Volume 54 — North Carolina Reports

<p>"Upon a direction in a will to emancipate a female slave, either immediately, or at a future time, after a temporary enjoyment of another, the issue of such female slaye ¿mist, when nothing to the .contrary appears in the will, follow the,oonditipn of the mother, and be emancipated also.</p>

The bill is filed in this Court, for tbe purpose of reviewing a decree of this Court, heretofore made in the case of Taylor .and Taylor, executors of Hollister, against the American Bible Society and others, reported in T Ired. Eq. 201. The plaintiffs were defendants in that case, and the plaintiffs in tliat case, with some who were defendants, are made defendants in this case.

Cause removed from the Court of Equity, of Duplin County, at Eall Term, 1853, and came on to be heard on demurrer. All the facts and the pleadings necessary to a proper understanding of the question decided are recited in the opinion of the Court.

Cause removed from the Court of Equity of Chatham County, at Fall Term, 1852.

Cause removed from the Court of Equity, of Martin. County, at Eall Term, 1851, and was heard on exceptions to the Master’s report, December Term, 1851; vide 8 Ired. Eq. Rep. 60.

<p>Where one is made a party to a bill in Equity, pro forma, but lias no interest in the questions involved in it, he may be examined as a witness by the adverse party.</p> <p>Where an administrator de bonis non of a testator, who has no interest under the will, is examined in behalf of a legatee, and his deposition read, this is no equitable discharge of the principal defendant, who-claims by a deed of gift from the testator, which is attacked for fraud.</p> <p>(1 Ired. Eq. 290; Burton v. Stamper, 0 Ired. Eq. 24-, cited.)</p>

This cause was transmitted from the Court of Equity of Edgecombe County, at Eall Term, 1853, on affidavit of defendant.

Cause removed from the Court of Equity for Duplin county, at Eall Term, 1852. William Kornegay, sen. died in 1837, leaving certain slaves to his wife, for life, or during widowhood, with a limitation oyer, after her death or marriage, to his five children, Raney, Kitty E., Thomas, Winefred and William Henry, to be equally divided among them. Raney married William Houston, is dead, and no administrator has been appointed.

Cause removed from the Court -of Equity, of Stokes •County, at Pall Term, 1853- Isaac Nelson, of the county of Stokes, on the 4th of July, T820, .executed his last will and testament, in which, after specific bequests of slaves to .each of his five children, and : after devising his -real estate to his three sons, bequeaths and directs as follows: “ It is my will, that my just debts ;be ¡laid out of the debts owing to mo; after raising my.chil- ■ dren, and giving them a good…

Joab P. Pitt owning a large number of slaves, for a good consideration, duly executed to his children, Rebecca Pitt and several others, a deed of gift, conveying to them the slaves, Ephraim, Charity, Betty, Jane, Dallas, and thirty-nine others, whose names are set forth in the conveyance, reserving to himself a life estate in these slaves, unless he might please to put his children in possession thereof before his death, -which deed of conveyance was duly proven and…

