Volume 58 — North Carolina Reports

Cause removed from the Court of Equity of Washington county. John B. Beasley died on the-day of January, 1856, having made and published his last will and testament, the first and second clauses of which, are as follows, viz : “ Eirst of all, I give and bequeath to my son, John Beasley, five thousand dollars out of the bonds and money that may be on hand at my death, to be paid by my executors without charge of commissions. “ Second.

Cause removed from the Court of Equity of Washington County. William D. Davenport was shot and killed by two of his slaves, Danza and Aaron, in the month of -February, 1858.— The two slaves aforesaid, were tried and convicted of the offense, and afterwards executed. Another slave, George, was also put upon his trial for the same offense, but -was acquitted.

Áepeal from, the Court of Equity of Robeson county The bill was filed by Daniel Little and his children, Margaret Ann Tirginia Little, Mary Caroline Little, and Eliza Jane Little, alleging that they are tenants in common with the defendants of a large body of land, which descended to the defendants, and Rebecca, the wife of the plaintiff, Daniel, from her father, Dan. Buie.

Cause removed from the Court of Equity of Cumberland county.

Cause removed from the Court of Equity of Richmond county. The questions in this case are presented by James T. Roper and Green D. Tyson, executors of the last will of Thomas Roper, who, for their protection, ask the advice of the Court.

Cause removed from the Court of Equity of New Hanover county.

Cause removed from the Court, of Equity of Stanly county. On the 15tli of November, 1852, the following note was executed by the parties thereunto signed, viz : “ Salisbuet, 15th November, 1852. “ Ninety days after date, we, H. D. Kendall, as principal, and Francis Locke and Mark Jones, as securities, promise to pay D. A. Davis or order twelve hundred dollars, for value received, negotiable and payable at the Salisbury branch of the bank of Cape Fear.” Signed by H. D.…

Cause removed from the Court of Equity of Jones county. The defendant, Drury Hall, on the 16th of July, 1847, made a deed of gift to his son, Caleb F. Hall, of a negro slave Mack, and the same being duly attested, he immediately acknowledged and had it registered in the county of Duplin. where he lived. Ilis said son, as well as the slave, Mack, were qnife young, both remained with the donor as members of the family.

Cause removed from the Court of Equity of-Richmond county. In the year 1850, the defendant made an entry of a tract of land, (a part of which is that in controversy,) which he had surveyed hi February, 1851, and, in January, 1853, he paid the purchase money, and took a grant from the State. Shortly after obtaining the grant, the defendant entered into possession, and had the same in possession at the time the plaintiff’s hill was filed.

<p>Where a testator ordered his executor to loan out a certain fund, directed to be raised upon his estate, and the interest applied to the support and education of his children, and a portion of the fund was lost by the insolvency of the parties to whom it was loaned, which insolvency occurred so suddenly, that the debt could not be saved by the exercise of ordinary care, it was Held that such loss ought not to be put upon the executor.</p> <p>Executors are not held responsible as insurers; good faith and ordinary care is all that is required of them.</p>

<p>Where a party who had passed a tract of land by deed, absolute on its face, seeks to have a reconveyance upon the ground that the conveyance was intended as a security for money loaned, and the land had been twice conveyed, subsequently, with notice of the plaintiff’s equity, it was Held that the first and second purchasers, as well as the third, were necessary parties.</p> <p>The objection of a want of parties, does not necessarily require the Court to dismiss the bill, but it may be ordered to stand over, with leave to the plaintiff to amend his bill.</p>

Cause removed from the Court of Equity of Lenoir county. The bill sets out that the defendant, Howard, was indebted to divers persons,, (naming them) in several sums, amounting-to about $3000 ; that the plaintiff.was surety on these debts, and the said Howard being in failing circumstances, plaintiff' applied to him for indemnity against loss on account of such-suretyship ; that the said Howard agreed to deliver him goods-to- the amount of said debts, which plaintiff was to…

Caush removed from the Court of Equity of New Hanover county. James Mumford, of the county of Onslow, in his last will, bequeathed, (among other things,) as follows : “Item.

<p>In a suit brought for the settlement of a copartnership, where it was established that the defendant had been a member of the firm, it was Held that the onus of proving an averment of the dissolution of the firm, devolved upon him.</p> <p>Where one of a copartnership of three, was permitted to withdraw from the firm, it was Held, that no inference was to be drawn from this, that the co-partnership was not continued between the other two.</p> <p>'The Court is inclined to the opinion, that no trust for emancipation can be supported, unless express provision is made for the removal of the persons attempted to be freed, beyond the limits of the State.</p> <p>Where a will provided that a female child should be emancipated at the age of twenty, and gave her a tract of land, and but a small sum of money, although the testator had abundance of money, and enjoined it upon his executors to sec that she received the benefit of the land, it was Held that the will showed an intention that she should remain in the State, -after being liberated, and the provision was, therefore, ineffectual.</p> <p>A revocation of a will in express words, will prevail, though the object for which it was made fails, as being against public policy*</p>

Causis removed from the Court of Equity of Rockingham-county. The hill is filed’ hy the plaintiffs, as- executors- ©f Pearson Moore-, praying the advice of the Court in relation to their duties in the payment of certain legacies under the testator’s will, the portions of which, material to the questions propounded, are as follows: “ Item 1st. I will and bequeath to my-wife, Isabella Moore-, on-e half of my whole estate-, consisting-of lands, negroes, &c-.’'’ “ Item 2nd.

This was a motion to dissolve an injunction, heard before Siibpjiebd, J., at Spring Term, 1859, of Beaufort Superior Court. The facts disclosed in the pleadings, are these: The defendants, the commissioners of the town of Washington, in obedience to an act of Assembly, and the wishes of the citizens of the town, ascertained by ballot, contracted with one Crist for a plat of ground, one mile from town, with the design of laying it off for a public cemetery.

, presiding. This was a motion to dissolve an injunction, heard upon the bill and answer. The plaintiff was an old man, weak-minded and intemperate. The defendant was his relation and near neighbor.

Tuts was an appeal from an interlocutory order made by Dios, J., at the last Spring Term of the Court of Equity of Hash County.

Cause removed from the Court of Equity of Iredell county. This bill is filed by the executor of William Eeimster, praying for advice and direction from the Court in relation to his duty in executing the trusts, and paying the legacies declared in the will of the said William Eeimster.

<p>A stipulation in a deed of trust, giving a preference to such of the .creditors as will, on receiving one half of their debts release the other half, makes it fraudulent and void.</p> <p>All persons attempted to be secured in a deed of trust, fraudulent on its face,, who claim a benefit under it, become participes criminis, and are precluded from such benefit.</p> <p>A purchaser, even for a full consideration, under a deed, fraudulent on its face, gets no title.</p> <p>Whether a deed, which is void on account of fraud in respect to some of the trusts, not apparent on its face, may not, under certain circumstances, be valid to pass the title — quere ?</p>

Petition lor the sale of real estate, removed to this Court by consent, from the Court of Equity of Rowan.

