Volume 6 — South Carolina Equity Reports

<p>Executors, what commissions and compensation allowedin extraordinary cases.</p> <p>April 1825.</p> <p>Executor more0thari2i per cent, for 2¿Cforpajing moneysof estate. If he claim any sarion°forPeK-trouble6 ^ must be assessed by</p> <p>services ren-ney paid.</p> <p>The execu-cc°0““is* the ordinary he^mnióthe money paid to an accoun-justing his ^executor*1*</p> <p>But it seems, a Court of Equity, without referring may permit an executor to retain for money allowed adjusting ¿¡if-ficult and accountfof whichcome not within the See; as coun-seer’^’i'es" &e.</p> <p>An executor shouia make his, annual return of his ac-being complicated.</p>

<p>A limitation in a deed, of negroes and their issue, to heirs lawfully begotten in wedlock with E.T. (his vests an ateo-lute^estate in</p> <p>dence is inad- ^ ^fthat apparent on instrument, The gift he-</p> <p>January 1825,</p> <p>Limitation too remote. W. T. takes a fee.</p> <p>Parol evidence inadmissible to change the construction of a deed.</p>

^he bill was filed in this case by creditors, for payment of their demands out of the estate of Colonel Thomson. Major Haskell’s demand was on a covenant of warranty in a conveyance of Colonel Thomson, dated 11th of May 1793, by which, in consideration of £2,200, he conveyed to Major Haskell five tracts of land on High-hill Creek, containing 1240 acres, and known as Mount Thomson.

William Scott died in January i&S&fseised and pos- ” sessed of several tracts of land set forth in the bill and answer. He left neither wife nor child, but several sisters, of whom complainant, Thomson, married one, and the following nephews and nieces, children of his deceased brother Samuel Scott, his heirs a£ law : to wit, Joseph Scott, William, John, Samuel, Jarnos, Sarah, Mary and Jane Scott.

Ephraim Peek and Leverett Hubbard entered into copartnership, as merchant tailors, in JS'ew Haven in the year 1815. The capital stock of the firm was of which Peek advanced nothing, Hubbard the whole and Peek gave Hubbard his note for 11000. The firm ° . became insolvent, and surrendered, in 1816, all their goods, &c. to assignees ; and Hubbard’s private ty was sold.

<p>Where the written uP?n maybe pro- and thatapaIt9ti11 paid, and this test between cl1'edlt01's ¡ ?nd the execution will notwith-tainits'lenfor balance due; nor would it pre-pmcVfroin^' bearing inter-</p> <p>May 1825.</p> <p>The sheriff '¿e piamtlffin ?n execytion> purposes; but created bythe the further bound ^fan''as^hey c°me within the pale of his authority.</p> <p>whatever done to the sheriff’s office, bearing of thority, will tohave3 been do“e kf his authority; like all sumptions, may,be rebutted by stronger evidence. b^cowectedy heveas else"</p> <p>márked^sa" dsfi^d” may to be satisfied, maintain its creditors.^</p> <p>The lien of a judgment is good for the interest which may accrue on it, as for the principal debt.</p>

<p>Chancery none where there is plain and adequate remedyatlaw.</p> <p>ft the rule 0f Equity not where there is quateTmnedy and confirmed by i79i.Ct °f</p> <p>„r, Where aparty could obtain quate™emedy by an action detinue for wiünot^entm> tain jurisdic-</p> <p>ifIS" slaves, and íeaiiyigno-S ”n^ber and names, equity Tdiscoveiyas 8</p> <p>to^discovery a clear right shewnand brought or that the dis-celsaiy'to'the the'actum^</p>