<p>• Cause removed from tbe Court of Equity, of Franklin County, at Fall Term, 1853. The bill was filed by tbe plaintiff," as tbe administrator of Frederick Battle, alleging that certain questions were raised between bis widow and her' children and others claiming under them, that made it unsafe for him to distribute the estate. He alleges particularly, that the distributive share to which his daughter MaryvAnn would be entitled, was claimed by James S. Yarbrough, by virtue of an assignment of her late husband; Thomas E. Yarbrough, who- had given him notice of his claim, and warned him not to pay the same to Mary Ann, but demanded the same for himself. The bill also alleges that Thomas E. Yarbrough, and his wife Mary Ann, had been advanced in certain slaves mentioned in the bill, in the lifetime of the intestate, and he prays the advice of the Court, and asks that the several parties may st; to their titles and interplead with each other, and litigate their opposing claims to the end that justice may be done to each, and the plaintiff saved harmless in. distributing the estate of his 'intestate, and that an account may be taken of his administration.</p> <p>James S, Yarbrough, and William H. Battle, administrator of Thomas E. Yarbrough, Mary Ann Yarbrough, widow of. Thomas E. Yarbrough, Temperance Battle, the widow of Frederick Battle, and the rest of the children of Frederick Battle, were made parties defendant. Subsequently to the commencement of the suit, Mary Ann Yarbrough intermarried with James C._Green, who was made a party defendant with his wife.</p> <p>Tbe answer of James S. Yarbrough states specifically anti at large the nature and consideration of the assignment made to him by Thomas E. Yarbrough, and insists that it was bona fide, and for value.</p> <p>Mary Ann Yarbrough (now Green) admits the ne-groes put into possession of her former husband, Thomas E. Yarbrough, to have been advancements, and submits that the estate of her father shall be allowed for the same, out of her share; also, that she and her husband were further advanced in cash, horses, cattle and other articles of personal property, of which she states the value. She denies the equity of the claim set up by James S. Yarbrough, and says that it was either given as security for 'a very small sum, or was obtained by fraud and imposition, from her husband, or to act as a power of attorney; and as to that, not reduced to possession by her husband, in his lifetime, she claims the same by survivorship, notwithstanding the assignment of her husband, the said Thomas E.</p> <p>The answer of W. II. Battle, the administrator of Thomas E. Yarbrough, claims the unrealized part of Mary Ann’s distributive share of her father’s estate, in his. representative character, and insists that the assignment thereof was intended as a mere authority to enable him to settle with the administrator of the father-in-law.. He alleges that the negroes put in the possession of Thomas E. Yarbrough and his wife, though intended at first as advancements, were subsequently divested of that character, by being conveyed L\ deed to the children of Thomas and Mary Yarbrougli,. (which deed is filed,) and ho insists that the distribution-shall therefore take place, with such part subducted from the mass of Frederick Battle’s estate.</p> <p>The answer of Mrs.. Temperance Battle, the widow of Frederick, explains this part of the transaction, and. alleges it as intended to cover the property from the creditors of Thomas, and done at his instance, and' that of his wife Mary Ann, and insists -that these negroes shall be treated as advancements, and accounted as part of their distributive-share.</p> <p>„ There' was replication and commission, and much proof taken in the cause; but, as the view taken of the case renders the consideration of it unnecessary, it is for that reason omitted.</p>

This case was heard in this Court, at December Term, 1851, and the opinion of the Court, then delivered by Mm Justice PeaiisoN, and is reported in 8 Iredell’s Equity Reports 131, and on the petition of defendant’s .counsel was reheard at this term. as argued as follows: The case is this : Gen. Speight became indebted in North Carolina, and there married. In 1837, he and his wife became domiciled in Mississippi.

Cause removed from the Court of Equity, of Rocking-ham County, at Eall Term, 1853. An action of detinue was pending in the Superior Court -of Law, of Rockingham, in the name of John C. Mingus, trustee of A. D. Jones, against one Robert Strong, for the recovery of several -slaves.

Bill transmitted from the Court of Equity, of Richmond County, at Eall, Term, 1853.

Cause removed from Court of Equity of Caswell, at Eall Term, 1853.

At the Spring Term, 1853, the hill in this case was filed, and the following term the defendant demurred, and at the-s&me time the plaintiff moved, under the act -of 1852, fox ..-a-reasonable and sufficient alimony during the pendency of the suit, which-“was allowed her, and the defendant being dissatisfied, prayed an appeal to the Supreme Court, which was allowed.

