, that the said Elizabeth had been living in Tennessee for a great number of yeajs, claiming and using the negroes as her own, and he had been advised, that, by the laws of that State, he could not recover, if there were any child of the said Beck; and he stated further, that he believed, that, if he had attempted to recover, it would have been attended with great expense to the estate — probably more than the value of the negro, if he had been successful.” The report of the master exhibited a statement of what was in the hands of the executor after charging him with all which the master thought he ought to be charged with, and allowing all proper disbursements ; and it also exhibited the testimony, upon which the charges were made and the disbursements allowed, among which testimony was a copy of the account of sales returned to the County Court by tho executor</p> <p>The exceptions filed by the plaintiff to the report were as follows:—</p> <p>1. The master has submitted no evidence of the amount of the estate, which came to the defendant, John C Love’s hands, nor does he show of what sums, how raised or from what sources,he made the aggregate amount with which he has charged the said defendant.</p> <p>3.The master has credited the defendant with 1539 paid attorneys, without evidence that the service of counsel was required in matters pertinent and proper for the estate.</p> <p>3. The master has failed to charge defendant with the stock of provisions on hand at testator’s death, or with any of the proceeds of articles raised on the farm.</p> <p>4. The defendant is not charged with the horses on hand, and permits the defendant to retain them as his own ; that he has omitted to charge the defendant with half of all the stock, other than cows.</p> <p>5. That the master has failed to charge the defendant with the children of the woman Lyn, and has taken upon himself to construe the will, and gives to defendant all Lyn’s children, and half of all the stock, other than cows, which construction is erroneous and against law.</p> <p>6. That defendant is not charged with an ox cart.</p> <p>7. That the report is not sustained by the evidence, and is against the testimony in the cause.</p> <p>8. The defendant is not charged with the child of woman Beck, which was born before the making of the will.</p>

<p>Aliens cannot hold land, bnt the sovereign may take it; and a trust of land for an alien cannot beenforced by the alienee, but may be by the sovereign in equity.</p> <p>It is the nature of a trust to be subject in equity to the same rules, as to its acquisition aud alienation and the succession to it, as the legal estate is. Henee those persons only, who may purchase and hold the legal estate, may purchase and hold the equitable.</p> <p>When the law separates real and personal estate, which a testator had given together to the same persons, subject to charges, and then gives on$ portion of the property to one set of persons and the other portion ,to;'another set, it must in like manner apportion the charges. The fund and the incumbrances ought to go together.</p>

dissolve an injunction, at the Spring Term 1844. The bill was filed in October 1843, and the object of it was to restrain the defendants from carrying out of the State a slave and other chattels, claimed by the plaintiffs under a conveyance from the defendant Howell and to compel the defendants to give security for the forthcoming of the property, the defendant Howell having been left in possession of the slave, and other articles for his enjoyment during life, upon certain…

The bill was filed on the 6th of Novemher 1847, and states, that, in January 1843, the plaintiff recovered a judgment in Cabarrus County Court against the defendant John W. Means, for the sum off228 75, and that they sued out a cierifacias thereon, returnable to April Term 1843, on which the sheriff raised the sum of $47,50 and no more, and as to the residue he returned nulla bona.

This is an appeal from an interlocutory order, overruling a demurrer to a supplemental bill.

The bill is entitled: “The bill of complaint of William H. Archibald against John W. Means, William C. Means, Margaret the wife of Cornelius McKee, Susan the wife of Samuel Hewings, Margaret the wife of M. W. Alexander, Marcus Means,” &c., naming several other persons.