<p>Cause removed from the Court of Equity of Randolph county*</p> <p>The bill is filed by the plaintiff, as the executor of the will of "Wiliam Kogan, praying a construction of certain clauses thereof, and for advice as to the manner of carrying the same into .effect. The clauses of the said will, out of which the questions arise, are as follows :</p> <p>“First, I will and desire, that all my just debts shall be paid, and that my estate shall remain in the hands, and under the management of my beloved wife, Elizabeth ITogan, and my two sons, John A. Hogan and Alexander W. Hogan, until my youngest child arrive at the age of eighteen yearn, except such legacies as are herein after named.</p> <p>“Secondly. I give and bequeath to each of my children, namely, John A. Hogan, William L. Hogan, Franklin H. Hogan, Elizabeth J. Stone, Alexander W. Hogan, Pleasant II. Hogan, Louisa Holt, Claudia Hogan, Frances Hogan, Eugenia Hogan, and Julia Hogan, the sum of three thousand dollars each, and to my grandsons, William Jones, Nathaniel Jones, and John Jones, one thousand dollars each, which legacies are to be paid in money and property at its valuation, and moneys which may be raised from the products of my farms ; out of which legacies are to be deducted the advancements I have already made to some of my children; which advancements are hereunto annexed and signed with my signature.</p> <p>“ Thirdly, I give and bequeath to my beloved wife, Elizabeth Hogan, the use of the manor plantation and land adjoining, during her life, and one half of all my personal estate that may' be left after paying the above named legacies ; and one-fifth part of all the marketable produce that may be raised on my mill-plantation, during her life, with the privilege of disposing of the same by will, or otherwise, amongst our children at her death./</p> <p>“ Fourthly. I willand direct,'that my son, Alexander W* Hogan, shall be supported out of my estate until he gets his profession, and, afterwards on the general division of my estate, amongst my children, my sons, John, William and Alexander, shall be charged each with the sum of one thousand dollars, to be deducted from each of their parts in said distribution.</p> <p>■ Fifthl/y. I also will and direct, that my son, Pleasant, shall have the charge of my mill, and exercise the business at that farm as long as he and my-executors herein named, can agree, for which he shall have a decent support and the sum of two hundred and fifty dollars, to be paid him annually by my executors.” * * *</p> <p>Sixthly. I further will and direct that the aforesaid legacies of one thousand dollars, each, which I have willed to my grandsons, William, Nathaniel, and John Jones, shall be paid to them in negroes or land, or both, at the discretion of my executors when they arrive at the age of twenty-one years.”</p> <p>In a paper referred to by the will as containing a list of advancements, the testator mentions that the sum of $1200 advanced to his daughter, Mary Jones, was not to be deducted from the legacies to her three sons, (William, Nathaniel and John,) “as they are not to have any more of my estate than one thousand dollars each.”</p> <p>Mrs. Hogan and her two sons, John and Alexander, wore appointed executors, but the two latter having died, she continued solely to manage the affairs of the estate for several years preceding her death, during which time she accumulated, from the use of her life-interest, and the other sources provided in the will, an estate of considerable value. She died in 1856, having made a will, appointing the plaintiff', W. R. Holt, her executor, by which he became executor, also, of William Hogan’s will. All the debts were paid off before her death, as also were the special legacies, with the exception of a part of that to Nathaniel Jones, and the legacy of $1000 to John Jones, who died before he reached the age of twenty-one years. The will of Mrs. Hogan in its 10th clause, is as' follows:</p> <p>“ The residue of my property I will and desire to be sold by my executor, and the proceeds to be applied first to the payment of my aforesaid legacies, and the balance to be divided between Elizabeth J. Davis, Louisa A. Holt, Eugenia A. Minniss, the two children of A. W. Hogan, dec’d, to wit, "William G. Hogan, and Jesse H. Hogan, ancl Pleasant Hogan, as follows, to wit, my son, Pleasant H. Hogan, according to the compromise before alluded to between us, and to go into the hands of a trustee as above provided: to my daughters, Elizabeth J. Davis, Eugenia A. Minniss, and Lonisa A. Holt, one share each, and to A. W. Hogan’s children one share, they to represent their father.”</p> <p>Under the will of Gol. Hogan, especially the fifth clause as above stated, his son Pleasant claimed against his mother a large sum for support, and his yearly salary in superintending the business of the mill and mill-farm, which is charged on her interest, and was about to-file a bill in equity for the same; but, at the instance of mutual friends, the dispute was compromised in writing, and signed by each. In that compromise it is provided that Mrs. Hogan, “in making a division of her husband’s estate,, at her death, shall allow to the said Pleasant, twice as much as any other child.”</p> <p>This is the compromise alluded to in Mrs. Hogan’s will.</p> <p>The primary question submitted by the plaintiff is, whether the above will of-Mrs. Hogan is a valid and effectual execution of the power contained in her husband’s will, and if not, who are entitled, on the falling in of the estate, to the property left to Mrs. Hogan, to be divided by her.</p> <p>John Jones, one of the children of Mary, deceased, died several years before he arrived at twenty-one, and another question submitted, is whether his share lapsed or whether it became payable to his administrator, and if payable at all, whether it bears interest, and from what time, and whether in the latter event it may still be paid in property. Alexander W. Hogan voluntarily declined studying a profession, and his support was no charge on the estate on that account. His administrator contends that the charge of $1000 on his share, made in his father’s will, on the supposition of Ms studying a profession, ought not to stand against him in the settlement of the estate, and the executor asks advice also, on this point.</p> <p>By another clause of the will of Mrs. Hogan, she provides-as follows :</p> <p>“7th. I will and direct that the legacy, or the part of it unpaid given by the will of my late husband, William Hogan, of which I am executrix, to Nathaniel Jones, my grandson, be paid out of lands in Alabama,, belonging to the estate of ray deceased husband, and the balance, if any, after deducting advancements made, out of any estate I may have coming to me from the estate of my deceased son, Franklin H. Hogan, and if I get nothing from his estate, or not sufficient, then out of any estate I may leave behind' me.”</p> <p>Nathaniel Jones has been of age for several years, and, in his answer, insists that the executor of William Hogan is bound to' pay him his legac^y out of the estate, and that he is not bound to look to the uncertain provision attempted to be made in the will of his grand mother. Upon this point, also, the executor asks the advice of the Court.</p> <p>All the surviving children of William Hogan, and the representatives of such as have died, are made parties; also-, the administrator of John Jones, and they all answered, but their answers do not vary the statement as herein above set forth.</p>

Cause removed from the Court of Equity of Chatham comity. The bill was filed by Sarah Oldham, who liad become’insane, who sued by her guardian, Thmnas D. Oldham, to compel the surrender of a bill of sale obtained from her by fraudulent pretense, and by the exercise of undue influence. The cause was argued by PlviMvps for the plaintiff, and Ilaughton for the defendant, upon the bill, answer and proofs tiled.

<p>Where A, as principal, and B, .as surety, gave a note ou an executory contract for the purchase of real property, in which á fraud was practiced on A, it was Held that a bill filed by B alone, praying for an injunction to stay an execution at law, and setting up no other equity, is defective in substance.</p> <p>It is irregular for a clerk and master, even by consent of counsel, to send up the original papers of a cause, on an appeal from an interlocutory order, or by consent to charge, in such a case, as ^copies had been made and sent up.</p>

<p>Cause transmitted from (lie Court of Equity of Wake comity.</p> <p>The bill alleges that Cornelius Du Pre and Daniel Du Pre, Junior, purchased of one Thomas Robeson, a negro woman, named Harriet, and her child Prances, for which they paid the money, and took a bill of sale \ that on the 16th of October, 1851, the said Cornelius and Daniel Du Pre, Junior, sold the said slaves and another, a child also of Harriet, to Daniel Du Pre, Senior, the father of the plaintiffs, Rachel and Altona, and of the said Cornelius and Daniel, Jr., and husband of plaintiff, Christiana, and that the money was paid for the same by the said Daniel, Senior, and he took from them a conveyance for the same, of that date; that the said Daniel, Senior,took the slaves into his possession and kept them, claiming them adversely to all. other rights, until September, 1856, when he conveyed them and another child of Harriet named Virgil, to the plaintiffs, Rachel and Altona, reserving a life-estate in the same to himself and his wife, the plaintiff, Chris-tiana, and that he thence held them according to the terms of the said conveyance, until his death, which took place in April, 1858; that since then, the said slaves have remained in the possession of the mother and the two daughters, who-have resided together, and are still soresiding; that a judgment was rendered at the December Term, 1858,'of the County Court of New Hanover, against Cornelius Du Pre and Daniel Du Pre, Junior, and against the defendant, John A. Baker, in favor of defendant, Henry Gr. Williams, on which a writ of fieri fct&ias issued, directed to the sheriff of Wake county ;• that the said sheriff, at the instance of the said Williams and Baker, levied this execution on the four slaves, above mentioned, and took from the plaintiffs a bond for the forthcoming of them, at a given day, when he avows his purpose to make sale of them according to the exigency of his writ.</p> <p>The prayer of the bill is, that the said Williams and Baker be enjoined from selling the slaves', as threatened, and that the forthcoming bond may be surrendered for cancellation, and for general relief.</p> <p>An injunction was issued in vacation, and at the return term, the defendants demurred, generally, for the want of equity.</p> <p>The cause being set for argument on the demurrer, was sent to this Court.</p>

Cause removed from the Court of Equity of Stanly. Thomas Turner, the ancestor of the plaintiff, having made a contract, in writing, with one Ward, for the purchase of one hundred acres of land, paid him the most of the purchase-money for the same. Ward assigned the tract, out of which the 100 acres was to be taken, to one Daniel Freeman.

Cause removed from the Court ®’f Equity of Warren county. The bill is filed by the plaintiff, as administrator, with the will annexed of William Hagood, against the defendants, as the executors of Susan Hagood-, -his wife, praying a discovery as to a certain bond, or the proceeds thereof, which was taken for the sale of a negro slave, by the name of Frank, by the said Susan, and for the delivery of the said bond or the proceeds, to him.

