Volume 62 — North Carolina Reports

Original Bill,, filed at Spring Term, 1866, of the Court of Equity for Bertie, to obtain instructions upon tbe residuary clause in the will of Elizabeth Spellings, deceased. The clause in question was : “ All tbe balance of my estate of every kind I give to John Webb, Elizabeth Webb, Edward Webb and Robert Webb, four children of L. S. and P. E. Webb.” * Of the residuary legatees John died before the testatrix, unmarried.

Original Bill, praying the settlement of two partnerships, partially heard by this court at December Term, 1860, and now coming up for further directions. A sufficient statement of the fact will be found on pp. líl-’2 of Jones’ Ecp, vol. 6.

<p>A testator gave to his wife money, slaves, &c., and afterwards, by a residuary-clause, directed “ that the balance of Ms property be sold, and the money arising therefrom be equally divided amongst all the legatees named in this will, except the Masons;” Held-.</p> <p>1. That the residuary clause included such articles in the lapsed legacy as are the subeets of sales at auction, but not such ai tides (either lapsed or otherwise undisposed of,) as are not subjects of such sales.</p> <p>2. That persons referred to in other parts of the will only as “ children of” &c., are included in such residuary clause equally with persons aetucdly named in such parts.</p> <p>?. That the division directed by the residuary clausejjis a division per capita.</p> <p>4. That the word “legatees” in the residuary clause included the wife, and that her share in the residiré having lapsed does not go to the other residuary legatees, but is undisposed of, and goes to the next of kin.</p> <p>A bequest, that certain chattels “in the possession of my son John shall be.divided between his children that may be living at his death,” does not, by implication, confer a life estate upon John, but such interest for life falls into the residue.</p> <p>(The cases, Jones v. Perry, 3 Ire. Eq , 200; Pippin v. Jíllison-, 12 Ire., 6,1; Seales v. Scales, 6 Jones’ Eq., 163; TueTcer v. Tucker, 5 Ire. Eq., 82; Winston v. Webb, ante p. 1, and WMte v. Green, 1 Ire. Eq., 45, cited and approved.)</p>

. Original Bill, filed at Spring Term, 1866, of tbe Court of Equity for Camden county, praying for a settlement of the estate of Malachi Gr. Sawyer, deceased. The complainant was sole heir and next of kin of the widow of the deceased, and the defendants, other than the administrator, were the heirs and next of kin of the deceased. Answers were filed at the first term, and a report ordered and made.

Original Bill, for a residue alleged to be undisposed of, filed at Spring Term, 1861, of the Court of Equity for Nash county. Held: that land did not pass. In Fraser v. Alexander, 2 Dev. Eq., 348, the words were, Here,*says Ch. J. Ruffin, délivering the

Original Bill, for a discovery in aid -of -a defence at law upon the plea of .Usury, filed to Spring Term, 1861, of the Court of Equity for Columhus county. .At Spring Term, 1862, the cause-was set down for argument upon bill and •demurrer, and transferred to this court. No statement of the contents of the pleadings is necessary.

Original Bill, seeking a specific performance, &c., filed to Spring Term, 1866, of the Court of Equity for Edgecombe county. At tbe same term a demurrer was filed,, and the cause set down for argument, and removed to this-court.

At Spring Term,-1860, of the Court of Equity for Wake county, the petitioners had obtained am order directing the Master to sell certain slaves- upon a credit of six months. At the sale, upon the 1st of May, 1860> the defendant having inquired about it, was told by the deputy of the Master who conducted the sale, that he would be allowed to pay cash for any purchase he might make. Thereupon he purchased one of the slaves, and paid the amount in cash..

Original Bill, for tbe payment of a legacy, &c., filed to Spring Term, 1866, of the Court of Equity for Johnston county. Upon the coming in of tbe answers at the same term, the cause was set for hearing and transferred to this court. The testator had died in 1860, leaving a large estate in lands, slaves, hank-stock, &c., which he divided between his widow, the complainant, and his two children, who, together with their guardian, were the defendants.

Original Bill, for an account of a partnership, &c., filed -to Spring Term, 1866, of the Court of Equity for Gates county. Upon the coming in of the answer at that term a motion was made to dissolve an injunction theretofore obtained. Barnes, J., having disallowed the same, the defendant appealed. The hill stated that in March, 1865, a partnership had ■been formed between tbe parties, for tbe purpose of trading in cotton.

<p>Where a bill bad been filed to rescind a deed of release and quit-claim for a slave, on an allegation of fraud: upon the emancipation of the slave by act of law, the court declined to hear the cause, and ordered the bill to be dismissed without prejudice, and that each party should pay his own costs, as if the suit had abated.</p>

Original Bill, to impeach a deed of .conveyance, filed to Fall Term, 1859, of the Court of Equity far Orange county, and set for hearing, and transferred to this court at Spring Term, 1866. The deed sought to be set aside was dated 21th November, 1855, and conveyed to the defendant a reversionary interest in certain property (chiefly slaves) which, after it had fallen into possession, was sold for about §3,500.

Original Bill, attaching the estate -of a non-resident debtor, filed to Spring Term, 1866, of the Court of Equity for Mecklenburg county. A.t the same term the cause was argued before Mitchell,-J., upan-a demurrer.

Original Bill, praying for an injunction against an ejectment, and for specific performance of a contract in relation to land, and for other relief, filed in tfes Court of Equity for Davie county, at Fall Term, 1863. Upon tbe coming in of tbe answer of tbe defendant Den-ton, Bailey,. J., at the same term, dissolved the injunction theretofore obtained, and from this order the complainant prayed for and obtained-an appeal'.

Original Bill, filed to Spring Term, 1864, of the Court of Equity for Lincoln county. The purpose of the suit was to obtain a partition, of a; tract of land described in a will as “ the Linebarger plantation.” No further statement of facts is required by the opinion.

Original Bill, for the reformation of a deed, filed in the Court of Equity for Wilkes county, Pall Term, 1858, and set for hearing, and transferred to this court by consent of parties, at Spring Term, 1860. The facts necessary to an understanding of the opinion are set forth therein.

<p>Where a creditor has exhausted legal remedies without avail, he may have the assistance of equity in subjecting to his claim the trust funds of his debtor — as, here, an interest in an estate in the hands of an administrator.</p> <p>(The cases, Hough v. Cress, 4 Jones’ Eq., 295, and Tails v. Williams, Hid, 352, cited and approved.)</p>

<p>Petition, for divorce and alimony, filed at Spring Term, 1864, of the Court of Equity for Stokes county.</p> <p>The petition alleged adultery and other matters as ground for the relief desired. These allegations were denied, specifically and distinctly, by the answer.</p> <p>At Fall Term, 1864, after the answer had been filed and replication thereto taken by the petitioner, upon motion of the latter the court allowed her alimony pendente lite, and from that decree the defendant appealed.</p>

Original Bill, filed to obtain a declaration of the respective interests of the complainants in so much of the estate of John Mayhew, deceased, as had first vested in- his daughter Mahala, and also for the payment of their shares as they might he declared. The complainants were the only children of the testator who were surviving when the bill was filed, and the administrator of two that had died since his death.