<p>In England, where exceptions are filed to an answer to an Injunction bill, the exceptions must bo disposed of, before a motion to dissolve the injunction can be heard.</p> <p>But in this State, owing to the shortness of the terms of our Courts, the practice is different, and the exceptions and the motion to dissolve must be heaid together.</p> <p>Where a defendant moves to dissolve an injunction, and the motion is refused and afterwards, by permission of the Court, he amends his answer, he is at liberty again to move the dissolution.</p>

<p>Where, under authority conferred by an Act of Assembly, commissioners are appointed by a County Court to lay off a County seat& c., a Court of Equity has no power, on the complaint of relators through the solicitor, not alleging that any private irremediable injury is to be done to them, to interfere with the proceedings of such commissioners.</p> <p>If such commissioners are guilty of any breach or omission of duty towards ' the public, the Courts of common law, through the high officers of the State, will afford relief by a writ of mandamus or quo warranto.</p>

The plaintiffs are creditors of Rouche by judgments rendered by a Justice of the Peace ; and on the 16th February, 1S46, executions were sued out thereon, and on the same day the constable made a lev}' and return thereof in the following words : “Levied this execution on the defendant’s interest in a house and lot in the south east square of Lincolnton, also on two negroes, Rody and Caroline, and house-hold and kitchen furniture, under deed of trust to Wm.

Cause removed from the Court of Equity of Cleaveland County, at the Fall Term 1845. The bill was filed in the Court of Equity for the County of Cleaveland at Spring Term 1844.

In October 1848, the plaintiff filed a bill, stating that Hiram Hurdle, formerly of Gates, was entitled to certain land and slaves in that county, and that, intending to go out of the State, about the year 1840, he appointed Red-dick, the defendant, his agent, to lease the land and hire out the negroes during his absence, and put him in possession for that purpose r That after making the appointment Hurdle disappeared, and had not since been heard from ; and' that at May…

The bill further alleges, that the testator bequeathed, and desired, that, if his executor should die before the estate was fully settled, the executor or administrator of his executor should carry the will into execution and settle the'same ; that the defendant had been appointed administrator of the said Cherry, but had renounced as executor of the testator, and declined having any thing to do with his estate.

<p>Where a testator bequeathes Bank Stock generally, without saying it is the bank stock he owns, the bequest will be general and not specific.</p> <p>But, when, after giving several legacies of bank stock, in giving another legacy of bank stock he uses this expression “in case there should be any deficiency in the bank stock, which I hold at my death, as compared with the amount bequeathed in my will and testament.” Held that he meant the stock he should then have, and therefore the legacies were specific and not general.</p> <p>Held further that the bank stock being insufficient to discharge the legacies, the legatees are entitled to have what stock there may be applied pro rata to the payment of these legacies and that the deficiencies are to be supplied out of the residue of the estate.</p> <p>A testator directs.among other things, as follows ; “ In case my Bank Stock should not be absorbed in the payment of debts which may come against my estate, then and in that case I give and bequeath to A. two shares of the Bank Stock Sec.” There were no debts, to which the bank Stock was applied but there was not stock enough to satisfy previous legacies. Held, that this bequest failed, because of the failure of the fund, out of which it was to come.</p> <p>When the same property is, by the same will, given to two different legatees, they take moieties.</p>