, presiding. The plaintiff in his bill alleges that the charter granted to the defendants, authorises them to construct a railroad from Wilmington, or Smithville, or some point on the Wilmington and Manchester railroad in the county of Columbus, or some point on the Wilmington and Weldon railroad in the county of Hew Hanover, as the stockholders might determine, via Lumberton, Rockingham, Wadesborough, and Monroe, to the town of Charlotte, and thence to the town of…

<p>Where a petition for the sale of land, in a court of equity, described one tract as “ the Mountain tract, containing about one hundred acres,” a sale was decreed of the lands mentioned in the pleadings, and the sale confirmed, on a bill to set aside the master’s deed, on the ground of fraud, it was Held that it would requii'e full, and incontestable proof, to satisfy the Court that only a part of the hundred acres had been intended to be sold by the master.</p>

The bill is filed for the sale of a slave, by the name of Pri-mus, for the purpose of a division.

On a petition, filed by the heirs-at-law of ’William Johnson, deceased, for a sale of his real estate, a decree was made, the land sold, and the money collected by the master; whereupon, an order of reference was made for him to ascertain and report to the Court “ the names and number of the heirs-at-law of the late William Johnson, entitled to partition in the real estate, in the pleadings mentioned, and the amount coming to each,” who reported that the said William died…

Cause removed from the Court of Equity of Gaston county. The bill is filed to compel a specific performance of a contract, in writing, by the defendant, Stowe, to convey to the plaintiffs’ ancestor, Levi W; Sugg, a tract of land¿ described in the pleadings.

This was a bulk upon the defendants to show canse why certain charges in a Jifa, issued for costs in the case, should not be' struck out, heard before Heath, J., at the last Fall Term of Bladen Court of Equity. On a previous decree for costs against the plaintiffs in the cause, th % fieri facias issued, which is the subject of this rule, and tlie material contents of which appear from the following exceptions filed : .1.

Cause removed from the Court of Equity of Lenoir. The bill is filed by the distributees of David W. Lawson, against the defendant as his widow and administratrix.

Cause removed from the Court of Equity of Harnett county. On the 10th of October, 1827, Neill McLean and Sarah McNeill, in contemplation of a marriage between them, which was about to be solemnised, entered into a contract, in writing, in which was stipulated, among other things,-as follows : “That the said Neill McLean doth covenant and bargain and agree, that the said Sarah McNeill shall have and hold, to her own use, her two negroes, Robin and Sophia, and all of Sophia’s…

Cause removed from the Court of Equity of Washington county.

D. A. Davis, as cashier of the branch of the bank of Cape Fear, at Salisbury, obtained a judgment, at law, against William McRae, Calvin Cochran and others, upon which an execution issued directed to the sheriff of Montgomery county, in which county all the defendants resided.

PetitioN to reliear this cause,' which was decided at December Term, 1858, (see 4 vol. Jones’ Eq. Rep. 281.) The petitioners point out as erroneous that part of the decree, which passed at the said term, in which it was declared that the increase of the slaves bequeathed to them .in the 3rd, 4th and 5th clauses of the will of Thomas 'Williamson, which were born during the life of the said Thomas, did not pass to the petitioners, but fell under the residuary clause.

<p>Where an equity was established against the defendant for one of two lost notes, but which of them, was not made to appear from the evidence, it was Held, the onus being on the plaintiff, he should take his recovery on the smaller.</p> <p>Where one got another to sign a note, with an understanding that it was not to be binding, unless signed by a third person also, and such person’s signature was not procured, whether, on the notes being used to secure a pre-existing debt of the principal, the surety could avail himself of this breach of confidence.— Quere f</p>

Cause removed from the Court of Equity of Forsyth county. Under certain articles in writing, entered into between them, the plaintiffs and the defendant purchased of one Shultz two-thirds, and from the clerk and master of Forsyth, the other third of a tract of land lying in the county of Obian, Tennessee, for about $3760, and resold it for a considerable profit.

<p>Cause removed from the Court of Equity of Jones county.</p> <p>Lewis Williams, by his will devised and bequeathed, among other things, as follows, viz: “ Having no confidence whatever in E. A. Cox, the husband of my daughter, Barbara, I give and bequeath and devise unto my son, Aretus Williams, his heirs, executors, administrators and assigns, forever, the following property, that is: the tract of land whereon I now reside, subject to the life-estate of my wife therein, and a negro woman, named Sarah, in special trust and confidence, nevertheless, that he and they will hold the same for the sole and separate use and benefit of my daughter, Barbara Cox, and- during her natural life, in such manner that the same shall in no event be subject to the control or liable for the debts, or contracts, of her husband, E. A. Cox, and I wish Aretus, or his executors, &c., to allow his sister, Barbara, either on the said place to live, or rent it out,” with ulterior limitations of the trust to the children of the said Barbara. In a subsequent clause, he gives to his wffe a number of slaves for her life, with remainder to Aretus Williams, in trust, for the sole and separate use of Barbara Cox, as in the preceding clause. Mrs. Irena Williams, by deed, properly authenticated, surrendered to Aretus Williams her life-estate in the land and slaves, given her by the will of her husband, to hold the same as trustee for Mrs. Cox, according to the trusts declared in the foregoing will.</p> <p>Cox, the husband, and his wife, filed this bill against the trustee, setting out that it would greatly promote the comfort of the family of Mrs. Cox, and preserve and increase the value of the land and slaves intended for her benefit, for her and her husband, to have the possession of the property for the purpose of carrying on farming operations, and pray that a decree may pass the Court to chat effect.</p> <p>The defendant demurred to the bill, generally, for the want of equity.</p> <p>The cause was set down for argument on the demurrer, and sent to this Court by consent.</p>

<p>Receipts for money paid opon a verbal contract, and which are relied on as evidence of the contract, form no exception to the rule that a writing, containing a patent ambiguity, cannot be helped by a parol evidence.</p> <p>Where the description of the land, in a memorandum of contract, is vague and indefinite, Equity will not decree a specific performance.</p> <p>Where a bill, for a specific performance, contains a prayer for general relief, and the answer admits the payment of a part of the purchase-money, and contains an offer to settle; it was Held, that the Court, although it cannot decree a specific performance for want of a sufficient writing within the statute of frauds, will, nevertheless, decree an account and repayment.</p>

<p>Where a testator gave to his wife, for whom he had a great affection, and who had no other provision, all his property to raise and educate his chilr dren, and to dispose of five same among all of them, as their circumstances might seem to require, audio sell any of it for the benefit of hej- family, and appointed her sole executrix, it was Held that the legal title to the rgál and personal estate was invested in the wife in trust to manage the property at her discretion for the support of herself and for the raising and education of his children, and that the equitable reversion in the residue, after those purposes should be answered, vested in the children, subject to be divested by the exercise of the power given her to dispose of it among all the children as their circumstances might require.</p> <p>Where a testator gave all his property to his wife to dispose of it among all his children, and she made a will giving part of it to grand-children and other more remote descendants, with contingent limitations and cross remainders to them as purchasers, and part to some of the children for life only, it was Held that her wiE was not a valid exercise of the power, and that the rights of the children were not affected by it.</p> <p>It was held, further, that she had a right to contract debts for raising and educating- the children, and supporting the family on the credit of the estate, ¡and that it was liable for such debts.</p> <p>Meld, further, that the executor acted properly in keeping up the family establishment until the questions growing out of the will could be sfettled.</p> <p>Held, further, that the interest of the children in the trust was vested, and that one of the daughters having married, and died in the life-time of the mother, her rights vested in her personal representative, who was her husband, but not/we mariti.</p> <p>Held, further, that after the death of the wife, without exercising the power, the legal title of the real estate vested in the children as heirs-at-law and that they thence took the full title to that property, and that the title to the personal property by the latter will, vested in her executor, subject to debts, and then to the disposition of the husband’s will.</p>

Cause removed from the Court -of Equity for Caswell county. John Everett-died in the county of Caswell, in the month •of June, 1858, und left a last will and testament, one clause of which is in the following words: “ I desire that my ne-groes shall have the privilege of selecting their masters, their value to be ascertained by two disinterested men, one selected by the master they may choose, and one by my executors.

Cause removed from the Court of Equity of Lenoir county. The bill alleges, that in the regular course' of business and bona fide, the plaintiffs obtained from one Charles Eaton, an inland bill of exchange, drawn by the defendants, Scott & Brother for $259, on Lamont & Monk, of Wilmington, drawn in favor of Weill & Anathan, payable sixty days afterdate, and dated at Wilmington, April 20th, 1857, which said bill is endorsed by Daniel Perry, E. B. Harrison and Bryan Quinn; that…

Cause removed from the Court of Equity of Yadkin County. The suit was against an executor for the payment of a legacy. There was a decree for an account to ascertain how much was due to the plaintiff as executrix of Hezekiah Johnson, the legatee.