<p>Cause removed hy consent of parties^ from tho Court of Equity, of GramiJJo county, at the Spring Term, 1858.</p> <p>Tho bill was hied in September 1852, and states, in substance, that Hebert Taylor tl'ed in May 18-J-7, having duly executed his last will and testa’.neat, leaving him surviving four children, cno of whom is the defendant Richard P. Taylor, and two graud-cliildron, vie:: Robert T. Pelham, the complainant, and his sister Susan, who aro the children of a- deceased daughter of Robert Taylor.</p> <p>Robert Taylor bequeathed to his wife, Mildred Taylor, an annuity of twelve hundred dollars, chargeable upon liis whole estate, and to bo paid semi-annually. After specific bequests to Robert T. and Fnsan Pelham, he directed that the residue of his estate should bo divided between his four children, and Robert T. Pelham and his sister Susan, so that the shares of tho two last should, together, equal the share of one of his four children, i le further directed, that their shares should be held in cross-remainders, in case they should die without issue, them surviving; and, in case the survivor should die without issue and intestate, Ms share, as well as .any accumulation thereon, should go to his other .children or grand-children, the latter taking by stocks, declaring that it was not his intention to prevent such survivor from disposing of the same as he or she might think proper. The limitation over was itself subject to a limitation in favor of the husband or wife of the survivor, who was to receive such portion of their shares, whether original or accumulated, as he or she would have been entitled to at law.</p> <p>In 1847, Richard P. Taylor and others were appointed executors of Robert Taylor, and, about the same time, the said Richard was appointed .guardian for the complainant and his sister Susan, they being under age. The executors agreed to set apart a fund sufficient to raise two hundred dollars annually, towards the payment of the annuity, and to divide the rest of the estate, debts, &c., being paid, among the several legatees, and that each legatee should pay, semiannually, a rateable part of the remaining' portion of the annuity.</p> <p>Richard P. Taylor, as guardian to Robert T. and Susan Pelham, paid semi-annually f 100 towards said annuity, that being their rateable portion, and charged himself with the same, in his account as guardian.</p> <p>In 1848, Susan died under age, without issue, and never having been married. Her estate becoming vested, by the limitation in Robert, was transferred to his account by his guardian.</p> <p>Since that time, RobertT. Pelham has attained the ago of twenty-one, and has called upon Richard P. Taylor to come to a settlement, which ho refuses to do, unless he be allowed to retain in his hands sufficient to raise the rateable part of the annuity, or the plaintiff should otherwise sufficiently provide for its payment. The defendant also doubts whether it be not his duty, as executor, to require security for the forthcoming of the property in case of the death of Robert T. Pelham without -issue and intestate..</p> <p>The answer admitted all the statements in the hill to he correct.</p> <p>Set for hearing on the hill and answer, and removed by consent.</p>

Bill transmitted from tlio Court of Equity, of Randolph County, at Fall Term, 1853. The following case is made by the pleadings: Philip Beeker, the intestate of the defendant Eoard, contracted to sell to the plaintiff two tracts of land, lying in Davidson •county, one of two hundred acres, for $G00, and one of fifty acres, for $>200 — making in all §800. Ho received in cash $300, and took the plaintiff’s notes for the remainder of the eight hundred dollars.

Cause removed to this Court, from the Court of Equity of Gates County, at Spring Term, 1853. The only question decided in the caso is sufficiently .stated in the -opinion of the Court.

The question in this case arises out of exceptions taken to the report of the commissioner, to whom it was referred, to take an account of the estate of Erederick Johnson, Sr., by a decree of this Court, at June Term, 1853, which is reported in Busbee’s Equity Rep. 213. The nature of the exceptions sufficiently appear from the opinion of the Court.

Cause set for hearing upon bill and answer, at the Fall Term, 1853, of the Court of Equity, for Chatham county, ■and transferred by consent to the Supreme Court. The bill was filed by Tinnin and his wife Frances against John Womack, executor of Joseph W. Small, and against several others of the name of Bain. It alleged that in 1850, Joseph W. Small, the brother of the complainant Frances, died, after having made his Irst will and testament, and appointing Womack his executor.

Bill removed from the Court ox Equity, of Edgecombe county, at Fall Term, 1853. Robert R. Braswell, by his will, duly executed and proven,, gave to his children Benjamin, Joseph, Thomas, Robert S., Arnetta, Ansey, Margaret, and to Anseylina, his widow, certain specific legacies, and then bequeathed the remainder of his estate to he sold, and the proceeds “ to be equally divided between his living children and their lawful heirs.” Benjamin Gf.