<p>Original Bill, for specific performance, and for an injunction, filed to Spring Term, 1866, of tlie Court of Equity for Robeson county.</p> <p>The bill stated a purchase by the complainants, through E. Murray & Co., as their agents, from tbe defendant, of eleven hundred bids, of rosin, about tbe 7th of May, 1862, and a payment of 03,575 for the same. The transaction was evidenced by a paper in words and figures following to wit</p> <p>Wilmington, May 7, 1862.</p> <p>Received of E. Murray & Co. three thousand five hundred and seventy-five dollars ($3,575,) on purchase of eleven hundred sound barrels of virgin rosin,, subject toweigbt on delivery, at three dollars (3.00) per three hundred pounds to the barrel. Rosin in good order, and to-remain under shelter for- six months free of storage ; if longer, a reasonable rate of storage aftert be expiration) of six months. My personal- attention, if required* wilL be.given to it, and any additional cooperage to be paid for, it-being at tbe risk of fire or otherwise by the purchaser. Said rosin is located immediately on the Wilmington, Charlotte & Rutherford Railroad — the above rosin to be delivered to the order of W. D. Reynolds & Co., where located, the difference made by weight to be settled for, with interest, on delivery of the rosin..</p> <p>(Signed) ROBERT MriKENZEE.</p> <p>It stated that the complainants have always been ready to-pay the reasonable rate of storage as well as what is due for the services of the defendant, &c., and that they have offered to the defendant so to do, and have requested him to deliver the rosin ; which he has refused to do. It alleged that defendant is a mere warehouseman for plaintiffs, but is dealing with the rosin as his own, and threatens to sell the same, and send it beyond the limits of the State, or so to deal with it that it shall never benefit the complainants. The bill prayed for an injunction, the appointment of a re-' ceiver, and for general relief.</p> <p>The answer admitted the execution of the paper (above) dated 7th May, 1862, also that sometime in the summer of 1865, complainants offered to pay, (upon the defendant’s having the rosin weighed to determine the overweight,) and demanded a delivery of the rosin, which he declined ; also, that after the filing of the bill complainants offered to pay storage and whatever other: char ges might be due for cooperage. It denied that, at any time before the summer of 1865, complainants had demanded the rosin, or showed any readiness to pay charges as stated in the bill, or, as therein stated, had before the summer of 1865 demanded the rosin. That in 1863, under advice of counsel, he had offered to deliver to E. Murray & Cb»., agents for complainants, the rosin, but Murray refused to< receive it; that he then tendered to Murray & Go. “ the- money which had been paid '■by-them as an earnest of tbe bargain, to wit $3,5Y5, together with interest thereon,” which Murray also refused 'to -receive ; that a short time before, he had offered through Murray to the complainants to deliver the rosin, but that, as Murray told him, they refused to receive it; that in May, 1862, he had 1,160 bbls. of rosin in mass, out of which the 1,100 sold to complainants were to be taken, and that no separation was to be had until complainants should comply with their contract, and then the barrels were to be weighed, and weight above 300 pounds to the'barrel was to be paid for. Defendant submits that the contract was .executory, and that complainants have complete remedy at law. He claims the rosin as his-own and intends to sell or .otherwise dispose of it, denying however -any intention to deprive eomplaina-nts of it or its value, in.-case the law of the State •shall determine that they are entitled to it, or its proceeds. [Finally., -he submits-that no bill for -an injunction will lie in such a case.</p> <p>A preliminary injunction was obtained before Buxton,-J.., •on the 18th of November, 1865 ; and the same at Spring Term, 1.866, -of the Court of Equity for Robeson county, •was by him-continued to tbe hearing. Thereupon the defendant -appealed, to.this court.</p>

<p>Where-real and'personal property was given to A., in trust for his wife and their children, with power to apply the proceeds to the maintenance, &c., of the cestui que trusts, and as the children should come to maturity to advance them, and also to devise the property to his wife and such of his children as he should deem right, (Wins. Eq., p. 25); Held,</p> <p>(1,.) That, upon the death of any such children in A’s life-time, their several-shares in the property vested in their real and personal representatives respectively, subject to any execution thereafter of the said power.</p> <p>(,2.) That under the power to devise, inasmuch as some of the children survived him, he could not devise to a grand-child.</p> <p>(The cases, Miller v. Bingham, 1 Ire. Eq., 423; Simmons v. Gooding, 5' Ire. Eq. 382; Brinson v. Wharton, 8 Ire Eq., 80; Ward v. Sutton, 5 Ire. Eq., 421, and Scott v, Moore, Win. Eq., 98, cited and approved.)</p>

Orisinal Bill, praying for instructions in regard to a will, filed at Spring Term, 1866, of the Court of Equity for Haywood county, when the cause was set for hearing upon bill and answer, and transferred to this court. The complainants were the executors of Ephraim Osborne, deceased, and the defendants his legatees.

'Tins was a bill filed at Fall Term, 1864, of the Court of Equity for Rutherford county, in order to obtain'a construction of the will of Robert Gr. Twitty, deceased. One of the questions made in the bill referred to certain slaves that had been bequeathed by the testator. The clause of non-alienation, referred to in the opinion of the court, was as follows : ‘“'item 1.

<p>Whore (ho defendant in a petition for divorce and alimony, not having been served with process, was present however in court at the term when the petition was fded, and made objection personally to any order granting alimony; it u'ks held, that such presence and action did not give to the cause the character of a Us pendens ; and, therefore, that at such stage no order for alimony could be made.</p>

Original Bill, filed to Spring Term, 1866, of the Court of Equity for Mecklenburg county. At the same term a demurrer was filed, and the cause set down and argued. The demurrer having been overruled, the defendant appealed to this court. The bill showed a contract for the sale of a lot of land, and alleged that a large portion of the purchase money was still due.

Bird, filed to Fall Term, 1866, of the Court of Equity for Ciiowan, at which term the defendant filed a general demurrer, and the cause was set down for argument and transferred to this Court.

Bill, seeking relief against a sale made by a trustee for a Pennsylvania creditor, under an order of confiscation by the District Court of the Confederate States, in 1862.

Petition, filed at Spring Term, 1866, of the Court of Equity for Beaufort, in a cause constituted at Fall Term, 1858.

Petition, filed at Fall Term, 1866, of the Court of Equity for Northampton, to review a decree made at Fall Term, 1861, in a petition for a sale of slaves, under which tbe present petitioner had become a purchaser. In the court below, his Honor, Gilliam, J., dismissed the petition, and the petitioner appealed to this court.

Bill, for the settlement of an estate, filed to Spring Term, 1861,/of the Court of Equity for Pitt, and, at Spring Term, 1866, transmitted, upon bill, answers and exhibits, to this court.