The canse, out which this matter emanates, (.Barnawell v. Threadgill) was heard at December Term, 1856, of this Court. (See Jones’ Eq. Rep. vol. 3 p. 50.) The bill was filed, originally, against Patrick B. Threadgill, as executor of Col. Thomas Threadgill, to procure satisfaction of a judgment, at law, rendered in favor of plaintiffs against the said executor.

Cause removed from the Court of Equity of Yadkin county. The facts of the case are fully stated in .the opinion of the Court.

<p>The separate estate of a married woman is not liable to her personal engagements generally, but only where the debt is charged specifically upon her</p> <p>separate estate, with the concurrence of the trustee, if there be one.</p>

Cause removed from the Court of Equity of Bertie. In April, 1830, Kenneth West died intestate, seized and possessed of a large real and personal estate, leaving a widow and three children. The defendant, Rhodes, became his administrator, and the defendants Mhoon and one Webb became his sureties on his administration bond. In 1832, Rhodes left the State, and in 1834, failed in business, and has ever since been insolvent.

Benjamin E. Hanks being largely indebted to several persons, on 17tli of September, 1856, executed a deed of trust to Joseph Potts, Richard S.… Held: that if that had been so, as the assignment to the Messrs. Blackwells was for a full consideration, to secare an honest debt, without any notice of such fraud to the assignees, the assignment was valid, and that the property embraced therein, including the Post-boy, passed to them, and a decree passed the Court accordingly.

<p>Where a bill seeking- to attach an equitable interest of an absent debtor, in the hands of an administrator in this State, states that the defendant “is justly indebted to the plaintiff in the sum of two hundred and eighteen dollars and seventeen cents, due by two notes, bearing date the 20th of March 1350,” it was Held a sufficient statement of the debt within the requirements of the 26th section of the 7th ch. of the Rev. Code.</p> <p>Whore a resident of another State endorsed a note to a citizen of this, it was Held, that the law would presume, in the absence oí proof to the contrary, that the endorsement was for the endorsee, and that he might attach the property of the maker, a non-resident, in the hands of an administrator in this State, for-its satisfaction.</p> <p>An admission of a fact, made in the Court below by the parties to a suit, for the express purpose of saving the trouble and expense of taking the proof, will be taken as sufficient, here, as well in suits by attachment as in other actions.</p> <p>Where a defendant in a suit, claimed an equitable interest by virtue of a deed of assignment, which recited that the conveyance was in consideration of the sum of one hundred dollars in band paid, put there was no- evidence of the payment of the purchase-money, except this recital, although such proof was expressly required, and the defendant in his answer did not distinctly aver that it had been paid, it was Held that the Court would not regard the defendant as an assignee, so as to defeat the claim of the plaintiff who was seeking to attach this fund for the satisfaction of a just demand.</p>

Cause removed from the Court of Equity of Warren County. The bill is filed to obtain an injunction to restrain the defendant from collecting the full amount of a judgment, and alleges the following facts as a ground for equitable interference.

Lanier and Jackey, his wife, their right ¡and title to a' tract of land containing one hundred and sixty ¡acres, in the State of Arkansas; that Lanier and wife held, ¡under a patent issued to her as… Held: ¡under a patent issued to her as the sole heir of Win.

Cause removed from the Court of Equity of Chowan county. Exuni Simpson of the county of Chowan, died in said county, in the year, 1844, leaving a last will and testament, in which be devises and bequeaths all his property, real and personal, to his wife, Margaret Simpson, for her life, and after-certain specific devises and bequests, he proceeds in the 12th section of said will, as follows: “It is my will and desire that the remainder of my estate, after the decease of uty…

Cause removed from tbe Court of Equity of Cumberland ■county. _ Margaret McDonald, of Sampson county, died in the year 1855, without issue, leaving tbe plaintiff, Colin McDonald, her next of kin and heir-at-law. Letters of administration on her estate were granted to the defendant, Daniel McDonald, ¡at-Term, 1855, of Sampson County Court, and betook possession of her estate, consisting of eighteen negroes and $104,90, in good notes.

Cause removed from the Court of Equity of Anson county. Christopher McKae made his will, and died in 1837, leaving the plaintiff, Alexander Little, his executor, who qualified.— Among many other bequests, the testator gave certain slaves to his daughter Margaret, wife of Allen Teal, and others to his daughte Isabella, wife of William Teal.

Cause remove^ from tibe Court of Equity of Wake county. The bill was filed by the administrator, with the will annexed of Dr. A. IT. Taylor, for directions and advice as to his duty in carrying out the intentions of the testator in the several particulars stated in the pleadings. The clauses in the said will, and the facts applicable to the questions raised thereon, are so fully stated in the opinion of the Court, that it is deemed unnecessary to 'repeat them here. -

Cause removed from the Court of Equity of Franklin county. The bill was filed by the legatees under the will of Bartholomew Fuller, against the executor, for the recovery of their legacies. The only matter of controversy or doubt, arises as to the share of the estate bequeathed to Mary Fuller.

This was a bill for the partition of slaves, transmitted from the Court of Equity of Martin county.

<p>Cause removed from the Court of Equity of Stauly County,</p> <p>Peter Pless died in the county of Stanly, in the year 1858, leaving a last will and testament which was admitted to probate at May term, 1858, of Stanly county court, and the plaintiff, John A. Pless, qualified as executor of the same. — ■ This will, after various specific devises and bequests, contains a residuary clause in these words: “My will and desire is, that all the residue of my estate, if any, after taking out the devises and legacies above mentioned, shall be sold, and the debts owing to me collected, and if there should be any surplus over and above the payment of debts, expenses and legacies, that such surplus shall be equally divided and paid over to my son Adam, and my daughter Malinda, my will and desire is, that my daughter Malinda’s- equal part in this last de-visero her bodily heirs equally to be divided between them, and said legacies to be paid over to the above mentioned within two years from my decease to them, and each and every'of them, their executors, administrators and assigns, absolutely forever.” Malinda, the daughter mentioned in this will, is now the wife of the defendant, Coble, and the bill is filed by the executor for a construction of this residuary clausk</p>

, at the Fall Term, 1859, of the Court-of Equity of Halifax. Mary G. Shearin had hied her petition to be divorced from her husband,S. G. Shearin, who was a minor. Upon the coming in of the defendant’s answer, the plaintiff moved the Court, to allow her alimony pending the suit.

Cause removed from the Court-of Equity of Jones county. The questions presented in this-suit arise on the construction of the will of Lemuel H. Simmons.

Cause removed from the Court of Equity of Northampton. Leah Gums, by her will, executed in 1846, bequeathed several slaves, and..among them, Sarah, the mother of those in controversy, as mentioned below, to her nephew, William M. Gums, during his life, then to the plaintiff, Penelope, during her life or widowhood, and then to the next of ldn of the said William M. Gums, to be equally divided between them.

<p>Appeal from the C’o-urt of Equity of Granville county.</p> <p>Robert Ryle died in the county of Gran ville-,.seized of real estate without lineal descendants, leaving seven children and one grandchild of one brother, David, dec’d, who are all plaintiffs — « three children of on.e dec’d sister, Jane Carr, also-plaintiffs;. two children and; three grandchildren of another sister, Elizabeth Johnston, and three children of another sister, Mary Johnson. David Kyle and Jane Carr were duly naturalised, and died in the life-time of Robert. Elizabeth. Johnston was alien born and never was naturalised. She came to this country and resided until her death, which, took place before that of Robert, but- her children were naturalised, and her grandchildren, native-born. Mary Johnsto-a was alien born and never was. naturalized, she is still alive, b-n-t non-resident. Her children reside in this State, and have been duly naturalised.</p> <p>This -was a petition filed by the heirs of David Kyle and Jane Carr against the descendants of Elizabeth Johnston and Mary Johnston, praying for a sale of the land for partition, and insisting that the defendants are- not entitled to share in the land' descended. The Court below decreed a sale of the land, and ordered a distribution of the proceeds according to the prayer of the-petition j that is, among-the lineal descendants of David K'yíe and Jane Carr, to the exclusion of the children and grandchildren of Elizabeth Johnston and of the-children of Mary Johnston. From this latter part of the-decree, defendants appealed to this Court.</p>

Cause removed from the Court of Equity of Wake county.' This was a bill to compel the specific performance of a pa-rol contract to convey the plaintiff twenty-two acres of land at six dollars an acre.