<p>This cause arose under a clause in a will, which had given rise to three or four suits of great importance and 'ii'itoi'AC'f mieresi-</p> <p>The present Court of Appeals was established in December 1824, and commenced its sittings in January J825. Previous to that time, all the Law Judges at the ° end of their circuits held a Court of Appeals for law cases; and the Chancellors, there being then five, did the same for equity cases. These two Courts differed in , , _ ... _ opinion on this clause of the will. The Court or Appeals in Equity supported the limitation over; and the Law Court held it too remote and void : so that the parties gained or lost accordingly as their cause was entertained by the different jurisdictions. This difference of opinion in the two Courts, which occurred in several other cases of equal magnitude, was a great reason urged for the abolition of those Courts, and for the establishment of the present Court of Appeals for the final hearing of all causes, law and equity : and, on this alteration** being made, instead of five, but two Chancellors were retained. The report of the cases wherein the Courts differed may be found in the second volume of M’Cord’s Law Reports, 66 to 104.</p> <p>This bill stated that William Willson of Georgetown devised to his grand sons Thomas and Willson Willson in the following words, “The rest and residue of my estate, both real and personal, to be equally divided between my grand sons Willson and Thomas, and delivered to them at the age of twenty-one years; but should they die, leaving no lawful issue, in that case, I give and bequeath the whole of my estate both real and personal to Richard,” &c. And that the said Willson died under age without issue, and by reason whereof, the said Thomas became entitled as survivor, subject to the limitation contained in the said will ; and soon after the death of Thomas Willson, Eleanor Grant and others filed their bill against William Thompson and others, the representatives, for the payment of debts; and upon the hearing of that case the Court of Appeals decreed that the said Thomas took only a life estate in the will, and the complainant Mrs Carr, who was one of Thomas Will-son’s children, to take the remainder} which decree was made an exhibit. That Thomas Willson in his life time conveyed to John Porter a tract of land, and in the deed the aforesaid devises were recited, which deed also was made an exhibit; and the bill stated that John Porter finding himself likely to be dispossessed was about to commit waste. That complainants had applied to the said Porter to account for rents and profits, and to permit a division among the children of Thomas Willson. There was a charge of confederacy among the defendants, &c. The bill prayed an account of rents and profits, and that a writ of partition might issue, and that possession might be decreed under the said partition, and in the mean time an injunction to issue to stay waste.</p> <p>Hannah and William Willson, infants, answered by guardian.</p> <p>John Porter demurred, because there was no affidavit of waste or want of title deeds, and that the complainants had their remedy at law.</p> <p>It was my intention to . . . ..... have given an opinion at length in this important cause; but unavoidable circumstances have prevented it. That there may not be further delay, I now deliver the opinion I have formed, briefly, but sufficient to enable the Party to ma^e an aPPea^ ‘n the cause.</p> <p>The merits of this cause are stated to be the same as in the case of Carr v. Green; and it was contended that the decision must be the same in both cases to be consistent. I believe this is correct, and were I now called on to decide on the merits, I should adhere to the opinion formed with great deliberation by the Coprt of Appeals. But that is not now my duty! I am to decide on a demurrer on the following grounds.</p> <p>1st. That the complainants ought to have made affidavit, that they had not in their custody or power the deeds of which they seek a discovery, and for want whereof they pray the relief of the Court.</p> <p>2d. That they ought also to have made affidavit of the waste, from the commission of which they pray to restrain the defendant. And</p> <p>3d. That all the matters in complainant’s bill mentioned and complained of are matters which may be tried at law; and that the complainants have plain and adequate remedy at law, and are therefore not entitled to relief in this Court.</p> <p>On the argument of the case, these grounds were expanded, so as to embrace other, but subordinate, subjects, which went to shew the substantial differences existing between this case and Carr v. Green.