Volume 59 — North Carolina Reports

Appeal, from an interlocutory order, made at Spring Termy 1860, of Wilkes Court of Equity. OsboRNE, J., presiding.. This was a bill filed by A. E. Myers, to vacate and set aside a judgment rendered at Fall Term, 1859, of Iredell Superior Court, and to enjoin the collection of the same.

<p>Cause transmitted from the Court of Equity of Eandolph «ounty.</p> <p>The bill alleges that on the 13th of August, 1809, in contemplation of a marriage, then about to be solemnized between the defendant, Alexander Gray, and Nancy Parke, widow, articles of agreement, of three parts, were made and entered into between the said Alexander Gray and the said Nancy Parke, and one Solomon K. Goodman therein named, as trustee, the material portion of which is as follows:</p> <p>“ That whereas, a marriage is shortly intended to be so-lemnised between the said Alexander Gray and Nancy Parke, with whom the said Alexander Gray is to have and receive all such propert}T, both real and personal, as the said Nancy is now possessed of or may hereafter be possesed of in consequence of any lawsuit which now is, or hereafter may be brought for the recovery of any moneys or property to which she is entitled : it is therefore, covenanted and agreed between the said parties to these presents, in manner and form following: First, that the said Alexander Gray, for himself, his heirs, executors or administrators, doth covenant and agree with the said Nancy Parke and Solomon K. Goodman, their heirs and assigns, that tliev, the said Alexander Gray and Nancy Parke, his intended wife, in case the intended marriage be solemn-ised, by some good and sufficient conveyance in law, shall settle and assure all such property, whether real or personal, whereof she, the said Nancy is seized as aforesaid, to the use and behoof of her, the said Nancy, and her friend and agent, Solomon K. Goodman, for her use and benefit during her natural life, and the said Alexander Gray, doth, by these presents, covenant and agree, that Solomon K. Goodman, the agent or trustee aforesaid, shall have full power and authority, by the advice and counsel of the said Nancy, to prevent the said property from being sold or wasted, and doth further covenant and agree that the said Nancy Parke, his intended wife, shall have full power and authority over the said property, and may, at any time, give or convey any part of the same to her relations, and shall have full power by these presents, by will or otherwise, to dispose of the whole of the same to her friends and relations at her death: Provided, nevertheless, that if the said Nancy shall have children by the said Alexander Gray, she shall not dispose of the said property so as materially to injure them; and in case the said Alexander Gray shall first die, it is on his part, by these presents, covenanted and agreed that the said Nancy, his intended wife, shall hold- by herself and the authority of her said agent, all such real or personal property as she now is entitled to, and in case the said Alexander Gray should depart intestate, that the said Nancy shall, in addition to her own estate, have, hold, possess and enjoy a distributive share of him, the said Alexander Gray.”</p> <p>That the whole of these articles are in the hand-writing of Gen. Gray, except the signature of Mrs. Gray and the trustee, and one Ilonry Burrow, the subscribing witness; that Goodman was the brother-in-law of Mrs. Gray, and Burrow, the witness, her brother; that said Goodman retained the said marriage articles in his possession until he removed to the State of Tennessee about thirty years ago, when he committed them to the safe keeping of one Kennedy, who after holding them for many years transmitted them to Stephen Moore, who delivered them to the plaintiff, who caused them to be duly proved and registered in the county of Randolph.</p> <p>That the said intended marriage was solemnised, and in the year 1810, a child was born of the marriage, to wit, Mary, who, subsequently, at about the age of twenty, was married to the said Stephen Moore, of Hillsborough; that in 1852 or 3, she, with her husband, removed to the State of Arkansas, and there died, and at May, Term, 1860, of Randolph county court, the plaintiff, Worth, took out letters of administration on her estate.</p> <p>That General Gray never made any deed or assurance as stipulated in the marriage articles, and that his wife, the said Nancy, died in 1818 or 19, without making- any will, and without ever having disposed of any of the property owned by her at her marriage ; that General Gray married a second wife some five years afterwards, by whom he had several children, whose names are set out in the bill, and who are made defendants. The bill sets out the nature and quality of the property owned by the said Nancy, and which he was posses-ed of by virtue of his marriage, and the articles aforesaid, consisting of land and a large number of valuable slaves; that Moore and his wife sold to Gray the reversion in the land after the expiration of his life-estate. The plaintiff, by his bill, insists that the effect of these articles was to limit the use and benefit of the property to the said Alexander Gray, during the joint lives of him and his wife, and after the death of the latter, then to their daughter, the said Mary, absolutely, and that at any time after the birth of the said Mary, she (the mother) might have insisted on conveyances to that effect, saving the power of a disposition to a moderate amount in favor of her friends and relations during her, (the mother’s) life, and that the plaintiff, as the administrator of the said Mary, is entitled to an aecount of all the personal estate upon that basis.</p> <p>The bill sets out that the personal property aforesaid was taken into possession by the said Gray, and ever since has been treated, used and enjoyed as his own absolute property, or has been disposed of for his own benefit; that of the slaves, several were given to his children, who are made defendants, and are called on to account for the same; that within a year or two before filing the bill the said Stephen Moore called his attention to the said marriage articles; he seemed to have forgotten them, and at first denied their existence, but when produced, he admitted their genuineness, and stated that it had always been his intention that the property of Mary’s mother should be given to her (Mary) and her children; and at one time it was agreed between the said Moore and the said Gray, that the matter should be referred to the arbitrament of counsel, or to compromise the same themselves; but on the next day Gray expressed a desire that the matter might be settled by a bill in equity, and refused to account in any oth■er manner.</p> <p>The prayer of the bill is for an account of the slaves and their hires and profits.</p> <p>The defendants demurred; there was a joinder in demurrer ; and the cause being set down for argument, was sent to this Court.</p>

This was an appeal from an interlocutory order, made in. the Court of Equity of'Sampson county, refusing to dissolve an injunction, and continuing it over to the hearing. FRENCH, J., presiding.

<p>A distributive share in the hands of an administrator, due the wife of a nonresident debtor, cannot be subjected to the payment of the husband’s debts in this State, by means of an attachment, in equity, under the statute, Rev. Code, chap. 7, sec. 20.</p>

Cause removed from the Court of Equity of Montgomery county. Hiram Allen, one of the defendants in this case, was indebted to the plaintiffs in the sum of $175.00, due by note and account; and the said Allen, in the month of September, 1859, was seized of a tract of land, in the county of Montgomery, and was also possessed of a valuable chattel property.

Cause removed from the Court of Equity of Rowan county. This was a petition by a guardian, in another State, to obtain the property of his ward in the hands of a guardian here.

Cause removed from the Court of Equity of Nash county. This was a bill to compel a specific performance of an award.