<p>Appeal from the Court of Equity of Stanly County at the Fall Term 1S46, from a decree ordering a sequestration, which had been theretofore issued in the cause, to be dismissed, his Honor Judge Settle presiding.</p> <p>The bill alleges, that James Coleman died in the year 1S11, leaving a will, which was admitted to probate in the County of Montgomery, and that Elizabeth Coleman, his widow,'who is one of the defendants, being therein appointed executrix, duly qualified as such: That, in the said will, a bequest is made to Eliza Coleman, a daughter of the testator, of a negro woman Edy, one horse, bridle and saddle, and one bed and furniture : that Eliza died intestate before she received any of the property: that Edy had a child, Ellick, both of whom are in the possession of the defendant Daniel Stoker : that the plaintiffs Richmond P. Coleman, James Coleman, Mary McDaniel and Nancy Roseman, and the defendants, Elizabeth Coleman and Sally, the wife of the defendant Daniel Stoker, are the next of kin of the said Eliza : that James Coleman, for a valuable consideration, has sold his interest iii the estate of the said Eliza to Mathias Moore, one of the plaintiffs, and Nancy Roseman has sold her interest to Daniel A. G. Palmer, one of the plaintiffs : that Mathias Moore, at the November Session of the County Court of Stanly, was appointed the administrator of the said Eliza: that, as administrator, he applied to the defendants for the property bequeathed to his intestate for an account of the hires, and profits, and for any residuary portion of the estate of the said James Coleman, to which his intestate was entitled; but the defendants refused to deliver the property, or to render any account, insisting that the defendant, Elizabeth, had some years before been appointed the administratrix of the said Eliza in the County of Montgomery, and had, as administratrix, taken possession oí all her estate, and had delivered the slaves, Edy and Ellick, to the said Stoker, one of the defendants, who now sets up^laim to them under an alleged gift, made to him by the defendant Elizabeth.</p> <p>The bill charges, that the plaintiffs are not able to ascertain, whether the said Elizabeth was appointed administratrix in the County of Montgomery, as alleged, or not, because the records of that County have been destroyed by fire : that if she was not so appointed, the plaintiff Moore, as administrator, is entitled to the property and to an account, to enable him to settle with her next of kin ; if she was so appointed, then the plaintiffs, being entitled to distributive shares, are entitled to an account; that the defendant. Stoker, at the time he received the negroes, well knew, that the said Elizabeth had no property, having conveyed all she owned to the said Stoker : that they have no remedy upon her administration bond, if she ever gave one, as it was destroyed with the records of Mongtgomery County, and no proof caá be made of its execution or who were her sureties ; and that the defendant, Stoker, is a man of but little property, besides the negroes, and as he sets up an absolute claim to them, the plaintiffs fear, that he will abscond, and carry them to parts unknown.</p> <p>The prayer is for an account, and that a writ of sequestration issue, commanding the sheriff to take the negroes into his possession, and hold them, subject to the order of the Court, unless the defendants give bond for the forthcoming of the negroes.</p> <p>The defendant Elizabeth died before she answered. — ■ Stoker and wife deny, that James Coleman left a will, and insist, that he died intestate, alleging, that the paper writing executed by him was in operative as a will for the want of capacity, and had never been admitted to probate. They allege, that, at April Term 1827 of the County Court of Montgomery, Elizabeth Coleman was appointed the administratrix of Eliza Coleman, and insist that the appointment of the plaintiff Moore is void.— They insist, that the legacy to Eliza, if James Coleman left a will, never vested, as she died under age and without children. The answer then alleges, that Elizabeth had in her possession the negro, Edy, from the year 1842, when she sold Edy and her-child, Ellick, to the defendant ; and that during all that time, Elizabeth claimed Edy, and Ellick, after his birth, to be her own; believed her to be her own, and exercised acts of ownership and exclusive dominion over her : that in 1842, Elizabeth became old and infirm, and conveyed Edy and her son, Ellick, to the defendant for a val uable consideration, to wit: $250, and an agreement on the part of Stoker to maintain her. He denies any intention of removing the slaves, and alleges, that he has property sufficient to discharge all his liabilities.</p> <p>The defendant Stoker also alleges, that in 1838 the plaintiffs, Mary McDaniel and Richmond P. Coleman, for valuable consideration, conveyed to him all their interest in the estate of James Coleman, which conveyance, he alleges, includes Edy and Ellick ; and that in November 1845, he purchased the interests of the plaintiffs James Coleman and Mary Roseman in the estate of James Coleman Sr., and that the plaintiff Palmer, for a valuable consideration, agreed to dismiss the bill and enter a retraxit.</p> <p>At the filing of the bill, the plaintiffs obtained an order, directing the sheriff of Stanly County to take the slaves Edy and Ellick into his possession, and hold them, subject to the order of the Court, unless the defendants entered into bond in the penal sum of $1200, for'the forthcoming of the slaves. The defendant Stoker gave the bond accordingly.</p> <p>Upon the coming in of the answer, the defendants moved to discharge the sequestration, and it appearing to the Court, that the defendants had sufficient property to meet their liabilities, and that there was no'intention to remove the property, it is ordered and decreed, that the writ of sequestration be discharged.” From which order the plaintiffs were allowed to appeal.</p>

Cause removed from the Court of Equity of Rockingham County, at the Fall Term 1848. George Webster purchased a tract of land in fee, and died intestate in September, 1846, leaving two infant children, Mary E. Webster and John F. Webster, to whom the land descended from him. Afterwards Mary E. died, and her share of the land descended to her brother.

