Volume 56 — North Carolina Reports

<p>Where “ impertinent” matter is introduced into the pleadings, it is, according to the course of the Court, to be stricken out at the expense of the party introducing it.</p> <p>No matter is impertinent, however scandalous it may be, or however much it may tend to degrade, provided it bears upon the point about which the parties are at issue.</p>

Cause removed from the Court of Equity of Greene County. In the month of August, 1853, Tilman II.

Cause removed from the Court of Equity of Tyrrell county. Benjamin A. Spruill, being seized in fee of a tract of land in Tyrrell county, sold the same to the plaintiff Samuel S. Simmons, and executed, in writing, the following receipt and undertaking, viz: i: Received of S. S. Simmons three thousand three hundred dollars, in full payment of the tract of land whereon I live, known as the William Wynn farm; and I bind myself and my heirs to make him a deed for the same when…

Cause removed from the Court of Equity of TTnioii County. Abram Williams, tbe intestate of the plaintiffs’ intestate, conveyed in fee simple by deed of bargain and- sale, a tract of land lying in Chesterfield District, in the State of South Carolina, to one Christopher Dees, with a covenant of qttiet enjoyment.

Causis removed from tbe Court of Equity of Pasquotank County. Jesse- L,. Pool being greatly embarrassed with debt, and, as it afterwards appeared, being in fact insolvent, on the 30th of January, 1841, executed a deed in trust to the defendant Joseph II.

<p>Cause brought from the Court of Equity of Richmond County by appeal.</p> <p>The bill alleges that the plaintiff is the illegitimate son of Flora Priest, who afterwards intermarried with Daniel Lytch; that Angus Priest, her father, devised and bequeathed as follows : “ I give and bequeath to my daughter, Sarah Priest, my negro boy Tom, and to my daughter, Elora Priest, my negro boy "Wilson, and to my daughter Elizabeth Priest, my ne-> gi’O bo3r Allen; and my will and desire is, that my negro woman Sylvia remain on the plantation as the common property of my son Archibald Priest and his three- first-mentioned sisters, as long as any of' them remain unmarried here; and should they all, at any time, marry or leave the place, then to be equally divided between them; and, in regard to the future increase of my negro woman Sylvia, my desire is that her first child be given equally to my three grand-children, Daniel Snead, Anna Snead, and Mary Snead; that her second child be given to my daughter Sarah, and all her future children belong equally to my son Archibald and his three sisters, Elora, Elizabeth and Sarah. My will and desire is, that the whole of my stock, not already mentioned, of horses, cattle, hogs and sheep, household furniture, and all the goods and chattels which I possess, shall be owned and possessed by my three first-named daughters and my son, Archibald Priest, in common, except one cow and calf, which I direct to be given to my grand-son, William Fairley ; and should my son, Archibald Priest, or either of my three first-named daughters, die intestate, or without heirs of their own body, the estate of the deceased person or persons to be inherited by the surviving ones of them alone, or their legitimate heirs that previously to the marriage of the said Elora with the said Daniel Lytch, which occurred in the latter part of the year 1841, they entered into a marriage contract, dated in October of that year, by which they conveyed to the defendant, Archibald Priest, all the property bequeathed to the said Flora by the said Angus Priest, to wit, “ one negro boy named Wilson, and feather-bed and furniture, and all the other property to which she might in future become entitled, according to the last will and testament of her father, in trust for her and her heirs, for the sole benefit and advantage of the said Flora Priest and her heirs, during her natural life, and, after her death, to descend to, and be enjoyed by, the heirs of the said Flora, in the same manner as if she had remained single and unmarried;” which contract was duly proved and registered; that the said Archibald Priest accepted the trust, and undertook to discharge the same.</p> <p>The bill further alleges, that Elizabeth Priest died intestate in the year 1853, whereby her interest vested in her brother Archibald, and two sisters, Flora and Sarah; that about ten days thereafter, the said Flora died intestate, possessed of the said slave Wilson and many other articles of personal property, which she held by virtue of her father’s will, and of the marriage settlement,- though the legal title of this property was in Archibald Priest, as trustee, and that the plaintiff administered on her estate.</p> <p>The bill further alleges that Sylvia had, besides her first child, which was bequeathed to the Sneads, six others, all of which are in the possession of the defendant, Archibald, having been surrendered to him by the husband, Daniel Ly tch; that he claims the same as belonging to himself and the said Sarah, in absolute right, and refuses to account, as trustee; that the plaintiff, in his character of administrator, and in his individual right, demanded his mother’s interest in the said property, which was refused by the defendant.</p> <p>Plaintiff, in his bill, sets forth his claim as the next of kin of his mother, to whom, he insists that, by the provisions of the said marriage contract, he is entitled to succeed. ITe also alleges his right, as her administrator, to the property.</p> <p>Sarah Priest and the said Archibald Priest are made defendants.</p> <p>The prayer of the»bill is for an account and settlement of the trust.</p> <p>The defendants demurred, and the Court below sustained the demurrer, from which judgment the plaintiff appealed.</p>

Cause removed from tbe Court of Equity of Bertie county. Willie Gr. Clary and B. J. Spruill, for several years before the year 1854, carried on the business of merchandise in the town of Windsor, under the name of Clary and Spruill. In that year, (1854) Clary died, and the business devolved on Spruill as surviving partner.

, presiding. The bill was filed by the plaintiff, an old man aged about seventy years, alleging that the defendant Matthis had obtained from him, by fraud and circumvention, deeds for all his land, being'two tracts, worth ten or twelve thousand dollars, and for sixteen slaves, worth —-- dollars; that the said deeds purport to be for natural love and affection, and, as to one, for the further consideration of five dollars, and as to the other, for one dollar ; that the…

Mr. Ilargram produced in open Court the following power er of attorney, and in pursuance thereof, asked that the suit be dismissed at the plaintiff’s cost, viz: “ I, Susan Ealkner, the plaintiff in the above stated case, do hereby authorise and direct Thomas S. Ashe and J. E. Hargrave, or either of them, to have the said suit dismissed at my cost, as the amount therein in controversy, has been settled. June Jth, 1856.

<p>Appeal from the Court of Equity of 'Washington County, Fall Term, 1856.</p> <p>Maria Gregory, by the will of her father, Samuel Gregory, became seized in fee as a tenant in common with Frederick Gregory, Mackey Gregory, and Mary Gregory, as tenants in common of a tract of land lying in Chowan County. The said Maria Gregory intermarried- with Nathaniel J. Beasley, and died, leaving the plaintiff, Martha Elizabeth Beasley, her only child and heir-at-law, and the said Nathaniel J. Beasley became tenant by the curtesy to all the land, of which his wife, the said Martha, died seized. The said Martha Elizabeth, by her father and next friend, joined with the other tenants in common, in a petition to the Court of Equity of Chowan for the sale of the said land for the purpose of partition. A decree of sale was accordingly made, and the land sold, and, after paying the costs of the proceedings, there was paid into the office of the clerk and master of the said Court, the sum of one thousand dollars, as the separate share of the said Martha Elizabeth Beasley, subject to the life estate of Nathaniel J. Beasley as tenant by the curtesy.</p> <p>At the August Term, 1836, the said Nathaniel J. Beasley became the guardian of his daughter, the said Martha Elizabeth, and, as such, entered into bond with sureties, and received the said sum of one thousand, dollars from the clerk and master in Equity of Chowan.</p> <p>Martha Elizabeth Beasley intermarried with Andrew J. Bateman, in July 1851, and in October of the same year he* father, the said N. J. Beasley, died. Suit was then brought in the County Court of Chowan by plaintiff and her husband, for the money which N. J. Beasley had in his hands as plaintiff’s guardian, and a recovery had for the sum of one thous- and dollars, which was paid into the office of the said County Court by one of the sureties to the guardian-bond.</p> <p>The bill alleges that it was agreed between the plaintiff and her husband, the said A. J. Bateman, that he should receive the said sum of money from the clerk’s office and invest it in property for her sole and separate use ; that he did receive it, and did invest four hundred and fifty dollars of the said sum in the purchase of a negro woman by the name of Amy, and lier child, and took for her the following instrument of writing, viz: “ Received July 10th, 1853, of Andrew J. Bateman for Mrs. Elizabeth Bateman, four hundred and fifty dollars in the purchase of Amy and child.” Signed,</p> <p>“ BeRRY MEEKINS.”</p> <p>This instrument was never proven or registered, but the slaves were delivered to her husband at the time of the sale ; and that her said husband frequently declared that he had purchased the said slaves with her money, and held them for her sole and separate use and benefit.</p> <p>The bill further alleges that A. J. Bateman, her husband, died intestate on the 1st of July, 1855, and that the defendant, as administrator, took the slaves Amy and child into his possession, and sold the same against plaintiff’s wishes, as a part of his intestate’s estate for $1010. The prayer of the bill is, that the said administrator account and pay over to plaintiff the amount for which Amy and child were sold, also that he pay the balance of the thousand dollars which ,came to her husband’s hands, but which was not invested, out of the assets.</p> <p>The answer of the administrator does not profess to know anything of the matters set forth in the bill, and insists that the allegations be proven. He answers, however, as to the assets in his hands, and avers that there are not more than enough to pay the judgment and bond creditors, and insists that if plaintiff has any equity she is upon the footing of simple contract creditors, and her claim will not be reached.</p> <p>There were replication, commissions and proofs; also an agreement of counsel; filed as evidence in the cause, “ that there are bond debts of defendant’s intestate sufficient to absorb the entire estate of the intestate in the hands of the administrator.”</p> <p>The cause was set for hearing upon the bill, answer, exhibits, agreement of the parties and the proofs, and heard below, when a decree was made for the whole sum, for which Amy and child were sold, and for the $550 which had not been invested ; from which decree the defendant appealed.</p>

Cause removed from the Court of Equity of Beaufort County. In 1835, Mary Boyd, being possessed of land and slaves, by deed, reciting that she was about to be married to one'Samuel Smallwood, conveyed said lands and slaves to George Boyd in trust, after the marriage, for her sole and separate use, with power to dispose thereof by deed or will, and, in default of such disposition, to lier issue, and in default of issue, “ to hold in trust for the heirs-at-law and distributees…

Cause removed from the Court of Equity of Beaufort county. The plaintiff had agreed to purchase from W. B. Rodman, at the price of $200, the tract of land in question, together with a quantity of lumber, worth about $100, for which he gave his note for $200, due on the 1st of January, 1855, with interest from the date, also another note for $100, due on the 1st of January, 1856, with interest, in like manner, from the date, (which was sometime in. 1853).