<p>Cause removed from the Court of Equity of Halifax county.</p> <p>The only question in this case, arises on the construction of the will of John Alston; the material portions of which are as follows :</p> <p>“ Item 1st. It is my will and desire that all my just debts are to be paid, and for the purpose of paying said debts, I wish negro fellow, Cudge, negro boy, Mack, and negro girl, Milly, to be sold, and if necessary, to sell my other property, personal or real. I wish the land on the east-side of the road, and also, my right and interest in the negroes held by John Crawley, be sold.”</p> <p>“ Item 2d. I give and bequeath to my beloved wife, Dolly Alston, after the payment of my just debts, all my property, real, personal and perishable, to be hers in fee simple, so that she can have the right of giving it to our six children, Ann M. Arrington, Mariam B. Allen, Frances A. Alston, John Alston, Gid Alston, and Thomas M. C. Alston, as she may think best.”,</p> <p>The bill alledges that Mrs. Alston being in possession of the tract of land, set out in the pleadings, sold and conveyed the same to the defendant for the sum of $-, and that by the will under which she claimed, she was appointed a trustee, and was seized of the land in question, for the use and benefit of her children, the plaintiffs, and that the defendant was aware of these provisions of the will. The prayer is, that the defendant convey to the plaintiff the land in question, and account for the rents and profits thereof.</p> <p>To this bill, the defendant demurred, for the eause, that by their own showing, Dolly Alston was not a trustee for the benefit of the plaintiff's, and that he is, therefore, no trustee himself, and is not bound to answer, &c. He also, answered the bill cireumstantiatly, and says that after the fund provided for the payment of the debts of John Alston was exhausted, there was a further indebtment by the estate of about $1000 with interest, to the executor of Stirling Johnston, and an execution in the hands of the sheriff of Halifax for that amount, which was about to be levied on the slaves belonging to the estate, and it was to pay this debt, and protect the negro-property from execution, that the sale in question was made to this defendant, and the money paid by him was applied entirely to the satisfaction of this debt; that he gave $1024, whieh he thinks was a fair price for it; and believed then, and still believes, that he got a good title for it. The cause was set down for hearing on the bill, answer, and demurrer, and sent to this Court by consent.</p>

<p>Cause removed from tbe Court of Equity of Craven county.</p> <p>Edward 8. Jones, tbe testator of the plaintiffs, resided in the State of Alabama, but owned a plantation and slaves in the county of Onslow, in the State of North Carolina, upon which he was engaged in planting cotton. The intestate of the defendant, Eoy, one John Oliver, was the overseer for the said Jones upon this plantation, and was in the habit of disposing of the crops as his agent. In the spring of 1858, Oliver went to Newbern and sold the crop of the preceding year, and received the money therefor, which amounted to the sum of $1000. This money the said Oliver deposited at the Branch of the Bank of the State at Newbern. When he made tliis deposit, he stated that it was the money of Edward S. Jones, but that he wanted it placed to his own credit on the books of the bank, as he might have occasion to use it for the benefit of his principal, as he lived in Alabama. Shortly af-terwards, Oliver died, when the plaintiffs’ testator Jones, made ■a demand on the officers of the bank for the money, which they refused to pay. It was admitted by the plaintiffs’ counsel in this case, that the deposit was not a special one, but that the money was mingled with the other monies of the bank.</p> <p>The bill is filed to obtain a decree for the payment of the fund to the plaintiffs as the executors of the said Jones, who has since died; the claim is resisted by the defendants, the administrators of John Oliver, who claim the fund as assets •of the estate of their intestate. The bank of the State is also made a party defendant.</p> <p>The cause being set for hearing upon the bill, answer, exhibits and proofs, was transferred to this Court by consent.</p>

Cause removed from the Court -of Equity of Carteret ■county. The bill seeks to have a conveyance of certain land and ■slaves set aside, on the ground of fraud practised in procuring it. It alleges that the plaintiff was joint-owner with her sister, one Mary Heath, -of a remainder in a valuable lot of slaves, dependant upon a life-estate in one Edmund Heath, which slaves, it alleges, were worth ten or twelve thousand dollars.

The cause having been set for hearing, was heard below upon the bill, answer and proofs, filed by both parties, and it was ordered that the sequestration, which had theretofore issued, should be dissolved, from which order,'the plaintiff appealed to this Court. The facts of the case, upon which the decision is mainly founded, are sufficiently stated in the opinion of the Court.

This was a petitioN to rehear a decree of the Court passed at the December Term, 1856. The facts upon which that de-eree was based, are set out in 3d vol. Jones’ Eq. 17, and they, with the further facts upon which the decision at this term is-founded, are sufficiently set forth in the following opinion of the Court.

Cause removed from the Court of Equity of Rowan county, and brought up upon exceptions to the report of the master. The bill is filed against the defendant as surviving partner of the firm of Brown & Haynes, and prays for an account and settlement of the firm business, and the plaintiff is the administratrix of M. L. Brown, the deceased partner.

<p>Where, in a suit for an account, plaintiff obtained leave to examine defendant upon oath, before the master, and he was interrogated as to the items of plaintiff’s account, it was held that defendant’s auswers were evidence for himself, only so far as they were responsive to the questions, and that ho could not, in this way, prove his charges against plaintiff’.</p> <p>Where the plaintiff, in a suit, failed to file a replication to the answer, and the parties proceeded to take proofs in the cause, this was held a waiver by the defendant of a replication, and the Court allowed an amendment under the 17th section of the 33rd chap, of the Rev. Code.</p>

<p>Cause removed from the Court of Equity of Mecklenburg county.</p> <p>The defendant having been held liable to account by a previous declaration of this Court, it was referred to A. C. Williamson, Esq., clerk and master in equity of Mecklenburg county, to state the account between the defendant and his wards. At this term, the commissioner filed reports, setting forth, separately, the defendant’s indebtedness to his wards, to which both plaintiff and defendant excepted. The plaintiff excepted, because the commissioner allowed 5 per cent, commissions on individual vouchers, (naming them by their numbers,) being accounts for goods and money furnished to complainant, Amelia, by the firm of H. B. & Lt S. Williams, of which he was a member.</p> <p>2. The plaintiff excepted to the allowance of commissions on the sums, mentioned in said report, charged by the defendant against his ward, Amelia, for her board in her guardian’s family.</p> <p>The defendant excepted to the commissioners report, because that he was charged with a debt, due by bond, from John E. Penman and W. W. Elms to the defendant, as guardian, for principal and interest, about $1192. The commissioner reports the testimony, which proves the facts to be, in substance, that the bond was given for the hires, for the year 1855, of slaves, belonging to the defendant’s wards, which bond, fell due on the first of January, 1854. Penman having made a deed of trust of all bis property in the latter part of 1854, died, intestate, in May, 1855, and at July Term of Mecklenburg County Court of that year, administration was taken on his estate. In November following, suit was brought on the bond against the said administrator and the surety, returnable to the January Term, 1856, of the said Court. At April Term, 1856, the pleas of fully administered, were found in favor of the administrator, and a judgment was taken against Elms for the debt; an execution was issued thereon, and “ nulla bona’’ returned by the sheriff of Mecklenburg, Elms, in the mean time, having also failed. In November, 1854, Penman made a deed of trust of all his property for the payment of his debts. This property consisted of two houses and lots in Charlotte, and a large number of interests in gold mines of uncertain value, and at the time of his death, was utterly insolvent. Elms, the surety, from January, 1854, to October, 1855, was in the possession of a large amount of property; in the latter month, (October) judgments were taken against him to the amount of $167.114; of which judgments, the amount of $46,568 were taken by the bank of Charlotte, of which the defendant was the president. Elms’ credit was good until shortly before the rendition of these judgments, though it was generally known that he was very largely indebted. After these judgments, lie was generally known to be insolvent. Penman, Elms, and the defendant, all three, resided in the town of Charlotte. One witness stated, that in the winter of 1854, or early in the spring of 1855, he was protested, as the endorser of Elms’ paper, in the Bank of the State, and he refused to endorse for him any further. It appeared that each of the banks knew that Elms was doing business in the other, but neither knew of the amount of his liabilities to the other.</p> <p>On these facts, the commissioner thought the guardian was guilty of negligence, and so charged him with the amount of the debt. ,</p>

<p>Where a sheriff left his county for something over a month, on necessary business, with an intention of returning by a given time, it not appearing that he was insolvent, it was held that the fact of a deputy’s having applied a portion of the taxes of a given year to a judgment against him (the sheriff) for the taxes of a preceding year, without being instructed so to do, by the sheriff, was not a sufficient ground for the sureties of that year to have an injunction to restrain the sheriff from paying the taxes of that year, otherwise than as the law directs.</p>

Cause removed from the Court of Equity of Orange county., This was a bill filed for the specific performance of a contract, by which the defendant bound himself to cpnvey to the plaintiff a tract of land, described by its metes and bounds, and lying in Orange county.