The court-house of Pitt county having been destroyed by fire, the justices of the peace of the county, at ———-Term, 1858, of their county court, appointed a committee with authority to adopt a plan for a new court-house, and to contract with some person for building one. This committee procured a plan- to be drawn with specifications, and the plaintiffs allege that defendant undertook and bound himself to execute the .work according to said contract and specifications.

This was a bill for an injunction, and to set aside two deeds, as being in fraud of the plaintiff’s marriage, sent from the Court of Equity of Rowan. The plaintiff was engaged in the service of the defendant, E. D. Austin, for the year, 1850, living in his family, during which time an intimacy sprang up between him and Caroline Gillespie, a widow lady, the daughter of Col. Austin, aged about twenty-two years, which resulted in an engagement to marry.

Cause removed from the Court of Equity of New Hanover county.

<p>Cause removed from the Court of Equity of Halifax.</p> <p>The bill was filed against the defendant as the guardian of the plaintiff, for an account and settlement of the amount arising to liim under the will of his father, Joseph Branch.— The clauses of the will material to the question debated before the Court are as follws: “Item. I authorise and request my executors, herein after named, to sell on such terms-as they may think most proper, all my lands in- the State of Tennessee, and all my personal property, with, the exception of my negroes and five trunks and their contents, which I wish reserved for the use of my children.</p> <p>“Item. I desire that my negroes be’hired out yearly in- the county of Williamson, until the arrival of my sons respectively, to the age of twenty-one years, or- the marriage of my daughter.</p> <p>“Item. I give, devise and bequeath unto all m}*- children, an equal portion of my estate to be paid over to them as they respectively arrive at the age of twenty-one years; but should my daughter marry before arrival at the age of twepty-one, I desire that her portion, be paid over t©' her upon her marriage.” * •</p> <p>“Item. I desire that my children be carried back to North Carolina, and placed under the care of ray brother, John. Brand). * * I should prefer, under my present views,, that all my children shall be raised and educated- in North Carolina, but, as events may occur which I cannot foresee, I leave this entirely to the discretion of their guardians, hereinafter named.</p> <p>“I desire that such of my negroes, as may be necessary to wait on and attend to my children, go with them to North Carolina. I greatly desire that my negroes shall be humanely treated, and should prefer, if it can be done, that they be hired out, privately, to humane persons, even at a less price, and, if possible, in families together.”</p> <p>Appoints John Branch, Laurence O’Brian and Henry R. W. Hill, guardians, trustees and executors. The will was made in Tennessee. . The children came back to North Carolina, and were reared and educated under the supervision of Governor Branch, the defendant.</p> <p>The only question argued in this Court, was whether, according to the provisions of the foregoing will, the maintenance and education of the children is to be a joint charge upon the ag* gregate profits of the estate, or whether the support of each is to come off of his separate share of the profits only.</p> <p>Cause set for hearing on the bill, answer, exhibits and proofs, and sent to this Court.</p>

Cause removed from the Court of Equity of Rowan.- The plaintiffs in this suit) are heirs-at-law of — — Macay, an infant child of William S. and Margaret I. Macay, who died before it was named. Isabella, the mother of Margaret Macaj, and grand-mother of the said infant, was the- wife of Richard Lowery. She died seized of a tract of land in the-county of Rowan, and, at her death, it descended to her daughter, Margaret I., then under age..

<p>Cause removed from the Court of Equity of Forsyth county.</p> <p>Antoinette L. Breittz died in the county of Forsyth, having made a last will and testament, which was admitted to probate, and O. D. Keehln, the executor therein named, qualified as such. C. D. Keehln afterwards died, leaving a last will and testament, which was also admitted to probate, and Theodore F. Keehln and wife, the executors therein named, qualified acpording to law, and undertook the execution of the wills of both Antoinette Breittz and C. D. Keehln.</p> <p>This hill is filed for a construction of certain clauses of the will of Antoinette Breittz, set out below :</p> <p>The second clause of this will is as follows: “ It is my will and desire that my sister, L. F. Bagge, after nay decease, take my daughter, Sarah E. Breittz, entirely under her care and charge, and, it is further my will, that my said sister, L. F. Bagge, receive out of my estate the sum of. $150 each and every year, until my said child, Sarah, shall have attained the age of ten- years, and after the expiration of said ten years, the sum of $300 for the extra use and benefit of my said daughter, Sarah E. Brietz.”</p> <p>7. “ I give and bequeath unto my daughter, Sarah E. Breitz, all my books, piano, secretary,’all my clothes, &c., forever, but my sister, L. F. Bagge, to take all under her care, until my said daughter, Sarah E. Brietz, either may make use of it, or when she becomes of age; should, however, my said daughter, Sarah E. Brietz, depart her life before she arrives at the age of twenty-one years, then the property mentioned in this paragraph, together with all the property, monies, notes, land or whatever it may be, that may have come from me to my said daughter, Sarah E. Brietz, is to go to the children of my said sister, Nebecca M., intermarried with Henry A. Shultz, share and share alike.</p> <p>10. “ My will and desire is, that all the residue of my estate after taking out the devises and legacies above mentioned, to be paid over to my said daughter, Sarah E. Brietz, and her heirs forever.”</p> <p>The will appointed C. D. Keehln, guardian of Sarah E. Brietz, which office he discharged up to his death. The said Sarah E. Brietz, the daughter and legatee died under twenty-one, and the defendant, Francis Fries, was appointed her administrator, against whom, and the three children of Mrs. Shultz, this bill is filed. The only point upon which it prays the instruction of the Court, is, whether the rents and profits which accumulated between the death of the testatrix, and that of her daughter, Sarah E. Brietz, goes to the ulterior legatees, or the administrator of the said Sarah.</p>

Cause removed from the Court of Equity of Orange county. A judgment was rendered at the Superior Court of Orange, at September Term, 1858, for about one thousand dollars, in favor of the administrators of B. L. Durham, against John A. McMaonen, who was principal, and plaintiffs, Parker, Loekhart and one C. T. McMannen, as sureties, and execution was taken out thereon, and put into ‘the hands of the defendant Jones, who is the sheriff of Orange county.

Cause removed from the Court of Equity of Caswell county. The bill was filed by the widow and children of James L. Graves, against the defendant, his executor, for an account and payment of the legacies, given by the will.

<p>Appeal from an interlocutory order of the Court of Equity of Chatham county, at. Fall Term, 1858, Dion, J., presiding. Elizabeth Gilmore filed a petition for a divorce, in the Court of Equity for Chatham, at Spring Term, 1858, alleging that she was the wife of Greenberry Gilmore, by whom she had four children ; that her husband had so mistreated her, as to bring on insanity, and that in May, 1857, he left the State-clandestinely with a young woman, and went to Texas, where-he was living in adultery with her; that at May Term, 1858,. of Chatham county court, an inquisition -of lunacy was had,, by which the petitioner, Elizabeth, was declared non compos--mentis, and the petitioner, William J. Sloan, was appointed-committee of her estate.</p> <p>The petition further alleges, that in April, 1855, William Patteshall, of Chatham county, the father of th,e petitioner, Elizabeth, died intestate, leaving an. estate in. which her distributive share is about one thousand dollars;, that this estate is still in the hands of the administrators, Delilah Patteshall and Zachariah Patteshall; that previous to his absconding,, her husband assigned his interest in this distributive share to the defendant, Hasten Gilmore, for the sum of seven hundred dollars; that petitioner believed this sale was- a sham, intended to defraud her of her rights, and that no- consideration passed from the said Hasten, to the said Greenberry; but such sham sale was intended to enable Hasten Gilmore to transmit said distributive share to Greenberry Gilmore, in the State of Texas, to which he was then meditating a flight; that Hasten Gilmore, witli this view, has filed a petition in the county court of Chatham, claiming the aforesaid distributive share; that there has been an account rendered, and- there is danger that the said Hasten may succeed in his design. The petition then prays a writ of injunction to restrain the administrators from paying over, and the said Hasten from receiving petitioner’s distributive share in the estate-.</p> <p>The answer sets out that on the third of January, 1856, Greenberry Gilmore assigned his interest in the estate of William Patteshall, to the defendant, and for value and without notice of the petitioner’s equity; that at August term, 1857,-of Chatham county court, the defendant, Hasten Gilmore, as assignee of the interest of Greenberry Gilmore, in right of his wife, in the estate of William Patteshall, filed, a petition for a settlement, and obtained a final decree, in which the dis-tribntive share abovementioned was decreed to him, amount* ing to about $820.00, after paying costs of suit; that the assignment was in all respects bon-a fide, and with no intent on the part of the defendant to defraud any one, and the charges of the petifiou that it was only a pretended sale, are entirely without foundation; that Greenberry Gilmore urged him for sometime to purchase his interest in the estate, which he finally did, paying him $700.00 for the same, in money and good notes, and without any notice that his right wonld be disputed; that the estate was unsettled at the time, and the exact amount of a distributive share could not be ascertained with certainty, but, as it afterwards appeared, the price paid for it, with the interest on the same from the date of the assignment, amounted to within a few dollars of the full amount of a distributive share. The answer further states, that in the month of March, 1857, Greenberry Gilmore executed a release, to the administrators of William Patteshall, of all his interest in right of his wife, in the estate of their intestate, stating that he assigned all his said interest to the defendant, Hasten Gilmore; that the administrators paid him $125.00 on this assignment, and, in the receipts which they took from him, recog-nised him as being entitled under the assignment to a distributive share of the estate.</p> <p>Upon the filing of the answer, the injunction which had been previously granted, was dissolved, From this order, the petitioner appealed to this Court.</p>