Cause removed by consent from the Court of Equity, of Martin county, at the Fall. Term 1848, David Latham made his will October 28th 1833, and died shortly afterwards.

<p>A. filed a bill alleging that B. was indebted to him in a certain sum for which ha had obtained a judgment by attachment, that B. had removed to another Slate and had no property in this State on which an execution could be levied, but that he was entitled to a distributive share of an estate in the hands of C. an administrator, and prayed that C. might be decreed to apply such distributive share to the payment of A’s debt. There was no personal service of process on B., but he was brought in by publication. Held, that, as a decree" would not be binding on B. in another State, and as therefore C. would not be protected by it against any suiLthat might be brought against him by B. in another State to recover his distributive share, the Court would dismiss the Bill.</p>

Jesse Wilson was seised of a tract of land, and, in 1831, devised it to his wife for her life or widowhood, and after her death or marriage, to his ten children, Greenberry, George, John, Nancy, Ann, James, Corrindon, Acquilla, Parthena, and Mary, in fee, equally to be divided between them. He also bequeathed to each of his children several negroes and other chattels.

Cause removed from the Court of Equity of Montgomery County, at the Spring Term 1848. The facts in this case are fully stated in a case between the same parties, Hall v. Harris, 3 Ired. Equity 289, and so much of them as is necessary to the understanding of the decision now made is set forth in the opinion of the Court here delivered.

The bill is to-restrain waste ; and upon the bill and answer the case is this. Maer and wife were seised in possession of land in fee in her right and had issue ; and a judgment was had against Maer and on a fieri facias the land was purchased by the defendant in 1833.

Elizabeth Rials made her will on the 2nd of February, 1847, and, after giving small pecuniary legacies, bequeathed and devised as follows. “It is my will, that all my just debts and funeral expenses be paid, as soon after my decease as possible, out of any money that shall first come into the hands of my executors from any portion of my estate real or personal. I give to my executors to the use of Rhoda Parker $100, to be given as she may require it.

Cause removed from the Court of Equity of Granville County, at the Fall Term 1848.

Cause removed from the Court'%fcE^uüyíüf' Person County, at the Spring Term 1848.

<p>In the ease of lost bonds the jurisdiction of Courts of Equity affords relief more complete, adequate and perfect than can be done by Courts of law, the former requiring indemnity to be given to the alleged obligor against the bond.</p> <p>In a suit in Equity to recover the amount of a lost bond, the Court requires the same decree of evidence as a Court of law does, and therefore the plaintiff must produce satisfactory proof, not only of the contents of the bond, but also that it had been signed, sealed and delivered by the parly sought to be charged.</p>

Cause removed from the Court of Equity of Craven County, at the Spring Term 1848. The bill charges, that one Adam Gaskins died intestate, seised and possessed of a parcel of land, lying on, Swift Creek in the County of Craven ; That this land descended to Guilford Gaskins, Stephen Gaskins,-- >-, who were the heirs at law of the said Adam* That partition was duly made, and a share designated as lot No. 5, was assigned to Guilford Gaskins.