Cause removed from the Court of Equity of Craven county. On 23d of August, 1844, John Blackwell conveyed byway of mortgage to the defendants, R. M. Blackwell Zophar Mills and John D. Abrams, the property which is the subject of this controversy, lying in the town of Newbern, to secure a note of that date for $6000 made by the said John Blackwell and one John M. Oliver, and on the same day the said John Blackwell executed another mortgage deed for the same property, to secure…

Cause removed from the Court of Equity of Franklin county. Thomas T. Eichards, who died in 1831, by his will, devised and bequeathed as follows: “I lend to my sister, Polly^ Eichards, the tract of land whereon I now live, and six ne-groes, named Sam, Jerry, Amy, Hinton, Lucy and Lavinth, together with my stock of every description, during her lifetime, and after her death, I give to my nephew, John W. Womath, five hundred dollars, to be raised out of the estate, and the…

Cause removed from the Court of Equity of Pitt county. The bill is filed to obtain an injunction to restrain the defendant, who is the trustee of the Baptist congregation in the towp of Greenville, from permitting the church yard to be used as a cemetery.

This was an appeal from a decree of the Court of Equity of Wilson county, over-ruling a demurrer. The plaintiff, Jonathan Rountree, recovered against John Waddill, jr., and Thomas Waddill, a judgment in this. Court, at its December Term, 1859, for $7587, with interest and costs.

Cause removed from the Court of Equity of Granville county. The bill is filed to obtain a decree for reforming a certain deed, from one William Hunt to Portius Moore, which deed is in the following words : “This indenture, made and entered into this 27th day of November, 1838, between William Hunt, of the county of Granville, and State of North Carolina, of the one part, and Portius Moore of the county of Person, and State aforesaid, of the other part, witnesseth, that for…

Cause removed from the Court of Equity of Lenoir county. Snoad B. Carraway died in the county of Lenoir, about the year 1858, leaving a last will and testament, in which he appointed the plaintiff and the defendant, William W. Carra-way, executors, and this bill is filed against defendant, Carra-way, and the legatees and devisees, and prays among other things, for a construction of the executor’s will.

The plaintiff, Hadley, and the defendant, Rountree, entered into a written agreement on the 16th of December, 1856, wherein it was stipulated that the said Had ley was to put the said Rountree into possession of his mills and farm, on the 1st of the next ensiling January, which, the latter was to hold until the 1st of January, 1859; that Hadley was to pay for all hires of hands, buildings and purchases for the use of the premises; that Rountree was to give his personal…

Causis removed from the Court of Equity of Martin county. The plaintiff, in this suit, is the administrator of one Abner Williams, and the bill alleges, that the intestate, Williams, being much impaired in mind by ah immoderate use of spirits, was induced by the defendant, Waldo, to make him a power of attorney to sell a negro slave, named Jack, belonging to said Williams, and afterwards, a few days before the death of Williams, the defendant, Waldo, sold the negro to one…

Hoyt, individually. The bill alledges that the directors appointed James E. Hoyt, one of their number-, to make a contract in behalf of the company with some competent and responsible person, for the erection of the necessary gasworks, and laying the necessary pipes, in order to effectuate the purpose of the company, and that the said Hoyt did make a contract for the constructing of the said gas-works and appurtenances, with one Samuel Merrill 5 and that he was, at the time,…

Cause removed from the Court of Equity of Craven county. John E. Higgs, being indebted to Seth Muse in the sum of $702.50, in 1846, made a deed to the said Muse, for two negn> slaves, Abram and Joe, as security for that sum, and at the same time took from the latter a deed of defeasance, declaring the terms on which the said slaves were conveyed to Muse, the substance of which was, that whenever the said sum of $702.50, with interest, was paid, Muse should recon-vey the said…

Cause removed from the Court of Equity of Cabarrus county. Samuel N. Black, on the 12th of December, 1849, conveyed, by deed, to Hugh McAulay and his heirs, two tracts of land and twelve slaves, in trust, to secure all his creditors, (naming them and the amount of their debts); the deed then proceeds : “ and whereas, the said S. N. Black has, unfortunately, contracted the habit of intemperance, so much so, that he is frequently unqualified, properly to discharge and manage…

<p>Whether a court of equity would interfere to compel a specific performance of a contract between two joint owners of land that neither should sell without first giving the other the refusal of it. Quere ?</p> <p>A sale of a part of the interest of one, by the consent of both of two joint owners of land, as to which there was a right of pre-emption, without any provision as to its future exercise, justifies the inference that such right was intended to be abandoned.</p> <p>On the death of one of two joint, owners of land, between whom the right of pre-emption existed, it was held that such nght cannot be enforced specifically against his devisees.</p> <p>Where the defendant has an distinct equity, he must set it up by a cross-bill or by an original bill; but he cannot have the benefit of it by an answer.</p> <p>After the death of one of the members of a copartnership, the statute of limitations begins to run in favor of his personal representative against a claim to have an account of profits received by him.</p>

Cause removed from the Court of Equity of Caldwell county. Jesse Moore died in the said county, leaving a last will and testament, in which, after making various specific devises and bequests, the testator proceeds: “ Item 7. My will is, that all the rest of my property, of every description, and my money, be kept by my executor, whomsoever I may appoint ; it shall be kept as a fund.

Cause removed from the Court of Equity or Edgecombe county. The plaintiff in this suit, is the executor of the last will and testament of Jesse C. Knight, and the bill is hied to obtain from the Court a construction of the said will. In the ninth clause of the will, the testator bequeaths and devises as follows: “ Item ninth.

<p>Where there is no allegation of fraud, imposition, oppression, or mistake, the Court will not set up a parol agreement, and declare an absolute deed to be a mere security for money advanced.</p> <p>Where a valuable consideration has been paid by the person, to whom an absolute deed for slaves is made, the allegation of a parol trust in favor of a third party, forms no exception to the rule inj courts of equity, in respect to declaring such a deed a mere security for money loaned.</p> <p>Although a plaintiff may fail as to the principal equity he seeks to establish, he may fall back on a secondary equity, provided it is not inconsistent with the principal equity, and the allegations, in the bill, are sufficient to raise it.</p>

Cause removed from the Court of Equity of Lenoir county. This was a petition for a distributive share, and it sets out that Edward Rhem, late of the county of Craven, died intestate in the year 1855, and left a large personal estate, which went into the hands of the defendant, E. H. Rhem, Jr., as his administrator; that Edward Rhem left no children, but left surviving him a brothér and a large number of nephews and nieces, children of deceased brothers and sisters, among…

Cause removed from the Court of Equity of Craven county. This was a bill of information filed by William A. Jenkins, Attorney General, against the defendant, Allen, who is the administrator cum testamento annexo of Isham Jackson, deceased.