Cause removed from the Court of Equity of Brunswick comity. On the first day of January, 1855, Thomas C. Mcllhenny, with E. B, Dudley and Thomas Cowan, as sureties, executed a bond in favor of S. B. Everett, for $5000, for value received, payable to the said Everett, with interest from date. Everett died in the year 1855, leaving a last will and testament, with Samuel- Langdon, executor of the sanie.

Cause removed from the Court of Equity of Davie county. Mrs. Mary Morgan in 1833, bought from one'Andrew limit, andpaid,foronehalfof atract of land, and had thesame conveyed to Yincent M. Shelton, who was the oldest son of her daughter, Elizabeth Shelton, the wife of Henry E. Shelton, an insolvent man, all whose property had been sold from him under executions.

, at the last Spring Term of Brunswick Superior Court. John Swann, of Brunswick county, bequeathed, in the 2nd clause of his will, as follows : “ I desire and direct that my plantation and land in Brunswick county, and, also, my cattle and live stock upon my said plantation, and, also, my negroes, Robert, a cooper, and Hannah, shall be sold by my executor, * * * and the proceeds applied, first, to the payment of my debts,” Clause 8th. “ I direct that after the payment of my…

<p>Where a testator, 'at the time of the making of his will, which was in 1852, owned a small piece dfland called the “ Godwin tract,” to which he after-wards added, by purchase, two adjoining tracts, (a part of one of which ■latter, had been purchased from Godwin,) and the whole had been cultivated as one farm, it was Held that the whole passed under the denomination of “the Godwin tract"</p> <p>A devise of land to be sold ancl the proceeds divided among the testator’s “ heirs-at-law,” there being no-context showing that the words were not used in their technical sense, was Held to require a distribution per stirpes. And it was Held further, that where personal property was embraced in the same clause with land, and there was no reason why a different rale of 'Construction should be applied, the distribution, as to it, should be made in like manner.</p> <p>By .a will made in 1852, a slave born before the making of the testator’s will, -was Held not to pass under the term “ increase.”</p>

<p>Cause removed from the Court of Equity of Davidson county.</p> <p>The bill is filed by the legatees of Casper Smith, senior, against his executors, for an account and settlement of their legacies. Five of the plaintiffs are the children of Casper C. Smith, and are represented by their guardian, A. F. Smith. The said Casper 0. Smith was the son of the testator, and was alive at the time the will was made, but removed from the State and died in Texas, without leaving any property here. At the time of the deaths of both Casper Smith, senior, and Casper 0. Smith, the plaintiff, A. F. Smith, held a bond on the two for $-, in which Casper C. was the principal. The only question of interest, presented by the case, is, whether the Court will decree that defendants, as executors of Cas-per Smith, senior, shall pay and settle the said debt with A. E. Smith oat of the legacy intended for Casper C. Smith, so as to be discharged pro tonto from the claims of his children, or whether they are to account for the whole of said legacy to the plaintiffs, his children. The answers of the defendants do not vary this statement of facts, which is taken from the bill, but they submit to be governed by the decree of the Court in the premises.</p>

, presiding. The bill sets out that the defendant visited the plaintiff in the city of Philadelphia, and proposed to sell him a tract of land, lying in the county of Gaston, North Carolina, known as the King’s mountain gold-mine tract, which mine, the defendant represented to be of extraordinary richness ; that the plaintiff know nothing of the mine, but that he, believing his statements to be true, made a conditional purchase of the property for the sum of fifty thousand…

<p>A purchaser (even with notice) from one purchasing fraudulently, at a sheriff’s sale, (as by preventing a. fair competition among bidders,) who has had the land in possession for more than seven years before a suit in equity is brought for a reconveyance, is protected by the statute of limitations.</p> <p>An action of ejectment, predicated on the assumption that a deed made by a sheriff for land sold, is void on account of a fraudulent suppression of bidding, is not the same cause of action with a right asserted in a court of equity to have the purchaser converted into a trustee, and to have a recon-veyance, which assumes that the sheriff’s deed is valid to pass the title; and, therefore, the pendancy of the former is not a good answer to the plea of the statute of limitations.</p> <p>If it appear on the face of the bill that the plaintiff’s case is barred by the statute oflimitations, advantage may be taken of it by motion on the trial.</p>

The bill sets out, that on the 17th of January, 1853, the-plaintiff executed a bond for the sum of $180, payable to the defendant, Mary Cross, then Mary Henderson ; that this bond was for a debt owing the said Mary by one D. F. Long; and was executed under the following circumstances : One A. J. York of the town of Concord, stated to the plaintiff, at the time of the date of the above bond, that it was rumored that the creditors of L).

<p>Cause removed from the Court of Equity of Davidson county.</p> <p>The defendants, Kibbee and Ball, were a mercantile firm in the city of New York, and the plaintiffs bought goods of them to the amount of $1551.22, and gave their promissory note for the same, payable six months after date, (8th September, 1857.) Before the expiration of the credit, Kibbee & Ball became insolvent, and on the 19th of November, 1857, made an assignment to the defendant, Jehial Reid, of all their effects, in trust/¡w the creditors of the firm, by which the equitable property in this note passed to Reid, and at the same time, they ednorsed it to said Reid, on the same consideration. Thin note was sued on in the county court of Rowan, and judgment obtained at February Term, 1859, of that^court, from which the defendants in that suit, (plaintiffs in this) appealed to the Superior Court of that County, and in the latter court, a final judgment was taken at Spring Term, 1859, for the full amount of the said note, interest and costs, (1767.18.) Subsequently to the assignment to Reid, the plaintiffs purchased three notes on Kibbee & Ball, amounting, together, to something more than their note to the firm, and took an endorsement on the same without recourse on the endorsers. The plaintiffs, Symons, requested that these should be allowed as a credit on the judgment, which was refused, and this suit was brought to restrain the collection of the judgment, alleging that these being debts secured in the deed of assignment, and the trustee having funds enough in ■ his hands to pay them, ought not to bo allowed to enforce the collection of the judgment; that he is a citizen of the State of New York, and would, if permitted to collect this money, take it out of the reach of the Court. The creditors of Kibbee & Ball wore not named in the deed of assignment made by them to the defendant, Reid, and the plaintiff's, in their bill, call on the defendants to state in their answer, who these are, and what amount is due to each.</p> <p>The answers of the defendants state that these notes were purchased by the plaintiffs long after the suit on the note to defendants was begun, and while pending in the Superior Court; that the endorsements are without date; and that the plaintiffs fraudulently pretended that they were made before the assignment to defendant Reid, and endeavored to use them as sets off in the action at law, and that being baulked in this nefarious design, they had come into this court to effectuate their purpose; that the firm of Kibbee & Ball being hopelessly in-«ólvent, tliey were able to buy up these notes for a mere trifle, and paid for them in worthless stocks; that the per cent-age coming to the plaintiff's, out of the fund in the hands of Reid is small. The answer does not state the names of the «•editors entitled to participate in the fund, nor the amount due to each, nor the suin to which the plaintiffs would be enti-. tled, but avers that all this information had been given to the-plaintiffs.</p> <p>On the coming in of the- answer, the- following exceptions, were filed:</p> <p>1. That the trustee failed to-set forth-the amount in his hands..</p> <p>2. That he failed to set forth the amount applicable to the-debt of the plaintiffs.</p> <p>3. That the defendants failed to> answer whether the debts exhibited by the plaintiff, are owing by Nibbee &Ball to the plaintiffs.</p> <p>The motion to dissolve the- injunction, and to allow the exceptions, were argued and considered together in the Court below, and both were decided against the plaintiffs from which they appealed to this Court.</p> <p>In this Court, the counsel far the defendants, brought to the, notice of the Court the folio-wing allegation in the plaintiffs’ bill: “ Tour orators further show to your Honor, that on the 19th of November, 1857, the said Xibbee & Ball, in fraud of their creditors, and in fraud of the debts which they owe to your orators, made a fraudulent assignment of all their debts, accounts, property and estates, to one Jehial Beid,” and insisted that the bill was repugnant, and inconsistent; and that, according to the course of the Court, no relief could be given upon it.</p>

