l^'i.rlK'^^ViJ^.-iy. 'i^tVi-;^>v ' '^i REFERENCE LIBRARY ..'EAU OF INDUSTRIAL HOUSING it TRANSPORTATION MAY 2 2 1918 George Washington Flowers~ Memorial Collection DUKE UNIVERSITY LIBRARY ESTABLISHED BY THE FAM'LY OF COLONE^ FI.OWF.RS ti.V^. REPORTS OF CASES IN EQUITY, AEGUED AND DETERMINED COURT OF APPEALS AND COURT OF ERRORS, OF SOUTH CAROLINA, VOLUME XI. FROM MAY TERM, 1850, TO MAY TERM, 1800, UOTH INXLVSIVE. BY J. S. G. RICHARDSON, STATK REI'onTEU. CHARLESTON, S. C. : M c C A R T E R iSc D A W SON ISGl. '^ CHANCELLORS AND JUDGES DURING THE PERIOD COMPRT^]D IN THIS VOLUME. <' Chancellors and Judges of the Equity Court of Apjieals during the year 1859. HON. JOB JOHNSTON, (6) " BENJ. F. DUNKIN, " GEO. W. DAllGAN, (c) HON. F. H. WARDLAW, (J) " JAMES P. CARROLL, (rf) " JOHN A. INGLIS. {d) Circuit Judges, and Judges of the Law Court of Appeals during the year 1859. HOlNr. JOHN B. O'NEALL, (a) " DAVID L. WARDLAW, " THOMAS J. AVITHERS, HON. JOSEPH N. WHITNER, " THOMAS W. (iLOVER, " ROBERT MUNRO. Judges of the Court of Appeals, established by Act of December, 1859. HON. JOHN B. O'NEALL, Chief Justice. " JOB JOHNSTONE, Associate Judge. " F. H. WARDLAW, Associate Judge. (ft) Elected Chief Justice, December, IS.'iO. (t) Elected Associate Judge, December, 1859. (r) Died in 1859. (d) Elected December, 1859. / TABLE OF CASES REPORTED IN THIS VOLUME American Bible Society vs. Noble 156 Wills and Testaments — Devises to Corporations. Anderson r.9. Aiken 232 Mortgage — Fraud — Jurisdiction — Parties. Belcher vs. McKelvey 9 Evidence — ,'insuier — Emancipation — Gift. Bryce vs. Bowers and Stork 41 Pleading — Parties — 3 fort gage — Foreclosure — Assignee — Pre- sumption — Payment. Culleton vs. Garrity 323 Practice. Estate of Pinson .' 110 Appeal from Ordinary — Duress. Ex parte Nayler and Smith 259 Creditor's Hill — Marshalling Assets — Practice. Ex parte Wilson 445 Lunacy — Practice. Farmer vs. Spell 541 TPllls and Testaments — Administration — Debts — Equitable Conversion. Ford, Escheator, vs. Porter 238 Wills and Testaments — Emancipation — Slaves. vi TABLE OF CASES. Fretwell vs. Neal 559 ffli/s and Testainents — Executors — Estate for TAfe — Assent — Evidence — Judgmetit — Slieriff' s Sale — Purchaser for val- uable consideration without notice — Lapse of Time. Gillam vs. Caldwell 73 Wills and Testaments — Limitation of Estates — Administralion. Glove r vs. Ad ams 264 Limitation of Estates. Guignard vs. Harley 1 Costs. Hodges vs. Hodges 135 Mortgase — Delivery — Partnership — Interest — Surety — Joint Tenant — Use and Occupation. Howard vs. Cannon 23 Injunction — Jurisdiction — Absent Defendant — United States Court. Jewell vs. Jewell 296 Parties — Account — Administration — Rents — Agent. Keith vs. Keith 83 Promissory Notes — Jurisdiction. Kirkpatrick vs. Atkinson 27 Issue at Jaiw — New Trial — Appeal — Incompetent Evidence — Personal Representative — Fraud — Limitation, Statute of. Kersey vs. Keith •. 33 Pleadings — Limitations, Statute of — Husband and JVife. Lee vs. Lee 574 Fraud — Statute of Frauds. Maffiit vs. Read 285 Evidence — Settlement — Account. Markley vs. Singletary 393 Limitation of Estates — Separate Estate — Parties — Infant. Martin us. Campbell 205 Evidence — Answer — Solicitor — Fee. Martin vs. Petit 416 Usury. TABLE OF CASES. vii McCorkle vs. Montgomery 1 14 Fraud — Judgment — Father and Son — Consideration — Evi- dence — J'endor's Lien. Miles vs. Wise 536 JuriMliclion — Injunction — Equitable Estate. Moore r vs. Kopman 225 Specific Performance. O'Neale vs. Dunlap 405 Parent and Child — Advancement — Guardian and Ward — Election — Heal Estate — Intestates' Estates — Acts of Leg- islature. Pegues vs. Pegues 554 JVilk and Testaments — Legacy to Deceased Child. Rees vs. Rees 86 Testamentary Paper — Advancements — Mother — Grandson. Schmidt vs. Lebby 329 Partnership — Account Stated. Sessions vs. Stevenson 282 Presumption of Payment — Judgment — Aery — Sovereign State. Smith vs. Hunt 269 Trusts and Trustees — Implied Trust — Lapse of Time — Com- mon Fund. State Bank vs. Cox & Co 344 Principal and Agent — Poiver of Attorney — Bank Stock — Sale. State, ex rel. Gervais, c». City Council of Cliarieslon 432 Nuisance— ^Public Landing — Injunction — Evidence. Stokes vs. Hodges 135 Mortgage — Delivery — Partnership — Interest — Surely — Joint Tenant — Use and Occupation. Tomlinson vs. Tomlinson 52 Re-hearing. Toomer r«. Rhodes 256 lAmitation of Estates — Practice. viii TABLE OF CASES. Tucker vs. Belcher if Evidence — Answer — Emancipation — Gift. Willis vs. Jolliffe 447 Wills and T'estaments — Slaves — Emancipation. Wilson vs. McJunkin ....527 JFills and Testaments — Limitation of Estates. CASES IN EQUITY ARGUED AXD DETERMINED IN THE COURT OF APPEALS, At Columbia, May Term, 1859. CHANCELLORS PRESENT : ^ HON. JOB JOHNSTON, HON. B. F. DUNKIN, HON. F. II. WARDLAW. J. S. GUIGNAKD AND OTHERS VS. W. J. HaRLEY AND OTHERS. Costs. Solicitors and Commissioners in Equity are not entitled to charge the fees, allow- ed by the Act of 1S27 for '• attending on" and " holding reference," for attend- ing before the commissioners to take, and for taking, under the .\ct of 1S30, the testimony of witnesses to be nsed at the trial of the cause. Solicitors are entitled to the fee, allowed by the Act of 1S27 " for attending on reference,'' for attending before the commissioner nt the taxation of costs, only where the taxation has been referred to the commissioner by an order of Court. The fees paid by a solicitor for obtaining a copy of the appeal decree, will be al- lowed liim only where such copy is necessary. The solicitor of each party is entitled to charge for his argument on circuit, and on the appeal. For swearing witnesses examined before the commissioner, under the Act of 1S30, he is entitled to charge ; but the charge to which be is entitled, is not $1 for each witness, but $1 for all sworn in the case. 'Chancellor Dargan ill and unable to attend. APPEALS IN EaUlTY. Gtiignard vs. Harley. Where the commissioner appoints a day for taking the examination of witnesses, under the Aft of 1S30, and "causes the adverse party to be notified," for such notice, actually given, he is entitled to charge as for a summons. For reporting the testimony taken under the Act of lb30, the commissioner is not entitled to the charge of $3 allowed by the Act of 1S27, for '-making up and returning report." Where an appeal is taken, the commissioner may charge for a copy of the decree furnished the solicitor of the appellee. BEFORE DUNKIN, CIL, AT BARNWELL, FEBRUARY, 1859. After the final decision of this cause in the Appeal Court, 10 Rich. Eq., 253, the commissioner for Barnwell taxed the costs of the defendants. The complainants objected to the taxation, and in September, 1S58, his Honor, Chancellor Dargan, made an order directing the commissioner for Rich- land to tax the costs. In December, 1858, the commissioner for Richland submitted his report, to which the complainants filed exceptions, which were heard before his Honor, Chan- cellor Dunkin, at Barnwell, February, 1859. His Honor made the following decree : Dunkin, Ch. On the 15th September, 1858, Chancellor Dargan made an order, directing the commissioner in equity for Richland district, to tax the costs in the cause above stated. The whole amount of the bill of costs as taxed and allowed by Mr. Commissioner Pearson, is $986 13. The items to which objection is taken, amount to $413. The exceptions, as well as the reasons and authorities to sustain them, are distinctly set forth in the papers which make part of the decree — the declared object being, not merely to obtain justice in this particular case, but to settle the practice upon some points upon which a diversity of opinion exists among the profession, and a variety of practice prevails in different Equity districts. Entertaining grave doubts upon several of the points ruled by the commissioner of Richland district, it is deemed, nevertheless, expedient, for the purpose of having the matters subjected to the judgment of the tribunal in the last resort, to overrule the several exceptions taken, and to APPEALS IN EaUITY. Columbia. Mny, 1559. confirm his report, M'hich adopts the taxation of the conmiis- sioner of Barnwell district. It is accordingly so ordered and decreed. The complainants appealed. Bellinger, for appellants. ,ililrich, contra. The opinion of the Court was delivered by Johnston, Ch. If the fees provided by law for services on the part of officers of this Court, do not remunerate them, or if there is an omission in the statutes to annex compensation to some duties to be performed, though the temptation may be strong, in such cases, to eke out the compensation by resort- ing to strained construction, the Court, though it cannot be insensible to the hardship of the case, is solemnly bound to restrain the abuse. There is no compensation allowed inde- pendently of that which is provided by statute: and the party laying claim to costs must lay his finger on some statu- tory provision, expressly or by necessary implication, allow- ing them. In this case exception is taken to charges by the solicitors tor attending before the commissioner to take the testimony; which was taken under the statute of 1S30, 6 Stat., 41 1. The statute of 1827, 6 Stat., 333, expressly declares, " That every officer herein named, shall charge and receive, for the discharge of the various duties of his office, the fees hereinafter particularly recited, and no others : and that for all services not hereinafter specifically recited, the said officers shall )iot be entitled to any fee, but the said services, so omitted in this Act, shall be taken and understood as incidental to others for which fees are charged;" and " That all Acts, or parts of Acts, in relation to fees of any of the officers hereinafter named, be, and the same are hereby, repealed ; and that this Act shall be taken and considered as the only Act in force in relation to the fees of the officers hereinafter recited." APPEALS IN EaUlTY. Guignard vx. Harley. The only items in this fee-bill, relied on to sustain the charge of the solicitors in this case, are the following: "complainants' solicitors" — "each day attending before commissioner, on reference, five dollars" — and, " defend- ants' solicitors" — "each day's attendance, on reference, be- fore commissioner, five dollars." Was the proceeding under the Act of 1830, a reference, in the sense of the Act of 1S27? That Act, 6 Stat., 411, provides, that either party to a suit in equity, shall have the right, upon giving the adverse party, his solicitor or agent, ten days' notice, to examine any wit- ness, or witnesses, before the master or commissioner in equity of the district; whose duty it shall be, upon the appli- cation of the party, desiring the examination, his solicitor or ao'ent, to issue a writ of subpoena for such witnesses; and upon iheir coming before him, to commit their testimony, given on oath, to writing, each party having the right of cross-examination and exception to the admissibility of testi- mony : and the master, or commissioner, shall certify such examination and testimony to the Court, to be read in evi- dence upon the trial; and, for this service, he shall be paid by the copy-sheet. It may be convenient here to proceed with the further pro- visions of this statute, so far as it may be apj)lied to this case. It further enacts, thafe on an application by a party to examine witnesses, the master, or commissioner, shall appoint a day for the purpose, and cause the adverse party to be noti- fied." The Court perceives no feature of a reference in such pro- ceeduig; and, therefore, cannot sustain the solicitors' charges for attending on a reference. There may be, and is, much difficulty in defining the meaning of this term. But in theory of law, it always implies that the matter referred has been before the Court, and comes from the Court to its com- missioner: and this is the true idea, even in cases where the APPEALS IN EaUlTY Columbia, May, 1S59. Legislature has authorized the commissioner to grant orders of reference. He grants them in the place of the Court. It would never enter into the mind of any one, witnessing the examination of witnesses on a trial in Court, that the pro- ceeding constituted a reference. Neither does the examina- tion of them out of Court and before the commissioner, unless some matter has been referred to the commissioner, as the subject of the examination ; such as to inquire into cer- tain facts, or points of inquiry, and report the result, with the testimony, &c. I should say, that were the Court to order the commis- sioner to take the testimony, generally, in a cause, prepara- tory to a iieari ng, this would no more be a reference, as understood in the practice of this Court, than an examination by other persons under a commission. The Legislature has, in the Act of 1830, directed the mode in which testimony may be taken, and constituted the com- missioner an agent to take it, as it might have constituted the sheriff, ordinary, or any other officer or person. Tliis is the scope of the Act : and, though it would have been very proper, to have provided compensation to solicitors in sucii case, tliis case does not fall within the provision upon which they rely. The objection is, therefore, sustained. Another charge of solicitors objected to, is attendance upon " a reference to tax costs." This relates to the taxation of costs by the commissioner of Barnwell. The parties by soli- citor, laid before him their bill of costs, and supported them against objection. But this was no reference, and the solici- tors are not entitled to the charge. It is different under the order of Chancellor Dargan, refer- ring these matters to the commissioner of Richland. This was a reference in its pro])er sense; and the charge is proper. This objection is, therefore, sustained as to the original tax- ation by the commissioner of Barnwell ; but overruled as it relates to the investigation before tlie commissioner of Rich- land. APPEALS IN EaUITY. Gnigiiard vs. Harley. Another objection is to charges for amount paid for copies of the opinion of tlie Court of Appeals. In Pinchback vs. McCraven, I Hill Ch., 413, it was held that a ciiarge for money expended for a copy of an appeal opinion, when such opinion was necessary to the party who got it, was allowable. In that case, the necessity for the coj)y arose out of peculiar circumstances. In this case, the bill was dis- missed on circuit, and upon appeal the decree was affirmed. In general, such opinion could be valuable to the party who procured it, only for its reasoning; or to guide that party in some niterior proceeding. But it might, possibly, be of use, in defining and explaining, the circuit judgment: and should, for such purpose, be filed in the Circuit Court as part of the record. Of course, when that would be proper, only one copy would be necessary. With these instructions, the point must be recommitted. If a copy was necessary, is should be allowed — not as costs te> counsel, but as expenses. Unless a copy was necessary, it would have been sufficient to file the certificate of the clerk of the Appeal Court, of the result, which, by the Act of 1832, 7 Stat., 332, § vi, that officer is bound to transmit free of charge. Another objection is, to charge of counsel for arguments in the Circuit and Appeal Courts. It is not necessary to discuss a matter so plain. The fee-bill of 1827, expressly allows the charge made. The arguments were made, and were made in conformity to the regular and settled practi e of the Courts 111 which the matter was adjudicated. If more than the proper number of counsel was heard — which was not the case — or if counsel were heard, who were not entitled to be heard, the point was open for objection at the time; and we have a right to suppose, if no objection was made, the pro- ceeding was not objectionable; or was allowed by consent of the party now objecting. This objection is overruled. So far for the solicitors. We come now to the fees of tlie commissioner. APPEALS IN EaUlTY. Columbia, May, lS5f>. The firsJt charge objected to, is for "seventeen days engaged in reference to taice testimony." It has been already decided that diis was no reference ; and the charge is not allowable on that ground. The objection is, therefore, snstaincd. The next charge objected to is, "witnesses each day sworn, ^17." That is ^1 per day for swearing witnesses on the " reference" to take testimony, which lasted seventeen days. The Act of 1827 allows the commissioner for "swearing all the witnesses on reference before him, or on trial in conrt, $1." Tlie charge mnst, therefore, be cnt down to $1 ; and to that extent the objection is sustained. It has been con- tended, indeed, that as this was a proceeding under the Act of 1830, even this sum should not be allowed. The argu- ment is based upon the declaration of that Act, that "for this service the said master or commissioner shall he paid by the copy-sheet ;" from which it has been inferred that this pro- vision is intended as a compensation for all the services ren- dered b)^ commissioners under that Act. But the collocation of the words of the statute, as well as the apportionnient of the compensation to the writing done, shows that the provi- sion was intended to be confined to the duty of "certifying such examination and testimony to the Court, to be read in evidence on the trial of tlie cause:" for which " service the said master, or commissioner, shall be paid by the copy- sheet." The next objection is to the charge of "eighty-seven sum- mons, at thirty-seven and a half cents each, ^32 62." The Act of 1830, in its second section, makes it the duty of the commissioner, on the application of a party to examine his witnesses, to appoint a day, and "cause the adverse party to be notified." This, I suppose, is to l)e done by issuing a summons, to be lodged by the applying party with the sheriff to be served. This service does not come within that for which he is to be paid by the copy-sheet. The Act of 1827 allows him, "for every summons, thirty-seven and a half APPEALS IN EaUITY. Guignard vs. Harley. cents." This would seem to be a sufficient warrant f^r sum- moning the adverse party, in this case; but as tiiere were not eighty-seven adverse parties, it seems hardly possible to sus- tain this charge for the full amount. It has been argued that as the "references" were continued from day to day, for seventeen days, the commissioner was obliged to summon the parties, whom the Act requires him to notify, from day to day; and so such parties might be summoned several times. That depends on circumstances. If, at an adjournment, no day could be appointed for the next meeting, and the com- missioner was compelled to issue his summons for that pur- pose, and did issue it, (for charges are not intended for services not rendered,) such charge is allowable. Otherwise it cannot be sustained. This point will be left for investiga- tion when the report is recommitted. The next objection is to the charge for " reporting testi- mony, $3." This service is included in the provision of the statute of 1830, to be compensated by copy-sheet ; and the objection is sustained. The last objection is to a charge " for copying circuit decree," $5 37. When the bill was dismissed, and an appeal was taken, this copy was called for by appellee's counsel. {Pinchback vs. McCraven, 1 Hill Ch., 413.) It would seem to be necessary for liiin, in order to prepare himself to sustain the decree. The objection is overruled. It is ordered that the decree be modified according to the foregoing opinion ; and let the cause be remanded to the circuit, and the report be recommitted to Mr. Commissioner Pearson. DuNKiN AND Wardlaw, CC, coucurrcd. Decree modified. APPEALS IN EaUITY. Columbia, May, 1S59. W. W. Belcher vs. Hugh McKelvey, Administrator. Peter Tucker and others vs. W. W. Belcher and others. Evidence — %^nsiver — Emancipation — Gift. Bill by the next of kin of donor lo set aside a bill of sale of a slave, expressed 10 have been made in consideration of $1,000 paid, on the ground that the sale was made in contravention of the Act of 1841 against emancipation, and alleging th&t the money paid was the donor's own money, being the earnings of the slave, and that there was a secret trust that the slave should be emanci- pated ; Held, That the answer of defendant denying the trust, and averring that the money paid was his own money and not the earnings of the slave, was responsive and self-proving; and, the evidence being insufficient to overthrow the answer, the validity of the bill of sale was sustained. Where a gift of slaves is made by the donor, in contravention of the Act of ISll against emancipation, the gift is void wlielher the purpose of the donor is com- municated lo the donee or not. BEFORK WARDLAVV, CH., AT LAURENS, JUNE. 1S59. This rase will be understood from the circuit decree, and the opinion delivered in the Court of Appeals. The circuit decree is as follows: Wardlaw, Ch. Robert Tucker, late of Laurens district, died April 19, 1855, leaving, as his next of kin, a brother, Peter Tucker, of Alabama, and many nephews and nieces, most of whom are absent from the State. On April 24, 1854, said R. Tucker executed a bill of sale of one of his slaves named George, to W. W. Belcher, of Abbeville, reciting a consideration of .$ 1,000, and warranting the title and sound- ness of the chattel; and, on June 13, 1854, he executed a |iaper, purporting to be his last will and testament, whereby he attempted to bestow his whole estate, real and personal, 10 APPEALS IN EQUITY. Belcher vs. McKelvey. upon the said Belcher; and, on the day last mentioned, he also executed a bill of sale of all the slaves remaining in his possession, namely: Ben, Bird, Nancy, Jenny, Letty, Jane and her infant child, absolutely to said Belcher, after reserv- ing to himself the use for life, for the consideration professed of love, good will and affection towards his friend l^elcher, and of |50 received frotn him. After the death of Tucker, an attempt was made to prove his will and testament in due form of law; but it was set aside as a testament by the ordi- nary, and, on appeal to the Common Pleas, by the verdict of a jury, affirmed by the Law Court of Appeals. Hugh Mc- Kelvey became administrator of the goods and credits of said deceased, and was proceeding to sell tlie slaves named in the bill of sale of June 13, 1854, under the order of the ordinary, when, on December 14, 1855, the former bill in the caption was filed for injunction of the sale and for general relief; and, on the ex parte ap|)lication of the plaintiff, an injunction was granted by a Chancellor at Chambers. Afterwards, the second bill in the caption was filed by some of the next of kin of the deceased against the other next of kin and Belcher, for partition of some real estate of which R. Tucker was seized at his death, and for having declared void both of the bills of sale aforesaid, as executed through undue influ- ence, and in violation of the provisions of the Act of 1841 to prevent emancipation, &c. 11 Stat., 154. Defendant Belcher objects to the second bill on the score of multifariousness, as he is impleaded concerning the partition of the land, in which, on the showing of the plaintiffs, he has no interest; but plaintiffs were right in impleading him as to this matter, to ascertain, in disembarrassment of their title, whether he set up any claim as devisee. He does so claim ; and it is plain that an issue in the Court of Law must be ordered to determine this controversy, which has not been determined by the refusal of the ordinary to admit the testa- ment to probate, although affirmed by the Court of Law, and which cannot be adjudged in this Court. Crosland vs. Mur- APPEALS li\ EaUlTY. 11 Columbia, May, 1850. dock, 4 McC, 217 ; Tygart, vs. Peeples, 9 Rich. Eq., 46. As this point must remain open, it is desirable, on the points which are within the cognizance of this Court, dependent on a common state of facts, to avoid comments, so far as practi- cable, which may be prejudicial to either party. Certain facts of the case are proved to my satisfaction, and generally are undisputed. When the bills of sale were exe- cuted, Robert Tucker was about eighty years of age, alio- gether unlettered, and of a mind, originally feeble, impaired by age and disease. He labored under the delusion of being bewitched; and, when he led conversation, he commonly talked of bugs and lizzards running under the skin of his legs, asking his companions if they did not see the vermin. His neighbors dealt with him in small matters of trade, but usually through the agency and under the supervision of some of his slaves. He spoke rationally about the weather and the like topics, but was incapable of extended reasoning. He usually asked high prices when lie wished to sell, and offered low prices when he wished to buy; and, in his small purchases from merchants, he asked for the articles of mer- chandise, but one of his slaves, generally George, would make the selection. He was unmarried, and excessively fond of his slaves and indulgent to them ; indeed, they fared better than he did himself. Some of his relations, as Mrs. McKelvey and John T. Beaufort, were kind to him, and were treated affectionately by him, but he supposed he could give shares of his estate to these only in common with the rest of his kin; and from most of the latter he was estranged, supposing that they envied his pecuniary condition, and waited greedily for his death. His slaves, especially George, had great influ- ence over him, and he anxiously desired iheir emancipation at his death. Of defendant Belcher, he knew nothing what- ever by personal intercourse — although he designates him as his friend — except from the representations of George, in these particulars apparently truthful, that Belcher was a bachelor, a clever man, and the kind master of many slaves. 12 APPEALS IN EaUITY. Belcher vs. McKelvev- I George was a cabinet-maker, and had worked at his trade for some years in the neighborhood of defendant, Belcher, and had there taken as a wife a woman, Rachel, belonging to Williamson Norwood in his lifetime. George was shrewd and intelligent, had been taught to read well, and he enjoyed the confidence of his master, Tucker. On April 24, 1854, he drove his master in a carryall to the house of W. Blakely, Jr., and producing the hill of sale of that date, in Belcher's handwriting, and $900 in bank bills, and Tucker acknowl- edging the previous payment of $100 to him by George, Blakely attested as a witness the mark of Tucker to the bill of sale, and then delivered it to George. At the time, George said that $700 of the money belonged to himself, and that he had borrowed $200 from Belcher, and thereupon Tucker returned $200 to be repaid to Belcher, and Blakely, as Tucker's agent, took possession of $700. About a week after- wards, John Johnson also attested the bill of sale on the acknowledgment of Tucker and Blakely; and George then, in their presence, said he had paid $1,000 for himself, and Belcher was to befriend him. It is supposed that Belcher in his answer means to aver the payment of $1,000 as the price of George, yet the averment is in terms somewhat equivocal. He says " he sent by George the sum of $1,000 " and a bill of sale in defendant's handwriting, and told him to pay the money to Tucker and take a bill of sale in the presence of witnesses — and " that all the money paid for George was his own money, and that no part was the earnings of George." It is not directly inconsistent with this statement, that all the money sent was furnished by George, nor that the money paid was much less than the nominal consideration. He further avers, however, that " when George disappeared, his earnings were not enough by about $300 to replace the sum this defendant paid for him," (is it meant in his pur- chase ?) " which this defendant has never received." At all events, it is considered that defendant was bound to prove his APPEALS IN EaUITY. l:J Columbia, May, 1S59. averment of payment, and that in the absence of proof, he is committed by the admissions of his agent, George. Johnson fnrther testifies that two or three days after he had attested the bill of sale, he was sent for to Tucker's house, when Tucker said, in the presence of George, I wish you to draw a bill of sale to Belcher for my other slaves. I wish my negroes to be free at my death, and not to serve another; and George has told me that Helcher would befriend him and the otiisr negroes by taking them to a free State. Witness said to George, you are Belcher's property, and George replied, I am not afraid; Belcher is too good a man not to do wlmt he has said, and he will contrive a way for my escape. On this occasion, witness did draw up a deed of gift from Tucker to Belcher of the former's land and negroes, and George, from his own money, paid $1 50 for the service; but the matter was not then consummated. George then seemed more interested than Tucker in having the deed drawn, and although witness advised it would do no good, said he wanted it done. Afterwards, in June, the bill of sale and the will were drawn by Mr. Henderson at Laurens C. H., and George was present in the village and near Mr. H.'s office, but probably not within its doors. Oswald Rickardson, an attesting wit!) ess of the deed, tes- tifies to little conversation at the time of the execution, except that Tucker, on being asked by Atwood, why he gave his property to one he had never seeti, replied, that Belcher was a bachelor and a clever man — and afterwards remarked, that the matter was arranged by the papers, just as he wanted it. Joseph Crews testifies, that sometime before the deed was executed, George, in Tucker's presence, frequently said the old man (meaning T.) wished his negroes to be free, and carried to a free Slate after his death, and that his land should be used to defray expenses ; and offered to have such a will drawn in the name of the witness, as legatee; but witness, 14 APPEALS IN EaUlTY. Belcher vs. McKelvey. on reflection, declined. Both Tucker and George counselled witii him about Act concerning negroes hiring their time. He further testified, that he saw George at Mr. H.'s office on the day when the deed was prepared ; and that on same day Tucker bought his burial clothes at store of witness, which were selected by George. It ap[)ears by the admissions of the answer and the testi- mony of M. 0. McCaslan, that George is now in a free Slate, probably in Pennsylvania. I do not understand it to be con- tested tliat George left this State with tlie consent of Belcher, after Tucker's death. The answer of tliis defendant states : " George, whilst in this (xA.bbevilIe) district, had, as already stated, become the husband of a woman," Rachel, " and had become much attached to iier. There were reasons wiiich induced those having tiie ownership or control of this woman !o give their active or tacit consent to iier leaving the State. This defendant has no doubt she did so about April, A. D. 1856, and tliat George went with her. This was not in pur- suance of any understanding, agreement or trust, with Robert Tucker, deceased, but arose solely in consequence of George's relation with the woman alluded to." The defendant else- wliere denies that either of said bills of sale was made under any trust or confidence, express or implied, that the slaves named therein were to be held in nominal servitude in tliis State, or to be emancipated without its limits on removal. For further details of the pleadings and evidence, I refer to the pleadings themselves, to the depositions of witnesses, taken by commission, and to my notes of testimony. The evidence is not sufficient, in my opinion, to demon- strate the absolute incompetence of Robert Tucker, in April or June, 1854, to make contracts, but clearly establishes such imbecility on liis part as to render him an easy subject of imposition and undue influence. Those dealing with him should be held to proof of the fairness of their transactions. There is no pretence of valuable consideration for the deed of June, and although the answer alleges the payment of APPEALS IN Eauri'Y. 15 Columbia, May, 1S59. money for George, no evidence of the payment is made, and ilie liill of sale of April must he treated Hke the other, as a mere vohmtary conveyance. The answer on this point is not responsive, so as to be self-proving. In a recent circuit opinion, in the case of Cloud vs. Cal- houn, I expressed my views as to tlic effect of answers, suggesting matters of independent defence or avoidance. I suppose that a sale on the unlawful trusts mentioned in the second and third sections of the Act of 1841, particularly the latter section, is no less liable to be declared void than a voluntary donation ; although there is more inlluence in a mere gift than a sale in aiding the implication of the trust itself. It is not clear, where the donee is a mere volunteer, that it is not enough to bring the gift within the scope of the Act, that the donor certainly intends an unlawful trust, although the donee may not be fully cognizant of it. If the trust be not executed, the donor is defrauded ; and whether it be or not, there is an attempt to defeat the policy declared by the Legislature in the enactment. It is dilHciilt to con- vert one into a trustee without his consent, and the trust under the Act must always be in the donee, and merely the creation, or attempt at creation, of the trust on the part of the donor; still, a donee, or other person, should not be allowed to lake advantage from the fraud of another, and one may naturally suspect fraud, or purpose to create a trust, when unreasonable and extravagant bounty is conferred on him by a stranger. The conclusion in the present case, however, docs not rest on such doubtlul propositions. The proof satisfies me that George had very great influence with his master. Tucker, which he exercised to produce a violation of the provisions of the Act. George, at least, had full knowledge of the design of his master to create the unlawful trust of remov- ing the slaves from the State, with the purpose of emancipa- tion, and actively co-operated in its creation; and he must be regarded as the agent of defendant, Belcher, in accepting 16 APPEALS IN EaUITY. Belcher vs. McKelvey. such trust as to both bills of sale. This principal is as much responsible for the acts and declarations of his agent, as if done or uttered by himself personally. Evasion of the Act would be as easy as progress in a smooth and broad high- way, if the donee be held committed only by his individual acts. McKelvey, the administrator of Tucker, is one of tiie next of kin of his intestate, and one of the plaintiffs in the cause, and it was faintly suggested that the case is within tlie prin- cii)le of Vose vs, Hannahan^ 10 Rich., 465. Bat McKelvey is a necessary party, and sues as one of the next of kin, in conjunction with others, and not in his representative character. It is also said that the Act applies only to cases where the slaves abide within the jurisdiction of the Court. But George was converted to the use of Belcher after the death of intes- tate, and having been permitted to escape from the State, this defendant must be held to account for his vahie. It is adjudged and decreed, that the gifts of the slaves, in the bills of sale of April and June, 1854, are void and of no effect, and that defendant^ Belcher, be held to account for the value of George, for the benefit of R. Tucker's distributees — it being understood that the other slaves, or their proceeds, are within the control of some of these distributees. It is also ordered and decreed, that the bill of Belcher vs. McKelvey, the first in the caption, be dismissed. It is also ordered that an issue be made uj) forthwith between the parties, in which W. W. Belcher shall be the actor, to be tried in the Court of Common Pleas for Laurens district, to test the validity of the devise of land to him by the supposed will of June, 1854; and that, in the mean- time, so much of the second bill, as relates to the partition of land, be retained. W. W. Belcher appealed on the grounds: 1. Because there was no trust or confidence tending to APPEALS L\ EaUITY. 