Cause removed from the Court of Equity of Washington county> The bill is filed by the administrator of Otis W. Ohesson, and prays the instruction of the Court as to his duty in the administration of the estate. He sets.out, that his intestate left him surviving, an uncle, one Nathaniel C. Chesson, an aunt; Sarah Ohesson, who has since married one Swain, and a cousin, John B. Chesson, junior, son of a deceased uncle.

<p>Where a testator bequeathed as follows: “ I lend to mj wife, during her life, all my negroes (throe in number) for the purpose of raising and educating my two sons,” which was but a reasonable share of her husband's estate, and gave in the same will, in appropriate terms, to his wife, as guardian to his two sons, the remainder of his estate, it was held that the former clause conferred upon her, for life, a beneficial interest in said property, with a recommendation in behalf of the two sons.</p>

Cause removed from the Court of Equity of Rockingham county.

Cause removed from the Court of Equity of New Hanover county. The complainants in this suit being about to be married, the brothers of Mrs. Sanderlin, then Margaret Robinson, induced them to sign a deed of marriage settlement conveying to trustees certain property, land and slaves, which was owned by Margaret Robinson, absolutely.

<p>Courts of equity will not anticipate and decide questions, which cannot be attended with any present practical results.</p> <p>Where a testator bequeathed certain of his property, specifically, and then provided, “ the balance of my estate to be sold and the proceeds divided among my children hereinafter named,” it was held that the bonds, notes and accounts due the testator, and the cash on hand, were not embraced by this clause.</p> <p>A legacy to a grand-daughter, who died before the will was made, is void.</p>

Cause removed from the Court of Equity of Martin county. The defendant, Gilbert L. Moore, as the administrator of one Daniel Ward, sold lands belonging to the estate, to one E. W. Cox, who gave his note for the purchase-money, amounting to $2,500, dated the 8th of October, 1857.

<p>Where one was a partner in a firm in 1855 and in 1857, but alleged that for 1856 he was not a partner, and that his withdrawal was evidenced by a deed which was lost,anditturned out that the deed had been destroyed by himself, and he answered delusively about it, and it appeared that he had acquiesced in certain acts of his partner, treating him as a partner, it was declared by the Court that he was to be considered as a partner for the year 1856, also.</p> <p>It was held by the Court that the destruction of the deed which it was admitted explained defendant’s connection with the firm, and that too, after he knew that it would be necessary to make such explanation, afforded a strong presumption that such deed committed him as a partner.</p>

<p>Where one, who had only a life-estate in land, made a deed for a fee simple, and the deed contained a warranty in fee, and the vendee, knowing of the defect in the title, gave his notes for the purchase-money, upon which judgments were obtained, it was held that a court of equity would not interfere by injunctive process to restrain the collection of any part of these judgments, but would leave the vendee to his action on the warranty, it appearing that the warrantor was solvent.</p>

<p>Where slaves were conveyed to a feme covert, by a deed of gift, and the first clause of the conveyance passed the legal estate to her and the heirs of her body, it was held that a subsequent clause of the conveyance, restraining her husband from all control over said slaves, was inconsistent with the first clause and inoperative, and that the slaves vested in the husband jivre mariii.</p> <p>Held further, that in order to create a separate estate in a feme covert, there must be words sufficient to raise a trust for her benefit.</p>

Cause removed from the Court of Equity of Eertie county. At the Fall Term, 1851, of the Court of Equity for Bertie,' Samuel Floyd was appointed a trustee to perform certain trusts declared by the said Court in behalf of one Charles P. Sidles, growing out of a deed theretofore made between said Sidles and James Allen, and he gave bond in the sum of $4000, with the other plaintiffs in this cause as his sureties, payable to the clerk and master in equity of the said county,…

Cause removed from the Court of Equity of 'Wilkes county. The plaintiffs are the administrators with the will annexed of Joel Vannoy, and the bill is filed praying the advice and protection of the Court as to the proper construction of the following clause of the said will, to wit, “ I further give to my children, by a former marriage, the proceeds of the sale of my town property in the town of Wilkesboro’, or so much thereof as is herein specified, to wit, to my son Joel…

<p>The personal estate, which is in this State of one residing in another State, in respect to both debts and legacies, must be administered by one qualified to act under the orders and control of our courts and according to our laws, but in regard to the payment of legacies and distributive shares, our courts, from comity, adopt the laws of tho domicil.</p> <p>A decree for a distributive share in another State, was held not to be a bar to a recovery of a distributive share of property lying in this State.</p> <p>The widow of one domiciled in another State, who died intestate, seized and possessed of lands in this State, is entitled to her dower in such lands.</p> <p>Where one, residing in another State, made a will, which was not satisfactory to his widow, who duly entered her dissent on its being offered for probate in that State, and also entered her dissent, when it was offered for probate in this Stale, it was held that she is entitled to dower and a distributive share of property lying in this State.</p> <p>It was further held, that a decree for dower in another State, would be considered as confined to the lands situate in such other State, and as not embracing- lands situated in this Stale.</p>

<p>Where the answer to a bill for a specific performance of a parol contract to convey land, and in the alternative for compensation for improvements, denies the terms of the contract as set out in the bill, and alleges a different one, which was not performed on account of the improper conduct of the plaintiff, and the defendant also insists on the statute of frauds, it was held that the plaintiff was not entitled to compensation for value added to the land by such improvements.</p>

Cause removed from the Court of Equity of Wilkes county. The plaintiff, in his bill, alleges that the defendant, Obadiah Sprinkle, was indebted to Jenkins & Roberts, in a bond, for $1963, dated 16th March, 1854, and on the 27 th of March, 1855, they took from said Sprinkle a deed of trust (executed to defendant Cook) to secure the same, conveying to said Cook two tracts of land, (describing them,) also 100 head of hogs, Blacksmith’s tools, two stills and other personal…

The plaintiff alleges in his bill that on the first of November, 1851, he executed to defendant’s intestate, James Kelly, a bond for $500, payable one day after date; that he did not owe Kelly that sum of money, but that the latter had become his security for the purchase of a tract of land, and that this bond was given to cover the contingency of his having to pay for the land; that a few days afterwards, he executed a deed of trust to secure the payment of the bond, and…

This was an appeal from a decretal order of the Court of Equity of Robeson County. The bill was filed by Nehemiah Jones, Arthur Jones and Isham P. Watters, to restrain, by injunction, the collection of a judgment, obtained, against them.

Cause removed from the Court of Equity of Anson. The bill, in this cáse, was filed by the executrix of David Tillman, praying the instruction of the Court as to her duties in carrying into execution the will of the said David. Tiie chief difficulty is in relation to the disposition of the proceeds of a slave named Calvin, which was sold by the testator in his life-time. In the fifth clause of his will, he gives Calvin, amongst other slaves, to his son James A. Tillman.

In the year 1843, Frederick Battle, of Nash county, in this State, by deed of gift, duly executed, gave to the defendants, Frederick Yarborough and Emily Yarborough, (his grandchildren) six slaves, amongst which, were the two Eobin and Burton, who are more particularly the subject of this suit.

Tins was an appeal from a decretal order made by the Court of Equity of Martih county. A petition bad been filed by Levi S. Yates, guardian of Sarah E. Moore, for the sale of certain lands, lying in Martin county, and a decree of tbe Court for a sale passed accordingly, to be made by O. B. Hassell, the clerk and master of tbe Court.