<p>Original Bill, filed to Fall Term, 1866, of the Court of Equity for Blaben, at which time a demurrer and an answer were put iu, and the cause was set for hearing, and transmitted to this court.</p> <p>The bill stated that in 1858 Mrs. Guión, then Miss Owen, sold to Thomas C. Miller an improved lot in Wilmington, (which was described,) and made a deed in fee to him, taking bond from him for $12,000, payable, with annual interest, at ten years after date, and with the complainant and James S. Miller as sureties thereto; that Thomas C. Miller died in 1865, and James S. Miller previously, and that the estates of both are insolvent; also that Annie W1 Miller, the wife of the former, is his devisee, and has, by the will, an absolute power of sale. The bill further stated that complainant had applied to Mrs. Miller to be allowed to take the lot, and assume payment of the debt, but had been refused, because she wished to make an application of its proceeds for her own advantage, and that afterwards she sold it on a credit for $12,000, which is considerably less than its value, to Robert H. Cowan, who purchased under various circumstances that put him upon notice; that Miss Owen has married Mr. Guión, and the latter holds the bond on which complainant is surety, and has notified him that he will sue upon it.</p> <p>The prayer was that Cowan be declared a trustee for the benefit of the oomplainant; that the land might be Bold for 'his indemnity; that an account might be taken, and that complainant might have other relief, &c.</p> <p>The answer of Mr. and Mrs. Guión admitted the material ■allegations of the bill.</p> <p>Mr. Cowan and Mrs. Miller filed a joint general demurrei-.</p> <p>1. No principle in equity is better established than that ;d surety may file a bill quia timet, like the present, against his principal, or his assignee with notice. Mitford, Eq. PL, 148; 1 Story Eq., § 327, 2 ibid, §§ 730, 849; Adams’ Eq., á70, and cases cited in the notes.</p> <p>2. A person who has gotten the estate of another ought not in conscience, as between them, to keep it, without paying the full consideration money, (2 Story’s Eq., § 1219,) and a resulting trust will be implied in favor of those who actually pay the money, whatever may be the form of the deed, or state of the title. 2 Story’s Eq., §1200.</p> <p>3- Precedents for the present bill may be found in Green v. Crocket, 2 Dev. & Bat. Eq., 390; Polk v. Gallant, id., 397; Arnold v. Hicks, 3 Ire. Eq., 17; Smith v. Smith, 5 id., 41; Egerton v. Alley, 6 id., 190; Freeman v. Mebane, 2 Jon. Eq., 47. In the last case the legal title was in the principal, and yet his surety was relieved out of the property, and that too against a principal, made such by equitable substitution— upon the ground, as there stated, that if a surety pays for the property, he has a right to hold it bound for his exoneration.</p> <p>4. The case does not rest upon the doctrine of vendor’s lien, but upon the duty from a principal to his surety. Mrs. Miller is a mere volunteer, and Mr. Cowan purchased from her under circumstances which fix him with notice. Even if the latter had no notice, yet as he has not paid all of the purchase money, this court will lay hold of so much as is unpaid for the benefit of the complainant; and besides, as the price was inadequate, if Cowan retain it he should account for the difference between that price and the value.</p> <p>Their points were: 1. That although the doctrine of vendor’s lien is established in England, (Macreth v. Simmons, 15 Yes., 329, and 1 AVhite & Tudor’s Lead. Gas. in Eq., 220, and notes,) with the consequence of subrogating the surety of the vendee to such lien, (Dewig v. the Dari of Winchelsea, AYhite & Tudor, 193, and notes,) yet in North Carolina, after having been at first adopted by a divided court in Wynne v. Alston, 1 Dev. Eq., 163, and subsequently doubted in Johnson v. Cawthoj'n, 1 Dev. & Bat. Eq., 32, and C7xitdey v. Timderlahe, 1 Ire. Eq., 346, it was. (by a divided court,) exploded in WombleY. Battle, 3 Ire. Eq., 182; which case has been followed in Henderson v. Burton, 3 Ire. Eq., 259, v. Mason, 7 IreEq., 180, and Symmms v. Spruill, 3 Jon. Eq., 12.</p> <p>2. The principle of Green v. Crochet, Both v. Gallant, Smith v. Smith, Freeman v. Mébane, cited for the complainant, is that a surety shall have the benefit of any security taken from a principal, and that here is only the bond. S. R. PutledgeY. Smith, 2 Jon. Eq., 283.</p> <p>3. That the demurrer is regular. Bay v. Bay, 6 Ire. Eq., 355; Littlejohn v. Williams, 2 Dev. Eq., 380; Sed. vide, Rev. Code, c. 32, s. 21; Barker v. Swain, 4 Jon. Eq., 220.</p>

Motion, to set aside a sale that had been made under an order of the Court of Equity for Cumberland, at Fall Term, 1864. “ In the matter of David McNeill and others,” a petition had been filed to sell certain land held by the petitioners in common, and at Fall Term, 1864, an order of sale was made, which, reciting that the interests of the tenants in common would be promoted by a sale for “ready money,” “allowed the sale to be made for cash,” and appointed the above named…

<p>"Where it is proved or admitted that one bought and took title to land, under a parol agreement with another to hold it subject to the right of the latter to repay the purchase money, and have the land conveyed to him, such agreement will be enforced.</p> <p>One who purchases such land at a sale by a Clerk and Master, made under a petition by the representatives of the person bound by the agreement, •cannot, before payment of the purchase money, on execution of title, claim to be either a purchaser for valuable consideration, or a purchaser without notice.</p> <p>(Lym v. Oressmm, 2 Dev. & Bat. Eq., 268; Hargrave v. King, 2 Ire. Eq., 480, and Cloningor v. Summit, 2 Jon. Eq. 513, cited and approved.)</p>

Bill, filed at Spring Term, 1866, of the Court of Equity for Guilford, and at Fall Term, 1866, set-down for,hearing upon bill, answers, exhibits and the report of the Master-, and transferred to the Supreme Court.

Petition, for the sale of land, which had been devised to Orren L. Dodd, during his life, and at his death, “ in fee simple to his child or children, if he has any living at his death, or the issue of any of the said Orren L., who may predecease him; ” failing such issue, however, the whole “shall belong to and be equally divided amongst the children of his brother, Dr. Warren Dodd,” &c. The petitioners, besides Orren, were his children, whp were under age.