Cause removed from the Court of Equity of Rockingham county. The questions presented in. this case arise on the will of James Currie, who died in the year 1835.

Cause removed from the Court of Equity of Anson county. These cases were heard and considered together, and are sufficiently stated in the opinion of this Court.

Cause removed from the Court of Equity of Eranklin County. The fact's of this case are so fully set forth in the opinion of the Court, that it becomes unnecessary to state them here.

<p>Cause removed from the Court of Equity of Nash county.</p> <p>The facts of the case are set forth so fully in the opinion of the Court, that it is unnecessary to state them here.</p>

Cause removed from the Court of Equity of Beaufort County- The plaintiffs are the children and grand-children (lieirs-at-law) of John Gray Blount. On the 24th day of Jan nary, 1806, Benjamin Smith being seized in fee of a certain large tract of land, in the County of Brunswick, containing about 60,000 acres, by deed of bargain and sale of that date, conveyed the same to the said Blount.

Cause removed from tire Court of Equity of Randolph county. The plaintiff having a claim, under the will of his father, to one-fifth of a family of slaves, which had been bequeathed to him and four other brothers, to be possessed when the youngest brother, Washington, should come of age, sold the same to his brother Ezeltiel, the defendant’s testator, for $350, and made a bill of sale, in the ordinary form, for his share of the property, in which was contained an…

Cause removed from the Court of Equity of Mecklenburg County.

<p>The statute of limitations will protect a person holding possession under the legal title, if the conveyance take effect to pass the legal title, and make at aaecessary to convert the party iarto a trustee against liis assent.</p> <p>Where, therefore, a deed in trust was made to secure Iona fide debts, one who pui-chased and took the trustee’s title is protected by the statute of limitations, however fraudulently he may have acted in suppressing- competition, and although ho bought in the property for the trustor.</p>

The bill alleged that the defendant Richard N. Taylor, was indebted to the plaintiffs in the sum of $1763,77, for which they had taken judgment in Craven County Court; that previously to the rendition of this judgment, he made two deeds of trust to the other defendant, George S. Stevenson, conveying therein all his estate, of every kind, making no provision for the debt of the plaintiffs; that these conveyances provided, that unless the debts, therein named, should be paid…

<p>1. Where words of inheritance are omitted in a deed, by the ignorance or mis- . take of the draftsman, a Court of Equity will supply them.</p> <p>2. Where an executor sells lands, under a mistake of his power, and the proceeds are applied to the payment of debts, and the purchaser is evicted by the heir-at-law, the land, in Equity, will be subjected to indemnify the purchaser to the extent to which it was liable to the debts — the purchaser being subrogated to the rights of the creditor.</p>

Cause removed from the Court of Equity of Northampton County. The questions made in this case arise upon the following will of William Underwood, viz : “ 1st. I give unto my daughter Lucy one tract of land thatl bought of Beithen Sykes, and also one hundred dollars, to be paid out of my estate. 2nd. I give to my daughter Leesy one tract of land that I bought of James Wright. 3rd. I give to my son Berry Underwood three hundred and twenty dollars. 4th.

<p>Cause removed from tíie Court of Equity of Mecklenburg county.</p> <p>Sarab Sloan died in January, 1825, having made a will, which was duly proved and recorded. In the 9th clause of this will, is the following bequest: “ It is my will and desire, that immediately after my decease, that my son, James Sloan, take into his possession my negro woman, Hannah, for the use of my daughter, Eanny West, and dispose of her in such a manner, as he thinks best calculated to support the said Eanny West during her life, but in the event of the said Fanny’s death, the said negro, or her value, is to be equally divided between the children of the said Eanny West.” In pursuance of this will, the trustee, James Sloan, took possession of the woman, Hannah, and had possession of her and her offspring up to the time of his death, in 1841, and since that event the latter have been possessed or disposed of by the defendants, his children and.legatees. Fanny West, with her husband and children, removed to Alabama, and thence her husband went further west; and there was much evidence tending to show that he was dead when the suit was brought. It was fully proved that he is now dead. Mrs. West and the family, while in this State, and after their removal, were in very necessitous circumstances, which was the case up to the filing of her bill; her husband was a very indolent, careless, and improvident man, and altogether abandoned the charge of his wife and children after going to Alabama. She was not able to read or write, and not acquainted with the transaction of business.</p> <p>About the year 1829, James Sloan, professing to exercise the discretion given him by the will, advertised the negroes Hannah and two children, and sold them at public auction, when the defendant "Win. M. Stinson became the purchaser at $440 for the three. lie, immediately thereafter, without giving any note or paying any money, without taking any title and without taking possession, relinquished his purchase to the trustee, James Sloan, at the price he had bid, and Sloan took the slaves home with him from the place of sale. Stin-son is now the son-in-law of Sloan, but was not so then.</p> <p>The plaintiffs allege that this sale was fraudulent; that the property was bought by Stinson, as the agent of Sloan, and by a collusion with him. The prayer is for an account.</p> <p>The defendants, in their answer, say that this sale was made for the convenience and benefit of Mrs. West; that the slave Hannah had become feeble, and, having two young children, she could not bo hired for anything, and the best thing that could be done for her was to convert the slaves into money, and give her a portion of it for her support and maintenence; that, with this view, the slaves were sold and bought by the defendant Stinson, without any concert with the defendant Sloan, and that he bid for them a fair price ; that, afterwards, lie sold the slaves, at the same price, to James Sloan, who took them home with him. They say that Mrs. West gave to James Sloan divers receipts recognising the sale, of which the following is an example:</p> <p>PiOKENS, May 8, 1838.</p> <p>“Received of James Sloan, executor of Sarah Sloan, dec’d., and agent of Fanny West, as left by the will of the said deceased, the sum of fifty-eight dollars and fifty-two cents, it being the interest of four hundred and forty dollars, the price of a negro woman slave Hannah and two children, the same being the interest on said amount from 2nd of'Jan., 1836, ’till this date, after deducting five per cent commission. I say received by me.” Signed by plaintiff, Mrs. West.</p> <p>They showed receipts to the same purport, dated in 1835, 1836, 1843 and 1845, which are all the payments that were proved to have been made after Mrs.' West went to Alabama. The defendants relied on the statute of limitations, also upon the length of time, as evidence of abandonment, &c. They admitted, however, that there had never been a settlement of the trust, and that there was a balance due for interest.</p> <p>Replication, commissions and proofs.</p> <p>The cause was set for hearing and sent to this Court.</p>

Cause removed from the Court of Equity of Edgecombe County. Absalom Parmer, the plaintiff’s intestate, being entitled to one-ninth part of a number of slaves and other property, after the death of his mother, Elizabeth Farmer, sold and conveyed the same to the defendant’s testator, Jesse Barnes, by deed, dated 2nd of May, 1828, for the sum of two hundred dollars, in which said deed is an acknowledgment and acquittance for that sum of money.

Cause removed from the Court of Equity of Mecklenburg County. The case sufficiently appears from the statement in the ojfin-ion of the Court.

Cause removed from the Court of Equity of Union County. Thomas W. Huey, the defendant’s intestate, made a deed to the plaintiff, of which the following is a copy, viz: “This indenture, made on the 9th day of January, in the year 1852, between T. W. Huey, of South Carolina, and Lancaster District, of the one part, and W. P. Richardson of the County of TJnion, and State of North Carolina, of the other part, witnesseth — that the said T. W. Iluey, for, and in consideration of,…

Cause removed from the Court of Equity of Caswell County. James Stuart, late of the county of Caswell, died about tbe month of-, 1854, having made and published a last will and testament, of which the following is a copy of the material parts, viz: “1st. Iloan to my daughter Prances A. Taylor, eight negroes, that is, Bill, Eliza, Stephen, Ellen, Atkinson, Lewis, Andrew and Eliza’s baby, which has no name, with all their future increase during her natural life, for her sole…

Cause removed from tbe Court of Equity of Northampton County. Under an act of the General Assembly of this State, passed in 1831, a company was organised, called the Weldon toll-bridge company, with power to build a bridge across the Roanoke river, at Weldon, and to charge and receive toll from passengers. It was further empowered by subsequent acts, to borrow money, and to issue bonds and other evidences of debt.