<p>Cause removed from tbe Court of Equity ot Edgecombe.</p> <p>The bill in this ease¡ is filed by the executors of Henry S. Lloyd, setting forth difficulties in the way of a satisfactory administration of the estate, and praying that the several disagreeing legatees may come in and litigate the questions made in the ease, and that they may he protected by a decree of the Court, as to these several matters of dispute. The bill sets out that the testator owned in Martin eonnty, one large tract called in the will his “ Boanoke plantation,” which was devised to him by Ms maternal grandfather, Henry Slade, with a limitation over to his aunts, Helen B. Slade and Mrs. Ohloe Hinton, upon his dying without issue, and two other tracts adjoining this, which the testator purchased, the one from "William Slade, and the other from A. Williams; also, several tracts of land and plantations in Edgecombe county; on the plantations in both of which counties the testator had large ^numbers of slaves, and other personal property, most of which had been bequeathed to him by his paternal grandfather, Henry Slade, and his maternal grandmother, Mary Gregory,</p> <p>The testator being indebted very largely, provided for the payment of his debts as follows: “ I authorise and empower my said executors to carry on my farms for the term of two years after my decease, and to adopt all measures for that purpose, if the same be necessary, to pay my debts, and to apply the income thereof as the same may be received, to the payment of my said debts,” with a further devise of his town property, for the same purpose.</p> <p>He then proceeds to give and bequeath to his aunt, Helen B. Slade, thus: “ all my negroes on my Boanoke plantation ; also, all my negroes on my Edgecombe farms, which I got from Martin county, whether I inherited or purchased them,” with a residuary clause to his sister and two brothers. About the year 1858, the testator’s grandmother, Mrs. Gregory, having died, and devised to him valuable farms in Edge-combe, the testator removed his residence from Martin county, where he had formerly lived, to the county of Edgecombe, and brought with him a good many of the slaves that had been worked upon the Boanoke farms. The testator died in Philadelphia in January, 1860, and, at the time of his death, there were on his Boanoke plantation twenty-seven slaves, (which are set forth by name in the plaintiff’s bill,) all of which slaves were a part of those and their descendants bequeathed to the testator by the said Henry Slade, except one by the name of Weaver, who was bought in Bichinond, in 1856, and carried to the Boanoke plantation, where he has remained ever since, and never left that plantation. There were thirty-five slaves brought from the Boanoke plantation to Edgecombe, twenty-two of which had been bequeathed to the testator by his grandfather, Henry Slade, or were the descendants of such, and the remainder of them, and their in-* crease, were bought by the testator in various counties contiguous, and were taken to the Boanoke plantation; two of these, Anderson and Thrower, were purchased in Martin county. Four of the slaves on the Edgecombe farms, to wit, Granville, Betsy, Erancis and London, were offspring of female slaves removed from Martin to Edgecombe, and born in the latter county.</p> <p>One of the questions raised, is whether the right and interest of the defendant, Helen, in the said Roanoke plantation, devised to her as aforesaid in remainder by her father, is subject to be used according to the said will of H. S. Lloyd, to pay his debts if necessary.'</p> <p>A further question is, as to what slaves pass by the said will to the legatee, Helen B. Slade, whether all the slaves passed that were worked on the Roanoke plantation at the time of testator’s death, or only such as were derived from his said grandfather, Henry Slade, and whether the slave, Weaver, the slave purchased in Richmond, passed to her; also, whether Anderson and Thrower, slaves purchased in Martin by the testator, and brought to Edgecombe, are included in the bequest to her, the said Helen. Whether Granville, Betsy, Erancis and London, the descendants of female slaves, brought ■from Martin, and born in Edgecombe county after their removal, pass to Helen B. Slade under the clause in question. Sally was born of a woman which had been given by Henry Slade to the testator, and belonged to the Roanoke plantation. She had been residing among the slaves of the defendant, Helen B. Slade, for a special reason, and was so residing when the testator died ; another question is, whether she passed by this clause.</p> <p>The defendants answered, insisting on their peculiar views of the questions of law governing the construction of the will under consideration, but not disputing any of the facts 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>The words, “ wheat and com on hand,” in a will, were held to mean that, only, which was in the granaries of the testator at the time of Ms death, and not to embrace the ungathered or standing crop.</p> <p>The Court will not respond, at the instance of an executor, as to the conflicting interests of two legatees of land; as the executor has nothing to do with the question. The Court also will decline to answer as to a hypothetical case.</p> <p>Stock in a rail-road company is embraced in the term, property, directed by the will to be sold.</p> <p>A deposit in a bank, is not to be considered as inclnded among debts ordered by the will to be collected and invested for the benefit of a legatee, especially before a demand and refusal, on the part of the bank, to pay.</p>

<p>Cause removed from the Coart of Equity of Wake county.</p> <p>The bill is filed by the executor of Augustine Turner, praying the Court for a construction of cortara clauses in the will, and stating that there are conflicting claims set up by the different legatees, an erroneous decision of which, on Iris part, might subject him to gre.it pecuniary loss.</p> <p>The first question presented to the Court is, whether the executor is responsible under a clause directing his wife “ to put the balance of bis money into salo hands and take secuvi-ry for the benefit of his children hereafter named,” or whether the wife was to be the sole judge of the sufficiency of the security taken by her.</p> <p>The second and third questions, for the reasons stated by the Court, are immaterial.</p> <p>The 4th question arises on this clause, “ My will is, that my executor give my grand-son, Augustine Perry, when he becomes of age, or put in a guardian’s hands for his benefit, the sum of one thousand dollars, * * * and after my said wife’s death or marriage, I wish the executors to sell all the property loaned to my wife and not heretofore given away, and equally divide it between Mary Turner, Cynthia Perry and Nancy Turner, except that my will is that Cynthia Perry have $1000 less of the amount of property, sold at my wife’s death, than Mary Turner and Nancy Turner, on account of the thousand dollars given to Augustine Perry.” The executor seeks to know at what .time this one thousand dollars becomes payable to Augustine Perry, whether it goes at once into the hands of the guardian, or whether it is to be postponed until be arrives at age, or at the death of his grand-mother, and whether the said legacy bears interest. The said Augustine Perry had lived with, and been supported by, Ms own father, and bad never been under the charge of bis grand-father. In the former part of the will, the sum of $400 per annum is given to his wife, during her life, to be derived from the interest of his money, and it is alleged in the bill, that after the payment of debts and specific legacies, there will not be enough of money left to pay the annuity of $400, and the said thousand dollars to Augustine Perry, if it becomes payable before her death ; and another question is, what shall be done in case this conflict occurs.</p> <p>The 5th question arises, upon the fact, that there are two persons by the name of Nancy Turner, mentioned in the testator’s will, to wit, a daughter and a grand-daughter, the daughter of his son, Henry Turner, to whom he gives $500,. and a daughter, Nancy Turner, mentioned in the before recited clause. The executor desires to know whether this legacy is void, for the ambiguity, or to which individual, of that name, he is to pay the money, arising from the sale as aforesaid ordered.</p> <p>6th. The testator, in his will, requires that a certain negro,, given to one of his daughters, Mrs. Avery, shall be returned to his estate, if she should die “ without a bodily heir,” and be sold, and the proceeds divided among his living children. The executor desires to know when this legacy will become vested, and how soon after the contingency, referred to, will it be his duty to make the contemplated sale.</p> <p>At the close of the will, are these words: “ If I have not given my wife a plentiful support, she is to have enough of the interest of said money to make her a plentiful support.” The executor desires to know whether he is to judge whether the provisions of the will are sufficient, or whether he will be held responsible for the fulfilment of this clause.</p>

Cause removed from the Court of Equity of Robeson county. The hill was filed by the plaintiff, to enforce a specific performance of a contract in writing, for the conveyance of a certain parcel of laud according to particular lines which are set forth in the bill, and plaintiff avers were the lines intended by the agreement.