<p>Bill, to obtain instructions as to the duty of the complainant, as administrator with the will annexed of the late Mrs. Margaret G. Hinton, filed to Fall Term, 1859, of the Court of Equity for Wake, and at Fall Term, 1866, set for hearing upon bill, answers and exhibits, and transferred to this court. The husband and the devisees and legatees of the testatrix were made parties.</p> <p>The deed, under which Mrs. Hinton acquired the right to make a will, conveyed the property to a trustee, “to,the sole and separate use of Margaret G. Hinton, wife of Joseph B. Hinton, as if she were a feme sole,” &c., and to “ convey the slaves and lot as she may, by any paper writing executed by her in the nature of a deed or will, direct, although she may, at the execution of said deed, or will, or paper in the nature of either, be under coverture,” &c.</p> <p>The will expressed an intention “ hereby to execute all powers of appointment to all property, real and personal, owned by me, and of which I have the right to dispose,'by virtue of any deed, will or agreement whatsoever, and especially by virtue of a deed,” &c., [the above.] By the first clause of the will Mrs. Hinton directed a negro, named •“ Happy,” to be sold, and the money arising therefrom “ to be applied to the payment of my debts and funeral expenses, my debts being very small, and principally due to Mr. James McKimmon and Doctor Fabius J. Haywood; and out of the surplus ” — she gave some legacies. By the second clause she gave a valuable house and lot in Raleigh, certain slaves ahd other property to her husband for life, and then over. Her debts were not mentioned in any other part of the will, which consisted of seven clauses.</p> <p>The executor named in the will having renounced, the complainant propounded the will in Wake County Court, at November Term, 1857, when, under the direction of Mr. Badger, then presiding, the verdict of the jury upon the issue, “ Is the paper writing, &c., or any part thereof, the last will and testament of Margaret G. Hinton, dec’d., and if so, what part?” was thus entered, viz: “That the said paper writing is the last will and testament of the said Margaret G. Hinton, late wile of the caveator, Joseph B. Hinton, of and concerning all the property, estate and effects of' which, notwithstanding her coverture, she had power to dispose, under the deed of Sarah Stone in the said paper writing mentioned, and of and concerning all other property, estate and effects of any of which she had otherwise power to dispose, without the consent of her husband, and as to such property, estate and effects she did devise, bequeath, appoint and direct as contained in the said paper writing.”</p> <p>1. The general debts of a feme covert are void. Frazier v. Brownlow, 3 Ire. Eq., 237; Newlin v. Freeman, 4 Ire. Eq., 312; Harris v. Harris, 7 Ire. Eq., Ill; Draper and Knox v. Jordan, 5 Jon. Eq., 175; Johnson v. Malcom, 6 Jon. Eq., 120; Felton v. Reid, 7 Jon., 269.</p> <p>2. And her separate estate, in the hands of her executor or administrator, after her death, cannot be subjected to the payment of such. 2 Roper on Husband and Wife, 238, and 245, and note on 245; Anon. 18 Ves., 248; Gregory v. Lock-yer, 6 Madd. 90; Court v. Jeffrey, 1 Sim. and Stu., 105, Con. Eng. Chan., 1, 50; Clinton v. Willis, Sug. on Pow., vol. 1, 208, n.; Shattock v. Shattock, Law Rep., 2 Eq., 182; Am. Law Rev., vol. 1, No. 2, p. 314.</p> <p>3. The doctrine, that where a man has a general power of appointment over a fund, and he actually exercises it, whether by deed or will, the property appointed shall form part of his assets, so as to be subject to the demands of the creditors, in preference to the claims of his legatees or appointees, does not apply, where such creditors are the general creditors of a feme covert who has a separate estate. 2 Sug. on Powers, p. 29, 1st vol., 208; Shattock v. Shattock, above.</p> <p>4. Our case differs from Leigh v. Smith, in that there the debt of the feme covert was a valid one, contracted before marriage. Leigh v. Smith, 3 Ire. Eq., 442.</p> <p>5. Contracts of a married woman, even for necessaries, are void, not voidable, so far as her personal liability is concerned. 2 Roper on Hus. and Wife, p. 117, &c.</p> <p>6. The bare execution of a bond or note cannot be regarded as a defective execution of a power-, étyen when the donee of the power is a feme covert, who has no separate estate, but only the power.</p> <p>A fortiori, it cannot be a defective execution of such power, where such feme covert has a separate estate. I Sug. on Pow., 426 and 427, also 416.</p> <p>7. Nor can a recognition of debts, in an ineffectual testament, and an appropriation in said will of other property, over which the feme has no power, to the payment of said debts, be looked upon as a defective execution of a power over property which she can appoint, and has appointed in the same will to a different purpose. The two leading essentials to effectuate defective executions of powers are:'</p> <p>1st. That such effectual execution is in accordance with the intention of the donee of the power. 2d. That it is for the benefit of one of the favored classes, a purchaser, a creditor, a wife or child, or a charity. They are both wanting in this case. 2 Sug. on Pow. 103. 1 Sug. on Pow. 373.</p> <p>8. It may well be doubted, whether a defective execution of a power by a feme covert will be relieved against in equity, even in favor of a purchaser, creditor, child, or charity, in N. C. See cases cited under 1. The feme, as donee of a power, may exercise it modo et foo~ma, no more; in all other respects she is feme covert. 2 Sug. on Pow., 103, 104.</p> <p>9. There can no question of election arise in this case. 2 Sug. on Pow., 165. 2 Wins. Ex’rs., 888. 2 Story Eq., §1096. Adams Eq., 91, 92, &c. 1 Jar. Wills, 389.</p> <p>10. It is not to be forgotten that the property in this case is real estate.</p>

Bill, filed at Fall Term, 1866, of the Court of Equity for Alamance, at which term a demurrer was put in, and the cause set down for argument, and transferred to this court.

Bill, praying relief, set down for argument upon demurrer at Fall Term, 1866, of the Court of Equity for Caldwell, before his Honor, Mitchell, J, who sustained the demurrer; whereupon the complainants appealed to this court. The facts appear sufficiently stated in the opinion of the court. 1. The personal representatives of Allen Ferguson should have been made defendants. Adams’ Eq., 312, 313; Calvert •on Parties, 17, 19; Smith v. Kornegay, 1 Jon. Eq., 41. 2.

Bill, tu settle the accounts of a partnership, filed to Spi'ing Term, 1857, of the Court of Equity for Mecklenburg.

Bill, filed to Spring Term, 1863, of the Court of Equity for Iredell. The defendant having answered, and testimony having been taken, the cause was set for hearing, and at Fall Term, 1866, transferred to this court. The facts necessary to an understanding of the case are stated in the opinion of the court.

Motion to dissolve a special injunction, brought up by an appeal from an order by Buxton, J, at Spring Term, 1866, of the Court of Equity for Robeson. The facts are sufficiently stated in the opinion of the court. 1. The answer is evasive, illusory, and does not respond to the bill; and these exceptions are properly to be considered upon this motion. Smith v. Thomas, 2 Dev. & Bat. Eq., 126; Edney v. Motz, 5 Ire. Eq., 233. ' 2.

Bill, filed at Fall Term, 1860, of the Court of Equity for Arson, by complainant, as administrator of Lemuel K. Mar-fin, who died in 1840, in order to obtain a declaration of certain rights under the will of James H. Martin, who died in 1836. In this will certain slaves were left to the testator’s widow •for life, and then to the said Lemuel. Tlio widow outlived Lemuel, and died in 1858.

Bill, filed to Fall Term, 1866, of the Court of Equity for Person.

<p>Bill, to settle the accounts of a partnership, and in the meantime for an injunction, filed to Fall Term, 1866, of the Court of Equity for New Hanover. Upon the coming in of the answers in the court below, the defendants moved to dissolve the injunction, which having been refused pro forma by his Plonor, Merrimon, J., they appealed.</p> <p>The statements in the opinion of the court render it necessary to add here only a copy of the articles of partnership therein referred to.</p> <p>“Memorandum of copartnership between Joseph R. Blossom and Cyrus S. Van Amringe, under the style and name of Joseph R. Blossom & Co., in the town of Wilmington, N. C., to commence on the 18th February, 1861: Said Van Amringe agrees to buy and said Blossom agrees to sell to him one-fourth interest in the distillery and commission business, and one-fourth of the lots connected with said distillery, and as follows: six lots in block three hundred and sixteen, six lots in block three hundred and seventeen, three lots (4, 5 and 6) in block three hundred and eighteen, being South half of latter block, at the rate of forty thousand dollars for the whole. Interest on capital furnished to be allowed to each. The fiscal year to end December 31st in each year, and the actual realized nett profits to be annually divided and set apart to each. Van Amringe’s portion of profits, except one thousand dollars per year, to be applied to payment of his note, with interest, to Blosson for ten thousand dollars, payment for the interest named above, and for payment of the respective increase of interest named below. At the expiration of any fiscal year which shall see completed the payment of the said note for ten thousand dollars to said Blossom by said profits, Vau Amringe’s interest in the property and business is to be increased to one-third share, said purchase and sale of such additional interest to bear interest, and to be paid in the same manner as the first rmterest of one-fourth. When the division of profits aforesaid shall enable Van Amringe to pay for the interest last •.named, then he is to purchase, and Blossom is to sell him, .-an additional interest in the property and business, making ithera .equal, payment for such additional interest on the same toms as the former. Van Amringe to give his undivided .■attention to the business, and to have no other interest outside of the firm. The name of the firm only to be used in. tfieir own business.</p> <p>(Signed,) JOSEPH R. BLOSSOM,</p> <p>(Signed,) CYRUS S. VAN AMRINGE.”</p>