<p>A bequest of slaves, with a provision by which they may be supported without working like other slaves, is a violation of the policy of the State and void.</p> <p>A bequest of two hundred acres of land and three thousand dollars, with a family of slaves, who were valuable, with a provision that on the death or insolvency of the legatee, one of the slaves should select an owner, who was also to take the land'and money, with an injunction that the slaves should be treated kindly and humanely, is manifestly for the ease and benefit of the slaves and against the public policy.</p> <p>Where a devise of laud fails, because it is void, or by reason of the death (f the devisee, the subject devolves upon the heir-at-law, and the residuary devisee is not entitled to it.</p> <p>Where there is no express general gift of the residue, and it appears from the the face of the will that certain slaves, intended to be liberated, were not intended to be included in a clause bequeathing a restricted residue, such slaves will not pass by such restricted clause, but will go to the next of kin under the statute of distributions.</p>

<p>tVhere a young man, living with near relations who had great influence over him, was induced by the misrepresentations of these relations as to the nature of a decree in the Supreme Court theretofore rendered between them, to execute a bond for a large sum of money by way of correcting such decree, the Court of Equity enjoined the collection of the bond and ordered to be cancelled.</p>

Cause removed from the Court of Equity of Edgecombe county. In the- last will' and testament of Lewis Barlow is contained the following clause : “ I leave to my son Billy Blount Barlow, during bis natural life, the following negroes, namely : Paul, Prank, Maria, and Sam, and increase of any; and should my son aforesaid have a lawful'Adir or hews begotten of his body, then the above-named negroes to- them and their heirs forever ; but in case my son aforesaid die without…

Cause removed from the Court of Equity of Chowan County. At August Term, 1836, of Chowan County Court, Nathl. J. Beasley became tbe guardian of bis daughter, Martha Elizabeth, who was a minor, and the defendant, and James Norcom, the plaintiff’s intestate, became his sureties by executing a guardian bond jointly with him.

<p>Cause removed from the Court of Equity of Currituck county.</p> <p>The questions considered in this case, arise out of the will •of Alfred Perkins, the material portions of which are as follows:</p> <p>“ First, I give and bequeath to my beloved wife, Lovey Perkins, the plantation on which I live, containing about one hundred and sixty aeres; negroes Jim, Billy, Willis, Joe, Albert, Ailiff and her two children, Henry and Amelia, Jenny and her boy, and Miles; all my household and kitchen furniture; all my farming utensils, &c.; negro Harriet and her three children; and all the woodland situated on the Comer G-um farm, (describing it), for the purpose of furnishing the farm, already given her, with fire-wood and rail timber; the whole ■of the foregoing I give and bequeath to my beloved wife forever.</p> <p>“ Secondly, I give and bequeath to Molly Frost my Skillet-. Handle farm, containing about one hundred and forty-five acres, provided she has an heir begotten of her body, and provided she is willing to release my estate from any amount I may owe her as guardian ; but if she has no heir begotten of her body at her death, I give and bequeath the foregoing to her two brothers, Thomas Frost and Alfred Frost, to them and their heirs forever.</p> <p>“ Thirdly, I give and bequeath to Alfred Frost so muclx of my Comer Gum farm as is not given away to my wife, and so much of it as is not cut off by Caleb Bell’s lead-ditch, to him and his heirs forever. I also give to said Alfred Frost my negro boy Alfred, to him and his heirs forever.</p> <p>“ Fourthly, I give to Thomas Frost the Biggs farm, &c.; * * also the piece of land adjoining it that was separated from the Comer Gum farm by Caleb Bell’s lead-ditch, to him and his heirs forever.</p> <p>“ Fifthly, I give and bequeath to John Frost my negro boy Haywood, to him and his heirs forever.</p> <p>“ Sixthly, I leave negroes Tom, Tatum, Lydia, Jane, Eliza and her children, to be sold by my executor on a credit of six months, with interest from date; and the fund arising from the sale, together with the notes and money I may leave, I want applied to the payment of my just debts, and the defi-ciences I want made up by hiring out negroes 'Willoughby, Billy, Cuffee, Maj or, George and Edward, as long as may be necessary.</p> <p>“ Seventhly, After the payment of my just debts, I give to Willoughby McBride the negroes above directed to be hired out, (naming them again), to him and his heirs forever.</p> <p>“ Eighthly, I give and bequeath to Mary Parr, orphan of David Parr, the sum of three hundred dollars. * * *</p> <p>“ Winthl/y, I leave the house now used as a school house, near the Baptist church, to be moved by my executor, at the expense of my estate upon the Skillet-Handle farm, for the use of the same, and the land it is now on, I give to Dr. Henry M. Shaw, provided he pays thirty dollars to my estate.”</p> <p>By the last clause of this will, H. M. Shaw who was appointed executor, qualified and took upon himself the burthen of executing the same. The executor took possession of the assets, and it has turned out that the funds and means provided for the payment of his debts, were inadequate to the purpose by nearly, or quite, twelve thousand dollars, and that the slaves ordered to be hired out, will be insufficient, even if sold, to raise the required amount.</p> <p>The bill is filed by the executor, and by Alfred Perkins, Mary Parr, Molly Frost, Thomas Frost, and John Frost, against Lovey Perkins, and Willoughby McBride, praying for a construction of the will, and that the executor may be directed by this Court in the payment of the debts, particularly as to the mode in which the residue of the indebtedness is to be paid after the fund provided by the will is exhausted; the plaintiffs contending that the slaves directed to be hired out, are primarily liable, while the legatee McBride contends that his is a specific legacy as well as the other, and that it ought not to be sold in whole, but should abate in the proportion of the other specific legacies; and further that the court will declare their several rights in the particulars above set forth; also for general relief.</p> <p>The defendants answered, admitting the facts as above stated, and insisting on their different views which are above stated.</p> <p>The cause was set down for hearing on the bill, answers, and exhibits, and sent to this Court by consent.</p>

<p>A bill alleging that a trespasser was about to commit irreparable injury by boxing and working turpentine trees, and by cutting timber and making staves on land fit only to be cultivated for these products, without an averment of the defendant’s insolvency, will be dismissed on motion.</p>

Cause sent from the Court of Equity of Beaufort County. The bill in this case set forth that the plaintiffs are stockholders in the Greenville and Baleigh plank-road company, which was chartered by the General Assembly at its session of 1850, and was duly organized by complying with the terms of the said Act; that the said company was incorporated for “ the purpose of effecting a communication by means of a plank road from within the limits of the town of Greenville in Pitt…

Cause removed from the Court of Equity of Anson County. The facts of the case are fully stated in the opinion of the court.

Cause removed from the Court of Equity of Randolph County. The intestate, William' A. Hamlin, being indebted to his brother Charles Hamlin, the plaintiff, and to many other persons, made application to the District Court of the United States to be permitted to take the benefit of the bankruptcy act of Congress; and the assignee for the county of Randolph, in which the said William A. resided, having notified him:, among other' creditors, to bring in his claims, he enclosed…

<p>CbbtioraRI to bring up a cause from the Court of Equity of New Hanover.</p> <p>John Melvin, of the county of Pladen, bequeathed, amongst other provisions, a negro girl, Eliza, (the subject of this suit,) to his daughter Mary Eliza, with a proviso that her mother should keep possession of the said slave until her said daughter arrived at the age of twenty-one. The testator died in 1844. The will was duly proven, and the executor therein named was qualified.</p> <p>In the month of January, 1846, the feme plaintiff, Mary Eliza, then eighteen years old, intermarried with the other plaintiff, John McLeran, but previously to such marriage, and in contemplation thereof, all the property belonging to her as well as all that she might thereafter acquire from her mother, and especially the slave Eliza and her child, Hams, were, with the consent of the executor, conveyed by a deed of settlement, dated 11th day of Januaiy, 184-6, to the defendant James II. Melvin, her brother, in trust, that he should hold the said property for the sole and separate use of the said Mary Eliza and her children, free from all liability to the debts of her intended husband, but that he might remain in possession of the property, he devoting the profits to the use of the intended wife and her children, if any should be born of the marriage. The said deed of settlement was also executed by the intended husband and by the defendant James K. Melvin, and duly proven and registered.</p> <p>The plaintiff McLeran becoming indebted to the defendant Melvin, gave his bond for the amount due, to wit, $595, which, without consideration, was endorsed to the defendant McDou-gald, in order to facilitate the collection of it. A suit was brought in McDougald’s name against the plaintiff McLeran and against Melvin as endorser, and judgment recovered in the County Court of Bladen for the debt aud costs, and a fi. fa. being directed to the sheriff, at the instance of the defendant Melvin, the same was levied upon the slave Eliza and one of her children, she having had several after the conveyance. It is averred by the plaintiffs, and admitted by the defendants, that the endorsement to McDougald was merely formal, and that the entire interest in the judgment is in the defendant Melvin, and that he has directed the whole proceeding against .the property in question.</p> <p>The prayer of the bill is for an injunction and for general ■relief.</p> <p>The defendant Melvin, in his answer, insists that Mary Eliza Melvin being an infant when she executed the deed, the same is invalid, and that the property, notwithstanding such deed, vested in the husband, and is liable to his debts. He also contends that Mrs. McLeran took a contingent interest in the slave in question, which did not become vested until after the marriage, and which did not pass by the deed in question, but went to tlie husband mariti. The answer was, otherwise, irresponsive to the allegations in the bill.</p> <p>197</p> <p>McDougald disclaimed any knowledge or interest in the matter.</p> <p>On the coming in of the answers, his Honor, Judge PeesoN, ordered the injunction to be dissolved and an appeal was prayed, but no surety was given.</p> <p>The plaintiff McLeran applied to the Supreme. Court for a certiorari, alleging that he was not present-when the cause was heard upon the motion to dissolve; that he was absent upon urgent business and did not return to "Wilmington where the Court sat, until after the final adjournment of the Court; that he was informed by his counsel that his presence would not be required at the hearing of the cause, and that he therefore took no pains to provide surety for an appeal; that his counsel, in his absence, made exertions to procure security for an appeal to the Supreme Court, without success. The writ was ordered, and the case brought up under it. On opening the cause for further proceedings, it was contended by the defendants’ counsel, that the cause was improperly brought up, for that this Court had no power to issue the writ of certiorari to bring up a cause, and moved to dismiss the proceeding. The motion to dissolve the injunction was also debated at the same time.</p>

Cause removed from the Court of Equity of Wake County. Daniel Eogers, the father of William A. Eogers and Isaac Eogers, devised andbeqneathed as follows: “ I do appoint Isaac Eogers as trustee during the natural life of my soil William, until' his heirs may arrive at the age of maturity, and, therefore, I give and devise unto said Isaac Eogers, a certain tract of land, bounded, &c., containing 254 acres; also one negro man named Yirgil, to have and hold the said land and…

Cause removed from the Court of Equity of Orange County. The bill alleges, that one James Brown of Yirginia, gave to his daughter Stacy, wife of Reuben Carden, two slaves, Asa and Rebecca (or Becky) for life, remainder to her four daughters, to wit, Patsey, Sarah, Polly and Nancy.