<p>Cause removed from the Court of Equity of Surry county.</p> <p>The bill was filed for the specific performance of a contract, in writing, executed by the defendant, Butcher, in the year 1851, in which the defendant binds himself in a penalty, and after reciting that three several bonds had been executed by the plaintiff as the price of the land, therein described, which fell due at three several dates, it is provided as follows: '“Now, if the said Joseph White shall pay off the said bonds as they fall due; then, when the last of the said payments shall be paid, the said William S. Butcher shall personally, or by his agent, or attorney, execute to the said Joseph White, his heirs or assigns, a good and sufficient title-deed in fee simple.” The bill was filed in the fall of 1857, and alleged the payment of one of the said bonds, and that the defendant, Butcher, had conveyed the land to the defendant, Holderfield, and that he, Ilolderfield, had covenanted to convey the same to the defendant, Pilson, both of whom had notice of the plaintiffs’ equitable claim. The bill alleges that shortly before bringing the suit, he tendered the purchase-money, agreed to be paid, with interest thereon, to the defendant, Holderfield, who -was the attorney, in fact, of Butcher, but that he not only refused to accept the same, but hurried a messenger to the State of Missouri, where Butcher lived, and procured from him a deed for the premises to himself (Ilolderfield.)</p> <p>The defendants, Ilolderfield and Pilson, answered, alleging that the plaintiff had only paid a part of the first bond, and had then left the State insolvent, and had abandoned all idea of insisting on his purchase, and that though he subsequently returned, he still had no idea of insisting on the fulfillment of this contract, until he was urged to do so by another person, who enabled him to raise the money which was tendered. The other material allegations of the bill, are admitted by the answers. The bill was taken pro confesso as to Butcher.</p> <p>There was replication and comissions and proofs were taken, and the cause being set down for hearing, was sent to this Court.</p>

Cause removed from the Court of Equity of Halifax county. The bill in this case, was filed by the executor to the will of Dudley Clanton, setting forth that the said testator bequeathed his real estate to be sold for the payment of his debts, and that if that were not sufficient for that purpose, his personal estate should be sold, and he directed that he should sell so much of his other personal estate as would with the surplus, remaining after the payment of his debts, be…

Cause removed from the Court of Equity of Yadkin county. The plaintiff and defendant had been partners in the business of buying and selling slaves from the year 1847 to 1855, during which time, large profits were realised from the business, amounting in the latter years of its continuance, to as much as twelve thousand dollars. The plaintiff was the more active partner in buying and selling, and the defendant kept the books, in which their dealings wei’e entered.

Cause removed from the Court of Equity of Craven county. This is a bill, in the nature of an information, alleging that Stephen Pierce died in the county of Craven in 1849, having bequeathed considerable estate, consisting of lands, slaves, money and choses in action, to his brothers, subject to a life-interest therein to his mother; that the amount in value of said estate is $20,000 ; that the defendant is nominated in the said will as executor, and as such, responsible for…

<p>An answer, when directly responsivo to the Ck,gallons of the bill, or to an interrogatory put in the bill, cr on a special ovr ruination, is to bo taken as true, unless it bo proved noi; to be true by the oath of two witnesses, or of one witness with corroborating circumstances equal to the force of another witness, or by some other kind of evidence which w entitled to tho weight of two witnesses on oath.</p> <p>Where one, on the footing of a friend, neighbor and relative, undertook to manage the moneyed affairs of an old lady, without any stipulation as to compensation, and without intending to make anjr charge, it was held that he was not entitled, after her death to claim a remuneration for his services, and that his being held to a strict account by her administrator, did not vary the case.</p> <p>Where an agent withheld the notes of his principal from her administrator, which notes were of long standing, and large amounts of interest had accumulated, and'being warned by the administrator that he would be held liable for interest on the accumulation -unless he surrendered the notes, or had them renewed, it was 1idd that he should be made liable so to account from the date of the filing of the bill.</p>

This cause was removed from Macon county. After the hearing of the cause at a former term of the Court, and a decree for an account against the defendants, who had the fund in their possession, it was referred to Mr. Dodge, the cleric of this Court, to report the names of the children of E'aehel Wilson, and the amount of the severaljsharos to which each was entitled.

<p>MotioN on previous notice for a eerüorari to the- Court of' Equity of Wake, to bring up to this Court the proceedings of this case. The whole matter sufficiently appears from the opinion of this Court.</p>

The bill, in this case, was filed for an injunction to restrain, in part, the collection of a judgment at law, alleging a failure of consideration and other matters; an answer was filed by' the defendant, but the merits of neither the bill nor answer are material to the questions Considered by this Court. These arise altogether upon the following transcript from the Court below: “ Cherry and Dillin ) vs. >• Inj unction.

The bill was filed by the plaintiffs, as the heirs-at-law of .Neill McNeill, deceased, for a sale of a certain traet of land, which carne to them, as they allege, after the failure of certain limitations in the will of said Neill McNeill.

Cause removed from the Court of Equity, of Bertie. Joseph B. Cherry, .William IT. Tayloe and Alfred Eason, entered into a copartnership for the purchase of a large quantity of cypress timber, (standing,) with the purpose of jointly working it into shingles, and of shipping and selling the same, for which they gave their jointnotes to the proprietor, one Eoscoe, for the sum of $5000.

Cause removed from the Court of Equity of Wayne county. Thomas Bennett, of the county of Sampson, died about the-year 1857, leaving a widow, the present plaintiff, Jane, and one daughter, Virginia, his distributees, and the defendant, James E. Parker, administered on his estate. Afterwards, in August, 1857, Virginia, the daughter, died, leaving her mother, the said Jane, her sole distributee. J. E. Parker also administered on her estate.

Cause removed from the Court of Equity of Granville county. The suit is brought against the defendants, as executors, to recover a legacy of “ three small negroes,” given to the plaintiff, Mrs. Sarah Gillis, in the will of her father, Eobert Harris, who died in the county of Person, on the-day of -■, 1847.

Cause removed from the Court of Equity of Chatham county. The only questions in this cause, grow out of the provisions of the will of Elijah Bell, taken in connection' with the fact, that the woman formally refused to accept of the boon of freedom, offered to her by the will of her late owner. The whole matter is sufficiently- set forth in the opinion of the Court.

Cause removed from.the Court of Equity of Polk eounty. ' The bill is filed in the names of John 0.