<p>Cause removed from the Court of Equity of Halifax County, at the Fall Term 1848.</p> <p>The plaintiff complains, that Robert H. Wilson, a citizen of the then territory of Florida, died in the year-, having previously made and published his will, which was duly proved, and the executor, therein appointed, having refused to qualify, administration, with the will annexed, was granted to his widow, then Mrs. Wilson, now the defendant, Mrs. Hogan. At the time of his death, the plaintiff alleges, Robert Wilson was largely indebted to him, and the administratrix having sold a large quantity of the property of the deceased, he came to a settlement with her, and received from her, in part payment of his debt, two bonds, each for $5032 32-100, executed by John D. Edwards, one payable the 1st of January, 1840, and the other the 1st of January, 1841, bearing interest at the rate of eight per cent, per annum, from the 15th of April, 1838. These bonds were given by John D. Edwards fop-purchases made by him at the sale of Robert Wilson’s property ; he, the said Edwards, and the administratrix,, both of them being at the time citizens of Florida and resident there. These bonds, it is alleged by the plaintiff, were transferred to him by endorsement by the administratrix. The plaintiff charges, that, at the time of the settlement, and transfer of the bonds to him, he delivered to the administratis bonds, notes and open accounts, due him by the testator, to an equal amount, with proper receipts endorsed on them, as the bonds were received by him in discharge of so much of the debt due to him. These bonds, he states, were by him placed in the hands of Mr. Moseley, a practising attorney of Florida, with directions to put them in suit, which was immediately done, in the name of the administratrix, and in the same suit was included another bond, executed by the said John D. Edwards, and payable to her as such administratrix. The plaintiff charges, that judgment was obtained on all the bonds, and the marshal of the district, having raised the money, or nearly all, by sale of the property of John D. Edwards under an execution, on the demand of the defendant, Christopher Hogan, who had married the administratrix of Robert H. Wilson, paid the whole amount to him, after deducting the costs, he, Hogan, well knowing, that a large portion of the money, thus received by him, was the property of the plaintiff. The bill charges a demand of Hogan and a refusal to pay over to the plaintiff the money, received by him, and which belonged to the complainant, and prays a decree against the defendants, for the money so received.</p> <p>The defendants admit the death of Robert H. Wilson, and that administration upon his estate was committed by the proper authorities to Harriet Wilson, the widow, and their intermarriage. The defendant Harriet alleges, that, by the advice of the plaintiff, she obtained an order of the proper authorities in Florida, to sell the whole of the estate, real and personal, of her late husband, and it was sold by the plaintiff as her agent, to John D. Edwards for f62,000, for a portion of which sum, he executed his notes, or bonds, each for $5032 32-100, except one, which was for $4837 35-100, and to secure the payment of what was due by Edwards, he executed a mortgage for the slaves, sold to him, about fifty in number; which-mortgage, through the negligence of the plaintiff,, was not registered for nearly a year thereafter, and not until Edwards had mortgaged the slaves to the Union Bank of Florida to secure a debt he owed it, and which was immediately regisiered. She denies, that her former husband, to her knowledge and belief, owed' the plaintiff any thing. That while very feeble from a recent confinement, the plaintiff called upon her in company with McBride, and producing two papers requested her to sign them, which she did, though entirely ignorant of their contents, and she supposes they are the bonds or notes now claimed by the plaintiff That when she did sign-them, she was unable from weakness to get out of her bed, or to raise herself up, but was raised up, and supported by pillows, and that no papers of any kind were delivered to her by the plaintiff, at that, or any other time, as evidences of any debt due to him by Robert H. Wilson.</p> <p>The defendant Hogan answers, that after his marriage with the other defendant, he went to Florida to attend to her business, and upon getting there he was advised to institute a suit against the Union Bank to recover the slaves, and which is still pending. He learned that Edwards had confessed a judgment to his wife, upon three of the sale bonds, one of which was for the sum of .$4837 32-100, and each of the others for $5032 32-100, and that the attorney who recovered the judgment, had collected under it and paid to the plaintiff $2000. He was advised, that the whole of the judgment belonged to his wife. He, therefore, caused an execution to issue, and had it levied on twenty three slaves, all of which he purchased at the sale, but three-one of them by the name of Levy, was purchased by John Doggetf, the nephew and agent of the plaintiff. The whole of the sales, including some small articles, other than the slaves, amounted to #8732. After the sale a controversy arose between him and the agent, John Doggett, the latter claiming the proceeds of the sale for the plaintiff, and he, the defendant, claiming them as his, in right of his wife ; when they came to an arrangement, which was reduced to writ'ng, and by which it was agreed, that the plaintiff should retain the $2000, and the #150, the price of Levy, and the sum of $12, raised by the sale of wagon wheels, and that he should surrender to him a negro man, by the name of Jacob, he had purchased at the sale, at the price of $700 — the whole amounting to $2802, and he, Hogan, was to retain the other slaves at the sums he bid them off at, amounting to $8070. By the agreement, the right was retained by the plaintiff to assert his right to the slaves in contest with the Bank, if they were recovered, and to the defendant to resist his claim.</p> <p>The answer of Hogan further alleges, that, if, as the plaintiff charges, the bonds were transferred to him, his debt was paid, and, if the defendant afterwards received it, he was answerable singly, and not jointly with his wife, and, if so, the plaintiff had full and adequate relief, and the agreement as before set forth as a compromise, on the consideration set forth, is a full and complete bar to the relief sought: and, independent of its being a compromise, the fact, that the defendant took the slaves with the consent of the plaintiff, given by his agent., is also a full and complete bar to the bill; of all and each of which matters, the defendants claim the same benefit, as if specially pleaded.</p> <p>Replication was taken to the answers, and the cause transferred to the Supreme Court.</p>