<p>This cause was transmitted to tlie Supreme Court, from the Court of Equity, of Cabarrus County, at-Term,-.</p> <p>The bill is filed by G-eorge Reid, against George Barn-hart, Robert Motley, Andrew Hartsell and John Reid, the younger. The case is: that John Reid, the elder, was the owner of a gold mine in the county of Cabarrus, and in the month, of November, 1834, he granted permission to his son and sons-in-law (who were the plaintiffs and defendants, and three others) to work the mines upon the following terms: They were daily to pay him (the father) one-third part of the gold found, and the residue of each day’s gains was to be divided equally among those who worked on the several days. The son and sons-in-law were themselves to do the work personally, unless they should be kept away, at any time, by sickness or indispensable business, in which case, one so absent should be at liberty to send one of his white family as a hand in his place. The son and sons-in-law agreed to work the mine upon those terms, and proceeded to do so accordingly. On the 20th of November, 1834, the four defendants attended at the mine, and went on to work in person; the plaintiff, and the three other sons-in-law, not being there. But the plaintiff being necessarly detained at home, sent Arthur Reid, his son, to work in his stead that day, and Arthur worked accordingly, as the plaintiff alleges. Shortly after the operations of the day were begun, one of the defendants found'a large lump of gold weighing about nine pounds, a\oirdupois weight, which, after paying to the father his share, the defendants divided among themselves.</p> <p>The bill was filed by the plaintiff, claiming from the defendants an equal share of the gold found on that day, upon the ground that his son was sent by him, as his substitute, as he had a right to do, as he was an able and sufficient hand, out of his own family, and at all events, that he had been accepted by the defendants as a hand, and had been set to work in his father’s place.</p> <p>The answer admits, that Arthur Reid was at the mine on the day mentioned, and at work, but the defendants say he worked by himself, and for himself, and not with, or for, them, and they deny that they did receive him as a hand on account of his father, or that they would have done so, in ..as much, as they alleged, he was too young to do a man’s ■work.</p> <p>Upon the point thus in dispute, there was much conflict in the depositions, so much so, as to induce the Court to .direct issues to be tried in the Superior C .urt of Giba rus: 1st, whether Arthur Reid was received by the defendants .as a hand to work in the stead and lieu of his father, before the finding of the piece of gold on the 20th day of ^November, 1834, and 2ndiy, if lie wore so received, whether he had been discharged upon the finding of the piece .of gold.</p> <p>.On the trial of the issues, Judge Bathe presiding, several witnesses were offered by the plaintiff, to prove that Arthur Reid was at the mine, at work, on the day in question, and that he was, at one time, sent to some distance by one of the defendants, (but which is not stated,) for an implement used in the mine, called a dipper, and that, while he was gone, the defendant Motley complained, “ that he staid too long, and said that Arthur must be smarter, or he would send him home, and that George Reid (the plaintiff) should come himself or send a better hand.” This was objected to, as evidence against the other defendants, on the ground that one partner could not receive another person as ¡partner .without the concurrence of his co-partners. But it was received by the Court, and the jury found upon that and other evidence both the issues in favor of the plaintiff .against all the defendants.</p> <p>His Honor thereupon stated the ease so as .to present the ■ question, and enable the .defendants to .move this Court, to direct the issues to be tried over again, if the Court should he of opinion that the evidence was not proper against the defendants, and the defendants’ counsel made that motion •</p>

Cause removed from the Court of Equity, of Caswell county, at Fall Term, 1853. Littleton A. Gwyn, the testator, died in July 1853, without leaving a child, or the lawful issue 'of such. The other facts of the ease sufficiently appear from the opinion of the Court.

Cause removed from the Court of Equity ofEdgecomb County at the Spring term 1854. The bill was filed by the plaintiffs, as the next of kin of Benjamin Simms, against the defendant Edwin Barnes the administrator of said Benjamin and against Willie Simms who set up a claim to the property sought to be distributed, under the will of James Simms.

<p>Cause removed fromtlie Court of Equity of Yadkin county,, at Fall Term, 1853.</p> <p>Tlie case is sufficiently stated in the opinion of the Court.</p>

<p>Cause transferred from the Court of Equity of Caswell county.</p> <p>The case sufficiently appears from the opinion of the Court,</p>

<p>Slaves were bequeathed to J. B. and S. B., bis wife, -for and during their joint lives, and to the suivivur tor life, and upon tlie death of the sa d J. B. and S. B., to tl.cir children, to lie equally divided l>eUve< u tin m, or the ¡-urvivot of them, their heirs and assigns foiever.” J. B. and S. B. had three chil Iren at the death of the testator, two of whom died without iírue in the lifetime of S B , the survivin': life tenant, ami the third was living at the time of her mother, S. B.’s death : Held, That this surviving child was entitled to the whole inleiest in the legacy.</p>

Cause removed from the Court of Equity of Duplin county at the Spring Term, 1852. ' This was a bill filed by the plaintiff against the administrator of his guardian, seeking an account and settlement of the guardianship which was answered by the defendant and reple-cation made and proofs taken, and being set down for bearing, was transmitted to this Court by consent.