<p>A legacy of property, “to be sold at my wife’s death and equally divided among all my children,” is vested; and therefore the representatives of such children as survived the testator and died before the wife are entitled to shares.</p> <p>(Conly y. JGncade, Win. Eq., 4A, cited and approved.)</p>

Bill for collateral tax clue the State, on clevises and be•quests to collateral relations of Ephraim A. Brevard, filed to •Spring Term, 1858, of the Court of Equity for Lincoln. At Fall Term, 1862, a decree pro confesso was rendered, and an .account ordered to be taken by the Master. At Fall Term, 1866, the report of the Master having been filed, the cause was transmitted to this court.

Bill, to obtain construction of a paragraph in the will of Thomas Rowland, filed to Fall Term, 1864, of the Court of Equity for Stanly, and then set for hearing upon bill and answer, and transmitted to this court.

Bill, for the indemnity of sureties, &e., filed to the Fall Term, 1866, of the Court of Equity for Martin. A general demurrer was filed at that term, and, upon argument before Merrimon, J., the demurrer was overruled, and the defendants appealed to this court.

Bill, for the settlement of a trust, filed to Spring Term, 1866, of the Court of Equity for Guilford.

Bill, for an account and payment of a legacy under the will of Maxwell Chambers, filed to Fall Term, 1866, of the Court of Equity for Rowan, and set for hearing on bill and answer at the same term, and transmitted to this court. The complainant was a slave of Maxwell Chambers, dec’cl., at the time of his death, in 1855, and the defendants are the executors of the will of Maxwell Chambers. The only point in the case was in the construction of the 34th clause of the will.

<p>Petition for dower filed to Fall Term, 1866, of the Court of Equity for Wake.</p> <p>The petition states that Mark L. Collins, the husband of the petitioner, died in August, 1863, seized of the land described in the petition, and oí which dower is prayed. It further sets forth that, prior to the year 1861, difficulties had arisen between the petitioner and her husband, and they had voluntarily separated from each other, and that in May, 1861, articles of separation were entered into between them, and duly executed by them and one Willie Dodd, as trustee for the petitioner. These articles were filed as part of the petition. After reciting the fact of separation, and an agreement that they should continue to live separate, “ On condition that said Mark shall pay for her use and benefit one-third of the value of his estate, to be assigned by commissioners,” the articles state that commissioners selected by the parties had reported the value of the estate, real and personal, of Mark L. Collins, at $2,250, and that Mark executed his bond, with good security, for one-third thereof, to said Willie Dodd, as trustee for Elizabeth Collins; and in consideration thereof she covenanted to relinquish, in case said bond was paid, “ all claim upon the real and personal estate of said Mark, Avhich she has now or hereafter may have, by reason of her right of dower or otherwise, and she agrees that her said husband shall not be responsible for her debts contracted or to be contracted, &c.” The defendant, by his guardian, filed a general demurrer to the petition. The demurrer was set down for argument at Special Term of Wake Court, and by consent the cause was transferred to this court.</p> <p>A covenant for separation already agreed on between husband and wife is valid — the parties covenanting through a trustee. Gee v. Thurlow, 9 Eng. C. L. Rep., 174, 2 Bar. & Cres., 54-7; Ocirson v. Murray, 2 Paine, (N Y.) Ch. R., 483.</p> <p>Wife is put to an election whether she will take dower or retain provision under the articles. Clancy on Rights of Husband and Wife, 230, et seq.; Greenl. Cruise on Real Prop., 194; 7 Yer. (Tenn.) R., 283.</p> <p>Here the petition may be considered an election; the petitioner should have offered to account for provision since the death of her husband, and the trustee should be a party. Watkins v. Watkins, vbi supra.</p>

Bill, for the sale of land for partition, and the construction of a paragraph of the will of William Boylan, deceased, filed to Fall Term, 1866, of the Court of Equity for Wake, and upon bill and answer transmitted to this court. The complainants are the sons and daughters, and a husband of one of the daughters, of the testator. The defendants are two grandsons and a great-granddaughter, and claimed to have an interest in the land.

Bill, to correct the terms of a note for the payment of money, &e.', filed to Fall Term, 1866, of the Court of Equity for Gaston. At that term the defendant filed his answer, and by consent proofs were taken, and the cause set for hearing, and transferred to this court. On the 6th December, 1864, the defendant, after advertisement, exposed the personal estate of his intestate to public sale, on a credit of twelve months.

Bill, filed to Fall Term, 1860, of the Court of Equity for Cleavelaxd, for relief against a mistake in a receipt for money, &c. Upon the coming in of the answer proofs were taken, and at Fall Term, 1866, the cause was set for hearing and transferred to this court.

Bill for relief upon a covenant, filed to Spring Term, 1861, of the Court of Equity for Davidson, and at Spring Term, 1864, set for hearing upon bill, answers and exhibits, and transmitted to this court. The covenant in question was executed by the defendant Smith to the complainant’s intestate, and “ guaranteed ” by the intestate of the other defendants, August 11th, 1853. Its terms and the object of the bill sufficiently appear from the opinion of the court.

Bill, to set aside a deed, filed to Fall Term, 1858, of the Court of Equity for Watauga, and Cross Bill for correction of same deed, filed to the same term. Answers having been, put in, and proofs taken in both causes, at' Spring Term, 1866 they were set tor hearing and transmitted to this court.

Bill, for a special injunction against the collection or transfer of bonds, &c., and for an account, filed to Fall Term, 1866, of tbe Court of Equity for Surry. The injunction having been granted by Mitchell, J., at chambers, at the appearance term answers were put in and exceptions thereto filed; whereupon, Buxton, J., dissolved the injunction, pro forma, and the complainants appealed to this court. The contents of the pleadings are sufficiently set forth in the opinion.

Bill for an injunction' and sequestration, and for specific-relief, filed to Fall Term, 1866, of the Court of Equity for Wake. The facts, so far as they are necessary to an understanding of the opinion, are as follows: Charles M. Farriss, one of the complainants, and the defendant Lack, became partners as merchant tailors in Raleigh, in the latter part of the year, 1865.

Bill, filed to Spring Term, 1866, of the Court of Equity for Northampton, when a demurrer was put in and th 13-cause set down for argument and transmitted to this, court. The demurrer was argued at the last term of the court, and having been retained under an aclvisari, was. again argued at the present term.

Bill for specific performance, filed to Spring Term, 1867, of the Court of Equity for Lenoir, and then set for hearing upon, bill and answer, and transferred to this court. The plaintiff by his bill sought to enforce the specific execution of a contract for the purchase of a house and lot from the defendant. The contract was alleged to have been made with an agent of the defendant, in the following terms expressed in writing: “ State of North Carolina, Lenoir County.