17 Columbia, May, 1S59. emancipation of the slaves, in contravention of the Act of the General Assembly. 2. Because in no event should he be held to account for the value of the slave George, who was bona fide sold by the intestate in his lifetime. 3. Because the decree, if sustained by the testimony, is based upon the declarations of the slave George, which were wholly incompetent. 4. Because the decree was contrary to the testimony and the equities of the parties. Thomson, Henderson, for appellant. Young, Simpson, contra. The opinion of the Court was delivered by DuNKiN, Ch. It is proposed first to consider the imputed error of the decree in rendering the appellant accountable for the value of the slave, George. It appears that, on 24th April, 1854, the intestate executed a bill of sale of George to the defendant for the consideration of $1,000. The bill of sale was in the handwriting of the defendant, who resided in Abbeville district, — contained a warranty of title and soundness, and was executed by the intestate under his hand and seal, in presence of attesting witnesses. George passed immediately into the possession of the defendant, with whom he remained for about two years thereafter; and dis- appeared, to wit: about April, 1856, in the manner stated in the evidence. These proceedings on the part of the next of kin of the intestate were instituted 1858, and it is, among other things, substantially and directly charged, that, although the bill of sale of April, 1854, was for an apparent valuable considoratio:i, yet the money on that occasion paid to the intestate, was, in fact, his own money, being the earnings of his slave George placed in the hands of the defendant for that purjiose ; and that a secret trust existed, that George 3 18 APPEALS IN EaUITY. Belcher vs. McKelvey. was to be emancipated by the defendant, or held by him in nominal servitude. The bill calls upon the defendant to answer upon oath, all and singular the matters charged. Thus interrogated, the defendant answered that he did pur- chase George at the time mentioned — that he made the pur- chase at the request of George, who desired that the defendant might be his master, because he, George, would be near his wife who lived in that neighborhood — that he, the defendant, sent the bill of sale, drawn by himself, with the sum of one tiiousand dollars, to be paid to the intestate by whom the bill of sale was to be executed — the defendant avers that all the money paid for George was his own money, and that no part was the earnings of George — that, from the time of the execution of the bill of sale, George remained with the defendant as his master, and that there was no trust, or con- fidence, when the defendant became the owner of George, that he should be held in nominal servitude, or should be emancipated. By the decree of the Circuit Court, it is held that this answer of the defendant in relation to the payment of the consideration, is "somewhat equivocal." " But that, at all events, the defendant was bound to prove his averment of payment." And again, it is held that, "although the answer alleges the payment of money for George, no evidence of the payment is made. The answer on this point is not respon- sive, so as to be self-proving; and the bill of sale of April must be treated as a mere voluntary conveyance." The existence and the exigency of the general rule of this Court is not called in question, to wit: that the answer of a defendant responsive to the charges of the bill, should, in general, be taken as true unless contradicted by two wit- nesses, or one witness, and strong corroborating circum- stances. But the Chancellor rests his decision on the dis- tinction, recognized by the Court in Cloud vs. Calhoun, 10 Rich. Eq., 358, that the answer has not this effect when "suggesting matters of independent defence or avoidance." The distinction, though not so familiar as the rule, is certain- APPEALS IN EaUITY. 19 Columbia, May, 1SG9. ly well established as well in reason as by authority. A de- fendant, charged with the receipt of a sum of money, and by his answer admitting the receipt, cannot exonerate himself by an averment that he had paid it to the plaintiff's use. But to a majority of this Court, it seems a misapprehension to hold, in this case, that " the defendant was bound to prove the payment of the consideration money." As against the intestate and all claiming as volunteers under him, the bill of sale of 24th April, 1854, under the hand and seal of the intestate, stands for proof, until successfully assailed. The amis of proof is on those who maintain that the deed speaks other than the truth. To establish this, the plaintiffs, by their bill, undertake to purge the conscience of the defendant, and require him to answer the charge that the money paid was not, as the bill of sale purports, his (defendant's) money, but was the earnings of the slave of the intestate, and conse- quently, in law, the intestate's own money. When the de- fendant replies to this, that "all the money paid for George was his own money," and, not content with this, adds, " and that no part was the earnings of George," il> appears to the Court a direct and categorical response to the charge of the bill in that behalf, and entitles the defendant to the full benefit of the effect of an answer in such cases. Giving to the defend- ant the advantage of this rule, he stands as a purchaser for valuable consideration under the bill of sale, 24th April, 1854. The intestate received, in his lifetime, the value of his property. The defendant explicitly denies any fiduciary relation, express or secret — and the Court is not aware of any principle by which the defendant, under these circumstances, can be held responsible for the value of George to the next of kin of the intestate. The deed, 1.3th .lune, 1854, by which the intestate trans- ferred seven slaves (by name) to the defendant, stands on a different footing. |Il was manifestly voluntary — made to a perfect stranger — and a life estate was reserved to the donot. It was executed on the same day that he attempted to mak' 20 APPEALS IX ECIUITY. Belcher vs. McKelvey. a testamentary disposition of his whole estate, real and per- sonal, in favor of the same donee. The testimony abun- dantly establishes that the object of the donor was to contra- vene the provisions and defeat the policy of the Act of 1841. By the terms of that Act all such efforts are made to enure to the benefit of the next of kin of the donor, but the object of the Act is the protection of the public. And I share in the apprehension of the circuit Chancellor, that the purposes of the Act might easily be frustrated if it were necessary to bring home to the knowledge of the voluntary donee the unlawful designs of the donor. In the analogous case of a voluntary deed in fraud of creditors, it is not necessary to establish the scienter on the part of the donee. In Story's Eq., § 351, the authority of Pothier and other civil law writers is cited for the doctrine applicable to this class of cases. It was the rule of the civil law to avoid all alien- ations or other dispositions of their property made by debt- ors to defraud their creditors. Hence all such dispositions were annulled, whether the donee knew of the prejudice intended to the creditors or not. In the language of Pothier, the inquiry is not whether he, to whom the gift was made, knew of the intention of the donor, but only whether the creditor was defraitded. The voluntary donee has no cause of complaint except that he is not permitted to enjoy that which the donor had no right to give away. But it is ditlicult to infer a want of knowledge on the part of the defendant. The design of the intestate is clearly established. Shortly prior to June, 1854, he had executed a deed of the same character to another person (Johnson), which was after- wards returned to him, declaring, at the time, that his wish was " to have his negroes free and not serve after his death." And, again, the witness, Crews, says that, some time before the deed, George, in presence of intestate, said " the old man wished the negroes free, and carried to a ]^"ee State after his death, and land to pay expenses ;" and George offered to have a will made in his (witness') name. That he (the wit- APPEALS L\ EaUlTY. 31 Columbia, May, 1S59. ness) had some idea of accepting the offer at first, but, on reflection, declined. Then, on the same day, the intestate executed a will, by which he devised and bequeathed his land and slaves to the defendant, and executed this deed by which he transferred to him the slaves only. The defendant was an entire stranger to him. He had heard that " he was a bachelor and a clever man." All this proves the purpose, as well as the expectation, of the intestate in executing the papers. Can it be doubted that the defendant, hearing of this unexpected bounty on the part of a perfect stranger, was put on the inquiry, and that his inquiries were satisfied? It does not clearly appear, from the evidence, to whom the deed was delivered for the defendant, nor from whom he received it. It probably came to him through the hands of George. But the answer of the defendant in relation to the will, which was a part of the same transaction, is a clear admission of the defendant's fiduciary relation in some way, " This defend- ant was impressed with the idea that a confidence was reposed in him by the said Robert Tucker, deceased — that there was a duty incumbent upon him which it would be sheer weak- ness to decline — that it would be equivalent to a betrayal of a trust." And that, under this impression, he had taken the necessary steps to test the validity of the will, which had, as to the personalty, terminated unsuccessfully. On the face of the will, as well as of the deed, the gift of the property to the defendant was equally absolute and unconditional. It was the secret " confidence" which the defendant " had an idea was reposed in him" by the donor, and " which it would be equivalent to a betrayal of trust to decline," against which the various provisions of the Act of 1841 were directed, and which rendered the deed void. If the conduct of the intestate had been entirely sponta- neous, such would be the conclusion in relation to the validity of this instrument. But he was about eighty years of age — exceedingly feeble in mind and body — very much under the influence of his slaves, especially of George, who was shrewd 23 APPEALS IN EaUITY. Belcher vs. McKelvey. - and intelligent. Without recapitulating the evidence detailed in the decree of the Chancellor, his conclusion is well sus- tained, that " it clearly established such imbecility on his part as to render him an easy subject of imposition and un- due influence," and the inference is strong, from many parts of the testimony, that the influence of his slaves was mani- fested in the concoction of the instrument providing for their benefit. For the reasons hereinbefore stated, we are of opinion that the defendant was not accountable to the distributees of Robert Tucker, deceased, for the value of the slave, George; and that, in this respect, the decretal order of the Circuit Court should be reformed, and it is so ordered accordingly. In all other respects the decree of the Circuit Court is affirmed and the appeal dismissed. Johnston, Ch., concurred. Wardlaw, Ch., said: I doubt as to the effect given to the answer, and as to the bill of sale for George ; I concur in other respects. Decree modified. APPEALS IN EaUITY. 23 Columbia, May, 1859. RiCHAUD G. Howard tjs. Robert R. Cannon and others. Injuncti07i — Jurisdiction — t'lbsent Defendant — United States Court. An absent defendant, having; an interest under an assignment for the benefit of creditors, may be restrained by injunction from enforcing his jiid a recognizance to keep the peace before W. J. Ganti, a magis- trate, himself in the sum of $1,500, with seven sureties, each in the sum of |250, and was discharged from imprisonment. He was brought back in three or four days afterwards by L. C. Craig, one of his sureties, and surrendered to the clerk, who took him to jail without new warrant, and he remained in confinement until he executed the deed, when he was dis- charged on his own recognizance by Keith. Throughout the imprisonment, W. L. Keith frequently and strongly urged Kirksey to make a deed of trust for the benefit of his family, and, until this purpose was effected, obstructed his enlarge- ment as far as practicable. He dissuaded Mr. Parsons, now ordinary, and Mr. Hagood, now clerk, who were inclined to become Kirksey's sureties in a recognizance for his good behavior, from interference in his behalf until he should exe- cute the deed, insisting that the sum of the recognizance should be .^5,000, at least, and threatening to prosecute for estreat in case of any breach ; promising, at the same time, to discharge the prisoner on his own recognizance, if he would execute the deed. He induced Sheritf Hryce to with- draw an indulgence he had granted to the prisoner on account of failing health, of changing his cell in the upper story of the jail to the lower room, saying that if Kirksey were confined he would make the assignment as he ought to do; and he said to the Sheriff when the deed was executed, that Kirksey would have made it before if he had been kept in the upper cell. Kirkrcy at first refused to execute the deed, declaring he wt)ul(l ratlu'r rot in jail, hut after his Fiealth had sufl'ered, he said to the Sheriff, I will do anything that is right to get out of jail, as the infernal place will kill me. This was reported to Keith, and he took the deed which had been previously prepared, to the jail, and read it to Kirk- sey, who assented to its provisions; and the parties pro- ceeding to the Clerk's oflice, the deed was executed there in the presence of the Sheriff and P. Alexander, as attesting :>() APPEALS IN EaUlTY. Kirksey vs. Keith. witnesses, while Kirksey was sober, and he was then set at large on his single recognizance. This is dnress in its most reprehensible form, namely: under color of law by one of its ministers. This Court, however, cannot give damages for the tort of Keith, and he takes no pecuniary interest under the deed which can be reached. After the arrest, plaintiff and his wife lived apart for about nine months, but their cohabitation was then resumed and has since continued. If the plaintitf had made timely application to this Court, he might well have been entitled to the relief sought, of hav- ing the deed declared void, but his laches creates an obstacle seemingly insuperable. He acquiesced in the instrument for more than the statutory bar of four years after the duress had been removed, without clamor or suit. As to the chil- dren who are infants and take beneficially under the deed, it can hardly be controverted that the Court is bound to inter- pose this bar in their behalf, for the formal answer of infants, submitting their rights to the protection of the Court, is never interpreted as waving any proper defence, which should be made for them ; and I think one under the disability of cov- erture is entitled to the same protecting interposition of the Court, where she has waived no right by separate answer put in under leave of the Court, nor on private and separate examination, and she is committed only by an order pro co7ifessn entered lor lack of answer. Such order should be rarely, if ever, entered against a married woman sued sepa- rately, unless in case of great contumacy on her part in refusing to make any defence; and certainly her defence, disclaimer or surrender, is most regularly made by answer filed on leave of the Court. It is said, that whenever a hus- band as plaintiff sues his wife as a defendant, he elects to treat her for the purposes of the suit as a fejne sole, and she may answer as a feme sole without leave of the Court. Sto. Eq. PI., sec. 17. But this privilege of the wife is not to be turned to her disadvantage, nor is she to be construed as admittins whatever slie forbears to answer, it is at least APPEALS IN EanrV. :37 Columbia, May. 1S59. certain that it is in ihe discretion of the Chancellor to deter-' mine what evidence shall be required to prove the demand of a bill taken j^ro confcsso. Steam P. Co. vs. Roger, riiev. Eq.. 48. And I am not content in this case wilh llio cvidoiKn-! (^t the wife's waiver or surrender o{ her interests under th-truments contains |;rinciples very different from those affecting the validity of sealed instruments. It is not very unusual for merchants to draw bills, payable to their own order, and then transfer them by endorsement, and it is common for banks to take checks, payable to the drawer or bearer, when the drawer comes to receive his own funds. But the authorities would seem to be very strong. In Chit. Jiin., on Bills, at page 7, it is laid down as familiar law, that "The bill may be made payable to the drawer or to a third person. It is not essential that either should be named, provided the bill be made pay- able to the order of the drawer (when in effect it is payable to him) or to bearer," and at page 22, it is said, these observations "are equally applicable to promissory notes." To the same effect, sec Story on Prom. Notes, g 34, 36, 39 ; Chit, on Bills, 83 j Byles on Bills, 5, and Amer. Notes. 84 APPEALS IN EaUITY. Keith vs. Keith. The defendants appealed, and now moved this Court to reverse the decree. Harrison, for appellants, cited Devore vs. Munday, 5 Strob., 15; Tulen vs. Ryan, 1 Sp., 240. Reed, contra, cited Glenn vs. Caldwell, 4 Rich. Eq., 168. The opinion of the Court was delivered by DuNKiN. Ch. In 1849 or 1850, the petitioner loaned to the late William L. Keith the sum of |200, for which he gave him his promissory note, payable with interest. The note being unpaid and nearly out of date, the petitioner, in March, 1854, sent his brother to the maker for the purpose of obtain- ing payment, or procuring from him a renewal of the note. William L. Keith, on this application, gave to the agent of the petitioner a new note, bearing date 27th March, 1854, for $209 55, payable, with interest, one day after date, to the said William L. Keith, or bearer. Upon receiving this note, the plaintiff's agent delivered up to the said William L. Keith the original note. William L. Keith died in 1856; and the defendants are executors of his will. The note remaining unpaid, and the plaintiff, being advised that, in consequence of the form of the note, he could maintain no action at law, filed this petition to obtain payment, and a decree was made accordingly. From this judgment the defendants appealed on the grounds: 1. That the note 27ih March, 1854, was void in law. 2. That the plaintiff has a plain and adequate remedy at law, if entitled to aid in any jurisdiction. The first proposition, has the authority of Glenn vs. Sims, 1 Rich., 34, which was also recognized in Devore vs. Munday, 4 Strob., 15, where it was ruled that, on a promissory note, payable to the maker or bearer, the holder could maintain no action at law against the maker. But, in the principal case, APPEALS IN EaUITY. 85 Columbia, May, 1859. {Glenn vs. Sh7is,) the Court, after adverting to the reason of the rule, proceed to say that "in all such cases the proper relief is administered by the Court of Equity, which has power to proceed upon the original contract; while this Court is confined to the written form to which such contract has been reduced." Accordingly, upon application to the Court of Equity, ample relief was aflbrded to the plaintiff, as will be seen in the report of the case under the title Glenn vs. Caldwell, 4 Rich. Eq., 16S. It is ordered and adjudged that the decree of the Circuit Court be aflirmed, and the appeal dismissed. Johnston and Wardlaw, CC, concurred. Appeal dismissed. 86 APPEALS IN EaUITY. Rees vs. Rees. Jane E. Rees and Magdaline Rees, by next friend, vs. Wilson Waties Rees. Testamentary Paper — Advancements — Mother — Grand-son. A paper writing by a mother, saying, " I wish all I possess in this world to belong to my dear son W., and his heirs forever, both personal and real ; and everything in my press and wardrobe to my dear sister M., and to take all she wishes of my things ; my diamond ring and little watch to K. ; my large watch (that was my dear son's) to my grand-son J." Held to be testamentary and void^ for want of attestation. The provision in the Act of 1791, in relation to advancements, applies as well to gifts made by a mother as to gifts made by a father. Where a parent having a son, and a grand-son, issue of a deceased child, makes a gift to the son, it will be treated as an advancement in favor of the grand- son. Where a parent holds a bond against her son, and destroys the bond, intending to discharge the debt, it will be an advancement to the amount of the bond. Whether propeity given by a parent to her son shall be considered an advance- ment, is not a question of intention — no matter what the parent intended, if she leaves no will, it will be considered an advancement, if otherwise proper to be so considered. BEFORE DUNKIN, CH., AT SUMTER, JUNE, 1858. The decree of his Honor, the Circuit Chancellor, is as fol- lows: DuNKiN, Ch. Orlando S. Rees departed this life in April, 1852, intestate. His heirs-at-law and distributees were his widow, Mrs. Catharine Rees, and his two sons, Wm. James Rees, and Wilson Waties Rees, the defendant — the last named having become administrator. Early in July, of the same year, Wm. James Rees also died, leaving the plaintiff, Jane E. Rees, his widow, and her co-plaintiff, Magdaline Rees, his only child. By his will he had devised and be- queathed his whole estate to his widow. Soon after the decease of Orlando S. Rees, and probably in May or June of APPEALS IN EaUITY. 87 Columbia, May, 1S.'39. that year, Mrs. Catliarine Rees, his widow, went to reside MMth her son, W. Waties Rees, the defendant, with whom she continued to reside until her own death. Prior to 24th Janu- ary, 1S53, a partition was made of the estate, real and per- sonal, of Orlando S. Rees, deceased, among the parties above entitled to the same. On the day last mentioned, the parties executed a formal instrument, confirming tiie partition, and and making a settlement of the estate. In the partition of the real estate, a tract of some one thousand nine hundred and eigty-two acres was allotted to Mrs. Catharine Rees and the defendant, to be held in common. The slaves were allotted to each in severalty. The field negroes of Mrs. C. Rees worked in common with those of her son, and the house servants were employed in domestic duties. The appraised value of Mrs. C. Rees' negroes was $8,92G. On the 17th December, 1854, she sold a portion of these slaves to her son, the defendant, for §5,8.51, (a value fixed by appraisers, called in for the purpose,) and took his bond for the purchase money. On the 22d January, 1855, Mrs. Catharine Rees died intestate, and letters of administration on her estate have been granted to the plaintiff, Jane E. Rees. Her heirs-at-law and distributees are her son, the defendant, and Magdaline Rees, an infant, the plaintiff, being an only child of William J. Rees, who pre-deccased his mother, the intestate. These proceedings were instituted 2Gth April, 1858. The prayer of the bill is, among other things, for an account of the estate, real and personal, of the intestate, and for a partition and settlement of the same. In reference to the real estate, no doubt can exist as to the right of the infant plainlifTto one moiety of the intestate's interest. But the defendant submits, in his answer, thai her interest was not a full moiety of the one thousand nine hundred and eighty-two acres, and he resists any accounts for rents and profits, alleging that he cul- tivated no more than his pro]iortion. No account is sought prior to the dc^ath of the intestate. But, on these matters of the answer, [)roof must be m.ide before the commissioner to S8 APPEALS IN EaUlTY. Rees V.I. Rees. whom the subject is referred. The bill states, that for some years prior to the decease of the intestate, her son, the defend- ant, was her confidential agent, and had the management of lier affairs, and at her decease her personal estate remained in his possession. The answer of the defendant is fall and explicit. He says, that after his mother sold her own resi- dence, " she removed to his house, and from that time his mother and his family lived in common at his residence, which had been given him by his father, and all the negroes were on his plantation, and under his control. He cultivated a portion of the one thousand nine hundred and eighty-two acres, &c., and he provided for all the expenses of the house- hold." He admits the possession of the negroes after his mother's death, but says " he knows of no other chattels belonging to the intestate, except said negroes, the contents of her ward- robe, and such articles of value as she made gifts of, in manner thereinafter stated." He mentions, that after the death of the intestate, he paid debts of hers to the amount of about $300. In reference to his bond of $5,851, he says, "he never expected to pay the principal, for that it was understood between his mother and himself that he should punctually pay her the interest, and she would not exact the principal; and he is informed that she directed the bond to be destroyed, or given up to him, but that he never had pos- session of it." The defendant further states, that after the decease of his mother, he retained possession of all her personal property, except the gifts, of which a memorandum had been made, and which were in custody of his aunt; and the defendant submits whether, under the state of facts, (which he recapit- ulates,) he is bound to deliver the property to the adminis- tratrix. His answer thus states these facts on which he relies: "Defendant avers that iiis mother repeatedly told him that what she had would be his, and his only, and he was informed, and believes, that on one occasion when the mak- APPEALS IN EaUITY. 89 Columbia, May, 1859. ing of a will was suggested by a friend, and declined, and on another occasion, in the fall before her death, she called upon her sister to bear witness that she meant this defen(3ant to keep all her property." The defendant then adverts to a paper prepared by the witness, Miss Mary VVaties, on the day before the decease of the intestate, to wit: 21st January, 1S55, and signed by the intestate. The paper is in these words: "I wish all I possess in this world to belong to my dear son, W. W. Rees, and his heirs, forever, both personal and real; and everything in my press and wardrobe to my dear sister, Mary Waties, and to take all she wishes of my things; my diamond ring and little watch to Kate Waties; my large watch, that was my dear son's, to my grand-son, William James Rees. January 21st, 1855. (Signed) C. Rees." In reference to this paper. Miss Waties says: "The day before her death, she spoke to me of some of her wishes as to the disposition of some of her property, and I wrote down her wishes as she expressed them — in substance, the same as the paper set out in the answer. She signed that paper. In reference to the bequest to her son, Waties, (the defendant,) she said at the time, ' But what is the use of say- ing that, for everything is his?' \Sniile these wishes were being expressed, I ased her if she did not wish to leave something to her grand-child, the daughter of htr son, Wil- liam. She replied, 'Yes,' and designated a desk, which was in the room, but added, * Y^ou can give her that.'" The witness afterwards stated that all the articles specifically mentioned in the ])aper were in her room, in her wardrobe, desk, &c., of which the witness had the keys. The intestate told her to give the paper to the defendant. The answer of the defendant, the entire testimony of Miss Waties, and the acts of the parties, present the circumstances up(»n which the defendant relies to establish a gift of the slaves by the intestate to himself. Putting aside, for the present, the paper, 21st January, 1855, the evidence of gift depends on the declarations of the intestate, as proved by Miss Waties. 90 APPEALS IM EaUlTY. Rees vs. Rees. Such declarations, especially as between parent and child, may be very significant and positive, or they may be wholly equivocal. In Murdoch vs. McDowell, 1 N. & McC. R., 237, Judge Nott says: "The consummation of every /?«ro/ gift is delivery. There must be an actual transmutation of posses- sion and property, and the real question in all such cases is, whether the donor has parted with his dominion over it." The repeated declarations of the intestate to the witness were, that " all she had was Waties'." In speaking to the witness on the above subject, that of everything being Waties', she several times said to her, "You can bear wit- ness to that." Both before and after these declarations, (and they were made in various forms,) the negroes were in the field, or about the house, as they had been, from the time of the removal of the intestate to the residence of her son. Do these declarations furnish evidence of transmutation of pos- session and property in the slaves, from the intestate to her son ? Do they afford evidence that she had already parted with iier dominion over them, or was it only another mode of expressing what her son says she repeatedly told himself, "that what she had would be his, and his only." Miss Waties does not fix the time of the declarations, but refers to them as frequently made during the two years and upwards that she was at the defendant's. But the defendant, in his answer, relies on a particular conversation in the fall before her decease, when she called on her sister (Miss W.) " to bear witness that she meant the defendant to keep all her property." This was the fall of 1854, and the intestate died 22d January, 1S55. In the fall of 1S54, she was the propri- etor of all the slaves allotted to her in the partition and set- tlement of January, 1853. But the defendant says, in his answer, that on the 17th December, 1854, he purchased from his mother eleven of these slaves for $5,851, took from her a bill of sale, and gave her his bond for the purchase money. These negroes had been appraised by three gentlemen of the neighborhood, called in for the purpose by the defendant APPEALS IN EaUITY. 