PetitxoN to rehear a cause. The petition was to rehear the cause for the purpose of modifying a decree which was made erroneously at the Spring Term, 1856, of the Court of Equity of NgKtfaaaopton. county.

Cause removed from the Court of Equity of Alamance county. The administrator, with the will annexed of David Patterson, applies to the Court for advice on the following clause in the will, viz: “ After the death or marriage of my widow, my property to be sold, and after what is above named, and expenses paid, the balance to be equally divided among my brothers and sisters or their lioirs, and Martha P. Elliott and her son David Patterson Elliott, each an equal share.” The…

PetitioN to rehear a cause, transmitted from the Court of Equity of Mecklenburg County. On the 11th of January, 1833, William Davidson conveyed to. Washington Morrison, a large amount of real and personal property, in trust to secure tlie payment of certain debts therein mentioned, and in trust to indemnify certain individuals against liabilities as bis sureties.

Cause transmitted from the Court of Equity of Stokes county. The bill was filed by the Executors to obtain the advice of the Conrt upon the following clauses in the will of Eobert Y oung, deceased, viz: “ Item 3rd.

Cause removed from the Court of Equity of Wake county. The bill was filed to recover a legacy bequeathed to Amanda G. Freeman in the will of William G. Freeman. The following are the material clauses of the said will, bearing upon the question: “3rd.

<p>"Where a testator, having a wife and two daughters, directed in his will that certain slaves, and other property, should be divided “ between his wife and children,” and in a subsequent clause directs that, in case of the death of one of his daughters “ leaving no heir of her body, then, and in that case, it may go to my remaining child or children,” one of the daughters having died in the life-time of the testator, it was Held that her share went to her sister, and that the widow took but one-third.</p> <p>Where it is provided in a will, that the widow should take of certain articles as much as she wanted, it was Held that she was vested with unlimited discretion as to the quantity she might take, even to the amount of the whole of the articles mentioned.</p> <p>The Act of Assembly in relation to the time when a will “ shall speak and take effect,” applies only to the property named in it, and not to the legatees.</p>

Cause removed from the Court of Equity of Ashe county. One Jesse B. Eeeves was the owner of a moiety of fifty acres of land, including a highly valuable point called, “ Ore Knob,” supposed to be very rich in copper ore, which he contracted by parol to sell to the plaintiff Lea, for himself and the other plaintiffs, mentioned in the case, upon the following terms: The said Eeeves was to lease to the plaintiffs his whole interest in the said copper mine and tract of land, for…

<p>All personalty which is not effectually disposed, of by a will, whether it be acquired after the making of the will, or whether it fall in by the lapse of a legacy, will pass by a general residuary clause, unless it appear from the context that such was not the testator’s intention.</p> <p>A lapsed legacy is more readily included in a residuary clause than.©nc-that is void as being against the policy of the State.</p>

Cause transmitted from the Court'of Equity of Cabarrus county, This was a petition for the partition of several tracts of land amongst the heirs-at-law of one Noah Furr, and for the purpose of ascertaining tire respective interests of the jdaintiffs and defendants in the premises.

Cause removed from the Court of Equity of Moore County. The bill was filed against the defendants, for a specific performance of a contract to convey a tract of land, which is alleged to be contained in the following written instrument, viz: “ January 25th, 1850.

Cause transmitted from the Court of Equity of Wake county. Nathaniel Harries, of the county of Orange, on the —— day of September, 1834, by a deed of gift, properly executed, gave to his grand-daughter, Sarah D. Piper, since intermarried with the plaintiff William H. Wheeler, a negro slave, described as being in the possession of the defendant, the father of tjm said Sarah I).

This was a suit commenced in the Court of Equity of Eowan, and removed to this Court by consent.

This was a bill to recover legacies under the will of John Windly, transmitted from the Court of Equity of Beaufort County. The only question made in the pleadings was in relation to a slave, Jesse. By his will, which was made in 1854, the testator gave this slave to the wife of the plaintiff Thomas Robbins. Subsequently, to wit, on 14th of June, 1855, he gave the same slave to George L. Windly by deed reciting a consideration of one dollar.

<p>A Court of Equity will not sanction an expenditure by a guardian or trustee, beyond the income of the estate in his hands, except in a case of physical necessity ; as where the ward or cestui que trust, from weakness of body, or mind, was unfit to be an apprentice.</p>

Tms cause was removed from the Court of Equity of Alamance. The plaintiff, Mrs. McLean, is the wife of Thos. Gf. McLean, one of the defendants. They were married in North Carolina, and have ever since tlfeir marriage resided in this State. Mrs. Glass, the mother of Mrs. McLean, a citizen of the State of Mississippi, died in that State, intestate, in the year -.

Cause removed from the Court of Equity of Caswell county. The bill was filed by the plaintiffs as executors of Thomas Brown, praying a construction, and advice as to the proper manner of paying the legacies under the will, the material portions of which are as follows, viz : “ Item 1st. I give to my son Nathan Brown, all my lands that my deeds call for, of every description ; which said lands are to be put to him at a fair valuation, so as to make him equal in share with…

Cause removed from the Court of Equity of Caswell county. The bill was filed by the administrator with the will annexed of Elijah Graves, praying the advice of the Court as to his duty in the payment of the debts and legacies.

Cause removed from the Court of Equity of Randolph county. In a deed of trust made to the defendant Alfred Pike, on the 14th day of July, 1856, by the Island-Ford Manufacturing Company, several debts are secured in the first class, and are given a preference over other debts specified in the said deed, which latter debts are due to the plaintiffs.

The bill alleges that the plaintiffs, as administrators of John E. Bntler, sold the property of their intestate at public auction, and that the defendant became the purchaser of some of it at the price of $1,777,50, and gave them her sealed obligation for the same, with TV. 0.

Cause removed from the Court of Equity of Rutherford county. The bill was filed by P. II. Benick and his wife, against the executor of the will of 'David Bowman, for the recovery of legacies therein bequeathed to her. In the said will, certain specific items of property, such as cattle, beds and household furniture, were bequeathed to the female plaintiff, and a residuary clause in the same, entitled her to an equal share of the property not otherwise specifically bequeathed.

The bill of the plaintiffs alleges that they are the only children and next of kin of Samuel Fleming, who died in the year 1851, intestate, leaving the plaintiffs infants of tender years, his only children; that the deceased, at the time of his death, owned a large personal estate, consisting of slaves, stock, grain, furniture, wagons, carriages, and debts due him by judgments, bonds, notes, accounts, &c.; that a few days after his death, the defendant James McKesson…

Cause removed from the Court of Equity of Haywood county. In the year 1844, the defendant entered into a parol agreement to sell and convey to the plaintiff a small body of land, the subject of this suit,'including a mill seat, and, as a consideration, the plaintiff was to give the-defendant credit for the price out of a claim for attorneys’ fees, which the latter owed the former.

Cause removed from the Court of Equity of Taney county. The bill alleges that one John J. Evans sued out a writ in ' the county court of Yancy, against the defendant Abner Hal-comb, and one Henry S. Halcomb, which was duly executed on the defendants therein named, by tlie defendant William A. Peake, as the deputjr of Thomas Wilson, the then sheriff of that county, on the 10th of May, 1840 ; that Peake failed to take a bail-bond from the Halcombs, and by reason of such…

Cause removed from the Court of Equity of Burke county. The bill v'as filed by the plaintiffs against the defendant as their guardian, for an account and settlement of his guardianship. The case was referred to the clerk and master of Burke county, to state an account, which he accordingly did.

PetitioN to rehear a decree, made at August Term, 1856. The cause in which this decree was made is reported in 2nd Jones’ Eq. Rep. 494, which gives a view of all the facts necessary to the decision of the questions then arising.

Cause transmitted from the Court of Equity of Cherokee county.

Cause removed from the Court of Equity of Wilkes county. The plaintiff alleges that, in 1845, being greatly in want of money, there being several executions in tbe bands of the sheriff of Wilkes county, which had been levied on a valuable slave, Wesley, he applied to the defendant’s intestate, Wm.

Cause removed from the Court of Equity of Rutherford county.

Cause removed from the Court of Equity of Edgecombe county. The bill was filed by the executor of the will of Thomas M. Wilkins, asking the Court for a.construction of certain clauses thereof.