Cause removed from the Court of Equity, of Northampton. William Kee made his will and died in 1820, bequeathing ■thereby to his wife, Anna Kee, during her life or widowhood, -among other tilings, a negro girl, Sarah, and upon the death or marriage of the said Anna, he gives the girl Sarah, and her increase, to his “ daughter Sally Hart, and her heirs, forever.” Sally Hart, during the lifetime of Anna Kee, intermarried witli one Wyatt Brantly, having first made a marriage…

Cause removed from the Court-of Equity of Bertie county. The bill was filed against the defendant, as trustee, in a deed of trust, for an account. ’The pleadings disclose the following facts: On the 19th of February, 1858, Richard Cox and John L. Andrews, trading as Cox & Andrews, made a deed of trust to the defendant, one clause of which is iu the following words: “'.Secondly.

Cause removed from thó Ooul’t of Equity of New-Hanovor county.

<p>Cause removed from the Court of Equity, of Franklin county.</p> <p>The bill was filed against the trustee, Henry Baker, junior, for an account, and for a sale of the property in his hands, and a division of the proceeds among those entitled, according to a deed executed by Henry Baker, senior, on 16th May, 1819. The deed recites, as a consideration, the love and affection which the donor has for Elizabeth Gay and her children, and for James Baker, and conveys to Henry Baker, junior, a negro woman by the name of Delaney, and her two children, Mary and Amy, “ to have and to hold the said negroes, to the said Henry Baker, junior, his executors and administrators, for the proper use, behoof, benefit and advantage of mv daughter aforesaid, together with her children aforesaid, and for the security of the payment of $125, with legal interest thereon, to my aforesaid son, James Baker.”* The deed then provides for the sale of one of the negroes for the payment of the $125, and gives the overplus of the money arising from such sale, and then proceeds as follows : “ the whole equitable interest in the said negroes, is to belong to my daughter Elizabeth and her children, in common.” All the children of Elizabeth Gay, that were surviving at the bringing of this suit, and the representatives of such as were dead, are made parties, either plaintiff or defendant, as also is the administrator of the said Elizabeth, who is now dead intestate.</p> <p>The trustee, Henry Baker, junior, answered, giving an account of his trust, (upon which there is no question between the parties,) and stating the fact that four of the children only of Elizabeth, were born at the time of the making of the deed, and one, now Mrs. Garter, was born six months afterwards; and he states that there are conflicting claims set up by the Several children, as to who are entitled, the four born before the 16th of May, 1819, (the date of the deed,) claiming the whole of the property — Mrs. Carter, then in ventre sa mare, insisting on the same principle, but claims that she shall come in for one-fifth ; while those born after Mrs. Carter, insist that they are all equally entitled, after the death of their mother. The administafor of Mrs. Elizabeth Gay, urges that she took, with her children in esse, and is entitled to one-sixth part of the fund. The trustee asks the court for a construction of the deed above set forth, and for a decree which will protect him against these conflicting claims.</p> <p>Two of the children, who were alive at the making of the will, died in the lifetime of their mother, and another question is, whether their representatives are entitled to a share. The whole of the slaves, after the sale of one for the payment of James’ debt, and one other for the better provision of the family, remained in the custody of Mrs. Gay, and worked for the common support of the family till her death, which took place in 1858.</p> <p>The several children interested, answered the bill, each insisting on a construction favoring his peculiar interest in the question.</p>

Cause removed from the Court of Equity of Montgomery county. The bill was filed to subject the legacy of the defendant under the will of Wilson Andrews, which is a remainder in slaves, &e., after the death of Mary G-. Andrews, to the payment of plaintiff’s debt.

Cause removed from the Court of Equity of Jones county. James McDaniel made his will in 1853, and shortly thereafter died.

Cause removed from the Court of Equity of Orange county. William Baldwin, late of the county aforesaid, died in the month of April, 1859, leaving a last will and testament, one clause of which, is in the following words: “ It is my will that my negro man, Jesse, to choose his own master, that will pay to ftiy executors five hundred dollars, in nine months after my decease, and direct them to make title as executors to my last will and testament.” The defendants, in this…

Cause removed from the Court of Equity of Martin county. The bill is filed to enjoin the collection of a certain note, and praying to have it surrendered.

Cause removed from the Court of Equity of Pitt county. The bill is filed by Alfred Moye, executor of James VT. Moye, praying a construction of certain clauses in the will of one Cleodicia Nettles.

<p>A bequest of slaves to a father, in trust, for the use and benefit of his cbil-children, but the said father “ is .not ,to be accountable to his children for ■the proceeds of the labor .of said negroes until the said children are 21 years of age,” was Held to vest a .present, absolute interest in the trust, transmissible on a.child’s dying in infancy., according to the statute of distributions.</p> <p>A provision, in a will, for the ¡emancipation of the increase of a class of slaves ■to be kept in this .State, such increase to be liberated as each, severally, shall arrive at a certain age, and then to be sent to Africa, without any limitation, in point of time, as to the recurrence of such claims for emancipation, was Held to be against the policy of the State and void.</p>

PetitioN for an account and settlement of personal property, removed from the Court of Equity of Cumberland county. Henry Carter, by his last will, devised to bis wife a tract of' land, for her life, with ^ramainder to James Carter; he likewise bequeathed to her^ror life, a negro woman, by the name’ of Phillis, and her increase, with a limitation over to his several children, excluding defendant, James.

Cause removed from the-Court of Equity of Craven county. The bill is filed by the administrator of George S. Attmore, asking the direction of the Court in the distribution of the personal estate of the-intestate. He states, as difficulties-in the way of a settlement, that his- three daughters, Hannah, now the wife of William- IT.

Cause removed from the Court of Equity of Bertie county. The bill is filed by the plaintiff, as executor of George Wynns, praying the direction of the Court as to his duty arising, under certain clauses of his testator’s, will, which, among other devises and bequests, contains the following: “I give and bequeath unto my son, William D. Wynns, all the land I bought of Spivey’s heirs, lying on Cashie Swamp; all I bought of Joseph Pugh’s heirs, lying on Cashie Swamp; all the…

Cause removed from the Court of Equity of Caswell county. The bill was filed by the residuary legatees against the executor of the will of Nathaniel Lea, for An account of the funds in his hands and for the payment of their legacies; and on the coming in of the answer, a reference was made to Mr. McQ-ehee, as commissioner, to- state an account of the funding the hands of the executor, distributable under the residuary-clause of the will, and having reported, an-exception…

Cause removed, from the Court of Equity of Martin county. The plaintiff alleges that on the eve of a marriage with William B. Leggett, to wit, on 10th January, 1839, she conveyed to Charles Eobinson two slaves, Conda and Warden, with a trust and proviso, that if her intended husband should die first, the title of the said slaves was to be conveyed to her; that about a year after the marriage, (21st December, 1839,) she was prevailed on by ormeh persuasion, to join with her…

<p>Where there was no contest about the probate of the will of a testator, and his estate, amounting to $30,000, was easily collected, requiring few suits, and there was no extraordinary difficulties in the management of the estate, it was Held that $1,200 paid out in attornies’ fees, over and above $100 paid for particular services by other attornies was, apparently, unreasonable, and should not have been allowed by a commissioner, without proof in explanation of the nature and propriety of the charge.</p>

Cause removed from the Court of Equity, of Lenoir county. On the fifth day of May,. 1856, the defendant attempted to convey to plaintiffs, by deed, a tract of land in Lenoir county, described by metes and boundaries, as alleged in the bill;, for a valuable consideration, and- a paper writing in the-form of a deed of bargain and sale, was signed by the defendant, hut a seal which was necessary to give tbs paper validity as a deed, was accidentally and inadvertently omitted'…

Cause removed from-the Court of Equity of Perqnimons county. The bill was brought against tlie executrix of James P. Whedbee, as the guardian of the plaintiff, for an account and-settlement. The defendant’s testator entered in as-plaintiff’s guardian in 1831, and continued in the ofiice-until, 1845, when,, the plaintiff having lately become of age, he surrendered the-estate to him.