Motion to dissolve an injunction, heard before Shipp, J-, at Spring Term, 1867, of the Court of Equity for Hertford. The complainant had previously obtained an injunction against the defendant forbidding him to proceed under a a license obtained from the County Court of Hertford authorizing him to sell certain land, but on the coming in of the answer his Honor, upon motion, ordered the same to be dissolved, and the complainant appealed.

Motion in a divorce cause, for alimony pendente lite, heard before Fowle, J., at Spring Term, 1867, of the Court of Equity for New PIanover. ' The petition had been filed in the Fall of 1857, and alleged that in 1843 the petitioner, then a widow residing in New York and carrying on a profitable business there as milliner, had been married to the defendant; in 1844 they removed to Baltimore, and lived there as man and wife; in 1845 the defendant went to Wilmington and…

Motion to dissolve an injunction, heard before Foide, J., at Spring Term, 1867, of the Court of Equity for New Hanover.

Bill [praying for a reconveyance of land and for other relief, filed to Spring Term, 1866, of the Court of Equity for Craven, and set for hearing upon bill, answer and proofs, at Spring Term, 1867, and transferred to this Court.

Motion to dissolve an injunction, heard before Bhiirp, J., at Spring Term, 1867, of the Court of Equity for Bertie.

Bill filed in 1865, before Foivle, Provisional Judge, under an Ordinance oí tbe Convention of tbat year, and at Spring Term, 1866, transferred to tbe Court of Equity for VVake. Judgment pro confesso bad previously been taken against tbe defendants Eandall and Bowen. At Fall Term, 1866, tbe cause was set for bearing upon tbe bill tbe answer of Fentress and tbe proofs, and transferred to tbe Supreme Court by consent.

Rule upon the defendant, as purchaser of a tract of land sold under a decree of the Court of Equity, tried before Warren, J., at Spring Term, 1867, of the Court of Equity for Orange.

Bill seeking to subject a fund, filed to Spring Term, 1867, oí tbe Court of Equity of Alamance, and at tbat term set for bearing upon bill and answér and transmitted to tbis court by consent.

Bill for the repayment of money, filed to Fall Term, 1860, of the Court of Equity of Randolph, and set for hearing upon bill, answer and proofs, at Spring Term, 1867, and transmitted to this court.

<p>T Bill for an account and payment of a legacy, filed to Fall Term, 1866, of the Court of Equity for Granville, and at Spring Term, 1867, set tor hearing upon bill and answer, and transferred to this court.</p> <p>The bill states that Drewry S. Morrow, the testator of the defendants, died in January, 1864, seized and possessed of a large estate real and personal; that by his will, dated in May, 1868, he bequeathed to the complainant, Susan L. Bar-ham, (who was his sister-in-law,) $1,000, “for her sole, separate and exclusive use, excluding the jus mariti of her present or any future husband,” and that the defendants, who qualified as executors at February Term, 1864, of the County Court of Granville, had received assets sufficient to pay the debts and legacies; and charges a refusal on the part of the defendants to pay the legacy to the complainant Susan.</p> <p>The will referred to, besides the Legacy to Susan L. Bar-ham, contains devises and bequests of a specific character, and also several other pecuniary legacies to relatives of the testator. The residue of his property is devised and bequeathed to a niece and certain nephews, among whom is the defendant Thomas H. Morrow.</p> <p>The answer admits the material allegations of the bill, but says that the testator, at his death, had on hand about $9,000 in Confederate currency, and that he designed the pecuniary legacies to be paid out of that money; that the complainant Susan, soon after the death of the testator, through her son and agent, signified a willingness to accept such money in payment of her legacy, and directed the same to be invested in other Confederate securities; and that some of the other pecuniary legatees have accepted such money. The defendants say further, that they have' delivered over most of the property to the legatees to whom it was specifically given, because they supposed there was money enough on hand to pay all the pecuniary legacies. They insist that the legacy to the complainant Susan was payable in Confederate money, and that the complainants shall suffer the loss from its becoming worthless. The answer admitted further that the defendants have bonds and notes on hand sufficient, if they could now be collected, to pay the claim of the complainants.</p> <p>The defendants insist that the residuary legatees ought to have been made parties.</p> <p>The question, whether a specific pecuniary legatee is entitled to satisfaction in preference to the residuary legatees, cannot be affected by the fact that the will was made during a revolution, and the testator died'before its close. Written instruments must be construed by their terms, and resort must not be had. to matters in pais. When the testator speaks of $1,000 in the legacy to the complainant Susan, he means $1,000 in money, i. e., lawful money.</p> <p>It being admitted that the defendants have assets in hand, it is not necessary that the residuary legatees be made parties. Story Eq. PL 104. Eesiduary legatees never required to be parties to a suit by a creditor, lb- 76, b and c and note, 148, 150; Ooclcburnv. Thompson, 16 Yes. 326. Nor need they be parties defendant in a suit by a specific pecuniary legatee. Story Eq. Pi. 263. Such legatees may sue for his own legacy only; he is not in pari jure with residuary legatees. lb. 104, 136.</p> <p>This is the husband’s bill and cannot be sustained for the sole estate of his wife. 1 Dan. Ch. Pr. 142-3; Sto. Eq. PL s. 61; Grant v. Van Sehoonhoven, 9 Paige 255; Hughes v. Evans, 1 Eng. Con. Ch. Cases 92.</p> <p>Confederate money was meant; such as the testator had on hand. Pie by many clauses gives his property by parts and parcels; first his lands, then his slaves, then his money, &c.</p> <p>The court may look to the history of the times to ascertain the kind of currency meant.</p> <p>The unpaid pecuniary and the residuary legatees ought to be before the court. The former because it is not alleged or admitted that there is a sufficiency of assets to pay both them and plaintiffs; and the latter because they are interested in the property sought to be charged. Vanhorn v. JDuclcworth, 7 Ire. Eq. 261; Calv. (17 L. Lib.) 171; Sto. Eq. PI. s. 89 — 104,</p>

Motion to dissolve an injunction, heard before Barnes, J., at Spring Term, 1867, of the Court of Equity for Franklin. An injunction, according to the prayer of the bill, staying proceedings in an action of ejectment, was granted by Saunders, J., in June, 1860. The complainant was permitted to sue in forma pauperis, and his Honor did not require her to give bond to indemnify tbe defendant against loss by reason of tbe wrongful suing out of tbe injunction.

Bill, to review a decree in this court, filed to January-Term, 1867.

Motion to dissolve an injunction, heard before Gilliam, J., at Spring Term, 1867, of the Court of Equity for Mecklenburg.