<p>Cause transferred from the Court of Equity of Robeson county.</p> <p>The defendant William W. Gnfm was indebted to the plaintiff in the sum of three hundred dollars, which debt was evidenced by promissory notes, payable to plaintiff, and by open accounts. While thus indebted, the said Gunn purchased from the defendant Privatt, a note on the plaintiff for fifty-seven dollars, bearing- interest, which was delivered to Gunn without being assigned. At the time of making this purchase, Gunn said the note would serve his purpose as cash, for that he intended to use it in part discharge of the claims that, the plaintiff, Carter, had against him ; but there was no allegation in the bill that any agreement to that effect ever took place between Gunn and the plaintiff.</p> <p>Gunn became very much involved in debt, and afterwards left the country, entirely insolvent. Previously to his going off, he made a deed of trust for the benefit of his creditors, wherein he conveyed the interest of the note in question to the defendant Leitch, for that purpose. Leitch, the trustee, put the plaintiff’s note to Privatt in suit, in the name of the latter, and obtained judgment thereon. The bill was filed for an injunction against the defendants to prevent the collection of the judgment, and for general relief.</p> <p>'The defendants Privatt and Leitch answered; but their answers, in the view taken of the case by the Court, are not material.</p> <p>On the coming in of the answers, the cause was heard in the Court below, at the Spring Term of 1857, on a motion to dissolve the injunction which had previously issued. The motion was refused, and the injunction ordered to be continued to the hearing of the cause. At the same term, this order was made, “ That this cause be referred to the clerk and master of this Court, to state an account between the plaintiffs and defendants, and that he report to the next term of this Court.” At the Fall Term, 1857, the commissioner reported, and his report was confirmed. Afterwards, the cause was set down for hearing, and sent to this Court by consent.</p>

Cause removed from the Court of Equity of Auson county.. Mrs. Rosa A. Troy, by lier will bequeathed in the first clause thereof as follows : “I give and bequeath to my grand-son Thomas Lance, twenty shares of stock in the Bank of the State of North Carolina; also twenty shares of stock in the Bank of Cape-Fear; also four notes at interest in South Carolina, amounting in the whole to three thousand three hundred dollars; also four hundred and thirty-five dollars at interest…

of Bladen county, MaNly, J., presiding. By the will of Mary Kelly, which was proven in the year 1852, a negro woman slave Tonah, and her child Lucy, were bequeathed to Mary Swindall for life, and, at her death, toiler son, the plaintiff. The executor to the will of Mary Kelly assented to the legacy, and the slaves went into the possession of Mrs. Swindall.

Cause removed from the Court of Equity of Cumberland county. The bill was filed to obtain a construction upon the will of Solomon W. Nash. One of the questions presented to the Court is, whether the defendant John, who was born after the making of his father’s will, could take any thing by law, he not having been in any manner provided for in the said will.

Cause removed from the Court of Equity of Beaufort county. This bill was filed to obtain the opinion of the Court of Equity upon several questions arising upon the will of Shad-rack P. Allen, which is as follows : “ I give and bequeath to Sophonisba A. L. Allen, all the negroes, of every description, that I have received through or by her viz : Ben, Julius, Matilda, Eve, Maria, Jin and her children, Juliet, Lettice, and William, &c., and also the undivided negroes of the…

The plaintiff, by his guardian, had filed his petition at the Spring Term of the Court, for the sale of a slave named Alfred.

<p>A deed made in 1835, conveying a slave to a man and one’s wife “ during their joint life-time and no longer,” passes the entire interest in the slave, notwithstanding the attempted restriction.</p> <p>Note. The Revised Code, ch. 37, see. 21, varies from the Rev. Stat. eh. 37, sec. 22, and would require, on a deed made since the latter went into effect, a different construction from that given in this case.</p>

<p>Cause removed from the Court of Equity of tho county of New Hanover.</p> <p>The bill was filed for the recovery of a legacy arising to the plaintiff’s intestate, under tbe will of Benjamin 0. Moore, and it was admitted on both sides that the plaintiff’s right to recover depended on the construction that might be given to the will. After giving several slaves to a daughter, MaryD. Moore, the will is as follows : Item 3ul. “It is my will and desire, that all the balance of my property, both real and personal, shall go to the benefit and support of my beloved wife, Mary J. Moore, and my other children, Margaret A. Moore, Harriet D. Moore and Porter II. Moore, during my wife’s widowhood and the minority of said children; but should my wife marry again, it is my will that she shall receive her distributive share or child’s part out of my estate; and should any of my children, named in the clause, live to attain to the age of twenty-one years, then such child or children shall, upon reaching said age, receive his, her or their distributive share or shares, it being equally divided among my wife and three last children named; and at the death of my wife, it is my will and desire, that my first named child, Mary D. De-vane, shall have her distributive share or draw of my real estate, her and her lawful heirs.”</p> <p>Porter R. Moore, the legatee named in this clause, died, before ho reached the age of twenty-one and during the widowhood of his mother, Mary J., and the plaintiff administered on his estate. After the death of Porter R. Moore, the widow, Mary J., intermarried with Joel Hines, and it is contended that on the happening of that event, the estate became divisible, and his intestate was entitled to draw his legacy ; that his legacy was vested in the legatee, and only the time of enjoyment was postponed.</p> <p>The defendants demurred to. the bill, generally, for the want of equity.</p> <p>The cause was set down for argument on the bill and demurrer, and sent to this Court by consent.</p>

<p>Where a testator by his will gave property to a son and three daughters, with a provision that, on the death of either of them intestate,'or without heirs of his or her body, his or her share should go over, it was Held that the intention was not that it should go over on the death of the mother of an illegitimate child, but that the latter was entitled to his mother’s share.</p>

<p>The fact that it is unusual for a man. to make a trust in favor of a child, which his wife may have by another husband, will not, of itself, justify a court to depart from the ordinary meaning of terms used in a deed.</p> <p>The declaration of an executed trust of land, will have exactly the same construction as if it had been a conveyance of the legal estate; such a declaration, therefore, that does not contain words of inheritance, passes only an estate for life.</p>

Cause removed from the Court of Equity of Wayne county. Earnifold Jernigan, by will properly executed and proved, bequeathed as follows : “ Item 1st. I give and bequeath to my beloved wife, Jane Jernigan, the following named negro slaves, together with all their increase at the time of my death, ■viz: Lynn, &c., (enumerating thirteen slaves, and' amongst them Bill Winn, John Winn, Simpson and Anne.”) -x- -x- -x- * -x- -x- “ Item 3rd.

<p>Cause removed from the Court of Equity of Wake county.</p> <p>Margaret G. Cotten, died in the county of Wake, on 5th of December, 1855, having executed her last will and testament. By the will aforesaid, she bequeathed to Frederick IL Cotten a negro slave by the name of Prince, and to Eliza II. Thompson, a negro woman named Sabina and all her children, except Prince. She then bequeaths as follows :</p> <p>“ 5th. All the residue of my estate, I give in the following manner, viz: To my son Frederick IL Cotten, one share; to my grand-daughter, Eliza II. Thompson, one share; to my four grand-children, viz., Margaret E. Cotten, Arabella C. Cotten, Florida C. Cotten and John W. Cotten, one share. Frederick and Eliza accounting for the negroes given them above.</p> <p>“ 6th. Should Eliza II. Thompson die without issue, that is, a child or children, then, and in that case, I give all the property bequeathed to her above, of every description, to my son Frederick K. Cotten, one share or one half, and to Margaret E. Cotten, Arabella C. Cotten, Florida C. Cotten and John W. Cotten, one share or the other half.</p> <p>“7th. Should one or more of the children of my son, John W. Cotten, viz., Margaret E. Cotten, Arabella 0. Cotten, Florida C. Cotten and John W. Cotten, die without issue, then, and in that case, all the property bequeathed to them above, to be divided between the survivors. Should all die without issue, then, and in that case, I give all the property bequeathed to them above, to my son Frederick K. Cotten and my grand-daughter E. II. Thompson.”</p> <p>The defendant, Frederick K. Cotten, was appointed executor in the said will, and was qualified and undertook the discharge of that office. The bill alleges that a large amount of personalty came to the hands of the executor, and praj^s for an account and settlement among the legatees. The above named Eliza H. Thompson, had intermarried with the plaintiff, J. J. Williams, and Margaret E. Cotten with the plaintiff Joseph A. Engelhard, before the filing of the bill; Arabella C. Gotten, Florida C. Cotten and J. W. Cotten, are infants, and sue by their mother and next friend, Mrs. Laura Cotten.</p> <p>The defendant answered, admitting the facts stated in the bill, and professing a readiness to pay over the above legacies, under a decree of the court of equity; but he doubts whether it would be safe for him to pay the principal of the fund, which is chiefly money, to the primary legatees, or whether he should only pay the interest, and he asks to be advised by the Court, in regard to his duty in this particular, lie states, that for the purpose of satisfying all the legatees, and for the purpose of settling the estate in a safe and speedy manner, he invited the filing of this bill, and is willing to abide by such decree as the Court may make in the premises.</p> <p>The cause was set down for hearing on the bill and answer, and transmitted by consent.</p>

Bailey, amicus cítrico, moved in this cause to tax'the defendant with the costs of the suit, and that the decree made in this cause at the last term, be amended in this particular, nunc pro tunc.

<p>A court of equity has no power to order the sale of land, for the purpose of converting it into more beneficial property, where it is limited in remainder to persons not in. esse.</p>

Cause removed from the Court of Equity of ITyde county. The bill was filed to set aside a conveyance of slaves made by tbe defendant, Mary Gibbs, then Mary Harris, upon the-«ve of her marriage with the plaintiffs’ testator, Wilson Gibbs, as being in fraud of his marital rights.

A writ of injunction had been issued-in vacation to restrain the defendant Taylor from working and using certain pine-trees for the purpose of making turpentine on a tract of land which the plaintiff had purchased in August, 1856, as the property of the other dei'endant, Campbell.

Causic removed from the Court of Equity of Craven county. James P. Davis, the defendant’s intestate, of Duplin county, was employed by Alexander Carter as agent, and attorney in fact, to collect certain debts due him by bonds, notes, and accounts, on divers persons, and amongst them, was a bond on Zachariali Davis, jun’r., for seven hundred dollars, due the 1st day of June, 1845, and dated lltli April, 1844, with interest from the date.