<p>Cause removed from the Court of Equity of Guilford county at Spring Term, 1854.</p> <p>The bill was filed for the partition of a tract of land, in the county of Guilford. The questions made in the case, are fully presented in the opinion of the Court.</p>

<p>In a bill for a special injunction, to slay the cutting of timber, it is necessary that the plaintiff should set forth, not only that the threatened injury would he irreparable, but he must show how it would be so.</p> <p>In a contest between two, fora tract of land, each claiming the legal title, and the one in possession is cutting down timber, and building in the ordinary course of agriculture, the Court of Equity, will not stay the operations of him in possession, upon the ground, merely, that he is insolvent.</p>

The bill was originally filed against Roderick J. Shute, to foreclose a mortgage made by him to the plaintiff, to secure the payment of certain debts therein mentioned, for which the plaintiff was the said Shute’s surety to several persons: which mortgage embraced three several tracts of land and divers articles of personal property.

<p>Cause removed from the Court of Equity of Davidson county, at the Fall Term, 1858.</p> <p>This case sufficiently appears ñ-om tire opinion of the Court.</p>

Cause removed from the Court of Equity of Forsyth County at Spring term 1854. Elizabeth Briggs the sister of the plaintiffs executed her bonds with Benjamin Briggs and Henry M. Briggs as her sureties for the purchase money of the tract of land in controversy to the then owner Samuel E. Britz and took from him a bond to make title to the same whenever Elizabeth should pay the purchase money.

<p>Where landand negroes had been conveyed by deeds, absolute upon iheir face, toa brother-in-law of the bargainor, and to a bill, seeking to convert such conveyances into a trust, the defendant answers evasively and unsatisfactorily as to the mode of payment made by him, and it appears that he had recognized such trust by conveying a large portion of such property, according to the terms of the trust insisted on, and had taken receipts, and done other acts inconsistent with an absolute conveyance, and where it also appeared that the bargainor was weak in intellect, and subject to be controlled by the bargainee, and was deceived and imposed on by him as to the nature of the conveyances, a Court of Equity will declare the existence of the trust, gnd will hold the defendant to an account.</p> <p>Where a part of this parol trust was alleged to be, that certain slaves were to be conveyed to the plaintifi’s daughters on their marriage, it was held, that the daughters had no such interest in the question, as to make it requisite or proper that they should be parties to the suit brought by their father : EelcL, further, that the daughters, and their husbands, were competent witnesses in the cause.</p>

Cause removed from the Court of Equity of Wayne county, at the Spring Term, 1854.

Cause removed by consent 'from the Court of Equity of Wake County at the Spring Term, 18M. Mary Dean, by her last will and testament, bequeathed amongst other devises and bequest, as follows: “ I give and bequeath to my grandson, Marcellus Hilliard, one negro woman, Nelly, and her child Hugh White, but in the event of the said Marcellus departing this life without lawful child, the said negoes, Nelly and Hugh White, are to be equally divid-between Martha H. Sanderford and…

Cause removed from tlie Court of Equity of Jones County. The defendant David W. Sanders, bad been appointed guardian to tbe children of one Jobn S. Jones, wlio bad an estate consisting of land and slaves derived from tbeir grandfather, tbe income of wliicb was about J00 dollars, and which had been, for several years before tbe transaction in question, expended in the support and maintenance of the children.

Cause removed by consent from the Court of Equity of Nash county, at the Spring Term, 1854. The hill was filed by the widow of Peter Arrington and her second husband, against the executor,'for an account of the hires of slaves and sales of property bequeathed to the plaintiff Sarah Anne in the testator's will. The bill suggests that the terms of the will in question are of doubtful import, anjl refers several questions to tho Court, which materially affect their rights.

Cause removed from the Court of Equity of Person county at the Spring Term, 1854, by consent. The case is fully presented by the opinion of the Court.