<p>Bill, for specific performance of a marriage agreement in respect to certain slaves, and an account of their hires, filed to Spring Term, 18.61, of the Court of Equity for Harnett, and, a denjurrer having been filed, transmitted by consent to this court from Fall Term, 1864.</p> <p>The bill states that in 1827 Neill McLean and Sarah Mc-Neill were married, having executed a marriage agreement, (set out as part of the bill) in which it was covenanted that said Sarah should “ have and hold to her own use two negroes, Robin and Sophia, and all of Sophia’s increase her lifetime — and the said Sarah McUeill’s children should have them after her;” Neill McLean survived his wife (who died in October, 1856,) and left a will bequeathing most of the negroes to his children by a former wife, and appointing as his executors the defendant M. A. McLean and the complainant Wm. D. Harrington, who had married the complainant Margaret, the testator’s only child by his wife Sarah; the complainant "W\ D. Harrington was ignorant of the existence of the said marriage agreement, and qualified as executor of Neill McLean, and collected the assets and paid off the debts of the estate; in December, 1858, the said agreement was found amongjthe papers of one of the witnesses who had recently died; at December Term, 1858, of the County Court of Harnett, the defendant M. A. McLean also qualified as executor of Neill McLean, and has held the slaves under the will of the testator; at September Term, 1860, the defendant McDuffie qualified as administrator of Sarah McLean.</p> <p>The prayer of the bill is, that the slaves be delivered to the complainants, for an account of the hires since October, 1856, and for further relief.</p> <p>The demurrer to the bill set out several grounds of objection, with a statement of reasons to support them. These grounds are sufficiently stated in the opinion.</p>

<p>Bill to marshall certain funds, and for an injunction, filed to Spring Term, 1867, of the Court of Equity for Rowan, and then set for argument upon bill and demurrer and transferred to this court.</p> <p>The bill states that the Trustees of Davidson College, together with Joseph E. Chambers and another, in 1863 wer.e tenants in common of a valuable tract of land in Rowan county, which, by a decree of the county court of that county at November Term, 1853, was divided among them in severalty, the dividend of Chambers being by the report and decree charged with $1,000, to be paid to the dividend of the Trustees, for equality. Before the petition a treaty of purchase had been made "between Chambers and the complainant Young, and this was completed by a deed executed December 19, 1863, the former binding himself to remove all incumbrances. From February Term, 1867, of Rowan County Court a writ of ven. ex., with a fi. fa. clause attached, was issued in order to enforce the charge of $1,000. On Saturday of that term Chambers executed a deed in trust, conveying all of his property for the benefit of certain creditors.</p> <p>The other statements of the bill are not material.</p> <p>The prayer was for a declaration that the estate conveyed by Chambers in trust was, equally with that conveyed by him to Young, subject to the payment of the $1,000; that the Trustees should be put to an election as to which of these funds they would subject to their debt, and that in case they elected to pursue the land conveyed to Young the latter might be substituted to their rights against the estate conveyed in trust, &c.</p> <p>To this the defendants filed a general demurrer.</p> <p>Comparing the remedies at law for partition in England with the history of our remedies in the same case, as shown upon our statute books since 1787. it is submitted that the act now in force constitutes a personal charge upon the owner of the more valuable dividend, that is prior to the charge upon the dividend itself. The language in Jones v. Sherwood, 2 Dev. & Bat. Eq. 179, is a mere dictum. Rev. Code, c. 82, ss. 1, 3, 4, 12; Acts of 1787 (Taylor & Potter’s Laws, vol. 1, p. 570,) and 1801, (Ibid, p. 950,); Rev. Stat, “Partition”; Co. Litt. 700-1; Went. PL, vol. 10, p. 153; Co. Litt. 167 b, 168 b; Sto. Eq. Jur. s. 654</p>

Bill, for a settlement, filed to Spring Term, 1867, of the Court of Equity for Macon. The bill was filed for an account and settlement of the affairs of the firm of Smith & Nolen. The plaintiff is the surviving partner, and the defendant one of the administrators of the deceased partner, W. W. Nolen, and the bill charges, among other things, that Nolen misapplied the effects of the firm, and appropriated large sums to his own use without rendering any account therefor.

Bill to impeach a decree in the Supreme Court and for an injunction, filed to Fall Term, 1866, of the Court of Equity for Burke. The injunction was granted, and upon the coming in of the answers at Spring Term, 1867, Buxton, J., presiding, the defendants moved to dissolve. His Honor, pro forma, refused the motion and continued the injunction; whereupon the defendants appealed. The opinion renders a statement of the case unnecessary. 1.

<p>Where laud was sold by the aere, and the vendor fraudulently represented the tract to contain a greater number of acres than it actually contained, the purchaser is entitled to relief against the collection of so much of his note for the purchase money as is for the excess.</p>

Bill for the construction of a will, filled to Fall Term, 1864, ot the Court of Equity for Caldwell, and afterwards transferred, by consent, to this court. The testator died without issue.

Bill, brought up by appeal (by the defendants) from an order made by Mitchell, J-, at Spring Term, 1887, of the Court of Equity for Grates. The opinion renders a further statement unnecessary.

Bita to have a will construed, filed to Fall Term 1867 of the Court of Equity for Pasquotank, and then set for hearing upon bill and answers and transferred to this court. The complainant was the executor, and the defendants were the heirs at law, devisees and legatees of James P. Whedbee, whose will had been proved in Perquimans county court in 1853; and the bill was filed to obtain a construction of that will in various respects.

<p>A vendor of lands having delivered a deed in fee to certain purchasers who were partners upon their executing personal. notes for the purchase money, a sealed instrument was delivered some weeks afterwards by the Xmrchasers to the vendor, which expressed no valuable consideration, but referred to the sale, and stated a wish to secure to the vendor the payment of the bonds, and thereupon provided that in case of failure by the purchasers to make payment as their notes fell due, the vendor “should have such a lien [in and to such tract] -and to that extent as wiE save him harmless”:</p> <p>Held that, there being no valuable consideration, the paper could not, in any event,.be set up either as giving a lien, or as a contract to give a lien.</p> <p>Also, the partnership having been subsequently dissolved, that the outgoing partner who had taken a bond from his copartners to indemnify him against the firm debts, had thereafter no equity to subject the partnership funds to the payment of the debt to the vendor; and therefore that the vendor had none through him.</p> <p>The relief administered in equity must be limited to that sought by the frame of the bill.</p> <p>Whether there may be an express “vendor’s lien” in this State, Quaere?</p> <p>(Smith v. Smith, 1 Jon., 135; Potts v. Blcwlaeell, 8 Jon. Eq., 449, s. c. 4 il>., 58 ; Miller v. Miller, ante 85 ; cited and approved.)</p>

Bill for a specific performance of a contract to convey land, filed to Spring Term 1866 of the Court of Equity for Cleaveland; and set for hearing and transferred to this court at Fall Term 1867.

Bill, filed to Fall Term 1867 of tbe Court of Equity for Northampton, and at that time set lor hearing upon bill and answer, and transmitted to this Court. The complainants were the children of Ellen Lewis deceased, and the children of William M.' Wilkins deceased, by his second marriage, and the defendant was the executor of Edmund Wilkins deceased, late of the county of Northampton.

Bill, for specific performance, &c., filed to Fall Term 1863 of the Court of Equity for Chatham, and at Fall Term 1866, set for hearing upon pleadings and proofs, and transmitted to this court.

Bill against a purchaser of lan’d sold under a decree in a former petition, filed to Fall Term 1867 of the Court of Equity for Halifax. A general demurrer being put in and set down for argument, the cause was transferred to this Court.

Bill, in the nature of a supplemental bill, filed to Spring Term 1867 of the Court oí Equity for Person. A demurrer having been put in was set down for argument at Fall Term 1867, when the demurrer was overruled by Mitchell J., and the defendants appealed.

Bill filed to Fall Term 1862 of the Court of Equity for Rutherford, and at Fall Term 1866 set for hearing upon the pleadings and proofs, and transmitted to this court.

Bill, filed to Spring Term 1866 of the Court of Equity for Caldwell; answers having been filed, and replication taken, at Fall Term 1867 it was set for hearing upon the pleadings and proofs and transmitted to this Court. As the cause went off upon a question of pleading, it is not necessary to make a sta'ement.