91 Columbia, May, 1859. and his mother; one of the appraisers (W. E. Richardson) was examined, and said that ho, at the same time, at the request of Mrs. Rees, assessed tiie hire of Hannah, a negro still helonging to Mrs. R., and in defendant's possession, at $75. It seems superflnous, then, to say that, until about a month previous to the death of the intestate, no gift had been made, but that the intestate continued to exercise the usual acts of dominion which belong to the proprietor. Between that time and her decease, there is no otlier mate- rial circumstance, except the paper, 21st January, 1855, and the matters which attended it. Tliat paper is wholly testa- mentary in its character. The witness, who prepared the paper, says the expressions are her own, and not those of her sister — that her sister expressed no wish to make a will, &c. The form of expression is not material; it is the declaration by her sister (the intestate) of the disposition which she desired to be made ufler her decease. This declaration she had a perfect right to make; but in order to give validity to the act, the law has prescribed particular forms to be ob- served: "I wish all that I possess, both real and personal, to belong to my son." This is not a gift i7iter vivos — it is not supposed that it constitutes donatio causa inortis of the property comprehended with those terms; on the contrary, signed by the intestate, it is a perfectly valid devise and bequest of all her real and personal estate, wanting only the attestation of witnesses; whatever she may have done with the paper after it was signed, it was only for the preservation and safe-keeping of the memorandum of tlie disposition she desired to be made when she should be no more. She had made no transfer of the property. She declined to make a will. "What is the use of a will, when everything is Waties'," and everybody must know that. The meaning of this is, "no one will dispute Waties' right." The intestate not being sutlicienily mindful that the only one qualified to dispute his right was an infiint of tender years, who knew nothing, who could consent to notl.'ing, and against whose 92 APPEALS IN EaUITY. Rees vs. Rees. rights nothing could be presumed. When she ceased to live, the law cast on that child the right to one moiety of her estate. The proceedings are instituted to ascertain the extent of her (the infant's) right. No evidence has been afforded of any valid gift of the land and negroes in the possession of the defendant, and the imperfect effort of 21st January, 1855, while invalid as a testamentary disposition, confirms the inference, that none other had yet been made. The articles of which Miss Waties had the possession and control were never in the possession of the defendant, nor had he the right of possession. It may be that they have been very properly delivered to the several parties for whom they were intended. Jt is only necessary now to determine that the defendant is in no manner accountable for them. The evidence of Miss Waties shews very satisfactorily, that the bond of the defendant to the intestate for $5,851, was given up and destroyed by her directions. It is a gift to him of so much money. The Act of 1791 provides : that nothing therein contained shall be construed to give to any child of the intestate a share of the estate where such child has been advanced, by the intestate, to an amount equal to the share of another child. But if the advancement is not equal to the share of another child, then so much of the estate of the intestate shall be distributed to such child as shall make the estate of all equal. The rights of the parties are fixed at the death of the intestate. McLaw vs. Blewitt, 2 McC. Ch., 105. It was ruled in Hamer vs. Hamer, 4 Strob. Eq., 124, that a child who has been advanced, is not compelled to bring such advancement into hotchpot unless he claims some further share of the estate of the intestate. It is ordered and decreed, that the defendant account to the administratrix of Catharine Rees, deceased, for the hire of the slaves of the intestate, from the time of her decease, and that in such accounting he be allowed for any debts of the intes- tate paid by him, and that the commissioner state the result of such account. APPEALS IN EaUlTV. 93 Columbia, May, 1S59. It is further ordered and decreed, that the commissioner take testimony and report npon the vahie of the estate, real and personal, of the intestate, at the time of her decease, with Hberty to report any special matter preparatory to a final order for the settlement of (he estate. Parties to he at liberty to apply for any other and further order which may be neces- sary to carry this decree into etlect. TESTIMONY TAKEN BEFORE THE COMMISSIONER. Miss Mary TVaties, sworn on behalf of defendant. — After the death of Col. 0". S. Rees, Mrs. Catharine Rees went to her son (the defendant's) to live with him. Col. Rees died in April, 1852, and she went to live with her son in May or June. She had sold her former residence. She carried her house servants with her to her son's. The defendant lived on a place of his own, adjoining the plantation of his father's estate; and the negroes of Mrs. Catharine Rees were worked by the defendant, together with his own, on the estate place. Her negroes were few in com- parison with the defendant's. Her portion of her husband's estate would not have been sulficient for her support, accord- ing to her former mode of life, unless she had lived with her son. The negroes of Mrs. Catharine Rees (other than her house servants) were under the control of the defendant, and worked by him in common with his own, after she went to live with her son. She sold some of her negroes to the defendant. Several gentlemen appraised the negroes, and the defendant executed a bond to her for the amount of the appraised value, which was over ^5,000. That bond was given by Mrs. Catharine Rees to me, she saying as she did so, "This is Waties', give it to him; put it away for him." I did put it away, and she never saw it again. After that, and before Mrs. C. Rees' last illness, she said to me, " You have that bond ?" I said, " Yes." She said, "Give it to Waties or burn it." I had kept Mrs. C. Rees' keys and all her papers. I have heard her speak in this manner while she 94 APPEALS IN EaUITY. Rees vs. Rees. lived with defendant. That she was living with her son. That all she had was his. She never ordered any of her servants about. He exercised control over them. I have heard her speak so often. In her last illness, Mrs. C. Rees spoke to me about the bond. She asked: " You gave it to Waties, or burnt it?" I bowed my head in affirmation, saying: " I have done as you desired" I had burnt the bond. I was present at the exe- cution of the bond and the bill of sale of the negroes from Mrs. C. Rees to defendant. When Mrs. C. Rees spoke in connection with " Waties," she had reference to her son, the defendant. On one occasion previous to her death, Major Anderson had suggested to her to make a will, which had disturbed her. When I came in, she spoke to me about it, and said: "What is the use of my making a will when everything is Waties', and everybody must know that?" She spoke emphatically. All of Mrs. Rees' property was then in defendant's possession. In speaking to me on the above subject, (as to everything being Waties'), she several times said to me: " You can bear witness to that." The day before her death she spoke to me of some of her wishes as to the disposition of some of her property, and I wrote down her wishes as she expressed them, — in substance, the same as the paper set out in the answer. She signed that paper. In reference to the bequest to her son Waties, she said at the time: "But what is the use of saying that, for everything is his?" While these wishes were being ex- pressed, I asked if she did not wish to leave something to her grand-child, the daughter of her son William. She replied : "Yes;" and designated a desk which was in her room, but added: "You can give her that." This conversation arose by her expressing a wish to give me those things which were in her room; and, as there was no one in the room, through deli- cacy I wrote her wishes down. She had said to me: " Every- thing belongs to Waties;" and, when I wrote that paper, I commenced it with the bequest to the defendant. The words APPEALS IN EaUITY. 95 Columbia, May, 1S09. in that paper were mine; it was written at my sni^gestion and not hers, and I don't remember that I read it over to her before she signed it. When siie signed it, I gave it to her. She said: "Give it to Waties." I said, you do it; and she put it under her pillow. She afterwards gave it to me, and she told me to give it to defendant. That paper contains a correct memorandum of what her wishes were. She expressed no wish to make a will. All the articles specifically men- tioned in that paper were in her room, — in her wardrobe, desk, &c., of which I had the keys. When she told me what she wanted me to have, and I suggested writing it down, she said : " What is the use, the things will be done; Waties will do it," or words to that effect. She had often previously and then said : '* Everything is Waties'." " I give everything to him." "Everything belongs to Waties." X. — I burned the bond before Mrs. Rees' death. Mrs. Rees' negroes v/orked on land of her husband's estate, which had been assigned to her and defendant. The negroes received by Mrs. Rees from her husband's estate, continued to be worked on those lands up to the time of her death, in common with the negroes of defendant. At the time when the paper spoken of was executed, Mrs. Rees said: "1 give everything to Waties." "Everything is Waties'." She had often before said: "I give everything to Waties." I told defendant of that paper before her death, but I don't remem- ber whether I irave it to him before her death or not. XX. — The negroes worked on the plantation, as referred to in the foregoing testimony, were under the defendant's control. All the negroes received by Mrs. Rees from her hus- band's estate were under defendant's entire control; and it was while they were under his control that she used the expression, " Everything is Waties'," &c. (It is conceded by plaintiffs that there is no claim in this case for furniture.) When that paper was drawn up, I had no idea, nor do I 90 APPEALS IN EaUITY. Rees vs. Rees. think Mrs. Rees had, that she was making a will. It was simply a paper indicating her wishes. The defendant appealed on the gronnds: 1. Becanse the evidence conclnsively established a gift, inter vivos, of the negroes to the defendant by his mother; and his Honor, it is respectfully submitted, should have so decreed. 2. Because the paper writing of 21st January, 1855, recited in the decree, was not, under the circumstances detailed in the evidence, testamentary. 3. Because the defendant should not be required to account for the bond as an advancement, for the following reasons: I. Because the law in relation to advancements applies only to fathers and not to mothers: when, therefore, a widow makes a gift to her son, he is not required to bring it in as an advancement. II. Because, where there is but one child, and the issue of a pre-deceased child or children, such child is not required to bring in, as an advancement, a gift made to him, after the death of the parent or parents of the issue. III. Because, where a child owes a parent a debt by bond, and the parent destroys the debt by destroying the bond, it is no advancement. IV. Because the evidence shows, conclusively, that the defendant's mother never intended that he should account for the bond as an advancement ; and the decree, therefore, defeats her manifest and oft repeated purpose and intention. 4. Because, if the gift as to the negroes should not be sus- tained, the defendant should not be required to account for hire before the filing of the bill, there being no demand prior to that time. Sumter, for appellant. The evidence of Miss Waties, and the answer of the defendant being taken as true, and the signature of Mrs. Rees as genuine, they present the whole case, under the same APPEALS IN EaUlTY. 07 Columbia, May, 1859. impression, as in the Court below, Gee vs. Hicks, Rich. Eq. Ca., 5 ; and present two questions, what do they mean in fact? what is their vahie in law ? The declarations of the witness must refer to the time of the appraisement, the visit of Mr. Anderson, the execution of the bond and of the paper, and cannot be referred back further tiian the appraisement, and inchide a period com- mencing with the Fall, and the words of the gift, importing the consideration of her support, imply that it had been paid, and that she was satisfied with it. The answer, in respect to the time, is precise, and consistent with the evidence. In the Fall of 1S54, she communicates the intention of bounty; on 22d November she has negroes appraised to $5,851 ; on 16th December she took defendant's bond for that sum, the interest to be j)unctually paid, the principal remitted. What is said of Hannah turns upon a mistake; is founded on the idea that there was a hiring of one, after a gift of the whole; but Hannah was never hired ; the appraisement and sale (as it is called) were not cotemporaneons. The formal transac- tions between defendant and his mother, the sale (so-called) being mode and part of the gift, took place more than three weeks after the appraisement. Mr. S. commented on the probable motives for adopting this mode of gift. Intestate carried out, in her own way, the intention of bounty com- municated to defendant, in the Fall, reserving only the in- terest of the money, and it was to this state of facts that she called her sister to bear witness, in a conversation with her and defendant, immediately after the visit of Mr. Ander- son, and to this state of facts she referred when, through the delicacy of the witness, she was to put in writing some small gifts \n her, and said, in reference to the bequest, as it is called, to her son, "what is the use of saying that, for every- thing is his." The whole intention of that paper, it is sub- mitted, is misconceived; it is supposed to be an imperfect effort to make a will, when in making it she recognized the interest as already vested in him, and confirmed it, not only 98 APPEALS IN EaUlTY. Rees vs. Rees. by the paper, but by getting his assent to the minor gifts, which was the object of its delivery. The inference, from the "imperfect effort," that no disposi- tion had yet been made, cannot be reconciled witli the evidence — the giving again, as a final act, what has before been given, is common, and inconclusive. The words, " what is the use of a will when everything is Waties'," are supposed to mean that no one will dispute Waties' right; but, it is respectfully submitted, what is the meaning of this testimony ? " When she told me what she wanted me to have, and I suggested writing it down, she said, 'what is the use, the thing will be done, Waties will do it.'" The ques- tion was not about disputing Waties' right, which was recognized, but about his assenting to the other gifts ; and the paper was put under her pillow, and afterwards given to witness, not for safe keeping, but in compliance with the delicacy of the witness, for delivery to the universal donee, for his assent to the minor gifts ; when he assented, as he did, before the death, he accepted his own. There was delivery and acceptance. Counsel commented on the evidence. Was there a doubt, on the mind of that lady, that all her property was her son's? Why the anxiety to know tliat the bond was destroyed, and that nothing should remain in evidence? By what hypothe- sis do counsel, on the other side, account for these declara- tions and acts? Premising now, that the possession of the defendant was not that of a servant, or agent, or trustee, or bailee, but that of the master of the house, what do all these declarations and facts amount to in law? Mr. S. quoted and commented on Reid and Colcock, 1 N. & McC, 603 ; Spears and Blasinghame and Davis and Davis, 1 N. & McC, 223, 225; McDonell and Murdoch, 1 N. & McC, 237; Domat, vol. 1, p. 36, and vol. 1, p. 60; Fowler and Stuart, 1 McC, 504; Caldwell and Wilson, 2 Spears, 77; Grangeac vs. *drden, 10 Johns., 293; Yancey and Stone, 7 APPEALS IN EaUITY. 99 Culumbia, May, ISM. Ricli. Eq., 18; Etheredge and Partain, 10 Rich. Eq., 207; Blake and yo?2c.9, Bail. Eq., 141 ; this last, a case of creditors, here volunteers. Cannot a Chancellor presume a gift, where a jury would ? Is a change of fornm a change of fact? If so, we are enti- titled to an issue, to have our case ground out in that machinery ; but, in fact, we ask no more than what has been done and set up in this Court. The difficulty seems to be in the delivery and transmnta- tion of possession, and McDondl and Murdock is referred to ; that was a case of donatio causa mortis^ and the pre- siding Judge had said that, in other parol gifts, the evidence would be sufficient, but in cases of this sort, actual manual delivery was necessary, and for that misdirection, and for saying that a jury might give an alternative verdict, the case was sent back. In other cases, ex. gr. in a loan, the obligation is not con- tracted without delivery. These obligations, where the party is to make restitution, are contracted by the intervention of the thing, although the consent of parties be also necessary. Domat, vol. 1, p. 36. Our case is not one of loan, or donatio causa mortis, where restitntion is contemplated ; bnt even in case of a loan, sup- pose Mrs. R. had loaned a slave to one, having them already in charge, for ary pnrpose, would a manu iraditio have been necessary to the loan? or if she had loaned, or committed them in charge to anybody, and then sold them to him, would it have been necessary? "Delivery is made, if the buyer had already the thing sold in his custody, by another title, as if it was deposited into his hands, or if he had bor- rowed it." Domat, vol. 1, p. 60. And so we contend of a gift inter vivos, and, I think, this is not, in fact, a question of delivery, bnt of intention. If the Court see that she intend- ed delivery, they were delivered. The transmutation of possession would have been an idle ceremony; there was a transmutation of property and dominion. " Declarations of 100 APPEALS IN EaUITY. Rees vs. Rees. gift by an owner of a chattel, are to be construed most strongly against him, and are to be defeated only by une- quivocal proof, on his part, that a present gift was not made." Circuit i7iter alia, Yancey and Stone, 7 Rich. Eq., 18 ; and an administratrix for volunteers is in the same position. It is not to be omitted, in any part of the case, that there was a consideration for the gift, which is fatal to the idea of a testament or of an advancement. Is the paper of 21st January, 1855, a nullity ? or worse ? In Brinkerhoff and Laurence, 2 Sandford, 401, 406, it is said: "Against sustaining donations, either mortis causa or inter vivos, there are many strong expressions in the books of the common law ; the reason of this is, that gifts of both classes are usually claimed upon parol evidence, unsustained by any writing, and the Courts have uniformly set their faces against such claims, on account of the great danger of per- jury. When the intent of the donor is proved under his own hand, there is no such danger, and, accordingly, the Courts have presumed a delivery in support of the gift, on slight evidence." Here it is not perjury, but the Act of 1824, that frightens my friends on the other side, more in their character as legis- lators, perhaps, than as lawyers. In Fowler and Stuart, I McC, 504, the words were, con- cerning a horse, that the boy used to ride, " I beg you to recollect, I have given that horse to my son ;" suppose, after- wards, in articulo mortis, she had written, I wish that horse to belong to my son, but I wish him to give the silver mounted Spanish saddle to B, and delivered the paper, ai^d he had assented, would that have invalidated the previous gift, because it had not three witnesses ? It was a paper writing delivered, capable of passing, limit- ing, reserving a use, creating a trust in personalty, by delivery of the writing itself. Brimimett and Barber, 2 Hill, 547; Dwpre and Harrington, State Rep., 391 ; daggers and Estes, 2 Strob. Eq., 343. APPEALS IN EaUlTY. 101 Columbia, May, 1859. The paper confirms the intention and supplements deUvery. " If an instrument can operate in some character which ap- pears to have been intended, it will not be held testamentary, especially not, when it has not the requisite formalities of a will, and holding it testamentary, would be declaring it void." Carter and Kins;, 10 Rich. As to the gift or destruction of the bond being an advance- ment. I. This proceeded from the mother, and advancements apply to fathers only. Holt vs. Frederick, 2 P. VVms., 356 ; Toller, 300; 2 Williams Ex'rs, 12S7. The words of the writ, de rationabili parte bonorum, are : " Nee in vita patris pro?7iot i /nertint .'* In Holt and Frederick, L, King says: The statute of Charles was founded on the custom of London, and he might have said, that it was in conformity to other customs of the Kingdom of Great Britain, and to general custom, and to the law de rationabili parte bonortim. However hasty or bad his reasons, he stated the law of advancement correctly, as known in England, time out of mind, and used ever since ; he was resisting a novelty, the attempt, by deriving the statute from the successio ab intcstatn, to engraft on it the civil law rule, that advance- ments might proceed from mothers, wlio hold estates in that law, in a way different from our laws of Haron and feme. Upon what could collation proceed in a widow's estate ? Upon that portion of her husband's estate distributed to her, and once already subjected to collation upon his death. The words of the. third section of our Act are satisfied by applying ihem to the subject matter, to which, at the tiiue the Act was passed, they could alone be applied, namely : the estates of fathers; it being then, and before, and always law, that the tule, advancement, only concerned father's estates. It is clear that this is an attempt to adopt the civil rule, and I ask for the authority. In Daves and Haywood, 1 Jones Eq., 256, N. ('. R., it is said : " It is true that under the English statute of distribu- 102 APPEALS [N EaUlTY. Rees vs. Rees. tions, none but the children of an intestate father are bound to account for advancements, because the father only is under a legal obligation to provide for his children ; but our statute of 1792, re-enacted in 1836, uses the words he or she, him or her, in reference to the intestate, t^; Acre children are to account for personal property given to them, or put into their posses- sion in their father's lifetime. Both sexes are clearly em- braced by these words, and we do not feel at liberty to repeat them, but are bound to hold that the legislature intended to apply them to an intestate mother, as well as an intestate father." II. Where there is a child, and the issue of a pre-deceased child, and a gift after the death of the father of the issue, we may look to the reasons, for collation, between children and grand-children, viz: that a grand-child shall bring into hotch- pot with a child, because he derives, through his father ; he must collate, where the parent would, what the parent re- ceived. Proud vs. Turner, 2 P. Wm., 560 ; but I think it has not as yet been decided that a gift to a grand-child, the father being dead, shall be collated. " The statute of distri- butions is restricted to gifts from a parent to a child, and does not include donations to grand-children. This holds clearly where there are only grand-children; is it so when there is a child and a grand-child? "Where a grand-child hath re- ceived some advancement, not from his father, but from his grand-father, whether or no he shall collate with the brothers of his father, not decided. The grand-child takes, as represen- tative of his father, and therefore, as it seemeth, should not bring his own portion, but only his father^s portion into hotchpot." Duty of Executors, p. 287. So, if this bond had been given to complainant, she ought not to collate it, and if so, ex aequali jure, defendant ought not to collate with her. " If the grand-father had endowed his grand-daughter, the father being alive, she would be obliged to bring into the inheritance of her father the portion which the grand-father APPEALS IN EaUITY. 103 Columbia, May, 1S59. had given her; it was the same as if the father had given the portion out of his own estate. Domat, vol. 1, B. 11, p. 674. III. The destruction of the bond is not an advancement. The bond constitutes the best evidence of advancement; its destruction, evidence that it was settled. The synopsis of Gilbert vs. Wetherall, Sifnoiis and Stuarty vol. 1, p. 444, (or vol. 2, p. 254,) would seem to decide that the destruction of a debt, (or rather, in that case, of the evi- dence of a debt) was an advancement; but the case was not so ; although intestate destroyed a notCy he said : " Now Thomas owes me 11,000 pounds;" afterwards they signed an account. The V. C. said: "The circumstances under which the note had been destroyed, amounted to an equitable release of a debt," but held the account stated, an advancement, and it is clear that he went into the case to see if it was an advancement or not, and if the father so intended it; and IV. It is respectfully submitted, that the destruction or gift of the bond, or negroes, is not an advancement, because of the intention of the intestate, who did not intend equality, and said so, when the bond was delivered. Can a man give to issue, otherwise, than by way of advancement ? Can he, in his lifetime, by any act, segregate a portion from his estate, in favor of a child, as well as a stranger? He may give the whole to one, cannot he give a part, over and above to one; and if lie does so, and so says, and so intends, and so conveys, by any means the common law will afford him, how can a legislative will, intended to apply lo what is to be distributed^ and not to what lias been, by himself, forever cut off, override his complete and legal disposition, in his lifetime. Such interference, seems inconsistent, with the true idea of property, and would restrict the jus dispnnoidi, among issue, to a mode provided by statute, which is ambu- latory, and for various reasons not acceptable to all persons. The case of partial gifts supposed, is not as in Youni^hhnd vs. Norton, 1 Strob. Eq., 125, an interfering, with distribu- 104 APPEALS IN EaUITY. Rees vs. Rees. tion, or valuation at Ihe death, but a severance, by a complete act in the lifetime ; the intent and quantity of intent, im- pressed on the transaction at the time; so, in that case, it is said, that " what are advancements, may be absolutely fixed, by the intentions of the parties, at the time, if they can be ascertained," and so in Domat, vol. 1, b. 1 1, sec. iii, p. 692. " Tlie things given to children, or other descendants, that they may have, what is given, as an advantage, over and above what the other children, their co-heirs have, are not brought, into the mass of the inheritance collated, if it is evident, that it was the express will of the donor, that what he gave, should remain with the donee, as an advantage, over and above his equal share, with the rest of the heirs, or that it should not be subject to collation." Sive quispiam intestatus moriatur, sive testatus, omnino esse coUationern, nisi expressim designaverit, ipse, se velle non fieri collation- em,^^ &c., Nov. 18, c. 6. The only novelty here, is in the ^^sive testatus,'' which we have not adopted. A parent may give, and not advance, or vice versa ; otherwise, a father in bestowing absolutely an exchisive bounty, upon a deserving son, or in releasing an improvident one from jail, with intent to start him even again, with the rest of his children, would have to approach the object of his bounty, with caution, or swear him to secrecy, for if detected, the statute, would defeat his purpose. What a man does with property, be- longing to him at his death, is a testamentary act, as in Yoinigblood vs. Norton ; but the question is, what does be- long to him ? In that case, the $600 was to be accounted for in the distribution. Here, the principal of the bond was never to be paid — the interest to end with her life, and " nothing to remain in evidence.'' Defendant might have said : The negroes I hold by sale-bill, and I settled with my molher for them. Mitchell vs. Mitchell, 8 Ala., 414, 422, considers this question fully, and looks into the custom of London, where "the father, could by any act, in his lifetime, give away any portion, of his personal estate, to one of his APPEALS IN EaUITY. 105 Columbia, May, 1S59. children, provided he divested himself of all property in it," and concludes, " Our opinion, therefore, is, that when either money or property is advanced to a child, it will prima facie be an advancement, under the statute, and must be brought into hotchpot ; but it may be shewn, that it was intended, as a gift, and not as an advancement." I contend, here, that tlie destruction of the bond is presumption that it was set- tled — and the omis to prove it an advancement is on the other side. In Connecticut, where the Act is a copy of Act of Charles II, they go too far, in Johnson vs. Belden, 20 Conn., 322, where it is held, that there must be satisfactory evidence to make a gift a cha7's;cnble advancement. There, as in England, a deed for love and afTection, is prima facie proof of advancement. Hatch vs. Straight, 3 Conn., 31. So Meeker vs. Meeker, 16 Conn., 3S3 ; Phillips vs. Chappell, 16 Geo., 16. The words of our Act are not when a child shall have received, but when he shall have been '•^ advanced^'' and remains accountable. The condition in life of the parties, forbids the idea of advancement. Defendant being of age, married, settled, fully advanced by his father, in his lifetime, rich compared with his mother, providing for her, a purchase in liis name, by his mother, would have been a trust, and not an advancement. If defendant is to account, we ask, that he be allowed to account, for the negroes or the bond, at his option, and only, from the filing of the bill or demand. Fraser, Moses, for appellee. Spain., Richardson, for appellant. The opinion of the Court was delivered by DuNKiN, ('h. It can scarcely be contended that, prior to 17th December, 1854, when the defendant purchased from the intestate slaves to the value of §5,800, she had already made to him a valid gift of her whole estate. If the paper 106 APPEALS IN EaUlTY. Rees vs. Rees. signed on the day before the death of the intestate be not tes- tamentary in its character, but a gift, infer vivos, then, if the intestate had recovered, her whole estate had passed from her; for, by tiiat paper, no life estate is reserved, nor is the gift thereby rendered invalid in the event of her restoration. It is true that the language of the paper was that of the witness who prepared it; but, to give it any effect for the benefit of the donee, it must be regarded as adopted by the donor: and, when she says, " I wish all 1 possess in this world to belong to my son and his heirs forever, both real and personal," and disposes of her wardrobe to her sister, it is a manifest declara- tion of what she intended to take effect in relation to her estate after her decease, and fulfils all the requisites of a last will and testament, wanting only the attestation of witnesses to give it effect as such. The remaining grounds present questions not made at the hearing, and, therefore, not considered in the decree; but they are, nevertheless, very properly now submitted to the judg- ment of the Court. It is contended that the doctrine of advancements is not applicable to the estates of widows; and for this proposition the appellant adduces the authority of Lord Chancellor King in Holt vs. Frederick, 2 Peere Wil- Hams, 356. It is true it was so held, " although," as the reporter says in a parenthesis, " without much debate." His lordship decided that " the statute of distributions was grounded on the custom of London, which never affected a widow's personal estate;" and " that the Act seems to include those within the clause of hotchpot who are capable of having a wife as well as children, which must be husbands only." If this course of reasoning could be sustained, it would apply not only to the principle of advancements, but to every other canon in the former statute of distributions in relation to the estates not only of widows, but of married women, and of spinsters. Each clause of that statute (A. D.' 1712) 2 Stat., 524, refers to the estate as that of a man ; nor is there any provision, as in the Act of 1791, that, in the APPEALS IN EaUlTY. 