</p> <p>These were, chiefly, but briefly, these : that in Carr v. Green fraud was alleged; not so in the case Carr v. Porter. That in the former there was an exchange of property, and Green was apprized of the doubt as to Willson’s title and right to sell the land; not so in the latter case. That in the former a trust was alleged; not so in the latter. That in the former there were several minors whose interests were involved; not so in the latter. And that the defendant, Porter, has tendered the title deeds to complainants, to enable him to proceed at law; and there is no affidavit, filed with the bill, of the want of the title deeds, which, by the authorities, is indispensable to give jurisdiction. Upon consideration of the arguments of counsel, in this difficult and well argued case, I have formed an opinion, that this demurrer must be sustained on the principal grounds alleged and urged. I state generally that the demurrer must be suppported on these grounds, that the whole may be brought to the view of the Court of Appeals.</p> <p>It is therefore ordered and decreed, that the demurrer be sustained, and the bill dismissed.</p> <p>This was a motion to reverse the decree on the following points.</p> <p>That the Court had jurisdiction to direct an account of mesne profits; and that as Porter purchased with notice, he was trustee and liable to account in equity.</p> <p>That the Court had jurisdiction to award a writ of partition.</p> <p>We can only furnish the following brief notes of their arguments.</p> <p>cited 1 Mad. Chan. tit. Bills for Discovery, 160, and commented upon the cases, Anonymous, 3 Atk. 17, and Dormer and Fortescue, 3 Atk. 129, and cited 1 Vernon, 59. In a bill to stay waste an affidavit was necessary; but the waste mentioned in this case was merely incidental; and he was willing to admit the demurrer as to that part of the bill.</p> <p>A court of law could not grant partition against a trespasser; he admitted it must be against a tenant in common or joint tenant. It was the same in equity “? But a person, who goes into possession of a life estate, is a trustee for the remainder man, and may be made to deliver possession as such. Besides, a party may go into equity for mesne profits. Dormer v. Fortescue, 3 Atk. 129. Hawkins v. Sumter, 4 Desaus. 102. If the children took under the will, they took by purchase. If they did not take under the will, then they took nothing unless by descent. As to the limitation, he referred to the opinion of the Court in Carr v. Green, 2 M’Cord’s Rep. 75, as containing all the arguments on his side.</p> <p>argued the cause principally on the ground of the limitation in the will which, he contended,, gave the complainants no right whatever. He said, the will granted a fee simple and cross remainders to Willson and Thomas, the grand sons. A fee might be limited on a fee; that is, a subsequent contingency might defeat the former fee. Intention must govern, unless the law was otherwise; that is, unless the meaning given to certain words lead to a different conclusion; as to a man for life and his issue, as in Shelley's case. In marriage settlements, to a person and his issue, will give to the issue as purchasers. Fearne, 106 (1th Lond. Ed.). A gift to a man and his issue, if he die without issue, &c. is an absolute estate; though the intention may be a limitation.</p> <p>As to the mode of construing wills, he cited Fearne, 124. The cross remainder was by implication, because it was not given over, until after the death of both. An estate to A. for life, and if he die without issue, to B. is an estate tail by implication; because there can be no other intention: so a gift to a second son, on the first dying without issue, is an estate tail, by implication; otherwise the eldest would take a fee. Fearne, 490, et seq. There was no case where an estate was created by implication. He who takes directly is a purchaser, and he who takes, as issue, &c. takes by limitation. Issue can never take as purchasers: they take by limitation. In a will they may take as purchasers, when they are so designated that the individual may be known within a certain time : but this intention is not to prevail by implication. Issue, by that term, can never take by purchase. A devise to one after the death of the wife will not by implication give her a life estate; it only establishes the contingency on which the estate shall go to the devisees, but does not give a life estate to the first taker, any more than giving after the death of the King of England, 1 Lord Raym. 623. Fonblanque, 63. Lanesborough v. Fox, Ca. Temp. Talb. 262. Bodens v. Watson, Amb. 478. There was no gift to the issue irt this case; they did not therefore take as purchasers by implication; but they took by limitation, and therefore the devise over was too remote. It would be an estate tail by implication. In Lmddington v. Kime, 1 Lord Raym. 204, the heirs or issue did take as purchasers; because there was a direct gift to them. Knight v. Ellis, 2 Bro. C. C. 578. Forth v. Chapman, 1 P. Y^rns, qq7_ Jones v. Morgan, 7 Bro. P..C. 130. The devisor might have fixed any event upon its going over: the want of issue; default of marriage ; going to Rome; or any thing else. It was an executory devise on that contingency; but it gave the children nothing. Nothing is more to be guarded against than making children independent of their parents. He cited 2 Phillim. 276, note. Pells v. Brown, Cro. Jac. 550. 1 Wils. 105. Porter v. Bradley, 3 Term Rep. 143. Roe v. Jeffery, 7 Term Rep. 589. If Thomas took an estate tail as he did, then he might convey and bar the issue or heir.</p>