<p>Wliere a father, having madea voluntary deed of gift to a daughter, in order to “upset” the same, has the property levied on, and sold for his debts, bought in by his agent, and by his direction, it is conveyed to the other children of the donor, (the father) these last holders will he declared trustees for the original donee (the daughter.)</p> <p>The fact, that the husband of the first donee (the daughter) had the property in his possession, when it was levied upon, will not prevent the wife from asserting her cause of action after three years, nor her administrator after her death, the suit having been brought within the time allowed to femes covert, under the act of limitation.</p>

<p>Cause transmitted from the Court of Equity of Wake county, at the Spring Term, 1854</p> <p>The case sufficiently appears from the opinion of the Court.</p>

Cause removed from tRe Court of Equity of Franklin County at the Spring Term, 1854. The hill was filed by the Executors of Henry Williams, to obtain a construction of the will, and for instructions in the payment of legacies according to the provisions of the same.

Petition for divorce and alimony removed from the Court of Equity of Johnston County, at Spring Term, 1854. The' defendant filed a general demurrer to the whole petition, and the cause being set down for argument upon tlie petition, and demurrer was removed to this Court by consent. This case sufficiently appears from the opinion of the Court.

<p>A bastard dies intestate, leaving the daughter of a bastard brother, born of the same mother, his next of kin, and a widow. It was held, that the widow was only entitled to one-third of her husband’s personal estate, and the daughter of his bastard brother to two-thiids.</p>

Cause removed from the Court of Equity of the county of Anson, at the Fall Term, 1853. On the 2rd of March, 1813, one Burwell Benton, conveyed the land in question, by deed, to Stephen Taylor, now deceased, the father of the plaintiff and of the defendant, John Taylor.

<p>Emancipation, followed by immediate removal from the State, is not forbidden by our laws. But where it is provided in a will, that certain slaves shall have their own time, and may work or not, as they see proper, having ihe care and protection of a nominal master, and a fund for their support and maintainance, such a state of qualified slavery is regarded by the Court as unlawful, and the bequests void.</p>

Cause removed from the Court of Equity of Craven County at the Spring Term 1854 of that court. Edward Graham of New Berne devised and bequeathed a large real and personal estate to his wife, for life, and after-wards to bis two daughters, Elizabeth, who intermaried with John P. Daves, and Jane, who intermarried with Wm. H. Haywood, Jr., and to his son Hamilton 0.

William Partin by his last will and testament (among other things) bequeathed as follows : “ I also give to my said wife all my negroes: namely, Morning, &c., to be disposed of at her discretion, equally between all my daughters; namely, Per-nina Partin, &c., except' my wife should be of opinion that by the increase of the said negroes, or otherwise, they should be of more value than what my sons have had heretofore, and now given to them from me, then my wish is, that my…

Cause removed from tbe Court of Equity of Kowan County at tbe Spring Term, 1854.

Cause removed to this Court from the Court of Equity of Watauga county, at Spring Term, 1854. „ The plaintiff made his entry for the tract of laud in dispute On 21st September, 1847, and bad the same surveyed on the 25ih January, 1850. On the 1st December, 1850, he obtained a grant from tbe State.

The bill sets forth that the plaintiffs, D. T. Caldwell and W. F. Davidson, together with one J. H. Blake, were sureties of one William Davidson, in a note to the defendant Blackwood, payable to him as agent of the Bank of the State, for $15.,000. That in 1837, Davidson executed a deed of trust to secure the same and that the said Blackwood was made the trustee in this deed.

<p>A part performance of an agreement, for the exchange of lands, (as where the parties mutually exchange possession,) will not dispense with the provision in the Statute of frauds, requiring such agreement to be in writing.</p> <p>A defendant is entitled to the protection of^the Statute, where he claims it by plea or answer, though he admits the parol contract as alleged by plaintiff’s bill.</p>

Cause removed from the Spring Term 1854, of the Court of Equity of Rowan. The hill was filed by the executor of Henry Robertson to obtain a construction of the testator’s will, and for instructions as to the disposition and management of the fund arising from the sale of the estate. Samuel Frost the husband of the legatee Jane, and the children of the said Jane, as well as the -other legatees in the will, are made parties defendant.