Bill filed to Fall Term 1858 of the Court of Equity for Iredell — at Fall Term 1864, set for hearing- upon pleadings and proofs, and at Spring Term 1867 transmitted to the Supreme Court.

Bill, for an injunction, &c., filed to Fall Term 1867 of the Court of Equity for.Granville. A demurrer having then been put in, it was set down for argument, and the case transmitted to this court.

Bill, filed to Fall Term 18G3 of the Court of Equity for Guilford. At that term a demurrer was put in and set down for argument, and at Spring Term 1867 the canse was transmitted to this court.

<p>Words however disparaging or abusive, are not scandalous in equity pleading, unless they be also impertinent.</p> <p>Where a bill was filed for the specific performance of an alleged contract, and instead of merely setting out the contract, and'alleging its non-execution as a ground for the prayer, it recited, by way of inducement, a train of circumstances, which went to show ingratitude and baseness on the part of the defendant in refusing to execute the contract, Held that an answer which set up as a defence, that the contract was a forgery by the plaintiff, was not liable to exception for scandal, for detailing circumstances corroborative of the averment.In such a case, the court suggested that the bill be amended by striking out the statement of circumstantial evidence, and that thereupon the defendant put in a plea denying the execution of the contract, so that an issue might be directed for trial by a jury at law.</p>

Bill to correct a deed, filed Spring Term 1867 of the Court of Equity for Macon, when an answer was put in and replication thereto taken. At Fall Term 1867 the cause was set for hearing and heard by Buxton J., who rendered a decree in favor of the plaintiff. The defendant appealed.

<p>Bill, filed to Spring Term 1867 of the Court of Equity for Halifax, and at same term set for hearing by consent upon pleadings and exhibits, an,d transmitted to the Supreme Court.</p> <p>The complainant alleged that the defendant was a Mutual Insurance Company chartered by the General Assembly, and that by its charter all who insured in it became members; that in 1853 he had taken out a policy upon his own life, agreeing to pay one-half of the annual premium in cash and the other by note; that he complied with his contract until and including the 3d of August 1865, whereby he continued to be a member, according to the by-laws, “for the period of 40 days after the 3d of August 1866;” that in July 1866 he received from the Company notice to renew his annual premium, and also notice to pay a certain assessment, declared in September 1865 and payable April 1st 1866, upon the amount of his note given for successive premiums (as above); that he declined to do either, upon the ground that the company was insolvent and unable to comply with its policy, adding that he intended to file a bill and have it wound up, — and that the company responded by calling his attention to its own action of the 6th of August 1866, and expressing a wish that he would not embarrass its action.</p> <p>The bill charged that the Company was insolvent hopelessly and largely, at the time of his refusal to pay as above; that in divers particulars specified it had been mismanaged and that its action on the 6th of August 1866 was a resolution to wind up and to close its existence; but that nevertheless suit had been brought against him for the amount assessed as above, &c. The prayer was for an account, and an injunction.</p> <p>The answer admitted that the complainant had been a member of the Company ,and had continued so until April 1st 1866, but it insisted that the forfeiture of his membership, which was due upon the non-payment of. the assessment then payable, was waived by the Company only upon condition, viz: that he would pay the assessment by a subsequent day named by it, (October 1st, 1866) — and that upon his failure so to pay, the forfeiture had taken place at the time first mentioned. It also denied that it was insolvent before the 6th of August, 1866, except so far as made so by an inability to collect its resources, owing to a refusal by its members to pay and to the stay-laws, &c. The charges of mismanagement were also denied, and the condition of the company was attributed entirely to the results of the recent war.</p> <p>The answer also admitted that a resolution to wind up had been passed upon the 6th of August, 1866.</p>

Bill filed to Spring Term 1867 of the Court of Equity for Lincoln, and at Fall Term set for hearing upon bill, answer and replication, — an account having previously been taken without prejudice.' The bill was in the name of “ the State of North Carolina on the relation of John F. EToke,” and alleged that the defendant was administrator of one Alexander Wilson, who had died in 1862 intestate, without wife or children or the issue of such, and leaving a large estate, real and…

Creditors’ Bill, filed to Spring Term 18G7 of the Court of Equity for Beaufort. The defendant having been appointed administrator in the preceding month of March, moved that he be allowed nine months to plead. His Honor Mitchell J. overruled the motion, and no ansrver being put in, rendered a decree pro confesso. Whereupon the defendant appealed. No further statement is necessary.

Bill, seeking- to enjoin a partition of land at law, filed to Fall Term 1866 of the Court of Equity for Granville. At Spring- Term 1867 an answer was filed, and the defendants ■moved that the plaintiff be required to submit to a judgment of partition in the proceedings at law, with a stay of all proceedings thereupon until the further order of this court; and that the injunction already obtained be dissolved to that extent.

<p>Bill for an account and settlement of an estate &c., filed to Fall Term 1860 of the Court of Equity for Granville, and at Fall Term 1867 transmitted upon the pleadings to this Court.</p> <p>The only question made was upon the construction of a clause in the will of the testator of the defendant, which was as follows: “I give and bequeath to my beloved son William one dollar; to my son James’ heirs one dollar; to my son Samuel one dollar; to my son John one dollar; to my son Thomas one dollar; to my son Philip one dollar; to my daughter Nancy Waller, three negroes Tony, Gillis, and Horace, and eighty acres of land, it being my part of Aaron Oalcey’s hundred acres in or under the will of Joseph Oalrey deceased, father of the said Aaron, if she plentifully support her mother Ferebee my beloved wife, which I leave in and under her care, in good diet, lodging and apparel during her natural life or widowhood, and then the property, at the death of my beloved wife and the said Nancy Waller, or intermarriage', to he equally divided between the children of the said Nancy Waller and my son William, and John:'</p> <p>The division is per capita, between William, John, and children of Nancy. Burgin v. Pcdton, 5 Jon. Eq , 425, and Harris v. Philpot, 5 Ire. Eq., 134.</p> <p>The division is per capita, between the children of all three, Nancy, William and John. Adams v. Adams, 2 Jon. Eq., 215.</p>

<p>Courts of Equity in this State will not entertain jurisdiction of a bill against an executor or administrator to enforce payment of a legal demand at the suit of a single creditor; and upon demurrer such a bill will be dismissed.</p> <p>(Allen v. Allen, 6 Ire. Eq., 293, and McKinnon v. McDonald, 4 Jon. Eq., i, cited and approved.)</p>

<p>The Act (R. C., o. 46, s. 31,) whioh provides that “the appointing any person executor shall not be a discharge of any debt or demand due from Mm to the testator,” includes cases where the executor acts under the appointment, as well as those where he does not.</p> <p>A bill seeking to compel an executor to execute a general power to sell real estate for the payment of debts, cannot be maintained without making the devisees of such estate parties.</p> <p>A creditor cannot, merely as such, sustain a bill against an executor, seeking to have Ms debt paid.</p> <p>(Chojjin v. Hanes, 4 Dev., 103, and Willems v. Finch, ante 355, cited and approved.)</p>

Bill, filed to Fall Term 1867 of the Court of Equity for Wake; a joint general demurrer having at that term been put in, was set down for argument, and at December Special Term thereafter the cause was by consent transmitted to this court. The complainants were sureties upon a bond due by Thomas C. Miller, the testator of the defendant Annie, as principal, and suit was pending against them thereupon.