T HIS was a bill filed by M. V. Spencer, administra-; trix of Joseph Spencer, against William Smith, Jun., to compel the defendant to account. The complainant’s solicitor moved to refer the matters of account to arbitrators, who should report their award to the Court. Arbitrators were chosen who could not agree, and thereupon chose an umpire, by putting the names of several gentlemen in a hat and drawing out the name of one of them.

<p>Testator or-his ex* ecutors to sell terms and Conditions as to them should seem geous, and to ceeds in such shouM^eenf most safe and andtoCpay’ over to his daughter for life one half mdividendi arising on said stocjc "invest" ed as above the^ividends shall become )lu6« The other half to Andthen said “The^ro-dends °on 'one whole prop erty to he * daughter'and tole added'to theprinci-executorssold the estate and for a part took bonds on long credit. Held, that the daughter was entitled to one half of the proceeds of the whole' estate, whether arising from the interest arising on the bonds or/rom dividend's of stock purchased.</p> <p>Nov. 1824.</p> <p>23Nov. 1825.</p> <p>The time when interest shall be allowed upon a legacy does not depend on the time when it. is received, but when in law it may be received.</p> <p>General rule that a legacy carries interest from one year after testator’s death, though it appear that it . could not by any diligence be collected in that time. English rule.</p> <p>When the interest commenced not involved in this case.</p> <p>Bonds be-ingproductive interest on them allowed legatee, being intended as a provision for maintenance.</p> <p>When interest allowed on legacies ,out of land, or mortgages bearing interest.</p>

This case came before the Chancellor on the report of Commissioner Elliott, to whom the case had been referred to ascertain the liens upon the estate of Jlncrum, prior to his copartnership with Chiffelle. He reported that there were two liens upon Ancrum’s estate anterior to the copartnership. One a bond to the heirs of Mrs Mary Frayer for the purchase money of the plantation on Savannah river called Laurel Hill, which bond was secured by a mortgage of the place.

<p>Office, and kndfand* »ave R- afjys security. The Office their mor£°,d sase' and conveyed the same lands to ouTnoticef" an? uP°n ?-’s being sued twelve years on^h^bond"1 alld proving suit was ’ bl?ugbl: a" „ gains this surety H. Held, that the Loan officers neg-mortgage, u^ns were lost empt H. from though sued years after the bond was giv-cHrity^uia6* notobjeetthat the laDdswere but vaguely the mortgage.</p> <p>A creditor has n°rr'fhe sitúation in which bomThas0 a sdf ed him"</p> <p>A new ment with the principal to enlarge the charge the^ mere7laches dentSUÍS"</p> <p>as mortgages fcribeTus'es-10,‡13 validity of the mortgage, ^recorded!11 p°st-pones a mortgage not re-“Jnthsto one is recorded within that time.</p> <p>Judgments do oritj^of umecorded mortgages.</p> <p>„, If the mortgagee does any aate^r^de-’" stl'°ythe , mortgage he surety^</p> <p>5 & 6 Dec.</p> <p>Nov. 1825. The surety is entitled to every remedy which the creditor has against the principal; and all securiiies given to him must be transferred to the surety.</p> <p>A positive agreement to the charges the surety.</p> <p>Neglect cou-¡¡¡¿'ekenm-stances of omission will discharge surety‘</p> <p>If in any case Monandneg-lect could dis-surety,itmust havíopeiated as an injury to</p>

The bill alleged that in 1783 Thomas Smith, the grand father, complainant’s intestate, being possessed a very large unincumbered estate, executed his will, in which he made a very extensive and minute of his property among his numerous family. That among other legacies, he bequeathed £300. to each of his grand chiidren.

This case arose out of the circumstances of the last case of The Administrator of Hugh Rutledge v.. The Execu-t°rs °f Sarah Smith.

<p>Jan. 1825. Where the testator gave a legacy to be paid out of the income of his estate, as soon as convenient after the expiration of one year from his decease, or sooner if his executors had funds, held that it bore interest from one year after testator’s death; and the legacy was ordered to be paid, though some debts still remained due, the estate being fully competent.</p> <p>Pecuniary le-o'RCIfiS OH which’no in-by thVwfii'611 bear interest of one year after testator’s a different in-Seated by the will; and this rule applies as ■well where lays aboutde" paying debts, moneyisin hand.</p> <p>oidlectíng^the funds will not even though’ fmpracticabie.</p> <p>A reference by the testator to the time when the personal estate is to he got in, will not vary the rule, unless plainly to be implied from the will.</p> <p>s Dec. 1825.</p>

This was a bill filed for the purpose of correcting several mistakes alleged to have been made in an adjustment of accounts which had taken place in February 1818, between the defendants, as the executors of Samuel Gale, and Daniel Botifeur the original debtor, of whom the present complainants were the sureties. The following case was stated by the appellants’ brief.

many *9 • G. Spann, Esq. when at the bar, ] demands against J. W. Rees placed in his hands for collection; on some of which he had obtained judgments and issued executions. James G. Spann received from Rees large sums of money, but did not apply them to the payment of the debts in his hands, except one debt of $550.