<p>A copa: (nership had bcmc'staMbhed (o purchase Chert.kee lands, and !o work them for mining, &c., as pat tners. One of the specifications in the agreement of copartnership, wah to be that such disposition was‘'madcoi their property as a majority should deem advisable,” two of the partners having become insolvent, and a third nearly so, and ¡11 having abandoned the vtoih, and neglected the payment of the instalments for ihe pinchase money, leaving the whole burthen upon the fourth partner; neither of these three partners has a right to complain in eq'iity, that (he fourth partner, in order to relieve his sureties, has disposed of the .land without the concurrence of a majority.</p> <p>Especially has he no equity, against the purchaser from such fourth partner at a fair piice, and without notice of such equity.</p> <p>All that he can a-k, under such circumstance', is for an account against his copartner for the money leceived for the land, arid for any tolls, rent.», or profits made in mining nr by agrieuhurul operations.</p>

<p>ABO and D entered into a copartnership to purchase a tract of land at the Cherokee land sales, and to woik the same for gold, &e. A and B only gave bonds for the purchase ¡none)’, with sureties, whom they procured. B, O and D left the country, abandoned the work for several years, and gave no aid to A, either in working on the land or paying the purchase money, but suffered him alone to be pressed for the debt. A, in good faith, to relieve his sureties, under the act of 1844, surrendered the land to the State, and afterwards, under another act, obtained from commissioners appointed, under tire act, a “pre-emption right,” for the same land, and sold the same for a sum of money ; Ileld, that neither the original partners, nor their assignees, could hold A to an account for this money.</p>

<p>AppEAirfrom the court of Equity of Henderson county, from an order dissolving an injunction, heard before his Honor Judge Dior, at the Spring Term, 1854.</p> <p>The material allegations in the hill are, that the plaintiff having a debt of about $323,13 on the defendant, Folger, was put to much inconvenience about it, and was from the defendant’s precarious circumstances, doubtful of being able to save the same: that in order to save his debt, he agreed to take a negro girl about eleven years old, by the name of Haney, at the price of $525, out of which sum his own debt should be discharged ; and he gave his bond for the residue, to wit: about $252, due on 25th of December, 1851. That the negro Haney was the joint property of the defendant Folger and one Chain Strowed, who lived in South Corolina, but that the title was made to him by the latter, who made a written warranty of soundness, except as to a defect in the eyes, they pretending that the title of the slave was in Strowed, and they both joined in repeated assurances to the plaintiff, that they were dealing fairly with him, and that the slave was sound except that she was a little near sighted. The bond for the remainder of the purchase money, after deducting Folger’s debt, was made payable to him on the suggestion of both him andStrowed that it was immaterial to whom it was given. The bill further sets forth that the negro girl, Haney, was unsound at the time of the sale, being affected with consumption, and that in about twenty months thereafter, she died of that disease; also, that ten d ays after the sale of the slave to him, having discovered the fraud practiced on him, he advertised in a newspaper of the neighborhood, the facts of the case, and cautioned the public against trading for the note given on the occasion. The bill further charges that in order to evade the equitable defence of the plaintiff, the bond in question was transfered to the defendant, Hendricks, after it was due, and as he believes without consideration, and with a full knowledge on the part of Hendricks, that the plaintiff set up this defence against it, and it particularly charges that Hendricks had admitted to him that he had seen the advertisement before he took the assignment of the note, and that he only held it as a pledge. That the bond had been sued on at law in Henderson Superior court, a judgment obtained, and execution threatened to be issued. The bill prays for an injunction and for general relief.</p> <p>The answer of the defendant, Eolger, details the circumstances of the case minutely. It denies that the slave, Haney, was unsound at the date of the transaction, or that she died of consumption, but avers that she died of pheumonia, contracted long afterwards, but, if in this, he should be mistaken, he further avers that he was totally ignorant that she had any ailment or defect, but that of the eyes, which was excepted in the bill of sale, and he denies that there was any copart-nership or joint ownership in the slave in question, between him and Strowed.</p> <p>The defendant, Hendricks, put in his anwer, the purport of which is sufficiently set forth in the opinion of the Court.</p> <p>The defendant, Strowed, filed no answer.</p> <p>On a motion, in the cause to dissolve the injunction, the same was heard upon the bill, and answers filed, and the injunction was ordered to be dissolved. Appeal to the Supreme Court.</p>

In the year 1850, the legislature passed an act authorising the sale of refuse lands, owned by the state, in the counties of Cherokee and Macon ,• in which was provided also, a preemption right in favor of settlers and those who had made valuable improvements, still being citizens of the state.