<p>Cause removed from tlie Court of Equity of Columbus county.</p> <p>This was a petition for the partition of slaves amongst the plaintiffs and defendants, upon the allegation, that they were tenants in common. The question arises on the construction of the following deed, made by Joab Meares, to wit: “Know all men by these presents, that I, Joab Meares, of the State of North Carolina, and county of Columbus, for and in consideration of the sum of live dollars to me in hand paid, the receipt whereof I do hereby acknowledge, before the enseal-ing and delivery of these presents, the payment being made by Philip Coleman, trustee of my wife Polly Meares, and for the further consideration of love and affection for my said wife Polly, as well as for her better maintenance and support, have bargained and sold and delivered unto the said Philip Coleman, in trust for my said wife Polly, the following ne-groes, viz: Mourning, a negro woman, and her children, namely, Arthur, Reddick, Stephen, Amy, a negro woman, and her child Willis; and I, the said Joab Meares, by virtue of these premises and for the purposes before expressed, do bargain, sell, and deliver the said negroes, unto the said Philip Coleman, intrusted as aforesaid, and do hereby agree for myself, my heirs and assigns, subject to the annexed proviso, to warrant and forever defend the said slaves unto the said Philip Coleman and his heirs forever, for the said Polly Meares and and her children which she has, or may have, by me, the said Joab Meares; the conveyance and warranty as aforesaid, subject to the following restrictions : that the said trustee, nor none who sitcceeds him, ever dispossess my said wife Polly and my children which I have, or may have, by her, of the said property, and shall suffer her to enjoy, together with the children, the benefit, nse and profits of the said negroes forever. In witness whereof I have hereunto set my hand and seal, this 10th day of February, 1819.”</p> <p>The slaves conveyed in this deed and their increase, amounting in all to the number of fifteen, are still held by the defendant Polly Meares. The bill is filed by Robert Ohesnnt and his wife Elizabeth, who is one of the children of the said Joab, by his wife Polly, against Mrs. Meares and the rest of the children, alleging the death of Joab Meares, and that they are all tenants in common of these slaves, and praying for a division, and for an account of hires and profits.</p> <p>The defendants, in their answer, say that they are advised, according to a proper construction of the deed above recited, that Polly Meares is entitled to an estate for life in the slaves in question, and that the plaintiff Elizabeth, and the other children of Joab Meares, are entitled as tenants in common to the reversion of these slaves after the death of the said Polly, and that they now have no right to a division.</p> <p>The cause was set down for hearing upon the bill and answer, and sent to this Court by consent.</p>

Cause removed from the Court of Equity of Jones county. Frederick Tsler Becton, by his last will and testament, (made in. 1843,) devised and bequeathed, after several other bequests, as follows: “ Item.

Cause removed from the Court of Equity of Randolph county. The plaintiff is one of the administrators with the will annexed of John Lambert, sen’r. The testator, claiming to be the owner of a tract of 230 acres of land, in Chatham county, sold the same to one John J. Burke, for about $200, and made a bond conditioned to make title for the same whenever the purchase-money was paid.

Cause removed from tbe Court of Equity of Cabarrus county. The plaintiff, being hard pressed for money, and his land being levied upon and advertised for sale, conveyed to the defendant, then a married woman, a tract of land, worth two hundred dollars, and got her to pay off the executions that were then against him. These amounted to about $100.

<p>Cause removed from the Court of Equity of Henderson county.</p> <p>Tilomas B. Miller, Thomas T. Patton, AVm. Patton, Ephraim Clayton and Javan Trammell; Samuel Hefner, Beuben Clayton, James Judge, James W. Patton and Charles Moore, on the 23rd of July, 1842, formed a copartnership for the manufacturing of iron. The capital of the said company was to be $5000, to be made up by shares of $100. The plaintiff, Miller, subscribed three shares, James 'W. Patton seven shares, Moore five shares, and the other persons named above subscribed the remainder in proportions agreed on by them. Subsequently, the capital was increased, and Miller subscribed two additional shares, James Patton and Moore subscribed five shares in addition. The defendants Patton and Moore were the owners in fee of 117 acres of land lying on Davidson’s river, which is particularly described in the bill, and the plaintiff, Miller, claimed, by purchase at execution sale, 1,500 acres, adjoining thereto, which is also described in the bill, and on the 30th of that month, July, 1842, they contracted to sell these tracts to the company at the price of $3000, on a credit of one and two years, in equal instalments, with interest from the time of the sale till the same was paid, and executed their covenant, in which they obliged themselves to convey the 117 acres first above mentioned, i/nfee, withwarranty of title, and release all plaintiff Miller’s title and interest in the residue. The plaintiff alleges that it was agreed between the three that, out of the purchase-money, Patton and Moore were to receive enough to pay a debt due from plaintiff’s father to one Murphy, for which they were sureties, but not to go beyond $2300, and the remainder was to go to the plaintiff for his claim in the land.</p> <p>It appears from the pleadings, that whenever instalments were called for by the company, the assessments on the said Patton, Moore and plaintiff, were not to be required in cash, but wmre to be regarded as ¡said at the time they were made payable, and the amount deducted from the purchase-money due for the said land. Instalments were called for, but the company needing money very much, the plaintiff and defendants Moore and Patton waived their rights under the original agreement, and paid 30 per cent, in cash. The remainder of their stock was paid for bjr deducting the same from the money due them for the land. In January, 1847, the company was incorporated by an act of the General Assembly, under the name and style of the Davidson River .Manufacturing Company, which charter was accepted by the company then existing, on the 30th of March, 1847, and the corporation duly organized by the appointment of officers and enactment of by-laws. The incorporated company succeeded to the rights of the former company, and became responsible for its debts, and, amongst these debts, the sums due to the plaintiff and defendants Moore and Patton. It is further alleged that, besides the 70 per cent, deducted for their stock subscription, neither the plaintiff nor the defendants Moore and Patton, has received any part of this debt, and that the balance due after such deduction, is $1850, which the said incorporated company justly owes them.</p> <p>At Spring Term, 1850, of Henderson Superior Court, the plaintiff', Miller, recovered judgment against the company for the sum of $432,55-100, with interest. He took out execution upon the same, and had it levied on all the property of the said corporation liable to execution, which was sold and bid off by the plaintiff, and the sum thus realised was at fir&i applied to tbe satisfaction of the execution, and lie alleged that there was yet remaining unpaid of this judgment about $200 ; that the lands held by the said company were improved in value, and that they are now sufficiently valuable to pay the whole of the plaintiff’s judgment for the purchase-money due him. The prayer of the bill is for an account of the affairs and dealings of the Davidson River Manufacturing Company, the amount clue to the plaintiff and the defendants Moore and Patton, and the proportion clue to each, and for a settlement of the remainder due him out of the land held by the said company under the title bond made by the plaintiff and defendants.</p> <p>The answer of the defendants Moore and Patton states that they had become liable, as sureties of John Miller, the father of the plaintiff, and that, to save themselves from loss, they bought his land (the said 117 acres,) at public sale, and that the plaintiff had purchased the adjoining land (the 1500 acres) at execution sale, and it was agreed between the three that tiie land thus held by them should be conveyed to the company at the price of $3000 ; but they deny that the division was to be made as claimed by him, but that the defendants Moore and Patton were first to receive the amount of their liability for John Miller, which, it was thought, would not amount to more than $2500, and the plaintiff was to receive what he had paid on his bid for the other land, which, with interest, it was thought, would amount to less than $100, and the remainder was to he divided into three equal parts, each one to take a third.</p> <p>They state -that the plaintiff had been employed as agent and manager of the concern, and that, having managed it very badly and got it in debt, be brought suit for his salary and recovered the judgment mentioned in his bill; that ho had the effects of the company levied on, and sold all he could have levied on at an undervalue, and bid it in himself. This was between the obtaining the judgment in his favor, (Spring Term, 1850,) and filing his bill, (Fall Term, 1850.) It is further alleged by them, that, in order to extricate the company from its difficulties, it was agreed, in 1849, to borrow money from the bank at Asheville, and, as the bank refused to take the note of the corporation, a note was made in the name of Ephraim Clayton as principal, and the defendants Moore and Patton as sureties, and, at a general meeting of the stockholders, at Asheville, in September, 1849, it was resolved that all the property and effects of the company should stand pledged to secure the payment of the said debt, and save harmless, the said Clayton, Patton and Moore. There being some informality in the wording of this resolution, it was again brought before the body of stockholders in April, 1851, and modified so as to express its true purpose, which was to the effect as stated ; at both which meetings the plaintiff was present and concurred in the measure. In pursuance of this resolution, a mortgage, or deed of trust, was drawn up embracing these purposes, and was duly registered. As one of the means for extricating the corporation from its difficulties, it was determined to purchase the ore-bank on which they had to rely for their supply of material, and $600 of the money thus raised, was appropriated to this purpose. Of the property wliieh the plaintiff had levied on and sold, this ore-bank tract of land was the principal; this he bid off for $200</p> <p>The cause was set down for hearing on the bill, answers and exhibits, and sent to this Court. At August term of the court at Morganton, a decree was passed by eonsent, author-ising the sale of the lands held by the company, by a commissioner of this Court; also it was referred to Mr. Dodge, the clerk at Morganton, “ to ascertain and report how much is due from the defendant, the Davidson River Manufacturing Company, to the plaintiff, and to the defendants Charles Moore and James W. Patton, for the residue of the purchase-money for the said lands, and what proportion is due to each of them ; what amount of the plaintiff’s judgment against the Davidson River Manufacturing Company, referred to in the pleadings, remains unsatisfied, — -distinguishing between the judgment for costs, principal and interest; and whether there existed any mortgage lien or other valid incumbrance on the equitable title of the said Davidson River Manufacturing Company to the lands in the pleadings mentioned, or any part of them, in favor of any other person or persons, before the lien of the plaintiff attached by the commencement of this suit, and if so, the nature and extent of such lien or incum-brance, and the person or persons in whose favor it existed; and it is further ordered, that all the matters be held over for further consideration of the Court.”</p> <p>“ And it is further ordered, adjudged and decreed, by consent of parties, that in the account, complainant’s judgment shall not be credited with the amount of his bid for the lands of the defendant, but the sale shall be regarded as set aside, and the said lands shall be sold together with the other property hereinbefore referred to.”</p> <p>In obedience to this order, Mr. Commissioner Dodge reported, among other matters, that the deed in trust to Williams, to indemnify Clayton, Patton and Moore, gave them a lien, which overreached that created by the commencement of this suit. Plaintiff excepted to this part of the report.</p> <p>The report, in making up the balances, treats the agreement to set aside the sale of the ore-tract as entire, whereas the plaintiff contends that the lien which was obtained by the levy of the execution, should have been reserved to him, and thus given him a preference as to that land. This is the ground of the second exception of the plaintiff. The cause was argued upon the exceptions at Morganton, at August term, 1857, by Baxter, for the plaintiff, and N. W. Woodjm, for the defendants, and removed to this Court for'a second argument; but no counsel appearing for either party, the Court proceeded to consider the case.</p>

Cause removed from the Court of Equity of Yadkin county. James Johnson died in the year 1841, having made and published his last will and testament, in which he appointed his son, James F. Johnson, his executor, who qualified and undertook the administration of the trust confided to him.’ In this will, are contained the following clauses : “Item.