Cause removed from the Court of Equity of Surry County, at the Spring Term, 1848. The bill alleges, that in 1815, Jacob McCraw died, leaving a will, duly executed, to pass real and personal estate. The defendants, Fleming and James McCraw, two of the executors named, proved the will, and qualified as executors, and took into possession the real and personal estate, including several tracts of land, many negroes, and other personal estate of great value.

Cause removed from the Court of Equity of Northampton County, at the Fall Term, 1848.

Cause removed from the Court of Equity of Stokes County, at the Fall Term 1848. After the decision of June Term 1843, 2 Ired Eq. 5G5, this cause was remanded, and it has since been revived against the administrators of Conrad, and sent here again.

Cause transmitted from the Court of Equity of Cumberland County, at the Fall Term, 1848. John Ray, form erly of Cumberland County in this State, removed into Marion district in South Carolina, and there died intestate in 1842. Administration of his estate was granted in South Carolina to Malcom R. Carmichael» one of the plaintiffs, and in North Carolina to Archibald Ray, one of the defendants.

Cause removed from the Court of Equity of Craven County, at the Spring Term, 1847. The bill alleges, that at a sale of the land of the heirs at, law of one John F. Smith, made by the Clerk and Master in Equity for the County of Craven, the defendant, Tames Shakleford, purchased a part of the land, at the price of #2975, for which he gave his note to the Clerk and Master, Edward Graham, with the plaintiff and one John Shakleford as sureties.

Cause removed from the Court of Equity of Bladen County, at the Spring Term 1848. The object of this bill is to set up a deed, alleged to have been made to the plaintiff by his uncle, John Kea. The instrument was exhibited with and annexed to the bill, as a part of it.

Cause removed from the Court of Equity of Jones County, at the Spring Term, 1847.

Cause removed from the Court of Equity of Edgecombe County, at the Fall Term 1848. James Simms made his will and therein made a number of specific bequests of slaves and other things : among which were the following : “I give to my wife six negroes, Champion, Tony, Chany, Venus, Anaka, and Aaron* Item : I give to my youngest son, Benjamin, eight negroes, Amos, George, Peter, Turner, Pike, Creecy, Rose, and Jack.

Cause removed from the Court of Equity of Warren County, at the Fall Term 1848. The bill is filed for an account of the estate of John L. Ward. The defendant, who is the administrator of the said John L. Ward, with the will annexed, submits to an account, The only question, about which the parties differ, is, whether by the will of Benjamin Ward, the said John L Ward was entitled to an estate in fee simple, or to an estate for life in the tract of land on which he lived.