The bill in this case stated, that George Heriot and Daniel Tucker were copartners in trade, under the firm Heriot and Tucker; that they became indebted to James Fisher in the sum of ¿61,100 sterling; that Tucker died the year 1798, and that in 1800 Heriot, the surviving part-ñer, executed a bond to Fisher m behalf of the firm for the > said debt; that in 1805 Heriot was applied to for payment, and he replied by letter that he was insolvent and unable to pay any thing, but…

The bill stated that the defendant, William Clarke, intermarried with Elizabeth, the sister of the complainant, who was regarded as an ideot: and that she died i r- i ■ m, ; ...... . not Jong after the marriage.

<p>Alimony. when granted, B</p> <p>The Courts have jurisdic-alimony,</p> <p>Exercised of chanceryf Revolution ^1640^'</p> <p>Alimony in Ranted upon and grounds Engilnd.68</p> <p>Alimony is granted in case of danger to life, limb, or health.</p> <p>What merely wounds the mental feelings is in few cases sufficient, where not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language or want of civil attentions, or sallies of passion, do not amount to legal cruelty.</p> <p>The wife should not enter into a contest of retaliation, if she wishes the aid of the Court.</p> <p>Words of menace importing actual danger will justify the interposition of the Court.</p> <p>English courts*^will^al decree resti-S ae’sdte”0*</p> <p>quaire> ¡f a MUforrestitu-entertained in state ?</p> <p>Desertion or abandonment a good ground for alimony in state‘</p> <p>as*to rest¡tu°n tion will not on a bill for alimony.</p> <p>Jurisdiction g°”nting Ai-mo“y»and t0 such orders as are necessary ü0*of sud^á decree.</p> <p>A1¡mony ig usually aiiow-ed till the husband will jjfc^his^wffe and treat her with conjugal affection.</p>

The defendants in the present case had filed their ori-A bill, to which this was a cross bill. The origin-aj Upon ^ hearing was dismissed.

<p>What consti-nersh?p!0piUt*</p> <p>nions^fwit-Xfprofits of a copartner-outweigh°the sweíofthede-fendant, co-</p> <p>men”between merchants to and'for one°to superintend tne business and to receive the profits realized, (he putting in no stock) consti-nerahip! anda loss sustained by fire is mutual.</p> <p>, What cases are copartner-arePnot!dWhat</p> <p>¡nJa certain " emolument from a trade does not con-nerehip^but if emoiument depends 0n profit and ^partnership3</p> <p>Where one money^Tan-other, the that he kept pose of profit", and thaUio fore payinter-6S</p> <p>copartner^re-his hands he toeSstPayi“"</p>

<p>All mortgages ciosedin °re ”of'Its - ing given to performance a covenant does not vary the rule,</p> <p>Leave will be granted in the Court of Appeals to amend if it is there found necessary.</p> <p>A ^ t0 fore. cl°se ^ort-gaged lands will not con-chase^ofsuch "'ho , was not made, party to the foreclosure.</p>

<p>Tenant for ^ea’s” {a p”‘ him, of perso-compdfodTo tÓ'have'itlUy-forthcoming at thTtermh3 ¡¡feü°gt°tfethe</p> <p>ufe^nVhis ale the remain-</p> <p>January 1826.</p> <p>None but those legally or beneficially interested in the subject matter and result of the suit need be Parties-</p> <p>A trustee ma(ie a party, executed his trust pei.ty delivér-ed to receive</p> <p>When one nal property with a knowledge of the remainders vested in a particular individual, he a^t^for such individual ; and may, under circumstances, be compelled to give security for " the forthcoming of the property, or to prevent its being squandered.</p> <p>The first trustee for the henefitof .those having subsequent interests.</p> <p>voluntary stands as one with notice.</p>

The bill in this case stated that the complainant, Mary, on the 20th of November 1821, while a feme sole, made and executed to complainant, Thomas Wilson, a ■. i /. ,, n ~ deed of trust in the following words, to wit: “ State South Carolina, Laurens district.