107 Columbia, May, lSr)9. event of the death of a married woman, leaving a husband surviving her, the distribution of lier estate shall be the same as that of his. But the argument of the learned serjeant, in Holt vs. Frederick, is quite satisfactory. " The word /lis takes in both sexes, as mankind comprehended both ; and homo was /j/c vel hcec ho?7io; that the act of Parliament intended an equality among children, and this favorite doctrine in equity ouglit to be extended as well in case of a mother as a father." But the Statute of 1791 was passed in pursuance of the provision of the Constitution directing the Legislature to abolish the right of primogeniture, and provide for an equita- ble distribution of the estates of intestates. All the principal clauses refer to the intestate as him, and to the estate as his. The tenth and eleventh clauses provide for the distribution of the estate, " on the death of a married woman," leaving a husband or leaving no husband. But for the distribution of the estate of a spinster no special provision is made; and for the obvious reason above stated in the argument of Holt vs. Frederick, and that any more restricted construction would fall short of the declared purpose of the statute. But the clauses should be construed together, as ifi pari materid. The Act provides that, in the event of the death of a widow, her estate " shall be distributed among her descendants and relations in the same manner as therein before directed in case of the intestacy of a married man." The subsequent clause in relation to advancements refers to the previous canon for distribution among the children or issue of the intestate, and should be taken, and has always been taken, as part of that canon. No new or additional order of distribu- tion is declared, but provision is rather made for an equitable administration of the prior canon. The estate of the widow must be distributed in the sanie manner. Although no express adjudication has been adduced from our reported cases, yet such seems to have been the received opinion from a very early period after the enactment of the statute, as may 108 APPEALS IN EaUITY. Rces vs. Rees. be seen by reference to Grimke's Law of Execntors, p. 2S5 (publislied in 1797), and ex parte Lawto7i, 3 Des., 201, note. The remaining grounds in relation to advancements may be considered together. It is true that, while the child is alive, a gift to the grand-child may not be an advancement ; but gifts made to the grand-child, after the death of his pa- rent, must not only be brought into the account, but all pre- vious advancements to such parent in his lifetime. Then it is said the release of a debt, or rather the intentional destruc- tion by the parent of the evidence of a debt due to him by his child, is no advancement. On 17 December, 1854, the intestate owned eleven slaves, which she, on that day, sold to iier son, taking his bond for the purchase money. If, instead of selling him the slaves, she had made him a deed of gift of them, it would seem clearly an advancement. If, instead of selling the slaves to her son, she had sold them to a stranger, taking his bond for the purchase money, and she had transferred the bond to her son, it would be not less an advancement. And so, when she released, or gave up, or destroyed, his own bond to her, it was an advancement of so much money, and must be so accounted for. Then it was said that the intestate did not intend that her son should account for the bond as an advancement. This can hardly be said to be a question of intention. A father may give his son half his estate and declare, by the most formal instrument, that he does not intend it as an advance- ment; but, if he afterwards die intestate, the law precludes such son from any share in the inheritance, unless he bring such previous gift into liotchpot. What is, or is not, an advancement may depend on circumstances, as in Murrell vs. Murrell, 2 Strob. Eq., 148 ; Cooner vs. May, 3 do., 185 ; and Ison vs. Ison,5 Rich. Eq., 15; but the mere declarations of the donor cannot alter the operation of the law either as to the character of the gift, or even the mode of valuation. See Youngblooil vs. Norton, 1 Strob. Eq., 122. In reference to the fourth ground of appeal, it may be APPEALS IN EaUlTY. 109 Columbia, May. 1S59. remarked that the infant plaintifT is certainly entitled to an account from the death of the intestate, and, being the sole distributee, the whole object of the administration was to establish her rights. Tliis Court perceive no error in the decree of the Circuit Court, and it is ordered and decreed that the same be affirmed. Johnston and Wardlaw, CC, concurred. Decree affirmed. CASES IN EQUITY ARGUED AND DETERMINED IN THE COURT OF APPEALS, At Columbia, November and December Term, 1S59. CHANCELLORS PRESENT HON. JOB JOHNSTON, HON. F. H. WARDLAW, HON. B. F. DUNKIN, HON. JAMES P. CARROLL.* In the matter of the Accounts and Settlement of the Estate of Joel W. Pinson. Jippeal from Ordinary — Duress. Where proceedings are instituted before the ordinary, against an executor, for account, and a dispute arises between a legatee and his assignees of the legacy, as to the validity of the assignment, an appeal from the ordinary's decision holding the assignment to be invalid, lies, under the Act of 1839, to the Court of Equity. A deed is not necessarily void because the party was, at the time, under re- straint — the restraint must be illegal. BEFORK JOHNSTON, CH., AT LAURENS, JUNE, 1859. This was an appeal from the decree of the ordinary. His * Elected during the term. APPEALS IN EaUITY. HI Columbia, November and December, ISOO. Honor, the presiding Chancellor, affirmed the decree of the ordinary, and the appellants, Walker and Glen, appealed. Sullivan, for appellants. Shnpson, contra. The opinion of the Court was delivered by Carroll, Ch. Before considering the grounds of appeal, there is a preliminary question to be disposed of. The appeal here is from the decretal order of the Circuit Court, dismissing the appeal, there heard, from the decree of the ordinary of Laurens. In the settlement of the accounts of the executor of Joel W. Pinson, deceased, before the ordi- nary, a controversy arose between Jabez Pinson, one of the legatees, and Walker and Glen, claiming to be the assignees of his portion of the testator's estate. The decree of the ordinary adjudged that the deed of assignment to Walker and Glen was obtained through duress, and was, therefore, void ; and the grounds of appeal, as well to this Court as to the Chancellor on the circuit, impute error to the ordinary for having so adjudged. As the question upon which the appeal depends is one of fact, for the decision of which the Law Court is peculiarly fitted, the doubt arose whether the appeal from the ordinary ought not to have been made to the Court of Common Pleas ; and, at the suggestion of this Court, the point has been argued here. The Act of 1839, concerning the office and duties of ordinary, II Slat., 42, provides that, "if the appeal shoiild be on a matter ol account, the appellant shall docket the case in the Court of Equity for hearing." but, that "in all other cases of appeal from the Court of- Ordinary, the appeal shall be to the Court of Comtnon Pleas." The appeal here is not strictly "on a matter oi accnnut,'' in its popular sense, but rather on a mat- ter preliminary and incidental to account. No exccjjtion is taken to the statement of the accounts by the ordinary. In- 112 APPEALS IN EaUlTY. Estate of Joel W. Pinson. deed, if the executor had been cited before the ordinary, at the instance only of Walker and Glen, claiming as assignees, the ordinary might, at the very outset of the proceeding, have decided against the validity of the assignment, and have declined taking any account at all. It is to be observed, also, that the Act of 1839 appears to assume that the state- ment of the accounts is necessarily brought to the view of the Chancellor, in the appeals to him from the ordinary; for it enacts that, if he approve the ordinary's decree, the party, in whose favor it may be, may forthwith issue his writ of fieri facias to enforce the same, and if the Court should modify the said decree, it may order the commissioner to re-state the accounts, and, upon his report, made and con- firmed, the party in whose favor it may be, shall be entitled "to like final process for its enforcement." It cannot be admitted, however, that the exercise of appellate jurisdiction under the Act, whether by this tribunal or by the Court of Law Appeals, is to depend upon the mere election of the ordinary. The whole course of procedure of the Law Court is una- dapted to the adjustment of the complex and innumerable details and i)articulars entering into matters of account. The admission into an account of a single item, or its exclusion, ordinarily atfects the entire result, and raises other and new questions, unforseen at the outset. If the determination of appeals from the ordinary, even upon questions incidental to the accounting had before him, be referred to the Law Court, great inconvenience must arise. If cotemporaneously with such an appeal, another appeal on a matter of account, in its popular sense, should occur, in the course of the same pro- ceeding before the ordinary, all the confusion, incident to a divided appellate jurisdiction, would inevitably ensue. Jus- tice could not be ellected by the agency of the Law Court in cases of this class, without repeated appeals, and after vexa- tious delays. To prevent these very evils it was provided by the Act of 1839, that such appeals should lie to the Court of APPEALS IN EaUlTY. ll:i Columbia, November and December, 1S59. Equity, and thrvt, upon the decree of the ordinary being affirmed, or else modified, and the accounts re-stated by the commissioner, and his report thereupon confirmed, final pro- cess should forthwith issue for enforcing the same. It is not perceived that by this construction violence is done to the words of the Act. The term ''account" compre- hends a large head of equity jurisdiction, and it is in this latter sense that it should be read when employed in the statute referred to. It follows that the appeal from the ordi- nary, in this case, was properly entertained by the Chancel- lor on the circuit. The deed of assignment to Walker and Glenn is adjudged by the ordinary to be invalid, because extorted from Jabez Pinson by duress. A contract is not necessarily void, because the person of the party bound by it, was at the time under restraint. Meek vs. Anderson, 1 Bail., 87. The Court has failed to discover in the evidence before the ordinary, suffi- cient proof that illegal constraint was used in procuring from Jabez Pinson the assignment referred to. Whatever presump- tions against the deed, upon that ground, may arise from the gross inadequacy of the consideration, they are altogether counter-balanced by the repeated, consistent and peremptory refusals of the grantor afterwards to rescind the contract. It is ordered and decreed lliat the decretal order of the Chan- cellor on the circuit, as also the decree of the ordinary, be reversed, and that the cause be remitted to the Court of Ordi- nary, without prejudice to any equitable defence or claim to equitable relief on the part of Jabez Pinson against the said deed, to be asserted before the ordinary, if he liavc jurisdic- tion, or elsewhere, as said Jabez may be advised. DuNKiN, Johnston and Wardlaw, CC, concurred. Decree reversed. 9 114 APPEALS IN EaUITY. McCorkle vs. Montgomery. William McCorkle and others vs. Green B. Montgomery, Jr., and others. Fraud — Judgment — Father and Son — Consideration — Evi- dence — Vendor'' s Lien. Where there are strong circumstances of suspicion against a judgment confessed by a son to his father, the father, on bill filed by creditors impeaching the judgment for want of consideration, should show the consideration by other evidence than his own oath. Where a judgment is set aside for fraud and want of consideration, and a refer- ence is ordered for creditors to come in and prove their demands, evidence taken before the commissioner on the reference will not be considered by the Court of Appeals on the appeal from the decree. The doctrine, that the vendor has an equitable lien for the purchase money of land sold, has never, it seems, prevailed in this State. BEFORE WARDLAW, CH., AT CHESTER, JUNE, 18-58. This case will be sufficiently understood from the Circuit decree of his Honor, Chancellor Wardlaw, the grounds of appeal, and the opinion delivered in the Court of Appeals. The Circuit decree is as follows: Wardlaw, Ch. Tlie plaintiffs on record are creditors by decree of Green B. Montgomery, Jr., and they filed this bill May 23, 1853, in behalf of themselves and other creditors, to set aside certain judgments, conveyances and assignments, which obstruct satisfaction of their decree. In June, 1836, John Guntharp became guardian of the plaintiffs, and for the faithful performance of his office, gave bond, with G. B. Montgomery, Jr., and A. E. Guntharp as his sureties. In June, 1850, this guardianship was revoked, and proceedings were ordered by this Court to be instituted on the bond. Accordingly, a bill was soon after filed. And in June, APPEALS IN EaUITY. 115 Columbia, November and December, 1859. 1852, a decree was pronounced in favor of the [jlaintiffs against the said G. B. Montgomery, Jr., for divers large sums of money. To execute this decree, Vi.fi. fa. was issued, which has heen returned hy the sheriff, nulla bona. Before the decree, John Guntharp had died, utterly insolvent, and A, E. Guntharp had died, so much embarrassed in his affairs that, on a bill filed by his administrator to call in the creditors and marshal the assets of the estate, although there has not been yet a final adjustment, it has been ascertained that not more than one-half of the sum of specialty debts can be satisfied out of the assets. In the fall of 1849, G. B. Montgomery, Jr., bargained with Geo. Doag for the Pickett Mills and thirty acres of surround- ing land, and November 16, 1849, procured a conveyance of the same to be made to his son, James B. Montgomery, by the said Doag, at the price of $3,500. The day before the conveyance, G. B. Montgomery, Jr., paid to David McDowell, who was the grantor and mortgagee of Doag, in money, $466 34; and James B. and G. B. Montgomery, Jr., and Jonathan B. Mickle, executed their single bill to McDowell for $833 64, which is still unpaid. At the time of convey- ance, G. B. Montgomery, Jr., paid to Doag, in cash, $2,200 — the balance of the purchase money. About a week after- wards, G. B. Montgomery, Jr., bargained with William T. Nichols for twenty-one acres adjoining the mills, for $230 6Q, paid him $40, or more, by discount, and having with his son, James B., secured the balance, (which was paid July 1, 1852.) procured the conveyance to be made to the said Jas. B. About Christmas, 1849, G. B. Montgomery, Jr., with his family, of which the said James B. is an inmate, removed to the mills, and has resided there ever since. He carried with him the remaining merchandise from a country store, and retailed it there. After the removal, a costly dwelling was erected on the premises, expensive repairs made to the mills, and much valuable machinery purchased. Towards these improvements, G. B. Montgomery, Jr., mainly contributed by 116 APPEALS IN EQUITY. McCorkle vs. Montgomery. his money and credit and tiie labor of himself and slaves, and he always exercised liie principal control and manage- ment of affairs at the mills — so that to all who were unac- quainted with the state of the legal title, he seemed to be the owner. The accounts, however, were kept in the name of James B. Montgomery, and he was commonly the organ in paying and receiving money ; and he sometimes superin- tended the saw-mill, and sometimes worked in a harness shop at the place. June 21, 1851, G. B. Montgomery, Jr., confessed two judg- ments to his father, G. B. Montgomery, Sr. ; one for $2,514, and the other for $1,605 ; a judgment to his mother-in-law, Nancy Bailey, for $1,189 33 ; and a judgment to his son-in- law, Jonathan B. Mickle, for $522 3 1. About this time, J. B. Mickle obtained assignments of two other judgments against G. B. Montgomery, Jr., namely, of Robert Ford for $571 14, and of Samuel G. Barkley, for $786. All these judgments bear interest, and from various dates. June 11, 1852, G. B. Montgomery executed an assignment of his whole estate and credits to J. B. Mickle, in trust, to sell and collect the same, and from the proceeds to pay, Jirst : the expense for preparing the deed and the commissions of the assignee and his expenses about any suits in collecting the assets and effecting the trust; secondly : the judgments above mentioned and any others of the same creditors, and a judg- ment of William Montgomery for $200; thirdly: demands of certain enumerated creditors, not in judgment, to the sura of $2,622 \ fourthly : the demands of all other creditors ; and lastly, the surplus, if any, to the assignor. July 1, 1852, J. B. Mickle, the assignee, sold the visible property of the assignor for the aggregate sum, according to the addition in the exhibit, of $6,586 27 — according to my addition, of $5,997 27. Some items may be omitted from the copy of sales furnished to me. James B. Montgomery is set down as the purchaser of the negroes Terry, Molly and child, Billy, Jim and Sam, at the aggregate price of $2,625, APPEALS IN EaUITY. 117 Colmiibia, November and December, 1859. and of household furniture and otiior articles, .^265 50; G. B Montgomery, Sr., is set down as the purchaser of Henry Harry, Aaron, Gill and George, for ^2,142; G. B. Wm. Mont- gomery, of Tom, for $590; J. B. Mickle, of Dick, ^245, and other articles for $50; and the sum of the purchases of all other persons is $7.9 77. The assignee has received very little of the amount of sales. The object of the bill is to set aside for fraud the convey- ances to James B.Montgomery; the confessions of judgment by G. B. Montgomery, Jr., to his kinsmen aforesaid ; the assignment of the judgments of Ford & Barklay to Mickle, the assignment of G. B. Montgomery, Jr.'s estate to Mickle; and the sale under this assignment. The bill is taken /??'o coiifesso against Nancy Bailey. The defendants, G. B. Montgomery, Sr., and Jr., James B. Mont- gomery, G. B. Wm. Montgomery and J. B. Mickle, have answered separately; and they severally deny all fraud in their acts as to the matters of the suit, and make statemeuis intended to exhibit the fairness of their conduct ; but, with some exception as to J. B. Mickle, they rely entirely upon their answers, and oifer no other proof of their defences. First, as to the conveyances by Doag & Nichols to James B. Montgomery. The plaintiffs charge that the moneys for the purchase and improvement of the lands conveyed were furnished by G. B. Montgomery, Jr., and that he procured the conveyances to be made to his son, a minor without means, in pursuance of an express purpose of fraud to defeat the plaintiffs. As to this express purpose to defeat the plain- tiffs, the evidence may have some bearing on various points of the case. G. B. M., Jr., in his answer, states that he has no recollection of having said that he never would pay the plaintiffs, but avows his motive to postpone his liability as surety to debts for which he had received consideration. Robert Ford testifies that this defendant said, before removing to llie mills, that he never intended to pay the McCorkle bond, and would sooner rot in jail: Joseph Arledge testifies 118 APPEALS IN EQUITY. McCorkle vs. Montgomery. that the defendant said he would not pay the McCorkle liabiHty if he could help it, and Daniel McCullough testifies that the defendant said he could not or would not pay the McCorkle debt. As to the payment made for the mills iu money, G. B, Montgomery, Jr., and his son, James B. Mont- gomery, in their answers, distinctly aver that in the negotia- tion for the land and in the payment for it, the father acted merely as agent for the son, and that the son furnished the money. They admit that the son did not attain twenty-one 3^ears until August, 1S50, nine montlis after the conveyance, but they say that by agreement bet^veen tiiem the son was entitled to the earnings of his labor after he was twenty years of age, and that he had made some money in a harness sho|i, and had acquired a horse and two mules by advan- tageous trades of a mare given to him by his grand-father, G. B. M., Sr. ; that in fact James B. paid $166 34 from his own earnings, and $2,500 " furnished or loaned" by his said grand-father: of all this detail there is no proof. G. B. M., Sr., in his answer, says nothing on the subject ; and whether he was able to advance such sum of money, or, as was said on the other side, was embarrassed in his affairs, I do not know from the evidence. The plaintiffs, however, have proved that two mules were purchased by G. B. M., Jr., from Houston, in August, 1849, for $250, and were afterwards sold by this defendant to JNlathews. They have further proved the admissions of this defendant that he had used of the funds of Westbrook's estate, of which lie was administrator, towards the cash pay- ments for the mills, $1,400 according to the testimony of Robert Ford, or $1,428, according to the testimony of W. T. Nichols, and this is confirmed by the testimony of Houston, that $1,000 were paid to the defendant as administrator on November 6, 1849, and that the debts of the estate were left in arrear by the administrator, particularly one to Sibley, upon which he said he would pay interest. Besides this, it is in evidence that he borrowed from various persons several APPEALS IN EQUITY. 119 Columbia, November and December, 1S59. sums of money, shortly before the conveyance of Doag, with the avowed purpose of paying for the mills, namely: $300 from Robert Ford, $100 from Andrew McDaniel, $475 from Joseph Arledge, and $270 from Robert C. Bailey. These loans, with the sum of Westbrook's estate used for the pur- pose, closely approximate the sums paid to McDowell and Doag. For the land conveyed by Nichols, by the confession of the defendants, $40, at least, were paid by the father, but defendants allege, without proof, that this was repaid by the son. The balance of tlie purchase money was not paid to Nichols until the assigned chattels were sold by Mickle, July 1, 1S52. The plaintiffs charge that this balance and the sums paid for the erection of the mansion, the repairs of the mills, and for machinery, were paid by Green B. Montgom- ery, Jr., and they show that large sums of money were received by him in 1849, 1850 and 1851, from the proceeds of a tannery and a store conducted by him, and from the sale of a tract of land to Arledge for $1,700, and of the tan- nery. G. B. Montgomery, in his answer, admits the receipt of money to a large amount, but alleges, without proof, the disbursement of it in payment of other of his debts. The substance of the answer of James B. Montgomery in this respect is, that all these payments were made from the profits of the mills of which he was owner; in effect, that his title to both tracts is dependent on the fairness of his purchase from Doag. The plaintiffs, however, show that G. B. Montgomery, Jr., sometimes employed the proceeds of the mills in discharge of his own liabilities; that he bought a circular saw from Aiken f )r $300, giving his own note, with Gayden as surety, which he afterwards paid; that he repeat- edly said he had bought the mills, that he sought counsel wfiother a conveyance to a minor was good ; instructed the deeds to be made to his son, but became responsible himself for the purchase money. The defendants endeavor to excuse the employment of G. B. Montgomery, Jr., and his slaves, in 120 APPEALS IN EaUITY. McCorkle vs. Montgomery. the repair and management of the mills, on the ground that such services were but a reasonable compensation to James B. Montgomery for the maintenance of his father's family and the education of the infant children ; but not a tittle of evidence supports this strange allegation, that an unmarried, infrafamiliated youth had suddenly become the head of his father's family. The statement of these transactions involves all the argu- ment necessary. G. B. Montgomery, Jr., paid for the lands, and took and retained possession of them as proprietor, and procured titles to be made to his infant son, with the avowed purpose of defeating certain of his creditors. It is a palpa- ble case of fraudulent colhision between father and son. The conveyance to James B. Montgomery must be can- celled, and the title to the lots declared to be vested in G. B. Montgomery, Jr. Tlie parties have entered into an agreement concerning the sale of these lots; which, I suppose, has been executed. K not, it is ordered that the commissioner proceed to sell said lands, according to the terms of said agreement, and the practice of the Court. Secondly., as to the confessions of judgment by G. B. Montgomery, Jr. All of these confessions were on the same day, all to his kindred, and all, so far as appears, by the mere act of this defendant alone, without the presence or solicitation of tlie plaintiffs on the records. They profess to be based on notes given at or about the time; but, as the defendants allege, were, in fact, given to secure debts of the confessing defendant of a date long anterior. The judgment of Nancy Bailey, beyond dispute, cannot stand in the way of creditors. She makes no defence by pleading or evidence. The statement in the answer of G. B. Montgomery, Jr., concerning the consideration of this judg- ment, (which statement, however, if it were of any value, would not be evidence for Mrs. Bailey,) is, substantially, that Robert C. Bailey, son, and Andrew McDaniel, and himself, APPEALS IN EaUITY. 121 Columbia, November and December, 1S59. sons-in-law of Nancy Bailey, agreed, with her consent, to divide eqnally between them, a tract of land belonging to her, or the proceeds of it, reserving her nse of the land for life, and in the resnlt, the son and other son-in-law paid this defendant the estimated valne of his third in remainder; and that the jndgment was given to secnre the princijial snm so paid or advanced, with interest. Conceding the absolnte truth of this statement, no debt to Mrs. Bailey grew ont of the circumstances. Robert C. Bailey and Andrew McDaniel state that they took the land of Mrs. Bailey by her consent, about {-dU, 1846, and agreed to pay, and did pay, $500 each, to Montgomery and wife, for their interest in the land, and received their release of all claim in the land; no convey- ance nor obligation was executed by Mrs. Bailey. It is manifest that this judgment is without consideration, and that it must be put out of the way of creditors. It is proper to state that Mrs. Bailey is enfeebled by age, and that, in all probability, she did not actively co-operate in any fraud of her son-in-law. In relation to the judgments of G. B. Montgomery, Sr., he and his son state, in their answers, that the indebtedness of the latter arose from loans of money, by the former, between 1841 and 1851, and the sale of some small amounts of bacon, and other articles; and they file, with their answers, separate exhibits of the particulars of loan and sale, and of the notes given and received. These exhibits agree precisely in items sufficient to cover the amount of the judgments, but (he exhibit of the father contains additional particulars of in- debtedness to him by the son, swelling the aggregate much beyond the sum of the confessions, and the exhibit of the son contains some particulars of credit not set down in the other exhibit, but not to such extent as to reduce his indebt- edness below the amotint of the judgments. These defend- ants rest upon their answers, and offer no evidence. I infer, from the discrepancy of the exhibits and the failure to pro- duce' any of the notes, or other evidences of debt, that there 123 APPEALS IN EQUITY. McCorkle vs. Montgomery. was no account stated between the parties at the tune of the confession, and that the judgments were, at least, taken for conjectural sums. On the other hand, the assailing evidence of the plaintiffs does not directly disprove the consideration of the judgments, and stops with showing general circum- stances of suspicion, particularly the kindred of the parties, the confession after the institution of the suit in equity upon the guardianship bond, the determination of the debtor to delay or defeat satisfaction of his debt to plaintiffs, and the fraud of the debtor about the Pickett Mills, and liis confes- sion to Mrs. Bailey cotemporaneous with the judgments in question. It may be that no special consequence follows from the kindred of the parties. A father has the same right as a stranger to save his just claims, if he can, in the wreck of his son's affairs; yet it is a matter affecting character, which is simply the result of the common sense, or the sense of equity of mankind, that he should manifest that his claim is really just, and that he has not improperly yielded to the bias of paternal affection in any effort to screen the property of his son. The fact that the judgments were confessed after the institution of the suit in equity, although not abso- lutely controlling, presses heavily against the judgment cred- itor, where the fairness of the judgment is otherwise doubtful. Hijip vs. Sawyer, Rich. Eq. Cas., 410. The conveyance of property by one sued, or expecting to be sued, however full may be the price, when tlie purpose of vendor and purchaser is to defraud him prosecuting, or about to prosecute, a right, is fraudulent and void. Pinson vs. Lowry, 2 Bail., 324. There may be, on this point, some distinction between the convey- ance of property, and the creation of a lien upon it by judg- ment; for one reason for treating a conveyance as fraudulent is, that thus, by the consent of the parties, the property of the debtor is placed in a state in which it may be easily squandered or concealed, and in which it is not subject to the lien of a judgment or execution. Undoubtedly, too, a debtor has the right to make preferences among his bona APPEALS IN EaUITY. 123 Columbia, November and December, 1S59. fide creditors, even by confession of judgment. Holhird vs. ^^nderson, 8 T. R,, 235. Still Chancellor Harper, in Hipp vs. Sawyer, considers a confession of jndgnient as coming with- in the same principle as a conveyance, (Twine's case 3 Co., SO); and Chancellor Dunkin, in Boivie vs. Free, 3 Rich. Eq., 403, apjjroves this conclnsion. In this case, however, the concnrrence of the parties in an express frand on plaintiffs is not satisfactorily proved, if we assume that the judgments were for bona fide debts. From the express resolution of G. B. Montgomery, Jr., to defeat plaintiffs, and from his fraud in the conveyance of the mills, and in confessing judgment to his mother-in-law, and from all the circumstances of the case, the most unfavorable con- clusion might well be drawn as to him; but the only evi- dence of fraud as to G. B. Montgomery, Sr., is his availing himself of the judgments fraudulently confessed by his son. This, I think, he might lawfully do, if he had established his debt. There he founders. He has proved no indebtedness of his son to him, and, under the circumstances of suspi- cion attending the judgments, and when they were directly assailed, the burden of proof was ujion him. Dc non appa- rentibus et non existcntibus, eadeni est ratio. The conclusion is, that there was no consideration for these judgments, and that they must be put out of the way of creditors. As to the judgment in favor of J. B. Mickle, the sup|)lc- tory proof of his answer is not complete, but sufficient. He shows, by the inventory of the estate of Judith S. Montgom- ery, of which he was executor and principal legatee, that G. B. Montgomery, Jr., was indebted to that estate ^400, with interest from December 29, 1S46, by single bill, and as his answer states that the judgment was to secure this single bill, and as the plaintiffs have not cstablishecJ any strong circum- stance impugning this judgment, llie vacation of it would be Iiarsh and unjust. As to the assignment to Mickle, of the 124 APPEALS IN EaUlTY. McCorkle i-s. Montgomery. Ford judgmeiil, I am satisfied by the evidence of Ford and McDanie! tiiat the assignment was f^iirly obtained. The proof of the assignment of Barclay's judgment is not entirely satisfactory ; but as the judgment itself is fair, and there is no proof of the satisfaction of it, except by the ad- mission of Mickle's answer, which must be taken altogether, that he paid Barclay from liis own money, and took an assignment, this assignment cannot be disturbed. Thirdly^ as to the assignment by Montgomery to Mickle, on June 1 1, 1852. It is settled, in this State, that a debtor has the right to make preferences among his just creditors, and it follows that his purpose to postpone some creditors is not fraud. There is no reservation of advantage to himself by the assignor in this deed, which would make the assignment intrinsically infirm, and inoperative. It is also clear, that a debtor cannot defeat or injure his creditors by any attempt to disturb their liens, or to give his estate to favored persons, whom he may call creditors, when, in fact, he owes them nothing. At the date of this assignment, the plaintiffs had no lien upon the lands and chattels of the assignor, although tliey soon afterwards obtained judgment and execution; and as to them, he might assign his whole estate to other just creditors. The judgments of Nancy Bailey and G. B. Mont- gomery, Sr., iiave been set aside as to creditors, but they are good between the parties ; and these persons, although they have no liens, are entitled, even against creditors, to prove their just claims, and come in for satisfaction, ratably with creditors in tlie fourth class under the assignment, Dicken- son vs. IFay,4 Rich. Eq., 412. I so greatly doubt the appli- cation to tliis case of the principle, that a creditor controlling two funds must first resort to that fund which will produce satisfaction to him with least injury to other creditors, that I shall not venture to disturb the general scheme of the assign- ment. The conclusion of my judgment is, that the proceeds of the lands and chattels of G. B. Montgomery, Jr., whether embraced in the assignment or not, and the choses assigned, APPEALS IN EaUITY. 