<p>Where the charter of a Railroad company required that “its treasurer ahd president should, before receiving an instalment from the State, satisfactorily assure the Board of Internal Improvements by a certificate, under the seal of the company, that an amount of the private subscription has been paid, in equal proportion to the payment required of the State,” it was Held that for the Railroad company to take, as cash, the notes of individuals made for the occasion to enable tire officers to make the certificate under a promise that such notes were not to be enforced, was immoral and against public policy, and such individuals being in pari delido, had no equity to be relieved against such notes.</p> <p>Where it was stated.in a bill that certain notes were, by agreement of the parties, not to be collected in cash, but to be paid off in the notes of certain persons, and it was alleged that such notes had been tendered and refused, it was Held necessary that the plaintiff should aver that he still had the notes, and was ready to deliver them.</p> <p>An injunction is only granted as ancillary to some primary equity, except to stay waste, and to prevent irreparable injury.</p>

Cause removed from the Court of Equity of Lenoir county. The several matters in controversy between the plaintiffs and defendants, afford no point necessary to be reported, but a matter of interest arises out of the petition of Wm.

Cause removed from the Court of Equity of Iredell county. The question in this case arises upon the construction of the will of Placebo Houston, which the executor therein named, submits to this Court for protection against the conflicting claims of the parties interested.

Cause removed from the Court of Equity of Cherokee county. The bill, in this case, was brought by the plaintiff, as trus tee, holding for and in behalf of an infant, the heir of one Courtney.

This was an appeal from the Court of Equity of Buncombe county, on a decretal order, made by Heatii, J., at the last Spring Term. The plaintiffs are the next of kin and heirs-at-law of Samuel Carter, who died intestate in Buncombe county.

Cause removed from the Court of Equity of Rutherford county.

Cause removed from the Court of Equity of Catawba county.. The plaintiff became the surety of Joseph Fry in a note for $100, to one Ehyne, and to secure himself agáinst loss on account of this note, he took from the said Fry a deed of trust for a town lot, in the town of FTewton, properly worded for that purpose, except that in stating the consideration, the draftsman accidently, and by mistake, left out the word “dollar” after the word one, which it was the intention of the…

<p>This was an' appeal from an order •of the Oourt of Equity cf Wilkes county.</p> <p>The plaintiff alleges, ’in her bill, that the defendants without notice to her, and in an irregular and oppressive manner., had proceeded in the County Oourt of Wilkes, to have an inquisition of lunacy made as to her, had succeeded in having her'declared a'lunatic and had had themselves appointed her guardians. The bill sets out the various particulars in which the proceeding ivas irregular aud erroneous, avers the soundness of her intellect, and prays that the 'Gourt will order “ that a a jury may be summoned to make enquiry and return a verdict as to the plaintiff’s state of mind,” and for general relief.</p> <p>The defendants answered, denying the allegations as to errors in the proceeding, and denying that the plaintiff is-of sound mind, &e. On the coming in of the ansivers, the Court ordered “ that issues should be submitted to a jury to try whether the complainant, Priscilla Dowell, was a lunatic, non oompes mentis and insane, at the filing of the petition in the County Court,” and 2ndly, “ whether she 'is insane at this time.”</p> <p>With this order the defendants being -dissatisfied, they appealed to this Court.</p>

The plaintiff was an aged and infirm woman residing upon her plantation, and having no family hut some nine slaves and two dependent and weak-minded relatives. The defendant’s testator, Haywood Thompson, was a neighbor in whom she had great confidence, and whom she employed as agent and adviser in all her affairs.

Cause removed from the Court of Equity of Wilkes county. This bill was filed to enforce a mortgage made in 1833. It appeared that Elizabeth Becknall had made the mortgage in question, to secure the amounts which her children, (the plaintiff's,) had recovered against her as executrix of her husband’s estate, in the Court of Equity of Wilkes, and that all of them had been paid off but the plaintiff, Clara Becknall and LToah Brown, who married one of the daughters.

Cause removed from the Court of Equity of Buncombe county. Samuel W. DavidsoN, by his will, devised and bequeathed. as follows: “The balance of my estate, real and personal, to. be equally divided amongst my heirs, except John Burgin, who has treated me badly, and now owes me six hundred dollars, which he refuses to pay. I forgive that and nothing more of my estate.” Adeline, the daughter of the testator, was married to John Burgin, mentioned in the above clause.

<p>Cause removed from the Court of Equity of Cherokee county.</p> <p>The General Assembly of this State, at its session of 1850, passed an act entitled “ an act to authorise the sale of the refused land, owned by the State, in the counties of Cherokee .and Macon,” which, in section 7, enacts as follows: Whereas, many poor persons being destitute of homes, have settled upon the unsurveyed lands in the county of Cherokee, &c., all persons, who, prior to the 1st of January, 1851, resided on said lands, or had made any improvements thereon, which add value to the land, shall be entitled to a pre-emption privilege to one hundred acres, to include their improvements, &c., and upon making satisfactory proof to the agent of the .Cherokee lands, that he or she is entitled to the pre-emption privilege, within the meaning of this section of the act, it shall be his-duty to issue a certificate to such person claiming the preemption privilege, setting forth the location of the one hundred acres claimed ; and upon such certificate it shall be competent for the persons entitled to the pre-emption privilege to have the said lands surveyed at his or her own expense, &c., and to include his or her improvements, &c., and upon payment being made to the agent of Cherokee lands, of one-fourth of the price of the land, and upon entering into bonds with two or more sureties, to be approved of by the agent, payable to the State in three annual instalments for the remaining three-fourths, to issue to the said purchasers certificates of the purchase, setting forth the number of the tract, the district in which situated, the number of acres and the price sold for.”</p> <p>Under this act of Assembly, the defendant, Woods, made an improvement on a portion of the land described in the said act of Assembly. He, at the time of making this improvement, resided in the State of Georgia, near the State line, and the place improved was so near his residence, as to fie very conveniently used with his home plantation. He continued this improvement for several years, and had it in his possession in 1850, when the above mentioned act of Assembly was passed. He soon afterwards applied to Jacob Siler, the agent of the Cherokee lands, for a certificate of his pre-emption right, stating tbe circumstances of the case. It appears, that Mr. Siler had his attention directed to the question, whether being a citizen of Georgia, and not having actually resided on the improvement, the defendant was entitled to the benefit of the act of Assembly, and finally decided that he was so entitled, and he having complied with the other terms of the act, received from the said agent a certificate of his purchase, describing the location of his improvement.</p> <p>The plaintiff also made an improvement near that made by the defendant, and made application for a certificate according to the same provisions. This application was opposed by the defendant, and after hearing the parties, the ageut awarded to the plaintiff a certificate for a pre-emption right, including his improvement. And having complied with the further provisions of the act, by paying one-fourth of the purchase-money and giving security for the remainder, he obtained a certificate of purchase, which he had returned to the office of the Secretary of State.</p> <p>The defendant proceeding on his certificate, had his one hundred acres surveyed, so as to include the improvement of the plaintiff, and having otherwise complied with the provisions of the act, applied to the office of the Secretary of State and obtained a grant.</p> <p>The bill charges that this location of the defendant’s right was fraudulently made, so as to deprive him of the benefit of his certificate — «that it did not comply with another requisite of the said act, which is, that such surveys should not be more than twice as long as they are broad; that the defend-, ant had enough room to have located his right without intruding upon the improvement of plaintiff. 2ndly, The plaintiff insists that being a citizen of the State of Georgia, and never having resided on the land, and never having intended to reside on it, or to become a oitissen of the State, he was not entitled to any pre-emption right at all under the aet referred to, and that it is unconseientious for him to insist upon a title given to him, under a mistaken view of' the act, by the State’s agent; that having been excluded by this defeasible title of the defendant, he has a right to have him declared a trustee for him, as to so much of his survey as is covered by the grant of the defendant.</p> <p>It appeared that by running up the side of a mountain, and taking in less eligible land, the defendant might have obtained his 100 acres without taking in the improvement of the plaintiff.</p> <p>The proofs as to the fraud, charged by the bill, are sufficiently noticed by the Court.</p> <p>The prayer of the bill is for a conveyance of the land in question, and for an account.</p>

Cause removed from the Court of Equity of Cherokee county. The facts of this case are sufficiently stated in the opinion of the Court.