Cause removed from the Court of Equily of Craven county. This was a bill filed for the sale of a lot of land, to which the plaintiff claimed to be a tenant in common with the defendants, alleging that an actual partition could not be made without great injury and loss to the several claimants. On the-clay of December, 1841, Malachi B. Robinson executed a deed to Vm.

Cause removed from the Court of Equity of Mecklenburg county. The bill was filed by the,,plaintiffs, as husband and wife, against the wife’s guardian, for an account and settlement of his trust.

<p>Cause removed from llie Court of Equity of Beaufort county.</p> <p>Benjamin F. Ilanlts, being largely indebted to several persons, on the 17th of September, 1856, executed a deed of trust to the plaintiffs, Potts, Myers and Donnell, to secure the payment of these liabilities, conveying to them several parcels and lots of land in, and near, the town of Washington, in this State, on which were erected valuable steam saw-mills, distilleries and planing machines ; also the machinery and implements pertaining to these mills, &c.; also a steam-boat, called the Astoria or Post-Boy. Which deed of trust was' registered on 18th of September, 1856.</p> <p>B. F. Hanks' had carried on the business of sawing and planing lumber at these several mills, and shipping and selling the same, and of distilling, in his own name, from the. year 1844, up to the 23rd of August, 1856, but was, in fact, in secret copartnership in that business with the defendant John Blackwell, who resided in the town of Newbern. The business had been unprofitable for several of the latter years of the copartnership, and when the partnership was dissolved on 23rd of August, 1856, it was largely insolvent, as was each of the partners, Ilanks and John Blackwell.</p> <p>On the said 23rd of August, 1856, a written contract of dissolution was entered into, and as a part thereof, Ilanks executed to John Blackwell, five notes of four thousand dollars, each payable in one, two, three, four and five years, bearing interest from that date, and at the same time executed a mortgage deed, conveying the same property that was after-wards conveyed in trust to the plaintiffs (which is above described,) to the said John Blackwell, to secure the payment of the same. The consideration of these notes, as stated by both the partners, was, that Ilanks had used, on his private account, funds of the firm, to the amount of twenty thousand dollars, and these notes wore given as an equivalent to the other partner. The mortgage deed to Blackwell was registered on the same day with the deed of trust made to the plaintiffs, but a short time before it.</p> <p>At the time of this transaction, John Blackwell was indebted to his brothers, Robert M. Blackwell, Josiah Blackwell and James M. Blackwell, who all lived in New York, in several sums to each, amounting in the aggregate, including interest, to twenty thousand dollars ; and on the same day on which the mortgage was executed, to wit, on 23rd August, 1856, it was formally assigned to them.</p> <p>The plaintiffs allege, in their bill, that, in fact, John Blackwell had no such debt against Ilanks, as that stated by them as the consideration of the notes and mortgage; that a true state of the dealings showed him to be indebted to the firm ; that both partners well knew of the insolvency of the firm, and that in contemplation of an early disruption of the business, these notes and the mortgage were fabricated fraudulently to transfer these effects beyond the reach of their creditors.</p> <p>The prayer of the bill is, that the mortgage may be declared fraudulent, and that the assignees, Robert M., Josiah and James M. Blackwell, may be compelled to release their estates to the plaintiffs, Potts, Myers and Donnell, for the benefit of the creditors provided for in the deed of trust made to tliem.</p> <p>All the defendants answered. Robert M., Josiah and James M. Blackwell, state fully the origin and nature of the several-debts to them, and aver that they were bona, fide and justly due them ; they deny that they had any reason to believe, or did believe, that the firm of Hanks and Blackwell was verging on insolvency, when the notes and mortgage deed were made and assigned to them ; that so far from that, they were informed, and believed, that Hanks, after the dissolution, was abundantly good for all his debts. Hanks and John Blackwell deny the material allegations in the bill, and aver that the transaction of the notes and mortgage was fair and honest.</p> <p>There were proofs taken on both sides, and the cause was set down for hearing on the bill, answers, exhibits and proofs, and sent to this Court by consent.</p> <p>The argument of Mr. Eowle was as follows:</p> <p>1st. There was no fraud in the conveyance from Hanks to John Blackwell. But, if there was, the plaintiffs are not entitled to recover; for</p> <p>2. They must claim either as purchasers or creditors, under 27 or 13 of Eliz.; Pev. Code, ch. 50, secs. 1, 2.</p> <p>1. Are they purchasers, under 27 Eliz. % Wo think they are; Roberts on Fraud. Conveyances, 373; Ghapman v. Emery, Cowp. 279 ; 5 Ire. 91; 1 Ire. 149; 3 Dev. 105.</p> <p>Being purchasers they might have taken the land as against John Blackwell, but not the steam-boat, which is pei’sonalfcy, since the 27 Eliz. applies only to realty ; Grimsley v. HooJcet\ 3 Jones’ Eq. 7; Green v. Eornegay, 4 Jones, 69.</p> <p>The objection that the deed to John Blackwell was not recorded in the custom-house, according to the act of Congress, will not avail the plaintiffs, because Congress only has power to regulate commerce with foreign nations and among the several States, and with the Indian tribes;” Constitution of United States, Art. 1, sec. 8, clause 3.</p> <p>In our case, the steam-boat plies between Washington and Beaufort, and never leaves the territorial limits of North Carolina. But Robert, Josiah and James Blackwell are purchasers (i. e. if a mortgagee is a purchaser) from John Blackwell for a valuable consideration, and without notice, for the deed to the plaintiff had not been executed at the time of the conveyance to them. They, therefore, take discharged of the plaintiff’s claim; Rev. Code, chapter 50, sec. 4. If a mortgagee is not a purchaser, the plaintiffs cannot claim as purchasers ; for a trnsteepmd the cestuique trust, together, are equal to a mortgagee. The interest remaining in the trustee has been declared to bo an equity of redemption, under the act of 1812; Simpson v. Fries, 2 Jones’ Eq. 156 ; Harrison t. Battle, 1 Dev. Eq. 537.¡</p> <p>2. As creditors of the partnership, they are not entitled; because</p> <p>1. They have not reduced their claims to judgment and taken bold of the property ; Grimsley v. Hooker, 3 Jones’ Eq. 7; Harrison v. Battle, 1 Dev. Eq. 537.</p> <p>2. The creditors of a partnership have no lien in equity against partnership effects, except through the partners themselves ; Adams on Equity, [243,] note (1,) 457. The creditors’ right may, therefore, be terminated at any time by the act of the partner, through whose lien they claim; Clement v. Foster, 3 Ire. Eq. 213 ; Parrish v. Lewis, 1 Clarke. O. R. 191; Waterman v. Hunt, 2 R. I. 298. Thus a sale of eacli partner’s im terest upon separate executions to the same purchaser, passes the whole interest in the partnership property discharged of the partnership debts, for the equities of the partners have then ceased; Doner v. Stauffin, 1 Pa. R. 198; Baker’s Appeal, 21; Penn. St. R. 83. So a conveyance of partnership property to pay seperate debts of the partners, if bona fide, is binding, whether the partnership be solvent or not; Allen v. Centre Valley H. li., 21 Conn. 130.</p> <p>Last]y. An assignee of a mortgage given to one partner by another member of tiiefirm, holds unaffected by the claims of the partnership creditors; Waterman v, IIuntb 2 R. Island, 298.</p>

Cause removed from the Court of Equity of Caswell county. Joel Cannon, the father of Mrs. Annie Powell, the late wife of tire plaintiff, by deed, dated in 1829, conveyed a woman named Peggy, and her two children, Milly and John, to trustees for the sole and sepa/rate use of the said Annie during her life, with a remainder to her children.