125 Columbia, November and December, 1859. must be first applied to the satisfaction of the judgments of Micklo, Wm. Montgomery, and other hens not disturbed by this decree; next, the expenses and commissions of the assig- nee, Mickle; next, the creditors ennmerated in the third class of the assignment; next, any residue of the lands and chat- tels to the plaintiffs' decree ; and lastly, all the residne of the estate and credits of the assignor, ratably among all his credi- tors, including, of course, the plaintiffs, and G. B. Montgom- ery, Sr., and Nancy Bailey, if the last two establish any debts. Foin^thly, as to the sales by the assignee. I am of opinion the purcliases by the assignee, a trustee to sell, are voidable, at the option of creditors or any of them. Ex parte fVii^gins, 1 Hill Ch.,343. I also conchide that the purchases by James B. Montgomery are voidable, as connected with the fraud in the purchase of the mills. After the sale, the negroes bought by him returned to the mills, and were controlled by G. B. Montgomery, Jr., just as before the sale. It further appears that one of these negroes was sold by G. B. Montgomery, Jr., and the proceeds applied to his debt to Gilliland & Howell. Another, Jim, was sold to Hughes, at a profit of §150, and Hughes' note delivered to the assignee. As the purchasers of these two negroes were not parties to the suit, no order can be made for their re-sale ; but as to the latter, the assignee must account for him at the price of $595. Moreover, I think the purchases by G. B. Montgomery, Sr., of the negroes, Harry, Aaron, Gill and George, are voidable at the option of creditors. There is no proof concerning the circumstances of the sale, not even that it was by public auction, or that the creditors had been convoked to appoint an agent to act with the assig- nee under the Act of 182S, although this Act is referred to in the assignment with reference to the commissions of the assignee. The Act requires the assignee to call the creditors together within ten days after the assignment, for the appoint- ment of an agent, and declares all sales and transfers of pro])- 126 APPEALS IN EaUITY. McCorkle vs. Montgomery. erty by the assignee before the appointment of an agent to be void and of no effect. 6 Stat., 366. Of the negroes above mentioned, Harry was returned after the sale to a person to whom he had been apprenticed, and continued just as before the sale; and Aaron, Gill and George returned to the posses- sion of G. B, Montgomery, Jr., and were controlled by him as before the sale. It may be further remarked that the prices of these negroes seemed not to have been paid to the assig- nee; and that James B. Montgomery had no means of pur- chasing except from the profits of the mills, to which he has been adjudged not to be entitled, and that G. B. Montgomery, Sr., had an unfair advantage over competitors at the sale, by being ostensibly and not really a judgment creditor. As to the negro Henry, purchased by G. B. Montgomery, Sr., as it does not appear that he returned to the possession of G.B.Mont- gomery, Jr., there is not sufficient reason for avoiding the sale. So as to the sale of Tom to G. B. Wm, Montgomery, as the possession seems to have been kept separate, the title of the purchaser must stand. I conclude that the plaintiffs are entitled to a re-sale of all the chattels purchased by Mickle, James B. Montgomery and G. B. Montgomery, Sr., except the negroes Henry, Jim, and the one sold to pay Gilliland & Howell ; and if the plaintiffs choose to have a re-sale, it is ordered that the commissioner proceed to sell according to the practice of the Court. The defendants state in their answers that some of the plaintiffs are infants, and should sue by a responsible next friend. No proof on the point was offered ; but the commis- sioner must inquire and report as to the infancy of any of trie plaintiffs, and report suitable next friends for any of tliera who may be infants. Tlie defendants further suggest that the creditors interested in the assignment in preference to the plaintiffs should be made parties. This is a creditors' bill, and all that is neces- sary, is, that the creditors should be called in according to the procedure of the Court. And if this has not been done, it is APPEALS IN EaUCTY. 127 Columbia, November and December, 1S59. ordered that the conimissioner call in the creditors of G. B. Montgomery, Jr., by advertisement for tliree months, to pre- sent on oath and prove by the rules of evidence, their demands, on or hefore a day fixed by him, on pain of being barred from any portion in the distribution of said debtor's assets. It is ordered that this opinion stand for a decree, and that the parties have leave to apply at the foot for any orders for tlie execution of it. It is further ordered, that the plaintiffs pay the costs of G. B. Wm. Montgomery, and that they be reimbursed for this payment, and be paid their costs of suit, generally, by the defendants, G. B. Montgomery, Jr., G. B. Montgomery, Sr., James B. Montgomery, and Nancy Bailey, and if these defendants be unable to pay, that plaintiffs be reimbursed and paid from the assets in controversy. Let the costs of J. B. Mickle be paid from the assets assigned ; and the other defendants, except Mickle and G. B. Wm. Montgomery, pay their own costs. The defendant, G. B. Montgomery, Sr., appealed from the decrees pronounced by Chancellors Wardlaw and Dargan,' on the grounds : 1. Because in said decree of Chancellor Wardlaw, it is held that the judgments in favor of G. B. Montgomery, Sr., against G. B. Montgomery, Jr., mentioned in the pleadings, are without consideration, and must be put out of the way of creditors, when it is respectfully submitted, that, as said judgments were subsisting, it was incumbent on those assail- ing them to show their want of consideration — that no such evidejice was offered — that, although not required to show the consideration of his judgments, the said defendant did show they were boiia fide, as complainants in their bill charged that said judgments were without consideration. 'The Reporior ha? been nnaldo to procure a copy of Chancellor Dargan's decree. He does not conclude Uial it is very important to a full understanding of the case. 128 APPEALS IN EQUITY. McCorkle vs. Montgomery. and confessed for the purpose of defeating their claims, and defendant fully and explicitly denied the same in his answer. 2. Because said decree of Chancellor Wardlaw orders the purchase by G. B. Montgomery, Sr,, of the negroes Aaron, Gill, George and Harry, at the sale made by J. B. Mickle, assignee of G. B. Montgomery, Jr., to be set aside, and said negroes re-sold, when it is submitted that said sale was fair, and should not be decreed and held fraudulent from the fact that the purchaser who bought them at a public sale and paid for them, permitted them, from motives of kindness and good feeling, to return into the possession of the former owner. 3. Because Chancellor Dargan, in his decree, orders said negroes, Aaron, Gill, George and Harry, to be delivered up by G. B. Montgomery, Sr., and sold by the Commissioner in Equity. 4. Because the fact that G. B. Montgomery, Sr., permitted Harry, after said sale, to return to the possession of the per- son to whom he had been bound as an apprentice by G. B. Montgomery, Jr., it is submitted shows no evidence of fraud, and cannot vitiate the sale. 5. Because it clearly appears, from evidence offered since the decree of Chancellor Wardlaw, that the judgments in favor of G. B. Montgomery, Sr., against G. B. Montgomery, Jr., were founded on bona Jide consideration, and said judg- ments ought not to be set aside. The defendant, James B. Montgomery, appealed from the decrees of Chancellors Wardlaw and Dargan, on the grounds: 1. Because said decree of Chancellor Wardlaw directs the purchases made by this defendant at the sale of G. B. Mont- gomery's property, by his assignee, J. B. Mickle, to be set aside for fraud, when it is submitted that, as said purchases were fairly made at a public sale, the fact that this defendant permitted the property he purchased to return to his father's possession, was no fraud on the creditors of said G. B. Mont- APPEALS IN EQUITY. 129 Columbia, November and December, 1859. gomery, Jr.; no hindrance to them in the collection of their debts; and no evidence of combination between said defend- ant and G. B. Montgomery, Jr., to defraud complainants. 2. Because Chancellor Dargan, in his decree, orders the said defendant to deliver the property purchased by him, as aforesaid, to the commissioner, and for the same to be sold by him as the property of G. B. Montgomery, Jr. The plainlifls appealed on the grounds: 1. Because his Honor erred in holding that the proceeds of the sale of the lands and mills of G. B. Montgomery, Jr., are subject to the preferences contained in his assignment to J. B. Mickle, the same not being embraced in his deed of assignment, and he, in his answer, having stated that he had no interest therein. 2. Because, it being clear from the proof that the voluntary assignment was made to defeat the payment of the claim of complainants, and it being also clear, from the proof, that all the other valuable property, embraced in the assignment, was purchased by parties therein preferred, and large claims in said assignment being preferred, which were altogether ficti- tious, the Chancellor erred in not decreeing said assignment to be fraudulent and void as to complainants. The defendant, J. B. Mickle, and David McDowell, one of the creditors of G. B. Montgomery, Jr., appealed from the decree of his Honor, Chancellor Wardlaw : 1. Because said McDowell's note was given for the pur- chase money of the mills, and should have precedence of payment out of the proceeds of the sale of said mills. 2. Because the purchase of J. B. Mickle, at the assignee's sale, was fair, and unimpeached by a shadow of testimony; and, therefore, said purchase should not be set aside. McAlihy^ for plaintiffs. Mickle, IVilliams, for defendants. 10 130 APPEALS [N EaiJlTY. McCorkle vs. Montgomery. [Authorities cited: 5 Johns. Rep., 385; JVebb vs. Daggett, 2 Barb., 9; Jacat vs. Corbett, Chev. Eq., 1\\ Le Prince vs. Guillemot, 1 Rich. Eq., 187 ; ^7iderson vs. Fuller, McM. Eq., 27; Hipp vs. Sawyer, Rich. Eq. Ca., 410 ; 4 Rich. Eq., 471 ; Brown vs. Postell, I Hill, 445 ; Moffatt vs. McDuwal, 1 McM. Ch,, 434 ; Hill vs. Rodgers, Riley Ch., 7 ; Bird vs. Atkins, Rice, 87; Burton vs. Riishton, 4 De S., 373; 11 Stat,, 62; 8 Leigh, 272; Anderson vs. Hook, 9 Ala., 70; Union Bank vs. Toomer, 2 Hill Ch., 27; 14 Johns. Rep., 493; 3 Johns. Ch., 378; Guignard vs. Harley, 10 Rich. Eq., 256.] The opinion of the Court was delivered by DuNKiN, Ch. The first and principal ground of appeal relates to the judgment of Green B. Montgomery, Sr. It is true that when the plaintiff seeks to invalidate a judgment on the ground of want of consideration, which is denied by the answer of the judgment creditor, the defendant may, un- der ordinary circumstances, rely on his answer without further proof. In this case the plaintiffs alleged and proved a fraudu- lent intention on the part of Green B. Montgomery, Jr., to defeat the claim of the plaintiffs, and that, in pursuance of such intention, he had procured the deed of the lands and mills to be executed to liis son, James B. Montgomery. It was charged that the several judgments to his father. Green B. Montgomery, Sr., to his mother-in-law, Mrs. Bailey, and to liis son-in-law, entered on the same day, were without consid- eration, and for the same purpose. It was furthermore charged that at the sales subsequently made, the whole of the property of the debtor (with a very inconsiderable excep- tion) was bid off by his family, and has ever since remained in his i)ossession " and under his dominion and control as before the sale." This was established before the Chancellor, and under the evidence the purchase of four of the slaves by the defendant. Green B. Montgomery, Sr., as well as other pur- chases on the same occasion, were set aside, and this judg- ment has the concurrence of the whole Court. It was under APPEALS IN EaUITY. 131 Columbia, November and December, 1859. these circumstances, that the Chancellor ruled that, although " a father has the same right as a stranger to save his just claims, if he can, in the wreck of his son's affairs, yet that it was a matter affecting character, and it was simply the result of the common sense, or the sense of equity of mankind, that he should manifest that his claim is really just, and that he has not improperly yielded to the bias of paternal affection in any effort to screen the property of his son." The Chan- cellor held that " under the circumstances of suspicion attend- ing the judgments, and when they were directly assailed, the defendant should have proved the indebtedness of his son to him." He offered no evidence whatever. It was said for him here this was attributable to the absence of his counsel. This seems a misapprehension. The solicitor, who filed his answer, not only attended the references, but represented another judgment assailed on the same grounds, and took care to adduce evidence of the consideration which was sustained by the Court. Although the Chancellor set aside this judgment as well as that of Nancy Bailey, (from which latter there is no appeal,) he allowed the defendant, Green B. Montgomery, Sr., to come in among the general creditors, A reference was accordingly had, and it is now asked to review and reverse the judgment upon the new evidence adduced. This would lead to great embarrassment. Evidence was not only given of an indebted- ness, to some extent, from Green B. Montgomery, Jr., to his father, between 1842 and 1852, but evidence was also given that, during that time, Green B. Montgomery, Sr., was not in a condition to lend money to his son, or to any one else — much less to extend long credits. The Chancellor has said in his decree, that as to the alleged embarrassment of Green B. Montgomery, Sr.'s affairs he knew nothing from the evi- dence before him. It is not proposed to comment, in any manner, upon the new evidence, which might have a ten- dency to pre-judge questions that may arise upon the commis- sioner's report. In determining the merits of an appeal, it 132 APPEALS IN EaUITY. McCorkle vs. Montgomery. would be great injustice to tlie Chancellor, and, not unfre- quently, much greater injustice to the parties, to admit the influence of evidence which might have been adduced, but was not before the Court. In this case the evidence on each side has introduced a very material element to aid the judg- ment in determining the existence and extent of the defend- ant's claim as a general creditor of Greeu B. Montgomery, Jr., but it can have no weight to strengthen or invalidate the original decree. Another ground of appeal is, that tlie note in favor of David McDowell should have precedence of payment out of the proceeds of the sale of the mill tract, because the note was given for the purchase money. In this State the doctrine has never prevailed, that the vendor of land has an equitable lien for the payment of the consideration. Wliile something is due to the vendor who parts with his property, not less, cer- tainly, is due to the subsequent creditor who has trusted the ostensible as well as legal owner of the estate, without any knowledge of a secret incumbrance. Upon this subject the language of Chief Justice Marshall, in Bailey vs. Greenleaf, 7 Wheat., 46, 50, is instructive. "To the world," says he, " the vendee appears to hold the estate, divested of any trust whatever; and credit is given to him, in the confi- dence that the property is his own, in equity as well as law. A vendor, relying upon this lien, ought to reduce it to a mort- gage, so as to give notice of it to the world. If he does not, he is, in some degree, accessory to the fraud committed on the public, by an act which exhibits the vendee as the com- plete owner of an estate on which he claims a secret lien. It would seem inconsistent with the principles of equity, and with the general spirit of our laws, that such a lien should be set up in a Court of Chancery, to the exclusion of bojia fide creditors.'" The only authoritative decision in our own Courts, is that of Wragg vs. Creditors of Jindrew Irvine, which was the judgment of a full Court, and is reported 2 DeS., 509. In APPEALS IN EaUITY. KW Columbia, November and December, 1859. that case, Chancellor Rutledge, speaking for the Court, wholly repudiates the claim of "a bond creditor to have an equitable lien on the land he has sold, unless he has taken care to secure that lien by a mortgage;" and such, he says, has been the law of this country for at least sixty years past. More than half a century has elapsed since that decision, and, although, in a note to the case, further examination of the subject may seem to have been invited, the Court is not aware of any subsequent decision of this tribunal arraigning the judgment in Wragg vs. Comptroller General el al., credi- tors of Irvine. It may be added, that the Act of 1S43, requiring ail mortgages of real estate, however formal and perfect, to be recorded within sixty days, may well be regarded as a legislative declaration of the prohibitory policy of the c )untry against any such secret liens. The Court has said thus much in deference to the earnest and elaborate argument submitted by the appellant's counsel. But it is clear on the facts as before us, that, neither in Great Britain, nor elsewhere, in which the doctrine of the vendor's equitable lien is fully recognized, could the claim of the appellant be maintained. According to the report of the Chancellor, the vendor, in selling the premises to Doag, never relied on this evanescent and doubtful equitable lien, but took from him a mortgage of the premises to secure the purchase, money. When Doag afterwards conveyed to Montgomery, part of the consideration money was paid in cash to Mc- Dowell, and, for the balance, he took from Montgomery his single bill, with two sureties, and gave up or released his mortgage. Under these circimistances it would be vain, according to any of the authorities cited, for McDowell to resort to his original equitable lien, when he had surrendered his legal mortgage for atiother and satisfactory security, which he was content to receive. It is, perhaps, just to remark, as was suggested at the bar, that this appeal is prosecuted, not so much in behalf of McDowell, as of the sureties to the single 134 APPEALS IN EaUITY. McCorkle vs. Montgomery. bill who desire to be subrogated to his supposed equitable lien. This Court has already intimated a concurrence in the views of the Chancellor, in reference to the re-sales ordered; nor, in relation to tiie other grounds of appeal, is it deemed necessary to add anything to the reasonijig of the decree. It is ordered and decreed, that the jndgment of the Circuit Court be affirmed, and the appeal dismissed. Wardlaw, Ch., concurred. Sppeal dismissed. APPEALS IN EaUITY. l:J5 Columbia, November and December, 1S59. Anna R. Stokes vs. G. W. Hodges and others. W. L. Hodges vs. the same. Mortgage — Delivery — Partiiers/iip — Interest — Surety — Joint Tenant ^— Use and Occupation. An unrecordoil mortg^a^e produced by one of the morlpagees, after the dealli of the mortgagor, held, under the circumstances, to be invalid for want of sutli- cient proof of delivery. One partner, who puts in his proportion of the capital, is not entitled to charge interest because the other jiartner has failed to put in his proportion; the articles of partnership not stipulating for the payment of interest. Where two persons jiurchased a tract of land as joint tenants, and gave their joint bond for the purchase money, and one of them paid beyond his propor- tion, held, that, for the amount paid over his proportion, he was surety, and entitled to set up the bond as a specialty debt against the estate of his co- tenant. Where one joint tenant used and occupied the land for several years after the death of his co-tenant, and on bill to marshal the assets of the co-tenant, wa.s allowed his demands as creditor, held, that he must account for the use of the land, and deduct from his demands a reasonable amount for the use of such proportion as he occupied, over his share. BEFORE JOHNSTON. CIL, AT ABBEVILLE, .TUNE, 1S5'.». The decree of his Honor, the Circuit Chancellor, is as fol- lows : Johnston, Ch. The first of these bills was brought by Anna R. Stokes, the widow and administratrix of Joseph H. 8tokes; and was filed the 28th of May, 1S57. Pending tlie suit, and after certain proceedings in it, not necessary to be particularly stated here, Mr.s. Stokes died, and W. L, Hodges became her administrator, and also administrator dc bonis 7ion of Joseph H. Stokes, and filed the second bill to revive her suit, which had abated by her death. 136 APPEALS IN EaUlTY. Slokes vs. Hodges. Joseph H. Stokes died the 7th of August, 1853. In his lifetime, he, with the defendant, Geo. W. Hodges, who was his wife's father, became the joint purchasers, at commis- sioner's sale, of a tract of land for farming purposes, which is described in the pleadings. It was sold as the estate of Mays; and, on etfecting the purchase, they gave their penal bond, dated the 4tli of November, 1850, to the commissioner, conditioned to pay the price ($3,172) in two equal annual instalments, of $1,586 each; the first payable the 4th of November, 1851, and the second the 4th of Novembei, 1S52, and took titles to themselves jointly. Of this price it appears a considerable part was paid by Geo. W. Hodges. The parties, each, furnished this land with laborers, mules, provisions, &c., but in unequal proportions. Without any special articles between them, they entered upon the cultiva- tion of the place, and made crops in 1851, 1852 and 1853. Stokes received the proceeds of the crop of 185], Hodges received those of 1852 and 1853: in the latter of which years, it will be remembered, Stokes died. After his death, Mrs. Stokes became administratrix of his estate; and there having been a partial accounting between her husband and her father, Mr. Hodges, a division was also made between them of the personalty, (slaves, mules, &c,,) of Stokes and Hodges, on the plantation ; and the share of Stokes was sold by the administratrix; of which she bought the principal portion. The land remained unpartitioned, by some arrangement, the terms of which do not appear. Mrs. Stokes put in negroes, &c,, purchased by her at her husband's estate sale, and the place continued to be planted in connection with her father, who let his forces remain on it. This enterprise was continued for the years 1854, 1855, 1856, 1857, and till September, 1858. On the bill of Mrs. Stokes, it was sold the 6th of September, 1858, by order of Court, and brought the sum of $1,997 15; a loss on the original purchase of $1,174 85. Mrs. Stokes died that year. At his death, Slokes was much indebted to his father-in- APPEALS IN EaUITY. 137 Columbia, November and December, 1S59. law, and to many other persons; indeed, his estate is insol- vent. In his lifetime, he had entered into a mercantile partnership with the defendant, James N. Cochran, by arti- cles bearing date the 2lst of July, 1S52; in which it was stipulated, that Stokes should " furnish such an amount of means as may, from time to time, bo agreed upon by the parties to be necessary for the purpose aforesaid," and that Cochran should furnish "an equal amount of means" with Stokes. The partnership "to continue for the period of two years, at least, subject to be discontinued or determined at any time by consent of parties, said parties to participate equally in the responsibilities and profits of said business." Stokes fell short of contributing as much capital as Coch- ran. The concern, which was personally attended to by Stokes, until his death, (August 7th, 1S53,) proved quite unprofitable. In fact, it did a losing business. On the death of Stokes, Cochran, the surviving partner, took it in hand, paid its debts, and as soon as convenient, brought it to a close. The object of the bill was to obtain a sale of the land held jointly by Stokes and Hodges, and a settlement between them; also, the sale of a store-house and lot, held in partner- ship by Cochran & Stokes, and a settlement of their part- nership, and of their mutual liabilities to each other. The sale was ordered, and has been made; an account has been taken, as indicated, and also, as to all the creditors of Stokes, (who were called in;) and now the case is taken up on a report upon these matters, to which exceptions are taken both by plaintitfand defendants. The defendant, George W. Hodges, and the plaintiff, join in their exceptions, and these will be first considered — 1. The first of them is, " Because the commissioner erred in not giving George W. Hodges a lien, under his demands against Stokes, growing out of the plantation partnership, upon so much of the partnership property as was sold as the individual estate of J. H. Stokes. The same was partner- i:iS APPEALS IN EQUITY. Stokes vs. Hodges. ship property, which the partner had a specific lien upon, to pay partnership debts." This is an objection proper for George W. Hodges, and not for the plaintiff; and the latter has no right to be heard upon the exception. The exception assumes that this joint planting establish- ment was a partnership; and that the incidents of a part- nership proper apply to it; which is very questionable as a general proposition. I shall not dispute, however, that Mr. Hodges might have a right to set up as equitable assignee the claims of creditors of this concern, discharged by him, and claim payment out of any portion of the joint property. The property out of which such payment is claimed here, was not joint property, but the individual property of Stokes; so acknowledged by Hodges when he voluntarily separated it from his own of the same description, and delivered it up to the administratrix to be sold as the estate of her intestate. This act was, also, a waiver of the lien he now sets up, if such lien had existed ; and he is to be regarded as an ordi- nary creditor of Stokes' estate. This exception is overruled. 2. The second of these exceptions is, that "the commis- sioner erred in postponing Hodges' mortgage, covering the debt paid by him to Clinkscales, to the claim of James N. Cochran, who, it is alleged, is not a creditor subsequent to the date of the mortgage." 3. The tiiird is, " Because the Clinkscales money was bor- rowed by Stokes to pay partnership debts, and James N. Cochran being a partner of the firm of Cochran & Stokes, had actual notice of said mortgage." 4. The fourth exception is, "Because, in March, 1853, the mortgage was executed ; and on the 23d December, 1853, the said James N. Cochran himself made an endorsement thereon, recognizing its validity; and it is denied that his claim, now presented, arose, or was due to him, in that inter- val of time." 5. The fifth exception is, "Because the whole of his claim APPEALS IN EaUITY. 139 Columbia, November and December, 1S59. (Cochran's) againet the estate of Stokes, without any regard to how or when it originated, must be referred bacic to the date of the articles of partnership between him and Stokes," (i. e., 21st July, 1S52.) The facts are only to be gathered as they are dispersed among the papers before me ; and it is no little impediment in performing this task, ihat frequently there is an omission of dates where they might have been taken down. It appears that Stokes, desiring to borrow about $2,500, and expecting to get it from Mr. Dorn, drew up a note for that amount, payable to Dorn, which he procured to be signed, as surety, by one M. C. Zeigler, saying he intended to get it also signed by George W. Hodges and F. A. Connor; and he exhibited to Zeigler, at the time, the following instru- ment, which has been denominated a mortgage: " South Carolina, Abbeville District, March 2, 1S53. *' Know all men, &c., that I, J. H. Stokes, of District and State aforesaid, do, now and hereafter, relinquish all claim, right and title to, on four negroes, viz: Cato, Julia, Charity and Easter, to Gen. G. W. Hodges, M. C. Zeigler and F. A. Connor, their administrator, executor, or assigns, until the consideration, for which the relin([uishment is made, is fully gratified. The object of the above relinquishment is to secure G. W. Hodges, M. C. Zeigler and F. A. Connor, from risk in going security to J. H. Stokes for the amount of $2,500, bor- rowed money. " In case said amount is paid, or said sureties are entirely released in twelve months, the above obligation or relinquish- ment is null and void. Otherwise to remain in full force and virtue. Signed, sealed and delivered in the presence of J. H. Connor. G. M. Connor." J. H. STOKES, [l. s.] 140 APPEALS IN EaUITY. Stokes vs. Hodges. Stokes failed to get the money from Dorn. But being still in pressing need of it, he executed a note dated the 10th March, 1S53, endorsed by J. F. Marshall, for $2,500, which was discounted by the Commercial bank at Columbia, and the money "applied to the debts of the firm." This note Was payable at sixty days ; and when it was about to mature, he, through Marshall, got Clinkscales to loan him $2,500, to pay the bank, on a note drawn by himself, Hodges and Con- nor, (Zeigler being accidentally absent.) This bears date 3d May, 1853, and on it Stokes made the following endorse- ment: "The within note is left with F. B. Clinkscales as collateral security for cash advanced J. H. Stokes, until redeemed by him with another note on F. A. Connor and G. W. Hodaes, 4th May, 1853. J. H. STOKES." This instrument was never registered; nor is delivery proved except as evidenced by Hodges' possession of it. On it is the following endorsement, which is proved or admitted to have been drawn up by the defendant, James N. Cochran ; aiid bears date after Stokes' death: "This instrument witnesseth that I, Anna R. Stokes, administratrix of the estate of Joseph H. Stokes, deceased, do hereby give my consent that the negroes, Cato, Julia, Charity and Easter, specified in the within assignment, shall be sold with the balance of the property of said estate, sub- ject, however, to the provisions of said assignment; and that the proceeds of sale of said negroes shall be exclusively applied, first, to the payment of the debt intended to be secured by the aforesaid assignment. Said proceeds not to be made liable to the creditors of said estate generally, until the aforesaid debt be liquidated. The balance, if any, after payment of said debt, to be subject to the estate aforesaid, as witness my hand and seal, 23d December, 1853. ANNA R. STOKES, [l. s.] Hodges paid Clinkscales, and claims under the mortgage. APPEALS IN EaUITY. 141 Columbia, November and December, 1559. The commissioner remarks, in his report, "Cochran, and other creditors, whose debts arose subsequent to the date of the mortgage, claim that, as to them, the mortgage is void for want of notice. Tiie earUest notice proved to have been received by Cochran, was December 23, 1853, (evidenced by his drawing np Mrs. Stokes' endorsement of tiiat date, on the paper.) A large part of the debts paid by Cochran was for goods purchased, and debts contracted by the firm subse- quent to the date of the mortgage; and between the death of Stokes (August 7, 1853) and the time of the notice of the mortgage, (December 23, 1853,) he paid out debts of the firm to the amount of $3,000 or upwards. I have not the data to state exactly the amounts received and expended by Cochran during that time on account of the firm, but am informed that the expenditure exceeded the receipts. As to Cochran and such other creditors, whose debts were con- tracted subsequent to the date of the mortgage, and who had no notice, I am of opinion the mortgage cannot avail. This conclusion I have attained with much doubt" — And it is to this ruling of the commissioner, the 2d, 3d, 4th and 5tli exceptions are taken. At the hearing I was strongly disposed to support them ; and I have striven to do so; but I cannot find grounds of fact or law to sustain me. These exceptions are therefore overruled. 6. The sixth of these exceptions is, "Because the commis- sioner has erred in cliarging Stokes with the whole amount (to wit: $4,300 81) paid him by Cochran in cash and cotton, to be applied to the purposes of the firm; and at the same time, with half the same amounts, by adding the same to the reported excess of payments by Cochran over his receipts; thereby making the final indebtedness of Stokes to Cochran $4,112 17; whereas it is submitted that (assuming the cor- rectness of the data upon which the report is founded) only the sum of $4,112 17 — 2,150 41 (half of $4,300 SI)— $1,960 76 is due." 142 APPEALS IN EaUlTY. Stokes vs. Hodges. This exception is founded upon a misapprehension of the report, as will be seen by examining it, and the report on this exception. This exception is overruled. 