<p>What exe-equity set aside-</p> <p>Ail assign-^g^óXans-by act of 1 conSress-</p> <p>May 1825.</p> <p>January I82G.</p> <p>The general corree?that eflui.ty will not interfere to set aside an tfacTf as in"* case °f an unlawful contract, Roth to. But where fraudutenüy4 ass^mnent of a pension (all transfers, mortgages or of which are hycongress')! and received the pension, it is not such contractas*1 the Court will refuse to rescind.</p>

<p>An adminis-pa^üia^ck-tain funds in ^thoufinter-est, to pay expenses of suits instituted, to “testate, the retention De~ ing bona fide Prudent-</p> <p>May 1825.</p> <p>Generally executors, ad-arid others3’ standingin areiTsWe'™5’ onyfandseSt which they in their p0s-session, but is allowed in theTeJgen-fafe might require the implicationaof the fund to a different object.</p> <p>And if the money has been prudently retained, ho will not be charged with interest during such retention, unless it be shewn that he has derived an interest from it, or applied it to his own purposes.</p> <p>Cost is a mat-[f0rn"^ equity even has been no g^atvioiation ot right costs may be de-1</p>

This bill was filed against the defendants, Crenshaw an(^ M’Morris, as executors of Aaron Cates deceased, by Jefferson L. Edmonds, and Dorothy Ann his wife, Dorothy PVadlington, and the minors Polly Brooks Wadlington and Sarah Susannah Frances Wadlington, the legatees of the testator, for an account of the testator’s estate, and to displace the executors from their trust, on groun(l of Crenshaw’s absence from the state, having removed to Alabama, and the intemperance and…

<p>Feb. 1825.</p> <p>married woman may be considered as capabIe °/dis" nosine1 oí nro-How far a posing of property settled separate use ^p^aity" settled in this state‘</p> <p>Lord Thur-°w s opimon-Lord</p> <p>Hard-opi"</p> <p>Lord Alvan-lyn’s.</p> <p>Lord EldonV.</p> <p>Court ofEry‘0sffNew</p> <p>Ewing v. Smith.</p> <p>A feme covert, with the consent of her trustee, may vest her own separate funds in any way she may think best.</p> <p>Cater a>. Eve-leigh.</p> <p>James «.May-rant.</p> <p>Montgomery «. Eveleigh.</p> <p>Fraser «. M’Pherson and Ford.</p> <p>A party will ed of a prioiSt" lien unless some fraud or tiie'transa'c”1 tion.</p> <p>A covenant upon a pur-instile8 uT" chase money covenant,*and the former can not be com-peiied but formance thelatter; and ^urcii^soi under such can not glveeS any lien on until he has purchase*6 money.</p> <p>The wife aow^ofianda mortgaged for money?*1386</p>

The bill stated that by virtue of a decree of the Court °f Equi ty of February 1818 at Edgefield, the Silver Bluff lands, situated on Beach Island, were sold by the Commissioner in Equity for Edgefield district, for one third of the purchase money in cash, and two thirds to be paid in one and two years; and the parties concerned were directed by the decree to account before the Commissioner, that he might ascertain, after the mortgages and other incumbrances were satisfied,…

rp JL HE bill stated that complainant together with Eliza Ashley Smyth now Eliza Ashley Bauxbaum, became joint sureties for John Smyth on a gaol bounds bond.

<p>Equity juris-</p> <p>Nov. 1824.</p> <p>Feb. 1826.</p> <p>Equity can only give relief where law cannot,</p> <p>Equity will J?®1'® *iesPass. There must be something P°s" session, prevent irrepara-o^tiie'vaiue3 the inh?ri-tance put in</p> <p>The remedy as in waste, nuisance ana irreparable</p> <p>In what wmorder^ speel'fiery chattel.</p> <p>For equity to ^efof nuis-anée> ¡t must be such as could cause abtetmp°!'ai’y before’ ^quityVaT enjoin a puttiQg°up a ^ngaditch*1' across a road,</p>

<p>How far equity t^s oflimitations!</p> <p>7 Dec. 1825.</p> <p>April 1826.</p> <p>Whereapar-ÍJgaUlemandJ a“d e9ui.(y. take3juvisdic-merely defendant benefit of the Snsl’to' a Court of</p> <p>. lime is no between Cestui que^ °?!y ln nical equita-bars construe^ ^bich'a Court hl°e jurisdic-</p> <p>Equity is statute oflim-Rations in all cases except such as trusts, aindln msés of fraud from the discovery.</p> <p>Agents and factors spoken of by the statute of limitations must he such as are employed in the general mercantile concerns of the principal. It cannot apply to every special agent.</p> <p>Receiving a specific sum for another creates no trust.</p> <p>Quare, If the statute would not bar accounts between merchant and merchant where there have been no dealings for five years.</p>

<p>An order reading aside, to ’ 0Q</p> <p>March 1826.</p>

This case came up upon the report of the Commissioner. He reported that the complainants’ testator, through motives of friendship, became the guarantee of C. C. For-rester, to the house of Douglass and Shaw, of London. Remittances not having been made in the proper time, the debt was discharged by payments made by the complainants. It was for the purpose of recovering .back the amount thus paid that this action was instituted.