Cause removed from the Court .of Equity of Davidson county. Simon Williams, in the year 1809, bequeathed as follows : “ I lend unto my son, Alanson Vf illiams, and' my son-in-law, Anthony Sale, in trust, for the only use and benefit of my daughter; Betsy Payne, during her natural life, against the claim or contract of her present or any future husband, the following negroes and their future increase: Thena and her two children, (the names not known,) David, Ransom, and Revey…

Cause removed from the Court of Equity of Rowan county. The bill was filed by the executor of Peter Kerns, praying for instructions as to the discharge of his duty under the will, and for an account and settlement of the estate in his hands, by a decree of the Court of Equity for his protection, &c. A reference was made to L. Blackmer, Esq., as a commissioner, to state the account with the executor, which was stated, and was excepted to in two particulars — one of which was…

Cause removed from the Court of Equitylof Orange>county. The bill alleges that Moses Leathers agreed with the defendant, Scott, that.he would sell him the tract of land, in question, lying on Eno river, at the price of $2000, whenever the purchase-money for the same was paid to him, and that such purchase-money was to be paid within thirty days thereafter, and that the parties proceeded, as he supposed, to reduce this contract to writing, and that a writing was then and…

This cause was removed from the Court of Equity of Lincoln county. The testator of the plaintiffs,-Jacob Killian, was the credit- or of Barrett & Co., by a note signed by Barrett & Co., as principals, and J. A. Ramsour as surety, upon which suit was brought, judgment obtained, and execution issued against each of the partners and against the surety, and returned nul-la bona, and it was admitted that these parties were, and still are insolvent.

Cause removed from tbe Court of Equity of Orange county. The pleadings and evidence in this case, showed that John Witherspoon was indebted to Charles J. Shannon, in a sum, which, in 1853, amounted to about $5,500, and, that to secure it, he had, in 1837, given a mortgage upon sundry slaves. In 1853, he was also indebted to Edmund Strudwick, in the sum of about $5,000, which had accumulated during a period of twenty-five years.

<p>Cause removed from the Court of Equity of Eobeson County.</p> <p> </p> <p>One Isham Cox, conveyed to defendant, Gilbert Bramble, the tract, described in the plat anuexed, A, B, C, D, also,-another tract adj oining Gilbert Bramble, who sold and conveyed to one Ward a part of the first mentioned tract purporting to be 100 acres, by metes and bounds, as follows : “ Eirst survey containing 100 acres, begining'at a pine, in a meadow, about 300 yards south of Long Branch, (A), running south' 29 degrees, east 179 poles, to a stake, two sweet bays and two water oaks in the edge of the ten mile swamp, (B). Then north to the Mil of the long branch, (E); then the various courses of the hill of the long branch, to the upper line, (F), thence to the beginning, containing one hundred acres, be the same more or less. The plaintiffs allege that the call of the second line., B, E, is a mistake in the draftsman, and should have been : W. 61 M. to the MU of the long branch, which would have carried it to (G). The proofs show that in the original deed from Cox to Brumbie, s-uch was the course, and that by that course tiie hill of long branch was passed at (G); that by running from B to G, 100 acres would be embraced, but that by going to E only about 50 would be the amount; that Brumbie had, for many years, recognized B, G, as the line, and the area B, G, E, had been claimed by Ward, and those claiming under him down to the plaintiff, Sealey, whose deeds all followed the one above described. Brumbie sold all the lands contained in his deeds from Cox, embracing the whole aiea, A, B, 0, D, to the defendant, Joel Britt, not at all noticing the part he had conveyed to Ward.</p> <p>The deed from Brumbie to Ward, -omits the words of inheritance, necessary to convey a fee simple, which the plaintiff also says, was a mistake, and prays to have that rectified.</p> <p>The plaintiff alleges that he came in, for a valuable consid-. eration, under Ward by a line of conveyances, describing the land in the same mistaken terms as are embraced in the deed to Ward.</p> <p>The prayer is that the mistake be corrected by the insertion of the proper course from the second corner, also, that the deed may be corrected as to the words of inheritance, and for general relief.</p> <p>Brumbie denies that the-mistake exists as to the course of the second line, but as to the omission of the word, heirs, he admits the mistake, and avers his willingness at all times,, to have corrected it. ' ■</p> <p>Britt, insists in his answer, that he was a purchaser of both these tracts of land at a full price without notice, and there is no proof filed, that he did have notice of the equity of plaintiff.</p> <p>The cause was heard on bill, answers, proofs and exhibits.</p>

Cause removed from the Court of Equity of Ashe County. This is an INEORMAtioN filed in the name of the Attorney General, to vacate and set aside a grant of 3000 acres of land. The grant was taken out under the provisions of an act of the General•Assemby, passed in the year 1788, entitled, “An Act, concerning iron and gold mines.” See Rev. Statutes, ch. 75.

Cause-removed from the Court of Equity of Mecklenburg county. Da.vid Chambers died, in the year 1868y having made and published his last will and testament, in which after several dispositions of his property in various clauses, be bequeaths ad foliov s: Item 7th.

This is an appeal from an interlocutory order made by his Honor, Judge OsbokNE, at the Eall Term, 1861, of the Court of Equity, of Martin county.

. Appeal from' an interlocutory order of the Court of Equity of Wake county, ordering-the dissolution of an injunction, Bailey, J., presiding.

<p>Cause removed from the Court of Equity of Granville. '</p> <p>The slave in question, a man named Anderson, was sold by the sheriff, Joseph H. Gooch, at public auction to the defendant, Landis, by virtue of an execution against one D. A. Pas-chall. The intestate of the plaintiff, had purchased Anderson at private sale, on the 12th of September 1857, and took a bill of sale for him from Paschall. The consideration expressed in this bill of sale is $1,000. The sheriff’s sale took place after the date of the bill of sale, but' under an execution having a lien prior to the date thereof. At the sale, the agent of the plaintiff’s testator attended, and exhibited his title, and forbade thesale, pointing out to the sheriff, divers other slaves and other property in the hands of Paschall, out of which the execution e’ould be satisfied ; the sheriff, nevertheless, proceeded to cry thesale, and the defendant, Landis, having become the last and highest bidder, the slave was cried off to him, and delivered to him by the sheriff with his bill of sale.</p> <p>The bill charges that both, the sheriff and Landis, the purchaser, knew of Morris’ purchase, but were involved on account of Paschall, and the sale of this slave, Anderson, was made to relieve them as to these liabilities. The bill was filed by Morris, in his lifetime, and his death being suggested, his executor, the present plaintiff, was made a party. The prayer is, that Landis shall convey the legal title of Anderson, to the plaintiff, (then Morris,) and deliver possession, and account for the slave’s services and profits, since he purchased him, and in default thereof, that Gooch may account, &c. The answer .of the defendant alleges various matters in the way of expía-nation, which are not deemed necessary to be set forth — it states, however, that executions of a test junior to this sale to Morris, came into the hands of the sheriff, and without selling Anderson under the former lien, there was not enough prop-eatv to satisfy them all. . •</p> <p>The cause was set for hearing on the bill, answer, proofs- and exhibits, and sent to this court.</p>

Cause removed from the Court of Equity of Martin county. The plaintiff and defendant having had a controversy at law about the getting of shingles, the following covenant was entered into between them, viz: “State of Noeth Caeolina, Edgecombe county : “ Whereas, there is a suit pending in the Superior Court of law of said county, wherein Henry S. Lloyd is plaintiff, and John B. Whitley and Newsom Allsbrook are defendants, and the said parties are anxious to compromise the…

This is an appeal from an interlocutory-order of Judge Os-BORNE, in the Court of Equity of Northamton county, allowing to the pititioner for a divorce,, alimony pendente lite.