7. The seventii exception was abandoned. It was in these words: "Because the commissioner erred in deducting the profits (of Cochran & Stokes) to wit : $413 46, from the doubt- ful and bad debts; whereas tliey should be divided, allowing the estate of Stokes one half thereof, to wit: $206 73." 8. The eighth exception is, " Because the proof is that Stokes put $2,500 into the firm (the money borrowed of the bank) and the commissioner erred in not adding that to his payments, as he did the payment of $4,300 81 to him by Cochran, to Cochran's payments. Both sums were used for, and in the firm: and if one partner gets credit for his pay- ment, the other should also." 9. The ninth exception, as it now stands, is long and ob- scure. As originally filed, it was, "Because the commissioner erred in allowing more to J. N. Cochran on his partnership claim than he is properly entitled to receive; especially that he has erred in the following particulars: That he has given Cochran the whole amount of $4,300 81, said to have been paid into the firm by him — when he should have charged Stokes with only one-half of that sum — that he has not charged Cochran with interest upon the amounts and notes received by him, and in other particulars allowed the said James N. Cochran more than he ought to receive." This was the form of the 7th, Sth and 9th exceptions as put in and argued before the commissioner. On these he remarks in his report upon exceptions: "As to the 7th, Sth and 9th exceptions it can only be said, that there never were any profits of the firm to divide. There was an excess of sales over purchases, but when the bad debts were taken into consideration, that excess was completely absorbed. "The $2,500 applied by Stokes to the firm's debts— the proceeds of the note endorsed by Marshall and discounted in APPEALS IN EaUITY. 14:i Columbia, November and December, 1S59. bank — he has been allowed credit for, in the payments credited to him; and he clearly cannot be entitled to credit for the debts paid with that snm, and also claim credit for so much cash contributed to the capital of the concern. The complainant's exceptions are therefore overruled." The 7th exception was abandoned at the hearing before me; and if it had not been abandoned, I would have over- ruled it for the reason given by the commissioner. I overrule the 8th exception, for the reasons given by the commissioner for his judgment upon it. It will be observed that the commissioner has made no observation on the 9th excej)tion as presented to him; I have nevertheless no ditHculty in overruling that exception as presented, and I do so. But at the hearing, by consent of counsel, the exception was amended, by adding to it: "That he (the commissioner) has erred in allowing Cochran credit for $447 68, as a pay- ment for freight, appearbii^ by J. F. Hodges' receipt, which in the language of the accountant, Wm. Hill, to whom the books of the firm, by agreement, were referred, is ' vague and indefinite;' and also, in charging the estate of Stokes with $484 98 as a part of the proceeds of the cotton money (the J. C. Cochran draft) alleged to have gone into his hands, more than appears by evidence he has received; and further, in charging the estate of Stokes with $1,300 81 as proceeds of the cotton money, alleged to have been received by him, when, by the showing of Cochran, the net amount of said cotton money was only $1,249 34." This part of that exception I cannot understand without a report n|)on it. I, therefore, recommit it to the commissioner. Counsel cannot be prevailed on to go into references early enough to allow the commissioner time for a full and delib- erate, statement of their matters before him; and then they hurry both him and the Court at tlie hearing. The commis- sioner might procure time, by assigning early days for lefer- ences; and, after giving notice of it, if counsel and parties 144 APPEALS IN EaUITY. Stokes vs. Hodges. thwarted him, he might refuse to make up any other report, except of the course he had taken, and how it had been frustrated. This course, adopted by the late Mr. Miller, of Sumter, proved successful. Nothing short of it is likely to succeed. 10, The tenth of these exceptions, and the last of them, is, "Because the commissioner erred in not allowing a reason- able compensation to J. H. Stokes for his personal attention to the business of the firm, from its commencement to his death. It is insisted that his services rendered in this behalf were worth, at least, $500 per year. He gave his entire attention to the firm, and boarded himself in the meantime." 1 suppose the counsel are aware, that it has been repeated- ly decided that compensation for such services must depend on the partnership agreement. Parties have an opportunity lo agree respecting compensation, if they choose to allow it; and if they make no bargain, they cannot expect the Court to make a bargain for them. This is the uniform rule. No decision to the contrary; and the counsel must be supposed to have put in this exception with the mere desire to impose the labor of hearing and overruling it. It is overruled. In closing what I have to say on these exceptions I would observe, that confusion is apt to arise from comprehending in the same class of exceptions divers interests. I am now to consider exceptions put in by "J. N. Coch- ran, on behalf of himself and otliers, creditors of J. H. Stokes." 1. The first is: "Because G. W. Hodges has not been charged with rent of the partnership plantation for the years 1854,1855,1856, 1857 and 1858, to wit: the sum of $400, annually, with interest." The commissioner remarks, that this exception " proceeds as your commissioner conceives, from the confounding of a joint tenancy with a partnership in the land. The purchase was joint; but the land was purchased with no common fund. The partnership appears to the commissioner to have APPEALS IN EaUITY. 145 Columbia, November and December, 1859. consisted, not in the land, but in the farming operations. It is trne, real estate, under our statutes, is made liable for the payment of debts upon the deficiency of the personalty; for that purpose, the creditors had a right to call upon it in aid of personalty. But is the right to rent from a co-tenant inci- dent to this right of creditors? "Under our statutes, upon the death of a joint tenant, his interest descends, as in tenancy in common, and becomes liable to distribution among heirs and distributees; subject, of course, to the rights of creditors. The jus accrescendi is taken away, and the right of partition accrues." There is no doubt that the jus accrescendi being abolished by statute as to lands held in joint tenancy, (which I regard this land to have been,) the necessary consequence is, that the portion of the deceased owner descends for distribution, in the absence of a will. The operations on these lands for the years indicated, after Stokes' death, were not conducted in privity with him, but with his widow, as an individual, acting for herself and her infant co-distributees. If Hodges' use of the premises exceeded his share, which I do not see, and was contrary to their interests, for this abuse, he was primarily accountable t(» them. Though the widow was administratrix, yet as administratrix she had nothing to do with the land, so as to establish a privity in this matter with creditors. The land was liable for debts, and is so still. This liability is created by statute, and the statute creating it is, perhaps, the measure of the liability. Where is the right to rent given ? Besides, there is nothing in these pleadings to raise the point. Must not the creditors resort to a bill for the purpose of claiming this liability? If the widow and children are liable to creditors for their occupancy — which I doubt, until it is demanded by bill — that is not what this exception claims. Their ancestor's por- tion of the land descended upon them; and in occupying it 11 146 APPEALS IN EaUITY. Stokes vs. Hodges. they occupied not rented premises, but land legally their own. It would be startling to announce to persons in this condition, which is a very common case, that while occupying their own land, as to which their ancestor was not chargeable with rent, and of whose insolvency, if that made any difference, they might be utterly unconscious, they were all the time accumulating rent upon themselves. The exception is over- ruled, 2. The second exception is, " Because if G. W. Hodges is not chargeable with the partnership premises for the years 1854, '55, '56, '57, '58, the estate of Anna R. Stokes, adminis- tratrix of J. H. Stokes, is chargeable with the same, with interest." The commissioner remarks, "As to creditors' second ex- ception, the claim of Anna R. Stokes does not seem to come within the scope of the bill," [nor any part of the record.] " Her authority as administratrix extended to the person- alty only; and her possession and enjoyment of the land was, in virtue of the descent, cast upon her by operation of law. The said land was usel for the support and maintenance of the family, and I do not think the claim for rent shoul(i prevail." I concur with these observations, and overrule the excep- tions. 3. The third exception is, " Because the commissioner should have allowed interest to J. N. Cochran on the amount of his capital, $4,300 81, from the time of its investment; and also, interest for payments made for the firm from the time of such payments." The claim for interest upon a partner's stock paid in, in the absence of a stipulation for it in the articles, is, I believe, unprecedented. The capital is risked for profits, which are the substitute for interest on the money. The claim of inter- est upon the payments made by Cochran, so far as made out of his own funds, is, I think, right, upon principle. He stands, in such case, as a creditor of the firm. If, therefore, APPEALS IN EaUITY. M7 Columbia, November and December, 1859. the account allows interest to Stokes for his payments, it should be allowed to Cochran. Both parties should be allowed interest. 4. The fourth exccjition is. that "J. N. Cochran, m addi- tioji to half the losses of the firm, should be allowed to go against the estate of his partner, J. H. Stokes, with the full amount of said J. H. Stokes' individual indebtedness to the firm, viz: $529 75 and $27 23." The commissioner has sustained this exception, and I con- cur with him in the principle, that each member of a firm is liable to it for the full amount of his contracts, as an individ- ual, with it. There is danger, however, of sustaining every part of an exception so sweeping as this. It was unneces- sary to the exception to state the amount of Stokes' debts to the firm, or to claim that he should be charged with il, in addition to half the losses. I refrain from sustaining the exception as to these particulars, though they may be right. One cannot be too vigilant. 5. The fifth exception is, " Because the commissioner has not charged J. H. Stokes' estate with §S09 50, the amount of partnership money applied to his private debts." The commissioner, in his report, sjicaking of this claim, says: " I have not allowed it, as it appears that he has been charged with the full amounts received by him, and after allowing the proper credits, a balance remains in his hands of only §27 23." This appears to be satisfactory. If Stokes was already charged with all he received from the firm, this $809 50 is acounted for, and should not be charged again. The excep- tion is overruled. 6. The sixth exception is, "Because the commissioner improperly held the paper dated the 2d of March, 1853, to be a valid' and subsisting mortgage of certain slaves to G. W. Hodges and others, to indemnify them as sureties of J. II. Stokes, on the Clinkscales note of $2,500, dated May 3d, 1852." J48 APPEALS IN EaUITY. Stokes vs. Hodges. The commissioner overruled tliis exception. 1 cannot con- cur with him, though I differ from his judgment with hesita- tion. I am of opinion the mortgage which was created to secure another and prior note cannot be connected with tliis, which had no existence till two months afterwards. The want of registration is also fatal to the mortgage. Notice of it in December, 1853, was notice of its defects. And payments made after that time, by Cochran, to which he was obliged by anterior contracts of the firm, or of him- self on behalf of the firm, should be referred to the anterior obligations, and not considered voluntary contracts or pay- ments after notice. This view is different from that I strong- ly expressed at the hearing; but I must be at liberty to correct a hasty judgment. It was argued that the mortgage should prevail as to cred- itors who became such after notice, such as Cochran obtained in December, 1853, when he drew Mrs. Stokes' endorsement on the mortgage. As to Cochran, the only creditor affected by such notice, I have stated that his payments after that time should be referred back to the date of the contracts, which compelled him to make them. But 1 have now to observe, that the mortgage being incapable of being con- nected with the note to Clinkscales, the only debt claimed under it, is no mortgage; and all the notice in the world could not make it one, as against persons having such notice, more than against other persons who had no notice at all. It has been said also, that this money being borrowed to replace money borrowed from the bank to pay debts, was gotten for partnership purposes; and so Cochran being a partner was chargeable with notice. But in this matter, the claim being through and in behalf of Stokes, the parties were acting apart, and at arms' length ; and the maxim relied on cannot rightfully apply. Stokes had credit for his payments made with the $2,500 borrowed, and still remains a debtor to the firm; which precludes the idea of subrogating Hodges to his rights under the payments made by him. APPEALS IN EaUlTY. 149 Columbia, November and December, 1859. I, therefore, sustain this exception, 7. The seventh exception is, " that the commissioner has improperly held the $1,180 92, paid by Hodges on bond to the estate of Mrs. Mays, to rank as a specialty debt ; said band having been given jointly by Stokes & Hodges for the purchase money of the partnership plantation." The bond was not produced; but I understand it to be admitted that it was joint, and not joint and several. The cases of Pride vs. Boijce, Rice Eq., 2S6, and Kins; vs. Aiightry, 3 Strob. Eq., 156, in which it was held, that such a bond might be reformed into a joint and several obligation, on the ground of presumed mistake, and set up as such against an estate, were cases of sureties applying to have an equity enforced against their principal. This is the case where the applicant was himself debtor along with him whose estate he seeks to affect, and equally bound with him to pay the debt. But I think the true principle of these cases is, that wher- ever a party is exposed to pay a sum of money, which (as between iiimself and his co-obligor) the co-obligor is bound, in equity, to pay, he is entitled to a remedy either by reform- ing the contract, or otherwise, if practicable, to throw the burden of payment on him. For his own half of the bond, Hodges, on this principle, is entitled to no remedy. But for the other half, Stokes was equitably exclusively bound as between himself and Hodges; and Hodges wa"*, as between the two, only his surety; and having paid off the bond to the extont it was left unpaid by the proceeds of re-sale, I am of the opinion he is entill^d to set up the bond to the extent of his payments for Stokes, (making proper calculations,) against the estate of Stokes. And in this view, I overrule the exception. 8. The eighth exception is intended to apply this ruling, to some extent, to the other side. It is, that".!. N. Coch- ran, having paid the debts of the partnership (of Cochran & Stokes) to the amount of .^3,224 .34, as appears by the 150 APPEALS IN EaUITY. Stokes vs. Hodges. account, siiould be subrogated to all the rights of partnership creditors, and allowed with the whole partnership debt paid by him, to share h\s pro rata with the other private creditors out of the private estate of J. H. Stokes." To the extent of the excess of his payments out of his own funds, beyond his half, ('ochran is a creditor of Stokes, like anv other of his creditors. The payment, per se, made him only a simple contract creditor. But, occupying essen- tially the position of Stokes' surety, as to the amount which Stokes should in equity have paid, and which he has been obliged to pay out of his own funds, he is, in my opinion (entertained with hesitation,) entitled, as far as he has paid specialty debts, if any, to rely upon them to place himself, as creditor, in a higher rank among Stokes' creditors, limiting that privilege, however, to t!ie extent which his payments have made him a creditor of Stokes. He has no right to come in for the whole amount he has paid, but only for half his excess of payments; thus leaving himself to sustain one- half the losses of the firm. In this view, and to this extent, the exception is sustained. 9. The ninth exception is, "Because G. W. Hodges has not been charged with the value of the cotton seed of the crop of 1853 (to wit: about 1,200 bushels,) and also for cattle and other property belonging to the partnership of Hodges & Stokes, and also interest upon the value of the same." The commissioner says: "The ninth exception is over- ruled. The testimony of W. N. Munday and Wm. S. Smith proves that the appraisers intended to divide the partnership property equally between Hodges and the estate of Stokes ; and though neither cotton seed nor cows appear in the sale bill of said estate, it is probable their value was compensated in some other way." I shall not undertake to say the commissioner is not right. I overrule the exception. 10. The tenth exception does not appear to have been APPEALS IN EaUITY. 151 Columbia, November and Deceniber, 1859. before the commissioner. It is, therefore, recommitted, with the report, to him. 11. The eleventh exception is, " Because the commissioner has aUogether overlooked the individual demand of J. N. Cochran against the estate of J. H. Stokes, viz: to the amount of $150, and interest thereon ; all of which were proved." It is admitted these demands were overlooked. Therefore let them be recommitted, and let the report be remanded to the commissioner. The defendant, Cochran, appealed on the grounds: 1. It is respectfully submitted that the Medy Mays tract of land was partnership property, and so treated by the partners. And whether it lie regarded as partnership property or a joint tenancy, it is insisted that G. W. Hodges, having the posses- sion and cultivation of it, is bound to account for the rent of the premises, and interest thereon, from the death of J. H. Stokes till the sale of the land. 2. In the event that G. W. Hodges is not bound to account for the rent of the premises, it is respectfully submitted that Anna R. Stokes, administratrix, or her representative, is bound to account for the same and interest. 3. Because according to the partnership articles each part- ner being bound to advance an equal amount of capital, and .). H. Stokes failing to advance any ; it is respcctlnlly sub- mitted that the Chancellor erred in refusing to allow J. N. Cochran interest on his capital, $4,300 81, from the time of its investment. 4. Because J. N. Cochran, as against the estate of his partner, J. H. Stokes, should have been allowed the whole amount of his capital, §4,300 81, and interest thereon, and as to the amount of the partnership debt paid by him, ($3,923 53,) should be su])rogated to all the rights of part- nership creditors, and allowed with the sum of his capital ($4,300 81) and interest, the partnership debt paid by him ($3,923 53) and interest, and the individual indebtedness of 152 APPEALS IN EQUITY. Stokes vs. Hodges. Stokes to the firm ($556 9S) to share his pro rata with other private creditors out of the private estate of J. H. Stokes. The defendant, Hodges, appealed upon the grounds : 1. The mortgage or assignment to George W. Hodges and others, should have been held valid, and allowed a specific lien upon the negroes Cato, Julia, Charity and Easter, because the proof was clear that the parties substituted for tlie Dorn note, the note to Clinkscales, and intended the mortgage to secure the " borrowed money" covered by this latter note. 2. Assuming the validity of the mortgage, it is submitted that James N. Cochran is not a subsequent creditor without notice, or entitled to take advantage of the want of registry of the said paper. JK^oble, Wilson, for Cochran. McGowan, Jones, for Hodges. The opinion of the Court was delivered by Johnston, Ch. The grounds of apj)eal in this case, which it is deemed necessary to notice, relate : 1. To the mortgage given by Stokes to indemnify his sure- ties for money borrowed. 2. To the non-allowance of interest to Cochran on his capi- tal put in. 3. To the advantages decreed to George W. Hodges, in respect to payments made by him beyond his share for the land bought by himself and Stokes from the commissioner; and 4. To the refusal to make Hodges account for the rent of this land after Stokes' death. I. As to the mortgage. There would be much difficulty in relation to this instrument, if it had been made to appear that it had been put into operation. Among other matters of difficulty, would be the determination of its effect upon credit- ors, under the circumstances stated in the case. Was Coch- APPEALS IN EaUITY. 153 Columbia, November and December, 1859. ran a subsequent creditor anterior to the notice which he appears to have obtained on the 5th of December? and many other points. But all these inquiries are superseded by the opinion entertained by this Court, to wit: that the instrument was never delivered, and never went into operation. No conclusion in favor of delivery should be drawn from the fact, that in the attestation it purports to have been " signed, sealed aiul delivered." It was in that condition when shewn by Stokes to Zeigler; and it is certain that at that time it had not issued from the hands of Stokes. It still remained with him when he procured the accommo- dation of Marshall. Nor would it seem to have been deliv- ered at the time the money was borrowed from Clinkscales ; with whom a note was left "as collateral security," until another note could be procured and substituted. Had the mortgage been registered, that circumstance might have been insisted on as evidence of delivery. But secret, unregistered conveyances or liens are not to be favored, unless there is reasonable proof that, during the time they remained out of the range of public observation, everything that pur- ports to have been done was actually and bona fide done. There is no proof that either of the mortgagees was ever in the possession of the instrument during Stokes' life. The last evidence we have of it leaves it in Stokes' possession : and we are to infer that it remained in liis hands at his death, unless the subsequent production of it by George W. Hodges is proof, that he acquired possession by the hands of Stokes. But when we consider his intimate connection with the administration of Stokes' estate, whose administra- trix was his own daughter, for whom he acted as ]irincipal agent, we hesitate to admit that his possession must have been acquired from the intestate. We disclaim all disparag- ing imputation whatever, but we think it would be unsafe to presume a delivery under the circumstances, 2. The next point relates to the interest claimed on the capital put in by Cochran. The exception was, that the 154 APPEALS IN EaUITY. Stokes vs. Hodges. commissioner, in his report, had not allowed this interest. Tiie Court must confine itself to the exceptions put in ; and it expects that they shall be such as to point out the specific errors complained of. The argument here, is, not so much, that interest should be allowed to Cochran on his advance of capital, as that Stokes, the other party, should have been charged for capital which he failed to put in — with interest on what he withheld. That might have been a proper exception to the report ; but it was not taken ; and it would have been extraordinary if the Court had substituted and sustained an exception omitted, in place of the one put in, as the basis fin- its judgment. On the exception actually put in, this Court is of opinion the Cliancellor's decision was correct. As between partners the object of putting in capital is profits and not interest. The profits are the substitute of interest; and without some stipu- lation in the articles, each partner is only entitled to have his capital back. This is the drift of the case of Cameron vs. fFalson, 10 Rich. Eq., 64. It is not intended to say that in the account Stokes is not chargeable with the amount of capital he failed to put in. But, as I have said, that is a very different thing from sus- taining the claim now advanced. 3. This Court approves the ruling of the Chancellor, in respect to the amount paid by Hodges beyond his own half of the bond ; and the point requires no further observation. 4. The fourth point relates to the rent claimed from Hod- ges for liis occupation after Stokes' death. There has been an accounting as to all other matters beyond tliis rent. It is not necessary to inquire whether there may or may not be a partnership in land. We are of opinion there was no partnershij) in this land. The parties were, by the conveyance to them, joint tenants. The land was the mere basis of operations, in which operations slaves and live slock were contributed for the purposes of common APPEALS IN EaUITY. 155 Columbia, November and December, 1S59. profits or losses. As to these contributions there was a [)art- nership; of which the accounts have been taken. But I am instructed, by the Court to announce its opinion that an account should have been taken, charging Hodges, not for 7'ent, eo ?w?ni/ie, but in respect to his occupation beyond his just projiortion of the land. The bill is to call in creditors of the estate of Stokes, and to apportion its assets among them. Hodges has come in and has preferred his demands as such creditor, and they have been established. But I am instructed to say that these should not have been allowed, without deducting from them what he owes for undue occupation of these premises. It is conceived that this would not be just to the other creditors. Therefore the direction of this Court is, that for any occupa- tion by Hodges, exceeding the share to which he was entitled (to wit: beyond half the premises) he should be charged with reasonable compensation, to be deducted from the amount allowed him on his demands against the estate of Stokes. Let the decree be modified according to this opinion ; and in all other respects affirmed. DuNKiN AND Wardlaw, CC, coucurred. Decree modified. 156 APPEALS IN EaUlTY. American Bible Society vs. Noble. American Bible Society and others vs. William P. Noble AND OTHERS. Wills and Testaments — Devise to Corporations. Testator, being the owner of two large estates, each embracing real and per- sonal property, made disposition of the greater part of one estate in the first part of his will, and in a subsequent part, relating to the "disposal" of the other estate, directed his executors to sell "the whole estate," and then pro- ceeded to dispose of the proceeds of the sale: Held, that the direction to sell related only to the estate mentioned in that part of the will, and did not em- brace some portions of the other estate, which the will did not dispose of Where a testator owned a large real and personal estate, which he had inher- ited from a deceased brother, and to which he had added a large tract of land, purchased with the proceeds of the crops of that estate, held, that his devise "of the estate of my respected and greatly lamented brother," embraced as well the estate he had inherited as the land he had purchased. A bequest of a negro woman "and her descendants," will include all her issue born before or after the date of the will ; so, also, a bequest of a negro woman " and her children," will include all the children; but a bequest of a negro woman simply, by name, will not include her children born before the death of the testator. Testator directed a sum of money to be placed at interest in a bank, "which sum, when thus placed, I do hereby cheerfully give to J. M. And do hereby so settle it, that no person or persons whatever, under any circumstances or pretext whatever, can deprive him of it during his natural life. That J. M., himself, shall not be allowed to touch, or use, or squander one cent of the principal: but only to draw and make use of the lawful interest annually, as may seem to him best." Held, that J. M. took an absolute interest in the money, with right to dispose of it as he pleased. Where there is no charge of insolvency or misconduct against an executor, the Court will not deprive him of the privilege, which the will gives him, of sell- ing lands, and direct the sale to be made by the commissioner. A devise of lands, to be sold by the executors, with directions to distribute the proceeds among certain religious corporations, is a devise of personalty, and is not prohibited by the Act of 1733, (3 Stat., 341,) excepting corporations from the objects of the devises of land. BEFORE JOHNSTON, CH., AT ABBEVILLE, JUNE, 1859. The facts of this case are stated in the report of his Honor, the presiding Chancellor, as follows : In order to fully explain the situation of this case, it may APPEALS IN EaUITY. 157 Columbia, November and December, 1859. be proper to look into circumstances which preceded the filing of this hill. John B. Bull, of Abbeville, died the 6th of January, 1855, leaving neither father, mother or lineal descendant, but leav- ing a widow, who was an alien, and three first cousins. He was supposed to have died intestate, and a bill was filed in 1855, by the cousins, against the widow and the administra- tors, of whom she was one, for partition of the estate. A qviestion was raised at tlie hearing, which took place in June, 1S55, whether the widow, under the Statute of 1828, was entitled to a part of the real estate. It was decided against the widow; from which decision an appeal was taken, and resulted in affirming the decree at Columbia, December, 1855. As respected the personalty, the order of the Court was, that the bill stand until the expiration of nine months from the death of the intestate, and that then a writ issue for the partition of it, and that the commissioner inquire into and report upon the matters of account. At the expiration of the time fixed, a writ of partition issued ; and on the 20th of November, 1855, the commissioners in partition having made their return, it was ordered that, after advertising for at least twenty- one days, the commissioner sell the slaves at Abbe- ville Court House, on the 20th and 2 1st of December follow- ing, or some convenient day or days thereafter, at public outcry. On the 17th of December, three days before the intended sale, the following order was passed, which explains itself: ",^7idrew W. Burnett, and next of kin, vs. William P. Noble, administrator, et al. It appearing, since the writ of partition [was] issued in this case, and the order [was] made for the sale of the slaves for partition among the parties interested, that a paper (which has been exhibited to mc,) purporting to be the last will and testament of John B. Bull, deceased, has been discovered. 158 APPEALS IN EQUITY. American Bible Society vs. Noble. which materially changes the disposition of the slaves and [other] property. On motion of Thomson and Fair, for Mrs. Sarah Bull, Ordered, That the order for sale heretofore made and directed to tlie commissioner of this Court, be rescinded; and that he do not sell, as ordered, until the further order of this Court. J. JOHNSTON. December 17, 1855." The next order in that case was passed by myself, on the I7th of January, 1856, and I have special reasons of my own for wishing it set out in full, not that it is very necessary to do so for the purposes of the present case, but I prefer that it should speak for itself, as it will serve to correct what it has been represented to contain. ''^Jiiidrew IV. Burnett, et al, vs. TVilUarn P. Noble, et ul. This morning, Mr. Rhett appeared before me, at cham- bers, during the Appeal Term at Charleston, and moved a rescision of the order passed by me, suspending the order, which had been previously made by myself, for the sale of the slaves of the estate of the late John Bull. It will hardly be necessary to observe, that the order of sale was made in conformity to the record and judgment in this case, in which the decedent, Mr. Bull, was, by all parties to the record, stated to have died intestate; and, of course, all the rights of the parties were based on that assumption. On my return home from the Court of Appeals, [in Columbia,] in which the final decree was made upon the only question carried up for revision, I was met by the son of Mrs. Bull, [by a former marriage,] who informed me that a wil' of the decedent had just been discovered by himself, which he submitted to my perusal. The day of sale was nearly at hand, and no time was to be lost. But I directed him to go to Columbia, and submit the paper to Mr. Thom- son, his mother's counsel, and also to the Faculty of the Theological Seminary, which had an interest in some of the APPEALS IN EaUITV. 