<p>Cause removed from the Court of Equity of Wake County, at the Fall Term 1848.</p> <p>William P. Little made his will on the 2nd of March 1327 and therein made the following disposition: “In the first place, I give to my wife Ann, all the negroes which came by her and all their I>ast as well as future increase. Secondly, I lend to my wife during her natural life all the residue of my estate, real and personal. Thirdly, at the death of my wife I give to all my children, who may be then living, an equal part of the residue of my estate, both real and personal; and in case any of them should die previously, leaving issue, I wish said issue to have the portion which their parent would have drawn, if living : due regard being had to such as may have received any advances either from me or their mother at anytime previous to her death out of my estate. I appoint my wife Ann and my sons, Thomas P. Little and George Little, in all of whom I have the most unlimited confidence, my executrix and executors ; and they are hereby vested with full power to sell any part of my estate, either real or personal, whenever they may think proper to do so, without any order or decree of any Court. Lastly, it is my will and desire, that if any of my children die without issue or under age. in either case their portion to go to my surviving children, and to the issue of such as may have died leaving issue in the same proportion their parent would draw if living.”</p> <p>The testator died in the Spring of 1829, and in August following, the will was proved and Mrs. Little arid Thomas P. Little qualified as executors. The testator left seven children, of whom one was Minerva, who intermarried with Hamilton C. Graham and had issue three children, and then both she and her husband died in the life time of Mrs. Little, leaving their said children surviving, who are infants and are the plaintiffs in this suit. In 1845 Mrs. Little died, having made her will and appointed her son Thomas P. the executor, and he proved the will.</p> <p>The bill was filed in September 1847 against Thomas P. Little, George Little, and the other children of the testator, William P. Little, and states, that the testator left a large personal and real estate, and that the latter consisted of land in this State and Tennessee and elsewhere.; and that the executors sold large quantities of valuable land and appropriated the proceeds to their own use or misapplied them in the payment of debts of the testator, as they say, instead of his discharging the debts out of the personal estate, as they should have done. The prayer is for a discovery of the personal and real estates and especially of such parts of the latter as were sold, and an account of the proceeds and also of the residue of the personalty, and that the plaintiffs may be declared to be entitled, as representing their mother, to one seventh part of the residue of the personalty after the payment of the debts and the charges of administration and the like share of the prices of the land sold and the profits thereof and that the same be decreed to be paid to them, and also that partition be made of the land remaining unsold, so that one seventh part thereof in value should be allotted to the plaintiffs.</p> <p>The answers of the executors state, that the testator was largely indebted when he died, and also when he made his will, and have annexed to them an account of debts and charges paid to an amount exceeding $25,000 : that there were about GO or 70 slaves, and that a considerable number of them were sold for the purpose of raising money to be applied to the discharge of the debts* and that it would have required all of them, or nearly all of them, including those bequeathed specially and absolutely to Mrs. Little, to satisfy all the debts: and that, under those circumstances, it was thought most proper to sell such parts of the land as were unproductive and thus save some of the slaves (which were productive and increasing) by applying such parts of the proceeds of the land, as were requisite for that purpose, to the discharge of the debts. The answers state, that the testator left 21,700 acres of land, consisting of various tracts, of which a schedule is annexed, and that,.thereof, particular parts, mentioned in a schedule, had at different times been sold for the aggregate amount of $23,890 54; and they insist, that the same was under the will subject to the payment of the testator’s debts in exoneration of the specific legacy to Mrs. Little, or at all events that it was so subject to the discretion of the executors. The answers also state certain advancements made to the children respectively.</p>

The bill alleges, that the defendant, in the County of Surry and State oí Virginia, where he then resided, during the year 1818, executed a deed of gift to Nancy, one of the plaintiffs, who was his reputed daughter, by which, he conveyed to her a negro woman, to take effect at the death of the defendant ¿ which said deed was properly attested and delivered, and afterwards proven by the subscribing witnesses, and registered in the said County of Surry ; a copy is filed, and…

Cause removed from- the Court of Equity of Anson County, at the Fall Term 1848.

Cause removed from tbe Court of Equity of Carteret County, at the Pall Term 1848. Jesse Ward, after several specific dispositions, devised and bequeathed as follows. ‘-The residue of my property, both real and personal, to be equally divided between Lany Harper’s children, Sarah Jarman and her children, and my brother Isaac Ward’s two children.

Cause removed from the Court of Equity of Greene County, at the Spring Term, 1848. The bill sets forth, that Thomas Edwards died in the year-, leaving a large real estate, which descended to his children, who were his heirs at law: That the plaintiff, Polly Sutton, was one of his heirs, and the others were, Theophilus, Cullen, Francis, Thomas, Nathan, Rosa, and William T. Edwards, eight in number ; and that Theophilus died intestate and without issue.

This was an appeal from an interlocutory order of the Court of Equity of Davidson County, overruling the pleas of the defendants, at Spring Term 1848, his Honor Judge Pearson, presiding.