<p>^Equity juris-practice,</p> <p>1826.</p> <p>March 1826.</p> <p>A new case may exist withoutinvol-ving a new principle.</p> <p>Pending a equity will in-petty jn dis-Court'where ls lu,gated has not com-petentpowers protect u*</p> <p>It seems interfere to preventslaves off pending an tínuefOT de" them; trovefwhere the plaintiff ges.</p> <p>On an order tionto strain a party off daTesTtbe Chancolior them to be transferred to the complainant before the bill is heard.</p> <p>merely ancillary to a suit at law, if the _ . -to does also.</p> <p>An attach-noTbe grant-aacon]°"ger pend"</p> <p>Equity can not violate law to give relief.</p> <p>appeal lies from an interlocutory order, viz. p„thaafn¿not: end t0 the establish any will finally affect the merits of the case or paiiy^fany benefit he & ■</p> <p>- An order to interlocutory,</p> <p>A defendant cannot demur and answer to teit hut mayt_ to different parts of the bill.</p> <p>An answer to the same part overrules the demurrer.</p> <p>An answer whichputs merits in issue is sufficient,</p> <p>Defendant discovery and demurto the</p>

<p>An alien devi-exclusion of the next heir, a citizen) until office found.</p> <p>Feb. 1825.</p> <p>, A person cominginto mderTwffl arlghtbypos1 session ad-othevs^ciaim-ing under the same will: possession as fiduciary.3</p> <p>Denizenship spectív^opé ration.</p> <p>The Court orTa^question °uirÜfñtofté regularity of ingsPtakendby an alien to ob-cate of citi-certificate"^!10 prima fade conclusive (jper De ChancORE’</p> <p>An alien can neither take nor hold hy descent, and if he is not naturalized at the time of the descent cast, he cannot stand in the way of the next heir’s taking.</p> <p>Naturalization is not retrospective.</p> <p>An alienmay take by purchase and hold against all the world till office found.</p> <p>An alien at purchase by under a his ancestor, differently of descents""</p> <p>i Marchi826.</p>

<p>,4 le§atee taking an estate coupled ^¡es V sulí-and cannot purchase or in l’eIa~ tiontothe trust estate.</p> <p>Jan.1826.</p> <p>April 1826.</p> <p>April 1826.</p> <p>A legatee, taking an estate coupled with a trust, takes subject to the trust.</p> <p>A trustee cannot purchase or deal with his ces-tui que trust in relation to the trust estate.</p> <p>Exception, where there is no fraud, concealment or advantage taken of superior information of the matter.</p> <p>Many cases unconsciona-We contracts ing to actual íárijfwhere11" there is a relieved from m equity.</p> <p>presump1iveSt fraud.</p> <p>To take one’snecessities is as had vantage ofhis weakness.</p> <p>A person may confirm a contract be-t0 ment> bllt ¡t must be after the party ¿nowkdge of the <*> and does it’ 2Nthai2ew to a connrmation, and after 0fthe original ^as ceased</p> <p>A power in a will to sell such property of the testator as is useless to the estate will not authorize the executor to sell any property he may choose.</p>

<p>A purchaser with' nofdaima" title by pos-the gage being d notice,</p> <p>Aprill826.</p> <p>. , A mortgage in this state vey^fee!011" the demption is past‘</p> <p>The legal title is still m the mortgagor, tee°for mortgagee, hold trust ^Mior can anyone who fromhim with mortga«-eftIle</p> <p>gage being1" notice to a* purchaser,</p>

<p>when a pur-cha6'er °f real hound to pay delay oVtítie.</p> <p>16 March 1826‘</p> <p>a purchaser and remains in the unin-tenupted en-the fitsfmuiít pay</p> <p>But where it thTtifles are defective chaser offers" to rescind on receivmg his money; or purchasemo-ney, with notice to the vendor, till made ^he is not bound to pay m eies.</p> <p>Taking pos-Orally awai-ver of title, and is an ím-plied agree-interest.1^</p> <p>Notice infer-cumstances”</p>

<p>Where a suit is brought against an executor, and all the creditors are advertized to come in by a day given, though a party come after the day he will be let in, while the fund yet remains in the power of the Court, upon his paying the expenses inci :dent to any delay thereby.</p>

This was the case of an injunction to stay proceedings at law in a case wherein William Wightman was plain-tiif, and the executors of Mrs Radcliffe defendants, on a note of hand.