15i> Columbia, November and December, 1859. legacies created by the will; and, on his return to Abbeville, to present it to the executor named in it, and deposit it with the ordinary. He returned from Columbia as speedily as he could, with a motion, drawn up liy Mr. Thomson, for the suspension of the sale until further order. This I granted, and the time of the sale was so near, that there was hardly time left to deposit it, and reach the plantation, so as to stop the negroes from being brought to Abbeville. Of course, I had little time for deliberation. Besides, I may mention the peril of mistake in all business done at chambers. But I ventured on the measure, expecting as a matter of course, that if the suspension produced any injury to any party, a motion would soon be made to rescind the order, and let the sale go on. The suspension was, in fact, made in order to give time to the parties interested in the will to propound it, or take such other course as they might be advised to pursue. Accordingly, when JNIr. Rhett mentioned to me his inten- tion to move before me, I instructed him to give notice to the Rev. Dr. Adger (interested, as I understood, as one of the directors of the Theological Seminary,) to appear with coun- sel to hear the motion, and oppose it, if he deemed it proper. At the making of the motion, Dr. Adger appeared with counsel (Messrs. Simonton & McCrady) on the one side, and Mr. Rhett on the otiier. "Mr. Rhett accordingly moved a rescision of the suspend- ing order, and that the sale should proceed, and stated that he wished Tuesday, the 12th of next month, to be fixed as the time of selling. "I stated that I was willing to recall the suspending order, and to order that the sale should go on, but that the order to be passed for that purpose could not reach the commissioner for a few days; that, then, time should be given for the advertisement of so large a body of slaves; without which a sacrifice might ensue, and that I should fix upon some time near the 1st of March. This length of time I thought the interest of all parties required; and if the sale were prccip- 100 APPEALS IN EaUITY. American Bible Society vs. Noble. itated, the sale would be prejudiced. I liad offered, also, to make an order leaviug the time of sale to be fixed by the commissioner. "Mr. Rliett immediately withdrew his motion. But I feel disposed to pass the order of my own motion. It ap])ears to me the suspending order was improvident, calculated to create inconvenience on the part of the administrator. He had sold off the provisions, &c., preparatory to the sale; and the preparation to retain and employ the negroes must be expensive, especially as the suspension is not for any certain time, but until further order, and liable to be terminated at any moment. On the other hand, a sale now, when negroes are selling high, will rescue the property from the casualty of depreciation; and if the proceeds be impounded, the fund can be made to answer to all parties, whatever shape their interests may assume under the will. I am not at liberty to decide that the will cannot be established, and I should take care that, if it can be established, those who may take under it shall have an opportunity to protect their interests. " It is ordered, that the order heretofore made, suspending the sale, be rescinded; and that the commissioner, after adver- tising the property for a length of time satisfactory to himself, not shorter than the length of time required by the original order of sale, be at liberty to sell it on a day to be fixed by himself, upon the terms set forth in the original order of sale, and that he retain the proceeds of sale, and the securities taken therefor, subject to the further order of Court: Pro- vided, always, that if, in the judgment of the commissioner, (after enquiring into the preparation that may have been made for retaining and employing the slaves,) the sale hereby permitted to go on, will be prejudicial to the interests of the estate, he may omit to advertise and sell ; and in that case he shall report the facts to the Court, and take its further order. '* It is ordered, that whatever expenses may have been, or may be incurred, in consequence of the suspension, be chargeable upon the estate. It is further ordered, that the APPEALS IN EaUITY. 161 Columbia, November and December, 1859. mmII, if not already deposited in the ordinary's office, be deposited with the commissioner, nntil further order, subject to be used by any parly desirous to ]iroj)ouiid the same for probate; and that thereupon the commissioner give notice of its contents, and of this order, (this clause of it,) to the par- ties interested under it, by advertisement, and that he attend the Ordinary's Court and the Law Court, with the will, when proceedings for its establishment may take place, and he is summoned. Charleston, at Chambers. J. JOHNSTON. January 17, 1856." The sale proceeded, and the proceeds are involved in the present suit. The will before mentioned was propounded in the Ordinary's Court, and was required to be proved in solemn form, and under various appeals was carried before the Court of Errors, whore it was adjudged to be a valid will ; and being admitted to probate, W^m. P. Noble qualified as sole executor. This will is the sul)ject of construction in the present case ; and as I desire that the view I may take of it shall be open, in the fullest manner, to correction, I prefer that it be read at length. The original, which is an autograph, is in the fol- lowing terms : " In the name of our Lord and Saviour, Jesus Christ, the friend of sinners: in the name of God the Father, Son, and Holy Si)irit, Amen — I John B. Bull, of the State of South Carolina and District of Abbeville: considering the shortness and extreme uncertainty of this present mortal life, and the certainty of death : do hereby make lliis, my last will and testament, being the first and only one which I have made, bearing date this 8th day of April A D. 1843, and now I by this my writing, cheerfully will, that alter my decease, mv physician's account shall be paid by my executors hereinafter named. Also my funeral expenses. 12 162 APPEALS IN EaUITY. American Bible Society vs. Noble. "Item 1st. I do hereby cheerfully give and bequeath unto my dearly heloved and lionored wife, Mrs. Sarah Bull, in con- sideraiion of her untiring, gentle, ciiristian, dutiful attention to me, her unworthy husband, the following property, viz: All the lands which I at present own; lying on the South and West side of Little River. Which are comprised in the following four separate plats, — The land on which my dear, respected and lamented Mother resided. Said land was pur- chased from Mr. James McCarter, by my dear and greatly lamented brother Genl William A. Btill. And by him, was after our dear Mother's decease, kindly given to me on the 21st of February, 1833, on which day he settled with me. This tract formerly belonged to the heirs of Mr. William Clark Senr and contained by the old survey 275 acres. But by a late survey it has been found to contain 320 acres. This plat was made by Peter B. Rogers Esqr — " Adjoining to this tract on the South and West side, lies the small square tract of land which I purchased from John Scott Esq containing 100 acres more or less, — Immediately between these two tracts lies a very small piece of land con- taining 1 1-4 acres of ground only. Which I purchased this present year (1842) from Mrs. Eleanor Scott. It was surveyed, measured, and the plat made by Mr — McKinney D. S. — On the East side lies the fourth piece, a small tract of land which I purchased from Mr William Clark Junr. which belonged to the heirs of Mr Alexander Clark. I have not had convenient opportunity to have this tract resurveyed. It was said to contain 150 acres more or less, A very small portion of it, lying on the North and East side of Little River, being inconveniently situated, I have disposed of to — "Item 2d. To my dear and respected wife, I also hereby give, my good and aged servant Doritha (Doll) and all her children, and grand-children, all her descendants who are in my possession on either plantation, and on both plantations. Including the husbands of her daughters. — Pompey the hus- band of of Nelly, I make this kind and earnest request, APPEALS IN EaUlTY. UMi Columbia, November and December, 1859. that (luring the time of her natural life, Doll be treated with all tliat humanity, moderation and kindness which her advanced age and herlaithful services call for. — also to my dear wife I hereby cheerfully give all the servants on my farm at Little River. Their names as follows, Venus, Sam, Andrew, with his wife Henny and their children Hiram and Sarah, Cumbo, Stella, Statira, Grace, Prince, Sylva, Jacob, and his wife Peggy. Jim and Scipio are Doll's children and included in lier family. "Item 3d. To my dear and respected wife I also hereby cheerfully give all the stock on my farm at little River, horses, cattle, sheep and hogs. Also all the buildings and conven- iences, All the j)lantation tools. All the liouschold furni- ture, which I own on both plantations. — And as a most par- ticular mark of my affectionate respect and love, I hereby give to my dear wife, the large edition of Scott's Commen- tary of the Holy Bible; which were given to me by my dear Mother at lier death. Also all my religions books. — I hereby kindly and earnestly request of my dear wife, that whatever articles of jewelry, whether of gold or silver, which may be found in our house at the time of my decease, may be faith- fiilly collected, and committed to the care of some trusty pious agent. And that said agent by and with th mw solemnly affix my name in the presence of these three witnesses. "JOHN B BULL. "April Sth 1843 — « Wm H Davis *' J L BouciiiLLON Senr " E. C. Martin" After this will was established, Sarah Bull, the widow of the testator, died in the latter part of the year 1S57, leaving a will, by which she devised and bequeathed her whole es- tate to Dr. James Morrow, her son by her former marriage, constituting him her sole lesatee, and executor of her will. The present bill was filed the 1,3th of IVLay, 1858, by three of the four benevolent institutions mentioned in the will, for an account of their inlerests under the will; and the other benevolent society, the qualified executor, the next of kin, and Dr. Morrow, are made defendants. The points raised at the hearing will be understood from the judgment delivered. Johnston, Ch. In the third clause of his will, the testator provides : " So soon as every just debt can be honestly paid, I liereby recjuest that my executors proceed, without delay, to make correct, lawful and prudent arrangements for selling the whole estate," &c. It is contended that this direction is confined to the Savan- nah property ; and does not embrace even the whole of that property, but that Berry Hill, a plantation purchased by the testator, contiguous to the body of the lands on Savannah, which he inherited from his brother, Gen. Bull, is excluded. 168 APPEALS IN EQUITY. American Bible Society vs. Noble. Whether the words be confined to the Savannah estate, or be allowed their natural meaning, and be held to inchide the whole estate not specifically disposed of in a manner incon- sistent with a sale; in either case, both realty and personal property would fall within their operation. It is not a direction to sell the real estate on the Savan- nah, apart from the personalty appertaining to that estate, nor to sell the whole of testator's real estate, wherever situ- ated, in exclusion of his personal estate; but to sell the whole estate, whether it be real or personal. The testator had specifically disposed of a large portion of his estate, real and personal; j)art of it for the life of the beneficiary, and part of it absolutely, but there was no sweep- ing legacy or devise given of whatever overplus, there might be. So that, in any view that can be taken, there was mate- rial, without confining ourselves to the Savannah estate, for a sale, if the testator were minded to order one, in order to raise funds to meet special or general purposes. As the testator manifestly intended to dispose of his whole estate, and has not done so unless the words " the whole estate" be interpreted in their natural sense; and as his bequest of the residue of the proceeds of the sale directed, after the special legacies charged upon them, would, upon the construction contended for, constitute a special residuary disposition, and not a general residuary clause disposing of his whole estate: I am persuaded that such an interpreta- tion of the will would be at variance with the testator's intention. The construction should be upon the whole will, and not upon detached portions of it; every word and phrase should, if possible, be taken in its full and natural meaning: and the leaning of the Court should be to give such construction to the whole as to prevent intestacy in any part of the estate. It is argued that the words here used are employed with exclusive reference to the estate which the testator had fanci- fully designated, not as his own, but as the estate of his APPEALS IN EQUITY. 100 Columbia, November and December, 1S59. brother, from whom he inherited it. Hut I do not find enough to convince me that wlieii he directed tlie sale of the whole estate, his attention was tied down to that special property. The only use to which I perceive he directed his executors to put that property, was to complete the croj) of 1S43, whicii was growing when he executed his will, and out of the pro- ceeds of that crop, and what remained on hand of the preceding crop, to pay his debts — a purpose which he lived to accomplish himself. Now, if he had adopted the ordinary method of providing for his debts, in the beginning of his will, this direction for the employment of this plantation, for that purpose, would have been found at the head of the will; and not in the middle of the third clause, which embraces subjects of a somewhat miscellaneous character: some of which undoubtedly relate to other portions of his estate, and others as certainly relate to his whole estate, without respect to location. If, then, we transpose that portion of tlie third clause, of wliich I am speaking, to the head of the will, the whole becomes harmonious, and there would reu)aiii no doubt that the direction to sell the whole estate would mean the whole; and would have no such confined operation as that contended for. Then it would be followed by the devise of the Little River lands to his wife for life, with a power of further a[)pointment in her; by the gift of certain slaves and their issue, and of other slaves. But still there is, as yet, no disposition of Berry Hill, nor of the lands formerly owned by Gen. Bull ; nor any disposition of the remainder in the Little River lands, supposing his wife should make no dis- position under her power. If the testator intended to confine his direction to sell, to the land formerly belonging to Gen. liull, then ho infcndcd to die intestate as to Berry Hill — or he casually omitted one thousand acres of his own lands ; in addition to a possible intestacy in the remainder of the Little River lands, .vhich is scarcely credible. 170 APPEALS [N EaijlTY. American Bible Society vs. Noble. If he contemplated Berry Hill as parcel of Gen. Bull's estate, the principal snpport and object of the narrow con- strnction, now contended for, is taken away. On the whole, I conclnde, with confidence, that the order for sale shonld be, and was intended to be, general; and the effect of it is to dispose of every portion of the estate not dis- posed of by provisions inconsistent with such sale. It conld not take in the negroes given by the testator to his wife, nor the estate for life given to her in the Little river lands. But it takes in the lands formerly belonging to Gen. Bull, and reaches to Berry Hill, and to every subject in his whole estate that would otherwise have been intestate; and would liave included the remainder in the Little river lands, had not his wife (who, though an alien, could take and hold the life estate till office found) executed her power of appoint- ment I will not enlarge on this point, for I conceive it to be very plain. I will merely add that, upon the evidence, I should have tield, had it been necessary, that Berry Hill was in- cluded in the order to sell, were that order confined to what the testator called his brother's estate. The evidence taken by the commissioner shows, I think, that he so planted the estate, including Berry Hill, and so marked the cotton, whether raised on the one place or the other, as to show that lie regarded them as one establishment. The admirable work of Sir James Wigram, (Wigram on Wills,) has done much to reduce to fixed principles the rules which should govern in such cases; much to restrain that license of con- struction that too much prevailed formerly and still pre- vails to an undue extent. When descriptive words find a subject that satisfies them in their natural and primary nx^aning, other subjects shall not be forced under their cover, though, otherwise, they miglit be accommodated to them in a less natural or secondary sense. But there is no primary, or natural, or legal sense, in which either par- cel of -^f^ese lanas uuukl be denominated by the testator APPEALS IN EaUITY. 171 Colimibia, November and December, lSr)9. "tlie estate of his brother." The lands he inherited had no name, and, for convenience, he niiist speak of them by some description. In his fancy he called them his brother's estate, by way of description. When he added Berry Hill to them, and afterwards spoke of them, did he not do what is very common? — did he not regard the addition as a constituent portion of the old establishment? I think he did. I think the evidence shows this. He has one over- seer for both places. He allows the dividing fence to become extinct between them. He throws their productions, corn and cotton, together; and marks the cotton with one brand, which was on the place in his brother's time. We have a case, somewhat similar, somewhere in our own books, relat- ing, I think, to some wharf property in ("harleston, in which the view I am intimating was taken ; and I concur in the remark of Sir James Wigram, (Wig. Wills, 22,) that in the case referred to (in argument) of Doe ex dein. Oxenden vs. Chi- chester, (3 Taunt., 147, s. c, 4 Dow, 65,) " the principle now under consideration was carried to \ts full extent." In that case, the testator devised my "estate of Ashton" to Oxenden, and had an estate which he used to call by the name of his "Ashton estate," the accounts relating to which were kept in his steward's book under that name. Part of this estate only was locally situated at Ashton. Only so much as was thus situated was held to pass. This, I conceive, was a strained construction. But the view I have taken renders it unnecessary to pursue this further. The direction to the executors to sell extended to Berry Hill as otherwise intestate, whether regarded as embraced in the land inherited from Gen. Bull or not. The order to sell, also took in, as intestate, a portion of the slaves. Part of the second clause of the will is in these words : "To my dear and respected wife, I niso, hereby give my good and aged servant Dorethea, (Doll,) and all her children and grand-children, all her descendants, who are in my pos- 172 APPEALS IN EaUlTY. American Bible Society vs. Noble. session, on either plantation, and on both plantations, includ- ing the husbands of her daughters." So far, there can be no difficulty. Whether the testator referred to his possession, at the date of his will, or at his death — which, under the general rule, in all cases, he must be held to have done, {Garret vs. Garret, 2 Strob. Eq., 283,) can make no sort of difference: for the gift is of all the issue of Dolly, and on both plantations: and supposing him to have referred to the date of the will, yet, as I shall hold hereafter, the gift will extend to after borti descendants on either plan- tation. But he proceeds : " Also, to my dear wife I hereby cheer- fully give all the servants on my farm at Little River: — their names as follows : Venus, Sam, Andrew, with his wife Henny, and their children, Hiram and Sarah, Gumbo, Stella, Statira, Grace, Sylva, Jacob and his wife Peggy. Jim and Scipio are Doll's children, and included in her family." I apprehend tiiat the testator intends here to speak of negroes on the Little River plantation, at the date of his will, as is evidenced by his proceeding to name them : and that he did not intend to refer to such negroes as might be on that plan- tation when his will began to operate at his death. The bequest will carry all those slaves named by him ; and if there were any coming within the description, whom, in his enumeration he accidentally omitted, these would pass with the rest. Among the rest, he gives Andrew and his wife Henny, with their children. I am not sufficiently put in possession of the facts to know, whether in naming those who in his list immediately follow those two, he has not attempted to name these children. If he did, then it follows, I think, that he hab given none of the children of Andrew and Henny, but those whom he names as such. But if he did not attempt to enumerate, I think he must be held to give all their chil- dren, born or to be born. When I speak thus, I do not forget that it has been held APPEALS IN EaUITY. 17:^ Columbia, November and December, 1859. that a legacy of a nogvo woman with her ii}crease,{Seibles vs. Whatley, 2 Hill Ch., 605,) does not include existing, but only- future progeny. There is a distinction, however, in my mind, which I fear I should he incapable to convey, were I elabo- rately to attempt to impress it upon others. It may be sulil- cient to say, that the Court in dealing witli the subject of increase, while it might have admitted that the term might be well applied, not only to after, but to ])rior increase, and so it might have doubted upon the subject of excluding the latter; yet it conceived that by long and pretty uniform usage in this State, the term increase, without more, had obtained a fixed meaning. It meant the progeny which was to proceed from the stock slave from the date of the instrument. But has any such restricted meaning been imposed on the term children or its equivalent ? Has this been done by the cases : or does such a meaning exist in popular language ? Not to my knowledge. The cases are numerous and uncontra- dicted, that when property is limited by will to children o{ A. or B., all their children will take, whether born before or after the date of the instrument, provided they are born before the limitation comes to operate ; and so, if the limita- tion be to the children of C. or D. to take effect upon a con- tingency, the existitjg children will take, as well as others to come in esse, upon the happening of the contingency. The instrument takes in the existing children without difficulty. The difficulty would rather l»ave been whether after born children should be entitled. But the point is decided that after born children are children — come within the descrip- tion — and the instrument shall open and receive them, as persons described, until the event happens compelling a dis- tribution, and (lius rendering it im|)ossible to receive more. For examples of this kind, I refer to the cases of Deveaiix vs. Deveuux, and McNish vs. Gucrrard, decided in this ('ourl. These cases, and others innumerable upon the import of the word children, show that w. has not received a restricted meaning in law confining it to y,oc/ nati. I regret that the 174 APPEALS IN EaUlTY. American Bible Society vs. Noble. decision in Seibles vs. Whatley was different as respects the import of the word increase: but I do not feel bound to carry it beyond its letter, and apply it to children, especially as in so doing, I should violate not only the popular under- standing, but a uniform current of decisions. When the gift is of children, why should the meaning of the word differ from what it is when the gift is to children ? As to the other negroes given in the last passage I have quoted, they are given by name or individual description, but without the accompaniment of their children, issue or increase, which amounts to no more than a gift of the existing and named or described negroes; atid does not carry ihe post nati issue. Such issue is, therefore, in my opinion intestate, and falls under the direction to sell. We approach now one of the most important parts of this cause. Out of the proceeds of sale, when collected, the testator directs that the sum of $5,000 be placed "at interest in the Bank of Charleston. Wh'\(sh s,\\m,ivhen thus placed, I do," he proceeds, "hereby cheerfully give to James Morrow, Junr. And I do hereby so settle it, that no person, or persons, whatever, under any circumstances or pretext whatever, can deprive him of it during his natural life. That James Mor- row, Junr., himself, shall not be allowed to touch, or use, or squander, one cent of the principal, but only to draw, and make use of, the interest, annually, as may seem to him best." The sum as placed at interest is, in the first instance, bequeathed to Dr. Morrow, in general terms, sufficient to vest the property in him. If we are to construe the legacy in parcels, the words which follow, forbidding himself, or other persons, from touching the thing given, as liable to the inci- dents of absolute property, are nugatory and void. I am much inclined, however, to construe all the words together, and to regard this as the gift of i^n annuity for his life; the gift of the annual interest ^i" the §5,000 for his life, and not APPEALS IN EaUITY. 175 Columbia, November and December, 1S59. tlie gift of the $5,000. This Court — all Courts — should look to substance, aud not merely to forms. The direction of the Court upon this suhject is, thai the commissioner enquire for and report a suitable trnstee, to hold the fund npon the terms I have jnst indicated; and that the executors, after making the investment, hold it on those terms until a trustee he reported and appointed, and then transfer it to such trustee. When, by the death of Dr. Morrow, the corpus of this $5,000 annuity falls in, it will be time enough to enquire where it is to go; and that question is reserved. Then, subject to this legacy of $5,000, the testator directs that the remainder of the proceeds of sale be divided into four equal shares, one of which he bequeaths to the Ameri- can Bible Society, another to (he American Tract Society, another to the Board of Puhlication belonging to the General Asseujbly of the Prcsliyterian Church in the United States of America, (Old School.) and the remaining share to the Theo- logical Seminary, at Columbia, under the care of the Synod of South Carolina and Georgia. But objections are raised under the statute of the 9th April, 1734, 3 Stat., 382; the second section of which reads thus: "That from and after the ratification of this Act, all and singular, every person and persons having any estate or interest in fee simple," &.C., "of and in any lands," "shall and may have free power," " f o give, dispose, will or devise to any person or persons, (except bodies politic or corporate,) by his last will and testament, duly executed," "as much as in him (if right belongs, is, or shall be, all his said lands," "at his and their own free will and pleasnre," &.c. This is tho only siatule of mortmain known, it is believed, to the legislation of this State. None of the English statutes on that subject were ever made of force here. J^ut it is very proper to enquire what eftt/^t this statute, if still of force, has upon the devise in this case. It is plain, at the outset, that its effects, whatever they may be, urp, limited to the proceeds 176 APPEALS ]N EaUiTY. American Bible Society vs. Noble. of the real estate. There is no prohibition as to personaUy in this statute. Justice Blackstnne (2 Bl. Com., 268, ef seq., Lib. 2, cap. IS) tells us, that alienations in mortmain {i?i mortu manii) are transfers of land to a corporation, whether sole or aggregate, ecclesiastical or temporal; in consequence of which the lands became perpetually held in one dead hand. By tlie common law, he says, any man might dispose of his lands to any otiier private man at his own discretion, especially after the feodal restraints were worn away. Yet, in consequence of those, it always was and still is necessary (F. N. B., 121) for corporations to have a license of mort- main from the crown, to enable them to purchase lands. For, as the king is the ultimate lord of every fee, he ought not, unless by his own consent, to lose his privilege of escheat, and other profits, by the vesting of land in tenants that can never be attainted or die. Besides the license from the king, it was also requisite, where there was a mesne or intermediate lord between the king, the lord paramount and the alienor, to obtain his license also, (upon the same feodal principles,) for the alienation of the specific land. And if no such license was obtained, the king, or other lord, might respectively enter on the lands so alienated in mortmain as a forfeiture. To obviate this forfeiture, however, when no license was obtained, the religions houses, (who set them- selves to circumvent the law,) inasmuch as the forfeiture accrued, in the first place, to the immediate lord of the fee, contrived tiiat the alienor should convey to the religious house, and instantly take back again, to hold as tenant of the moiiastry; the instantaneous seisin in which, probably, was held to occasion no forfeiture; and tlien^ in virtue of some other pretended forfeiture, surrender or escheat, the society entered on tVieir newly acquired seignory, as imme- diate lords of the fee. The consequence, when s\\o'^ donations became numer- ous, was, that the feodal sf^-^'ces ordained to the defence of APPEALS IN EaUlTY. 177 Columbia, November and December, 1809. the kingdom were daily visibly withdrawn; the circnlation of landed property from man to man began to stagnate; the lords were curtailed of the fruits of their seignorics, their escheats, wardship, relief, and the like. This state of things occasioned the second great charter, 9 Henry III, (A. D., 1225.) by whicli, and by that printed in the common statute books, it was ordained that all such attempts siiould be void, and that the land should be forfeited to the lord of the fee. This prohibition extended only to religious houses, and not to sole corporations, and being evaded by the bishops, the abuse was attempted to be corrected by the statute de religinsis, 7th Edw. I, which provided, that no perso)i what- ever, religious or other, should buy or sell, or receive under pretence of a gift, any title to lands, or by any contrivance appropriate them to himself, in mortmain, upon pain that the immediate lord of the fee, or if he should make default for one year, the lord paramount, and in default of all of these, the king might enter on the lands as a forfeiture. The stat- utory prohibition as yet only extended to gifts and convey- ances inter paries, and the device was adopted of bringing an acliitu under a fictitious title against the tenant, who collusively al)stained from defence, and thus the lands were recovered by law; thus originating the assurance of coni>non recoveries. This abuse was met by the statute of Westmin- ster the second, 13 Edw. I, ch. 32, which enacted that in such cases the true right of the plaintiff should be tried by a jury; and if the religious house, or corporation, be found to have it, they shall recover seisin, otherwise the land shall be forfeited. To this statute others were added, not necessary to notice here. These were all frustrated by contriving that the la;:ds should not be granted directly to the corporation, l»ut to imminal feoffees fo their use, distinguishing between the possession and the use, and giving to the corporation the actual ))rofits. while the seisin was in the nominal feoffee, who was accountable as trustee; thus originating i/ses and trusts, the foundation of modern English conveyancing. 13 178 APPEALS IN EaUITY. American Bihle Society vs. Noble. This was met, again, by the 15 Rich. II, chap. 5; which statute ordained that lands so purchased to uses should be amortized by the license from the crown, or sold to private persons; and that, in future, w^es should be subject to the statutes of mortmain, and forfeitable like the lands them- selves. Moreover, large tracts of lands, which were pur- chased and fraudulently consecrated as graveyards, were declared within the scope of the statutes; and civil as well as ecclesiastical corporations were declared to be within the mischief contemplated by the statutes of mortmain. By statute 23 Henry VIII, ch. 10, it is declared that all grants of land, though not to corporations, yet for superstitious uses or charges erected for such purposes, should be void, if granted for more than twenty years. The Mortmain Acts were suspended for twenty years by the 1 and 2 Pliilip and Mary, Ch. 8. Then this general policy was further relaxed by the 7 and 8 Will. Ill, ch. 37, which empowered the crown to grant license, at its discretion, to alien or take in mortmain of whomsoever the tenements may be holden. It having been held, (1 Rep., 24,) that the statute 23 Henry VIII, ch. 10, before mentioned, did not extend to charitahle but only to superstitioxis uses, and therefore land might be given to maintain a school, a hospital or other charitable institution; and it being apprehended that persons on their death-beds, might make large and improvident dispositions, even for charitable purposes, thus defeating the political end of the statutes of mortmain, it was therefore, enacted by the 9th Geo. II, ch. 26, (A. D. 1736, set out 1 Bac. Abr. Title charitable uses and mortmain, G.) two years after our own statute quoted by me, that no lands, or tenements, or money to be laid out therein, shall be given for, or charged with any charitable uses whatsoever, unless by deed, indented, exe- cuted in presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months from execution, and made to APPEALS IN EaUITY. 