<p>Where matters in controversy are submitted to arbitration by agreement of the parties, being a tribunal of their own choosing, it is independent in its action, and no appeal will lie from its decision; neither can it be rescinded by a court of law or equity. The only ground upon which an award upon a submission in pais can be set aside in a court of equity is, that it is against conscience to take benefit under the award.</p> <p>An award upon a submission, in a suit pending in court, requires more certain-iy than is required in an arbitration by agreement out of court, because the court is to pronounce its judgment upon it.</p> <p>Mistakes in charging' interest and the like do not furnish a ground for a court of equity to interfere and set aside an award.</p> <p>A want of certainty and finality are not such errors as make it against conscience to seek the enforcement of an award.</p> <p>An award is deemed sufficiently certain and final when it is as much so as the nature of the case will admit.</p> <p>In a suit brought upon a bond conditioned for the performance of an award, as the question whether the authority of the arbitrators was revoked before the award was made, can be legitimately put in issue therein, a court of equity will not take cognizance ofit. Nor is there anything in that question affecting the conscience of him in favor of whom is the award.</p> <p>A court of equity will not set aside an award because the arbitrators have awarded costs in such a case without authority, as the party can have the benefits of it, on the trial at law, in the mitigation of damages.</p>

This was a petition for the sale of a tract of land for partition, heard before MaNly, J., at the last Fall Term of the Court of Equity of Rockingham county. The petition set forth, that Mary McCollum was the person last seized of the tract of land described in the pleadings; that she died intestate, in the year 1857, leaving no issue, nor brother, nor sister, nor the issue of such, but leaving her father, Ilarvey Moore, her surviving.

<p>Where a testator, by Ms will, gave slaves to Ms wife for her life, and then to the heirs of his two daughters who were then living, the assent of the executor to the legacy of the taker for life, vested the title of the property in the children of the daughters, who were living at the death of the tenant for life.</p> <p>Where a testator bequeathed slaves to one for life, with an absolute power of disposition, without any residuary clause, and the first taker failed to exercise such power, it was Held that there was an intestacy as to such property.</p> <p>Where a testator charged his estate with the support of one for life, and provided no fund out of which the support is to be furnished, it was Held, that property undisposed of by the will, must, in the first place, be applied to that purpose.</p>

Cause removed from the Court' of Equity of Caswell county. Iienry Hooper died in tlie 3’ear 1853, having made and published his last will and testament, which is as follows : “ As the laws of the State would make a different disposition of my property, after my death, than would be pleasing to me, or consistent with moral justice, I shall avail myself of this time, place, and the little strength that disease has left me, to dispose of it in a way that is most satisfactory to…

This was appeal from an order made by his Honor, Judge PeesoN, in the Court of Catawba county, setting aside an incomplete sale of land. The petitioners in this case were all adults, but several of them were married women, who joined with their husbands. Joseph Bost, the bidder, was one of the petitioners. The prayer was for a salo of the land, of which there were two tracts set forth, and a distribution of the money in certain proportions, as set forth in the petition.

Cause removed from the Court of Equity of Cabarrus county. The question in this case arises on the construction of the will of John Bost, which is as follows: “ First, I will and bequeath to my beloved wife, Sophia Bost, the following negroes, (naming nine) to her and her heirs and assigns.

<p>Tirrs was an appeal from a decretal order of the Court of Equity of Union county, continuing, to the hearing, the injunction theretofore granted; His Honor, Judge PeesoN, presiding.</p> <p>The bill states that Milton Moore of the county of Union, died intestate in the year 1847, leaving his widow, Jane Moore, him surviving; that the said intestate was possessed at Pis death of two slaves, Pena and her child Manda, which are the subject of this controversy; that these slaves had been originally the property of Jane Moore and her two sisters, one of whom, Catharine, had intermarried with the plaintiff James Moore, and the other, Elizabeth, was at that time an infant under twenty-one years of age, and were held, with a number of other slaves, by the three sisters, as tenants in common under the will of their grandfather, Joshua Gorden, who died domiciled in the State of South Carolina, in which State the will was admitted to probate. The plaintiff James Moore took administration on the estate of Milton Moore, but never having seen the will, or a copy of it, and having been informed, and believing, that by the will of the said Joshua Gorden, the interest of Jane Moore was limited to her sole and separate use, to the exclusion of her husband, the said Milton, he and his wife joined in a petition with the said Jane and Elizabeth, in the County Court of Union, representing themselves as joint owners of the said slaves, and praying a partition thereof arnon g the three. Under this proceeding, commissioners were appointed to make the partition according to the prayer of the petition, who proceeded to do so, and reported among other things that the slaves Pena and Manda were by them allotted to the petitioner Jane. This report was confirmed by the said County Court. The plaintiffs in their bill further allege that after this proceeding was had, he discovered there was a total misapprehension as to the provision in the will of Joshua Gorden, and that there was no such separate estate given to the legatee Jane, but that her right to the slaves bequeathed was absolute, and, as such, vested in her husband, Milton Moore, jure mariti. They state that, upon the discovery of this error in the proceeding in the County Court, the said Jane, to thwart and hinder the plaintiff in the recovery of his rights by a suit in court to which he was about to resort, conveyed the said slaves to defendants’ intestate, Needham Armfield, who had full notice of the plaintiff’s equity arising from the mistake of the parties. They aver that there was no consideration paid by the said Armfield to the said Jane for these slaves, but that the sole object of the parties was to prevent the plaintiff, as the administrator of Milton Moore, from recovering his just rights in the premises." They further state in their bill, that the plaintiff James Moore, and his father David Moore, acting under his authority, supposing that they could thus come to the rights of the plaintiff as administrator of Milton Moore-, got the slaves in their possession and held them adversely to the claim of the said Needham Armfield; for this the purchaser Armfield instituted an action of replevin against them in the Superior Court of Union County, and as the plaintiff was considered to be estopped by the mistaken allegation of title in Jane, made in the petition in the County Court, a judgment'was rendered against them in the Supreme Court and the defendants who- are the administrators of Armfield threaten to take out execution upon the same. The prayer is for an injunction and for general relief.</p> <p>The- defendants in their answer state that their intestate bought the slaves in question from Jane Moore, and made her ample compensation for the same ; that he took from the said Jane a bill of sale for these slaves, with a warranty of title in which there was an acknowledgment of the receipt of $500. The defendant John P‘. Houston says, after the confirmation of the report in the County Court, Armfield consulted with him as to the propriety of purchasing the said slaves,. Pena and her child Manda, and as to the title of the said slaves, and observed that he thought if the County Court was good for any thing, the tille was good, and that he, Houston, said he thought so too.</p> <p>They further state in their answer that their intestate, Arm-field, took immediate possession of these slaves and sent them to the Brewer gold-mine, in South Carolina, whence they were surreptitiously taken by the plaintiff James Moore, and the intestate, David Moore, and brought to the County of Union,, upon which taking, the defendants’ intestate took out a writ of replevin which was prosecuted to judgment in the Supreme Court, and it is submitted that the decision of that Court established in the defendants’ testator a good and indefeasible title.</p> <p>The cause came on for hearing upon the bill and answer, upon a motion to dissolve the injunction theretofore issued, and, upon consideration of the case, his Honor refused to dissolve the injunction, but ordered it to be continued to the hearing. From this order the defendants appealed.</p>

Cause removed from the Court of Equity of Cabarrus county. This bill was filed by the administrator, with the will annexed, of Robert Motley, stating that difficulties had arisen amóngst those entitled under this will, and conflicting claims set up by them, so that he thought it would not be safe for him to pay the legacies bequeathed therein, without the protection of this Court; he therefore asks to be advised upon the several points stated below, which arise upon tire…

<p>Cause removed from the Court of Equity of Rowan.</p> <p>The plaintiff was, at the time of the occurrences herein stated, an aged, infirm and ignorant woman ; she had lived in the same family with her son Meshach, the defendant’s intestate, for several years, and on account of her frail condition, mentaiy as well as physically, for she had just before had a stroke of paralysis, she entrusted the entire control and management of her business to him. Her hands worked the plantation with him, aud all the profits and surplus realised from the crops, after paying the store-bills and other expenses, were retained by him, without rendering any account to her. The said Meshach was her oldest child, and the only one of age; she had the most implicit confidence in his business capacity and integrity. The plaintiff owed one James "W. Clark, as assignee, two notes, amounting together to about one hundred and fifty dollars, ($150) and some few debts besides, but she had abundant means, ultimately, to pay them all, but no pre-sont funds to do so. AVlien slie was informed by her son Meshach, that Mr. Clark had purchased her notes, she was very much alarmed and agitated; she appealed to him to devise some plan, or furnish her with some means, to save her from the ruin that the urgent collection of these notes would bring on her. The plan he devised for that purpose was, to have a deed of trust made of all her property, securing the payment of all her other debts, leaving out Clark, and as the property was greatly more valuable than these debts amounted to, he proposed that she should make fictitious debts to be secured in the said deed. This was his plan, and she, knowing nothing about business, and yielding every thing implicitly to him, gave in to it, and did make three several notes payable to him, one for $200, duo 1st January, 1849, one of $150, due 1st January, 1850, and one for $50, due 2nd-, 1849, which were entirely without consideration, and made for the sole purpose of carrying out the scheme which the said Meshach had devised to extricate her. In furtherance of this plan, she made a deed of trust to the defendant John Oanble, to secure these notes, which are set forth therein, and all the debts which she actually owed. This deed conveys her dower in the land on which she lived, a negro woman, all her corn, bacon, oats, hay, house-hold and kitchen furniture, horses, cattle, and stock of every kind, and everything else that she owned. Shortly after this was done, she became aware of the nature of the 'transaction and sought to got rid of it. She paid all the other debts mentioned in the deed, and then demanded that he should surrender it as well as the notes. This he failed to do, putting her off with various pretexts until his death, which took place in-. The defendant Brown administered on his estate, and proceeded to the collection of these notes, by requiring of the trustee, the defendant Caublo, to advertise the property for sale. The bill is filed to enjoin the. sale, and to stop the collection of the notes.</p> <p>The defendants answered. Replication was taken to the answers. Commissions and proofs taken, and the cause being set down for hearing, was sent to this Court.</p>

Cause transmitted from the Court of Equity of Alamance county. At the December term, 1853, of this Court, the suit of Foust v. Ireland, 1 Jones’ Rep. 184, was decided, by which it was established that Mrs. Mary Foust took the full right and property to certain slaves bequeathed to her by the will of her late husband, Peter Foust, in case she abstained from again marrying.