<p>An administrator durante minoritaie is liable for a devastavit to the executor, who qualifies after coming of ¿ge, and :f such executor abstain for ten years from bringing suit, his cause of action is presumed to have been satisfied released or abandoned. So that persons having a contingent interest in remainder, which is injured by such ’devastavit, must look to the executoi and not to the administrator durante minoritate, or the sureties on his administration bond.</p> <p>No suit, in equity, can be brought to follow slaves, limited in contingent re» mainder, in the hands of one claiming a present defeasible interest, after the slaves have died; they having died in the life-time of the first taker.</p> <p>Where slaves, limited in remainder on a contingency, were sold under an execution against one claiming a present, absolute interest, it was held that the purchaser under such execution, who took possession and held them for more than three years got a title by the statute, of limitations.</p> <p>Where the statute of limitations is a bar to a trustee, it is also a bar to the cestui gui trust, for whom he holds the title.</p>

Cause removed from the Court of Equity of G-aston county. About February, 1834, the defendants’ intestate, Simon Bhyne, married a woman, by the name of Nancy Lay, and about six months after this marriage, she had á child, the present plaintiff, Ootesworth H. Rhyne.

Cause transmitted from the Court of Equity of Northampton. This cause was heard in this Court at December Term, 1859, on a motion to dissolve ihe injunction, and is reported in 5th Jones’ Eq. 61. The main facts of the case are therein set forth as derived from the bill and answer, and wherever these.are modified by the proofs on file, it is clearly noted in the opinion of the Court; so that it seems to the reporter unnecessary to re-state the case in this connection.

Cause transmitted from the Court of Equity of Cumberland county.

Cause sent from the Court of Equity of Cumberland county. All the facts necessary to the understanding of this cause are stated in the opinion of the Court.

Cause removed from the Court of Equity of Franklin county. The bill'was filed by the plaintiff, Sims, as administrator of his late wife, Sally Ann (formerly) Smith, for partition of slaves bequeathed to herewith the other defendants, by the will of Joseph Smith, and the only question in the cause depends upon the construction of the following clauses in said will: “I give to my son, Joseph Smith’s children,now living, that is, Benjamin Smith, and Adam Smith, the land whereon…

<p>Where a bill was filed for the settlement of co-partnership dealings^ and there is a prayer for an injunction against a bond given on a partial settlement of the business between the partners, but no injunction was issued, it was held that the obligor, in said bond, was not in contempt of the court of equity in refusing to submit to a judgment on the bond in a court of law.</p>

Cause removed from the Court of Equity of Lenoir county. A tract of land having descended to Rebecca Lee, wife of the defendant, John L. Lee, from her father, it was agreed between them that they would make sale of the samo, and as Lee was much in debt, and there was danger that the proceeds of such sale might be taken for Jus debts, it was agreed by parol that the proceeds should be paid into the hands of a trustee for her benefit.

This was an appeal from the Court of Equity of Pitt county. The plaintiffs, William Frizzle, Warren Frizzle, Charles Rogers and Jesse Hart, set forth in their bill, that the plaintiffs, William and Jesse Frizzle, conveyed each a small tract of land to the defendant and one Lewis B. Pugh, to enable them to erect a mill on little Contentnia Creek, and that they did so about the year 1850, and that, at the same time, the parties agreed, by parol, as a part of the equivalent for…

Cause removed from the Court of Equity of Cleaveland. The bill alleges, that the plaintiff purchased a tract of land lying in the county of Gaston, and took a deed in fee for two hundred acress, for which he gave his notes for $400; that said deed contained a covenant for quiet enjoyment of that estate; that about eighty acres of the best of this land was covered by the dower of widow Mrs. Mary Falls, and that he had utterly failed to get possession of that much of the land…

<p>As a general rule, an objection to the jurisdiction of the court of equity may be taken on demurrer when the fasts appear upon the record.</p> <p>Impotency in a husband does not render a marriage by him, void ab initio, but only voidable by sentence of separation, and until such sentence, it is deemed valid and subsisting.</p> <p>The domicil of the husband, draws to it the domicil of the wife; therefore, according to the 14th Rule of the 3d section of the 32 chapter of the Revised Code, where both parties are residing in this State, a bill, by the wife, for a divorce, for the cause of impotency, must be brought in the county where the husband resides.</p>

This cause was sent up from tbe Court of Equity of Wake county by consent. The facts of the case are sufficiently stated in the opinion of the Court, filed by Judge Battle in this Court.

<p>'Cause removed from the,Court of Equity of Wake county.</p> <p>Joseph E. Cook, in March, 1862, by his last will and testament, bequeathed and devised as follows: “ Fourthly. I give and bequeath to my beloved wife, Tranquilla Cook, the following property and money i First. I give her all my negroes and their increase, few or many, and all the money I may have at my death, and also all that may be due me on bonds and notes, and my wish is, that at her death, she will give the one half of all I give her, and the increase of my negroes, to my brother, John P. Cook, and Mary A. Terrill.</p> <p>“ Fifth. I lend to my said wife, Tranquilla Cook, during her life-time, all of my lands, containing eighteen hundred and ninety-one acres, more or less, and at her death, I give said land to my brother, John P. Cook.</p> <p>“ Sixth. I give all my stock of horses, mules, cattle, hogs, sheep, corn, fodder, wheat and oats, that I may have at the time of my death, to my said wife, Tranquilla Cook; also, my household and kitchen furniture, farming tools, carriage, blacksmith’s tools, wagons and carts.”</p> <p>On the next day he added to his said will this codicil: “ I desire that my wife, Tranquilla Cook, shall have all the crop of cotton that 1 may have on hand at the time of my death, and also, I desire that the increase of the slaves, mentioned in the 4th clause of the above will and testament, shall be construed to mean one half of the increase as well as the other property, named in the said clause of said will and testament, which I wish my wife, Tranquilla Cook, to give to my brother, John P. Cook, and my sister, Mary A. Terrill, and I have to this codicil, which I wish to bo taken and construed as a part of my will, set my hand,” &c. The executor, named in the said will, having renounced the trust, the defendant, Ellington, was appointed administrator, with the will annexed, and Mrs. Tranquilla Cook having lately died intestate, the defendant also administered on her estate, and took into his possession the whole of the property lately in her possession, including the whole of that embraced in the 4th clause of the said will.</p> <p>This bill was filed against him, praying for a decree, that lie may be declared a trustee for the plaintiffs of one half of the property and one half the increase, mentioned in the said 4th clafise of the said will, and that he account and pay over to them their said share. To this bill, the defendant demurred, and the cause was set down for argument on the demurrer and sent to this Court by consent.</p>

Cause removed from the Court of Equity of Bichmond. ' Lauchlin McLaurin, the father of the plaintiff, was indebted to James Patterson in the sum of $700, and to J. 0. Mc-Eachin in $1400, for which his notes with the defendant, and his brother, J. C. McLaurin, as his sureties; said Lauchlin died intestate, in the year 1843, and his widow, the defendant, Nancy, (now) Eairly, the mother of the plaintiffs, administered on his estate.

The plaintiff excepted to the defendants’ answer on account of insufficiency. The exceptions were over-ruled, and plaintiff appealed to this Court.

‘Catjbe removed from the Court of Equity of Chatham county. This bill was brought for a partition of real and personal estate, of which the plaintiffs allege they, with the defendants, were jointly seized under the will of Joshua Williams, of which the following is the material clause : ’ “ 3d. I give unto my beloved daughter, Sarah Ann E. Williams, all the residue of my property, both real and personal, (not given to my wife,) to have and to hold to her and her heirs…