The bill stated that at the sale of the estate of the late William Trescot, made under the decree of the Court of Chancery, Edward Trescot became the purchaser of a house and lot of land in the city of Charleston, and for part of the purchase money gave his bond dated March 1818, in the penalty of ,f25,600, conditioned for the payment of ,f12,800, in two, four, and six years, with interest from the date — the whole of the interest to be paid annually.

This was a bill of interpleader filed by M ’Dowall and Black, assignees of James M ’ Dowall, against James Moffat, Thomas Cochran and others, creditors of the said James M’Dowall, to obtain the direction of the court as to the distribution of the funds in their hands, By the assignment James Moffat was postponed to the other creditors made defendants to the suit, and being dissatisfied instituted an inquiry into the dealings of the said James M’Dowall; and suspecting that…

Campbell was the purchaser at the Master’s sale of certain lands and mills at Edisto, and the bonds set forth in the bill were signed by him and the complainant, and given to Gibbes, the Master, for the purchase.

The Reporter has no other statement of this case than that made by the Chancellor in his decree. This case comes up upon exception to the Master’s report. He reports that the defendant produced his accounts supported by satisfactory vouchers, upon which two points have arisen. The second is, whether the executor should be amerced for all sums in his possession, which were not invested as soon as an amount of sufficient magnitude had accumulated1?

The object of the bill was, to obtain from the Court °f Equity directions as to the order in which the debts hitestate should be paid.

<p>January 1826.</p> <p>4 April 1826.</p> <p>, . As tar as equity is per-tributes file*8" funds of a debtor equally.</p> <p>But ra-mon law a debtor may prefer a ccedltor-</p> <p>A breach of trust only constitutes a simple contract debt.</p> <p>So where an executor receives money on a bond or judgment and retains it, it stands against him only as a simple contract debt.</p> <p>If a man, k?ep P™Peity of another, it with must* ^ken t0 perty^f the theformef such ch'cum-will render distinc-factory as it" was befol'e'</p>

<p>An award set aside where the arbitrators heard evidence without giving the opposite side an opportunity of being heard or of cross examination.</p> <p>Equity, after setting aside an award, will not entertain jurisdiction where adequate remedy maybe obtained at law.</p> <p>Partiality up-°"t award need yupt parüaii-</p>

This was a rule on the Master, taken out by consent of parties, to shew cause why he should not pay six rent due by the defendant, J. Smyth, to Mrs Christie, Executrix of Alexander Christie, on the 16th of February 1826, and for which rent she distrained on the 1st of April 1826 on a negro named Molly. It was agreed that the Master should sell the wench and hold the proceeds of the sale to abide the order of the Court.

The complainant and defendant had been copartners trade in Columbia, South Carolina, and had dissolved on the 25th of May 1825.

The complainants, who were the heirs at law of Archer Farley, filed their bill in this case to recover ofthe de-about twenty negroes, naming them, and their 'ssue> as the stock and increase of certain negroes which were alleged to have been conveyed by a bill of sale g,om Mary Farley and James Watkins to Archer Farley, dated the 23d of May 1792, and loaned by Archer to her during her life time, on the security of a bond taken from her of the same date for redelivery of the…

The complainants, in this case, filed their bill against defendant for certain negroes which they claimed under a voluntary gift from Richard Hodges, the father of the complainant’s wife; and to set aside a subsequent sale of the negroes made by Hodges to the defendant.

The bill charged, that the complainant was seised of tract lan(l granted to him in the year 1811, and that a certain John Harper having trespassed on it, complainant employed J. R. Ervin as his attorney at law to sue him; and he accordingly brought suit against the said Harper in the year 1812, and in March 1813 obtained a verdict' against him with damages and costs, which was appealed from for delay.

This bill was filed by the complainant Burke, and Jinn his wife who had been the widow of the defendant’s testator. John Tisdale, the defendant’s testator, executed his last will and testament on the 21st of October 1820, at which time his wife Ann was pregnant, of which child she was afterwards delivered, in the life time of the testator, named Munford Tisdale.