<p>Where it is alleged in a bill that the defendant had made his son a deed for a tract of land in consideration of natural love and affeetiop, and that the deed having never been registered was left with the father, the grantor, for safe keeping, and that after the sons death he destroyed it and the father admits the conveyance, but says it really was in consideration of an agreement to support the grantor and his wife for their lives, and that the bargain was subsequently rescinded: held that it was incumbent on the defendent to make good this defense by full proof, and that failing to do so he would be decreed to convey to the heir of the son.</p> <p>Where a person enters upon land under a parol contract of purchase, which is not performed, the purchaser is entitled for improvements made on th,s land while occupying it under such contract.</p>

Samuel Givens died in the year 1846 leaving a will in which were contained the following among other clauses:— The plaintiffs filed their petition in a Court of Equity for Union County, in which they insisted that the devise, contained in the will of the father of the feme plaintiff, as above set forth, was void for uncertainty, and because it tended to create a perpetuity, and that, therefore, the said land descended to the heirs at law of the testator; and they prayed a…

Cause removed to this Court from the Court of Equity of Kowan county, at the Spring Term, 1854. This case sufficiently appears from the opinion of the Court.

Cause removed from fie court of Equity of Yancy county. The plaintiff who was extensively engaged in procuring pensions from, the general government, for military services, had contracted with the defendant, James Johnson, as the agent of Mary Dowell, for one half of the pension to which o argil; entitled, as the widow of Captain Richard Dowell, for military services in the was of the revolution, at the sum of fourteen hundred dollars, and having adjusted and satisfied two…

<p>Cause, sent to this court from the court of Equity of Burke county.</p> <p>The plaintiff, Joseph Smith, became surety for one Henry Helton to the defendant, John Hayes, for the sum of one hundred and seven dollars, upon which sum a final judgment was rendered against him in the Superior Court of Burke county. Plaintiff alleges that this debt arose on two smaller judgments, on which judgments were rendered against the principal debtor, Helton, and himself, in April 1842, and that the plaintiff shortly after the rendition of these judgments requested the said Hays to press the collection of them out of Helton, and that the defendant, Helton, was then abundantly able to pay the same. That Hays not only refused and neglected to make the money out of Helton, but that he fraudulently assisted him to remove with his assets from the State: that this removal took place, in November, 1846, and that it was done with the fraudulent view of throwing the whole liability of these debts upon the plaintiff. That in January 1847, he caused suit to he brought against plaintiff, upon which the judgment in question was finally rendered. The prayer of the bill is for an injunction and for general relief.</p> <p>The defendant, Hays, answered, and a judgment pro confes-so was entered as to Helton. There was replication to the answer and commissions under which proofs were taken and the cause sent to this court.</p>

Cause removed from the court of equity of Cherokee county, at the Spring Term, 1854. The facts of the case are sufficiently set forth in the opinion of the court.

<p>A charge by an executor for personal services, in travelling on the business of the estate, in addition to a charge for the actual expenses of the journey, cannot be allowed an executor : inasmuch, as his commissions are allowed him for the very purpose of compensating for personal services, bestowed on the estate.</p>

This cause was removed from the court of equity of Burke county. Thefacts upon which theplantiffsEquity depends,are all recited in the opinion of the court. The cause was heard on demurer.

The bill states that Jonathan Downs was appointed Guardian of the plaintiffs, that they were entitled to receive considerable sums of money under the will of their grandfather, Eeuberi Bozzle, which was in the hands of Ambrose M. Bhea, the only acting executor under the said will, and that the said Guardian failed to call for the same from the said executor, hut was grossly negligent in not doing so.

Cause removed from tbe court of Equity ofWatauga county by consent at the Spring term 1854. The facts of the case sufficiently appear from the opinion of the court.

Cause removed from the Court of Equity of Caldwell County, at the Spring Term, 1854.

Cause removed from the court of Equity of Madison county at the Spring Term, 1854.