179 Columbia, November and December, 1S59. take efff^ot immediately, and without power of revocation; and that all other gifts shall be void; (except that stocks in the ])nblic fnnds may be transferred within six months pre- vious to the donor's death.) It will be seen from this statement of the great commen- tator, that if these English statutes were of force in this Statp, as they are not, there is not one of them that in terms avoids gifts to corporations, except when land itself is given, or when money is given to be laid out in land. The principal reason assigned for the statutes of mortmain, such as the vesting of land in corporations incapable of feodal services, the joss of escheats, wardships, reliefs, &c., and the perpetual stagnation of such property in the hands of those not liable to attainder or to deatli, apply only to the permitting lands to be conveyed, directly or indirectly to, and held by, such bodies. The motive to the statutes is not so much to place a restraint on the alienor, (except for his protection, for exam- ple in the statute of 9th George II,) as upon the holding of the thing given by the alienee, i. e., on account of his legal and political unfitness to be the owner of lands; the mischief to the State of its lands being perpetually monopolized by those in whose hands it is not subject to the usual incidents of ownership. The 'I'heological Seminary, to which one-fourth of ibe residue of the proceeds of sale is given by Mr. Bull, is by its original charter, (8 Stat., 376, statute 1832, No. 2,574, § 1-3,) specially licensed and "empowered to retain, hold, possess and enjoy all such properly as it" " may now" " be possessed of, or entitled to, or which shall hereafter be given, or bequeathed to, or in any manner acquired by" it, "and to sell, &c., the same," "to the amount of ^300,000." Which charter is renewed (Acts of 1854, p. 347,) "with all powers, privileges and conditions heretofore, by the Act of incorpora- tion, conferred upon said body corporate, with ability, power 180 APPEALS L\ EaUlTY. American Bible Scciety vs. Noble. and capacity to receive, hold and enjoy property, real and personal, to the amount of $300,000," These enactments are sufficient — to say nothing of the Constitution of 17SS — not only to license this corporation to take the land itself, had that heen given, but to repeal the statute of 1734 — so far as this particular body corporate is concerned — if that stood in the way. This corporation is, therefore, clearly entitled to the fourtli given to it out of the fund involved in this discussion. It was contended, indeed, that should the other corporations interested in the same fund fail to make good their claim, the Seminary would be entitled to come in for the whole. But this is not an improper place to remark, that no such consequence can obtain under this will. The fund is not given between and among the beneficiaries, but it is given in parcels; to each, one-fourth, and no more. The charter conferred by the State of Pennsylvania upon the trustees of the Presbyterian Board of Publication, author- izes the corporation "to purchase and receive, lake and hold, to them and their successors, forever, lands, tenements and hereditaments, goods, moneys and chattels, and all kinds of estate which may be devised, or bequeathed, or given to them." This is a foreign corporation, and it has been decided, [Bank of Augusta vs. Earle, 13 Peters R., 519; s. c. Deci- sions of Supreme Court United States, 277,) that though the corporation of one Slate may sue in another, it can make no contracts, nor enforce any liability in any State which is not within the terms of its charter; nor any of those which are against the laws of that other Slate. Chancellor Kent in- forms us, (2 Kent Com., 2S3,) that the English statutes of mortmain are in force in Pennsylvania, so far as they are applicable to her political condition — so held by her Courts, which declared, that in virtue of them, "all conveyances by deed or will, of lands, tenements or hereditaments, made to a APPEALS Ix\ EQUITY. 181 Coluiiil)ia, November and December, 1859. body corporate, or for the use of a body corporate, were void, unless sanctioned by charter or Act of Assembly." I have not access to the authority cited by this eminent commentator, so as to discover whether in the statutes intended to be included is that of nth George II, nor is it necessary to know; for in the charter of this corporation there is the very license and privilege required by tiie law of Pennsylvania as expounded by her Judges. Nor shall I enquire here, whether the law of Pennsylvania, whose office, so far as mortmain is concerned, would seem to be to protect her own lands from improper alienations, would be offended by an alienation in mortmain, in another State, of lands lying in that other State. The true inquiry for me is, is it an offence against our owu statute, which prohibits devises of lands to bodies corporate, for the testator, not to devise his lands to them, but to direct them to be sold, and bequeath the proceeds to snch body; — a body, by the way, expressly authorized to receive the legacy. It appears to me impossible to deduce from any of the statutes anterior to that of 9th George the Second, or from any decisions made upon them, a legal conclusion, which, applied to our statute of 1734, would make it an offence to raise money by the sale of lands to be given, as money, to a corporation, either domestic or foreign. That statute is not of force here, and how then is it, or any decision upon it, to be applied to this case ? Curtis vs. Ihilton, 14 Ves., 541, referred to in the argu- ment, if I understand the case, which is obscurely stated, was a case where money was to be raised from sale of lands, and, in connection with other |it>rsonalty, was to be /c//V/ out iu other hinfls for the support of a Scottish charity, and so expressly within the statute of 9 Cieorge II, under which the adjudication was made. The master of the rolls, in his observations, says it is s(Mtled by construction, though the statute eontains no express prohibition against the beqiu'st of money arising from sale of real estate, for charitable pur- 182 APPEALS IN EaUITY. American Bible Sociely vs. Noble. poses ; that such a bequest is within the spirit and meaning of the law. I have not been referred to the current of authority, and cannot discover it. But it is enough for this case that the case of Cur/is vs. Hutton was decided on the statute of George, wliich is not of force here. It is not said any where, so far as I can discover, that such a bequest would have been void as an offence against any other of the statutes, at all resembling our statute of 1734. If it would have offended them — if the law was as now contended for, upon the other statutes, where was the necessity of enacting that of George II ? I would ask, under our own statute, which merely prohibits the giving the land to a body corpo- rate, wliat offence is created by a provision that it be sold and go to others? Whatever objection may exist to a corpo- ration holding lands, here or elsewhere, is not the objection obviated by a disposition which carries them to the posses- sion of others, to be lield by them upon the same terms as apply to all the other lands in the State ? 'i'here was a minute objection raised to the title given in the will to tliis corporation. It differs slightly from that by which it was incorporated. But this error will not vitiate the bequest. (Angel & A., 178.) And so I conclude that this corporation is entitled to the bequests made to it. The American Bible Society takes its charter from New York, and is empowered " to hold, pur- chase and convey real and personal estate" to produce " a net income not exceeding $5,000 annually." The English statutes of mortmain are not of force in that State; and no impediment exists except that by their statute of wills, as I understand, no* lands can be devised to a corpo- ration ; and by revised statutes, it can only take what it is specially authorized by its charter to take. This corporation is authorized to purchase real estate ; but in McCarter vs. The Orphan Asylum Society, (9 Cowen, 437,) — a New York case — and we are bound by the New York decisions, as bind- ing authority, as to the rights of her corporations under her APPEALS IN EQUITY. 183 Coliiiiil)ia, November and December, lbr)9. laws — it is said to have been held that the word purchase did not inchide a devise, ahhongh devise falls under title by purchase. The American Bible Society may bui/ and may hold and convey lands. But they can take no direct devise of real estate. They niay take personalty. But in the Theo- logical Scininary of Auburn vs. Childs, (4 Paige, 419,) it was held that prior to revised statutes a pecuniary legacy payable out of the proceeds of real estate, which the executors were directed to sell, was valid, although the corporation was not authorized by its charter to take real estate by devise ; and the question is seriously put, with a leaning to the aflirma- tive, whether such a bequest is not good even after the revised statutes. Chancellor Walworth says: "I am not prepared to say that the devise of a power in trust to executors to sell lands for the payment of a legacy, charged thereon, in favor of a corporation, would be invalid, even under the revised statutes." " But I am satislied that, at the time tliis will was niade, and at the death of the testator, in 1S26, he had the legal right to devise his real estate in trust for a corporation ; and that the devise of such estate to his executors to sell the same for the payment of this and other legacies charged thereon, was valid. The feudal policy having changed the ancient common law of England, and deprived the owners of lands of the power of devising the same at their deaths, the statute of wills was an enabling statute; and the excep- tion as \o corporations was strictly only an exception, and not a prohibition. The decision of this Court in the Orphan House Asylum Society vs. McCarler, is conclusive on this question. Allhough the decision of Chancellor Jones, in that case, was reversed, it was solely on the ground that the devise to the corporation was direct, and not to the executors in trust. Indeed, Mr. Justice VVoodworth, who delivered the opinion of the majority of the Court, * * admits that if the legal estate had remained in the executors in trust for the corporation, and they had refused to pay over its portion of 184 APPEALS IN EaUITY. American Bible Society vs. Noble. the proceeds of the property on a sale thereof, the complain- ant would have been entitled to relief. ''The cases referred to by the defendant's counsel," he proceeds, "are founded upon the prohibitions of the statute of 9 George II, ch. 36, (l Evans statute 324,) under which statute, although it contains no express words prohibiting a bequest of money to be produced by the sale of lands, for cliaritable purposes, it has been settled by construction that such a bequest is void, as being within tlie spirit and mean- ing of the Act — (14 Ves. Rep., 541.)" I have no better indication of the law of New York under the revised statutes than the intimation of Chancellor Wal- worth in this extract. I have not access to the judgment of Chancellor Jones, referred to. But as both these are favorable to the view I entertain myself, I conclude that this corpora- tion is entitled to its legacy. It will be observed that I have left untouched the fact that the testator has directed a sale out and out of realty and personalty indefinitely, which, of itself, equitably impresses the character of personal estate on the proceeds. The last charter is that of the American Tract Society, which is also from New York. It is also authorized to" hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter," the net income of which "shall not exceed $5,000 annually." This corporation stands upon similar legal principles with the American Bible Society, and is entitled to its legacy. It is ordered, that the accounts in the case be referred to the commissioner, and that he state and report them. That tlie commissioner be authorized to make sale, upon such credits as he may fix, (not ditfering from such as are usual in such cases,) of such portions of the estate, real or personal, as according to the foregoing opinion are subject to sale, and yet remain unsold, giving at least three weeks' public notice thereof in the Abbeville newspapers, and in some one APPEALS IN EaUITY. 185 Columbia, Novenil)er and December, lb09. of the Charleston newspapers, and requiring bond, with at least two good sureties, and a mortgage of the premises, wliere land is sold, to secure all sums of and over twenty- dollars, and cash for all sums under that amount. And let the parties have leave to apply for any further necessary order. Tlie costs to come out of the estate. The heirs-at-law appealed on the grounds: 1. Because, the will of John B. Bull, properly construed, does not dispose of the plantation called " Berry Hill," which, having been purchased by the testator in his lifetime, does not pass under the words "Of the estate of my much respected and greatly lamented brother, Gen. William A. Bull, deceased, &c." 2. Because, there is no general residuary clause in John B. Bull's will, sufficient to carry any part of his estate not covered by the direct gifts, all the directions in the will after the words " of the estate," &c., having manifest reference to that property and no other. 3. Because, the post nati children born of the negroes given to Mrs. Sarah Bull, in the second clause of the will, and the provisions, crops, ancJ all articles at Little River, not mentioned in said clause, are intestate — the terms of the direct bequest being limited to the negroes in esse at the time tlie will was executed, and there being no general residuary clause sufficient to dispose of said negroes, and other property. 4. Because, the exception in the Act of 1734 constitutes s positive prohibition against devisins; any estate or interest in /and io bodies politic or corporate; and the device to defeat the law and accomplish the same purpose indirectly — by ordering the lands sold, and proceeds given — should have been declared void, as opposed to the spirit of the express law, as well as to the principles of equity and sound morality. .5. l^ecatise, the charter of the three foreign rorporations — being laws of foreign Stales — cannot repeal the South Carolina 180 APPEALS IN EaUlTY. American Bible Soc-iety vs. Noble. prohibition, nor enable said corporations to take anything from Sonth Carolina not allowed by the laws of South Caro- lina. Charters of foreign corporations cannot give license to dispense with our law in regard to them. 6. But if otherwise, then neither the Bible Society nor the Tract Society, chartered by the State of New York, can take any part of the provision made for them, even according the Revised Statutes of that State, which declare that corporations shall exercise no powers which are not expressly given. The right to " purchase and hold" does not necessarily include the right to take by " devise,^" or even " bequest." 7. The trustees of the "Presbyterian Board of Publication," chartered by the State of Pennsylvania in 1S47, cannot take the ybi/?V/i claimed by them under Bull's will, executed in 1843 — because the gift, made before the corporation had any existence, is not to the corporation chartered or in the terms of the charter; and also, because of the statutes of mortmain, which are of force in that State. 8. The Theological Seminary cannot take the one-fourth of the lands intended for them, because its charter, although a license to the extent it goes, does not conflict with the Act of 1734, or expressly confer the right to take by devise. 9. Because, it is respectfully but earnestly submitted that there is no law or principle of equity whicli requires the Court to decree the whole of this large estate away from the heirs-at-law, and give it to irresponsible, soulless |)olitical corporations, some of which are foreign to our jurisdiction, alien to our policy, and under the control of persons, and the exclusive government of States inimical to our institutions. James Morrow, one of the defendants, appealed on the grounds : 1. Because his Honor held that the negroes born after the making of the will, are not embraced in the bequest to Sarah Bull, in the second or other clause of said will. 2. Because said slaves, if not embraced in said bequest, are APPEALS IN EaUITY. 187 Columbia, Novemljer and December, 1809. intestate; and two-thirds of them, or their value, should have been declared the right of James Morrow. 3. Because liis Honor should have held the bequest of $5,000 to James Morrow, his absolute property; or declared fully what his estate was; with interest on the same from tes- tator's death. 4. Because tiie pleadings made the question, whether the executor should pay to James Morrow, the debt acknowledged by the testator, in his will, as due the estate of David Mor- row, deceased ; which the executor declined to pay without instruction, and was claimed by the defendant, James Mor- row. The executor appealed from so much of the decree as orders the commissioner in equity to sell Berry Hill, on the ground : Because the will directs the sale to be made by the execu- tor, and it is his riglit and privilege to make it. McGowaji, for the heirs-at-law, cited on first ground : Law- ton vs. Hunt, 4 Rich, Eq., 247 ; JVillis vs. Soyers, 4 Mad., 209; 8 T. R., 375; 4 Maul. & Sel., 550; Gilb. on Dev., S4; 1 Jarm. on Wills, 720 ; on third ground : 1 Jarm. on Wills, 693; Buist vs. Dawes, 3 Rich. Eq., 281 ; Tydiman vs. Rose, Rich. Eq. Cases, 294; 1 Rop. on Leg., 188; on fourth and following grounds: Act 17S9, 5 Stat., 110; Act 1731, 3 Stat., 382; 2 Brev. Dig., 335: Hill on Trustees, 1, 65,84,196,691,705; 10 Ves., 540; 9 Ves., 399; 2 Vern., 387; Brown vs. Lei^fi, 1 Ves., 501, note; 3 Meriv., 19; 2 Story Ecj., § 1183; Foun- tain vs. Ravenel, 17 How., 369; Attorney General vs. Christ's Hospital, 4 Beav., 74; 2 Keen., 150; Mayor of S. B. vs. Attorney General, 5 H. L. C, 1 ; Haskel vs. Rowe, 3 Brev., 242 ; Tfiompson vs. Gaillard, 3 Rich., 418; 2 Ves., 179; Sug. on Pow., 115; Burnett vs. Noble, 10 Rich., 530; I VVms. on Ex'ors, 554 ; White and Tudor, L. C, 594 ; Dud. Eq., 212 ; Lindsay vs. Pleasant, 4 I red. E(]., 3'i\ ; Craig vs. Lester ^ 3 188 APPEALS IN EQUITY. American Bible Society vs. Noble. Wheat., 560; Baptist vs. Hart, 4 Wheat., -10; 1 Bro. Ch., 503; 2 Fonb., 212, note; Amb., 20; Maggs vs. Hodge, 2 Ves., 52; Shelf, on Mortm., 87; Grant, on Corp., 128; Ang. & Ames on Corp., 168 ; 1 M. & K., 368, note; Hobart, 136 ; Porter's Case, 1 Coke, 22; 4 Kent, 250; 4 Paige, 41.9; Ang. & Ames on Corp., 138; IVilbank vs. Martin, 2 Harrington, 18; Roper vs. Radcliff, 9 Mod., 167; De Costs vs. Diipass, Amb., 228; Woodman vs. Woodruff, Amb., 636 ; 9 Ves., 399 ; Dwar. on Stat., 31 ; 2 Rev. Stat. N. Y., 2 ; 1 Rev. Stat. N. V^., 720; Watson vs. Child, 9 Rich. Eq., 129. Fair, for JMorrow, cited : Garret vs. Garret, 2 Sirob. Eq., 272 ; Roberts vs. Leslie, 9 Rich. Eq., 35; Jasper vs. Maxwell, 1 Dev. Eq., 357 ; Perry vs. Logan, 5 Rich. Eq., 215; Matfiis vs. Griffin, 8 Rich. Eq., 79. Noble, for the execntor, cited : Osborn vs. Black, Sp. Eq., 435; Thompson vs. Palmer, 2 Rich. Eq., 36 ; Gist vs. Gist, 2 McC. Ch., 474; 2 Story Eq., § 1060; Crossland vs. Mur- dock, 4 McC, 218; 1 Wms. on Ex'ors, 451; 2 Wtns. on Ex'ors, 687 ; Drayton vs. Grimke, Bail. Eq., 392 ; 5 Stat., 15 ; Britton vs. Lewis, 8 Rich. Eq., 271 ; Sug. on Pow., 167, 172. Perrin, for corporations, cited : Chapman vs. Brown, 3 Bnr., 1634; Gore vs. Langdon, 2 B. & Ad., 680; 22 Eng. C. L. R., 285; Bodenham vs. Pritchard, S Eng. C. L. R., 150; Goodtitle vs. Southern, 1 M. & S., 299 ; An. & A. on Corp., 134; 1 Kyd on Corp., 104; Bac. Ab. Corp., F, 2 ; 2 Lord Ray., 1532 ; 1 Sira., 612 ; 2 Kent, 285, n ; Jiw^usta vs. Earle, 13 Pet., 519 ; 1 Bro. C. C, 497 ; Dougald vs. Ball, 2 P. W., 320 ; Trelawney vs. Booth, 2 Atk., 307 ; Craig vs. Leslie, 3 Wheat., 564 ; fastis vs. Brown, 6 Paige, 448 ; Perry vs. Logan, 5 Rich. Eq., 202 ; Attorney General vs. Jolly, 1 Rich. Eq., 99; Gibson vs. McCall, 1 Rich., 174; Shelf, on Mortm., 73; Gerard vs. Vidal, 2 How., 127; 3 Pet., 99; 7 Serg. & Raw., 320: 2 Kent, 283; 1 Watts, 218; Perd. Dig., 350. APPEALS IN EQUITY. 189 Columbia, November and December, 1859. McCrady, for American Tract Society: To purchase lands and hold them for the benefit of them- selves and their successors, (I Black. Com., 475, 47S,) was incident to every corporation at common law. It is not, therefore, any incapacity in the corporation to take and hold which can prevent the de'vise, but some disability, created by our own statutes, must be shown. Mortmain Acts did not artect the colonies, 2 Merivale, 143, 160; attorney Gen- eral vs. Stewart. This disability, it is said, is to be found in the A. A. 1734, entitled an Act for making more effectual and for making valid all former wills in this province, &c., sec. 2d, 3 Stat, at Large, p. 341, 3S2, in which " bodys politick and corporate are excepted from being devisees." That is, it is a disability in the devisor, and not the incapacity or disabil- ity of the corporations. If the power, liberty, or privilege, to devise lands in this State were derived entirely from the Act of 1734, the exception would certainly make any devise to corporations void. But if this power, liberty, or privilege, need not be derived from them, it need not be subject to the exception. I, therefore, will endeavor to maintain these two propositions: 1. That lands in this province were, long before the pas- sage of the Act of 1734, devisable without any restraint. 2. That this Act did not curtail or restrict the right of devise before enjoyed by the citizen. As to the first ; that lands were devisable before the Act of 1734. We go back to what must be considered by us as the fountain head of all property and right of property in our soil, that is, to the charters granted to the lords proprietors, dated respecHvely 15th March, 1663, and 30th June, 1665. By the fourth clause or section of the first, (1 Stat, at Large, pp. 22, 23,) and third of tlie second, (lb., 31, 33,) the whole territory was granted to the proprietors and their heirs by their king, "to be holden of us, our heirs and successors as of our manor of East Greenwich in Kent, in free and com- mon socage, and not in capile or by knight's service." We 190 APPEALS IN EQUITY. American Bible Society vs. Noble. do not positively know how this manor of East Greenwich was held, but as it was in Kent, we may fairly presume it was ga^'elkind. "All the lands in Kent are presumed to be in gavelkind, because it is morally impossible now to sliow to a certainty what lands were disgavelled." Bac. Abr., 2 vol., tit.. Gavelkind, B, marginal note. "The lands in Kent, generally, are of the nature of gavelkind, which custom there is like the common law elsewhere." Com. Dig., 4 vol., title, Gavelkind, H. If this holding intended by the charter was in the nature of gavelkind, then the lands in this province were devisable by the grantees, the lords proprietors; for, says Lord Bacon, "all gavelkind land is devisable, for the allodial property doth follow the rules of the civil law, which permits any person to make his will and to dispose of his estate; and this notion the clergy seem to have brought over unto all those allodial possessions, and the custom hath continued ever since." Bac. Abr., 2 vol., title. Gavelkind, A. So Gilbert on Devisees, p. 84: "For the people of Kent, where the custom of gavelkind most prevails, happily secured their land from any innovation of the Conqueror, so that after the conquest, they still continued free, and not subject to the feudal duties, &c.; therefore, that people still contin- ued their old power and custom to dispose of their lands according to the natural notion of property, by loill or alien- ation." And so it was decided in Lminder vs. Brookes, Cro. Car., 561. The mere fact that the manor of Greenwich was in Kent, is, therefore, almost conclusive, that the grant enabled the grantees, the lords proprietors, to devise without restriction, and that they so took and held all the lands of the prov- ince. In fact the statute of Frauds, sec. 5, recognizes the power of devise as a Kentish custom, and not as gavelkind — "according to the custom of Kent," is the language — and thus we have, as it were, a declaration of the meaning of the APPEALS IN EQUITY. 191 Columbia, November and December, ISSO. charter, to give the power to devise, by the grantor himself, as well as by his parliament. But this is pnt beyond question by the provision of the seventh clause or section of both charters, 1 Stat. pp. 25 and 35, that " all the subjects and liege people" of the king, transported to the province, should be considered still liege, faithful people, and may inherit or otherwise purchase and receive, take, hold, and buy, and possess any lands, tene- ments, or hereditaments, within the said places, and them may occupy and enjoy, sell, alien and bequeath. Both the proprietors and their grantees then took the lands in this prov- ince as lands devisable, and devisable according to ancient, lawful customs of England, before the statutes of 32 and 34 Henry VIII. In addition to this, we have very conclusive proof that it was so understood by the people of the province themselves, in the remarkable and otherwise unaccountable omission to adopt either of the statutes of Henry VIII, authorizing devises, when in 1712 they adopted so many other statutes, together with the criminal law, and intended to frame their code; and that they had no fear of corporations appears from the fact, that none of the statutes of mortmain were ever made of force. We are then next to inquire whether this right of devise, coeval with the right of property, was at any time before the Act of 1731, abolished or restricted. Nothing can be sug- gested as affording any possible ground for such a supposi- tion, unless, perhaps, the adoption of the common law, or the surrender of ihe charters by the proprietors; neither, how- ever, could have had such an effect. 1. As to the adoption of the common law. It would be clearly against the intent of the statute, which, it is to be observed, cautiously adopted only such parts of the common law as were not "inconsistent with the particular constitu- tions, customs, and laws of this province." But even with- 192 ■ APPEALS IN EaUlTY. American Bil)le Society vs. Noble. out this cautious limitation, the Act of 1712 could not. cousisteutly with decisions in England, then not long before made, have been construed to have such an effect. In the case of Wueman vs. Cotton, decided in 1663, Hardres Rep., 325, see Thos. Raymond, 59, 75 and 76, and also in Bac. Abr., 2d vol., Tit., Gavelkind, B, the ques- tion was, whether certain lands in Kent, disgavelled by certain Acts of Parliament in Henry Vlllth's time, " to all intents, constructions and purposes whatsoever; and that they should descend as lands at common law, any custom to the contrary notwithstanding," thereby lost their devisability, and it was resolved that notwithstanding the generality of the language, the said lands lost only their partibility, and might still be devised. The case was made expressly to try the question on a wager whether the lands could be devised, was carefully considered, and is also reported in Lev. 79, 1 Sid. 77, 135, and 1 Keble, 288, 372, 492, 505. The adoption of the common law, then, (if the manor of Greenwich had not been disgavelled in this way prior to the cliarters,) could only have changed the descent. Then, as to the surrender of the lords proprietors to King George II. Did that destroy the custom of devise, and deprive our lands of their devisability? We have never seen any copy of tiie surrenders, but the Act of 2 George II, ch. 34, A. D., 1729, entitled, an Act for establishing an agreement with seven of the lords proprietors of Carolina, for the sur- render of their title and interest in that province, to his Majesty, is to be found in 1 Stat, p. 60, in which the agreement is recited and the confirmation enacted. The patents or charters of Charles II are both recited at length as to the giant of the lands as already quoted, and the title and interest of the proprietors thus described was to be surren- dered ; but "all such tracts of land, tenements, and heredita- ments as have been at any time before 1 January, 1727, granted or conveyed by, or comprised in any grants, deeds, instruments or conveyances, under the common seal of the APPEALS IN EaUITY. I9:i Columbia, November and December, 1859. said lords proprietors, cither in England or in tlio provinces aforesaid," were expressly excepted, (lb., p. G5,) so that as to lands irranted before 1 January, 1727, this surrender had no etiect ; and if the lands after granted by the king were not devisable, there certainly would have been great confusion, and we should have to look to the dates of the grants to resolve the question. Possibly a vague apprehension of this might have induced the passage of the Act of 1734. ]Jut it must be observed that tliis surrender made to the king was of that estate or title which the proprietors held, that is, as of lands in Kent, and such lands would not have lost their qualities by such a surrender, 2 Danv. Abr., 441. If gavel- kind lands are held in socage, and the tenure is after changed into knight's service, yet the custom is not altered, for that goes witfj the lajid and not with the tenure. See Lushhigion vs. Slandorff, 5 Bos. & Pul., 506, 72S. Com. Dig., 4th vol., Gavelkind, 533. (A.) So, if it descend to the king, though it be privileged in the hands of the king, the custom is not thereby destroyed..... So, if the king be seized of lands in nature of gavelkind, and dies having several sons, the whole descends to the king, his successor, and the younger sons shall have no part, for the custom is suspended in the hands of the king. Upon these authorities we are justified in maintaining that although the custom might have been suspended while the lands were in the king, it was not de- stroyed ; and that upon being granted to private individuals, the right of devise went with the land, and that, therefore, that all lands, whether granted by the proprietors or by the king, were devisable previous to the A. A. 1734, and up to the time of the passage of that Act, and if so, then we proceed to our second proposition. 2. That the Act of 1734, did not take away this right of the citizen and quality of the land. It is at the worst no more than the statute of 32 Henry VIII, which has the same exception, but it has constajjtly been held in England, that wherever lands were devisable by custom before tlie statute 14 194 APPEALS IN EaUlTY. American Bible Society vs. Noble. of Henry, they were not affected by it. Gilbert, in consider- ing what circumstances are necessary to a will, says on devises, p. 83, 84, that lands of gavelkind tenure in Kent, " are not subject to the circumstances required by that statute (32 Henry VHI) because they were devisable before." And in the Butler & Baker's case, 3 Rep. 35, a, 4, it is said, and as to the case in Dyer, 155, that if lands in London, or lands Vi'hich were devisable by custom, are held in capite, yet the whole may be devised. To that it was answered, that was not by force of the statute, but because the lands were devis- able by custom before the statute, and the statute is in the affirmative, and doth not take away any custom. So T..ord Coke says again. For an affirmative act doth not take away a custom to devise lands, as it hath often been adjudged. Co. Litt., 115, a. And this has been allowed even against the mortmain Acts in London. Bac. Abr. (vol. 1, Title, Customs of Lon- don. A.) By the custom of London, a freeman or citizen might, even before the statute of wills, devise iiis lands and tenements, of which he was seized in fee simple, to whom he pleased, and may at this time devise the same in mortmain, notwithstanding the statutes of mortmain, &c. Here we have no mortmain Acts to prevent. But, whatever might have been the intent or the effect of the Act of 1734, we contend that the Act of 1789 was in- tended to remove all restrictions from the power of devising except those of form imposed by tlie statute of frauds, and therein re-enacted. This appears from the fact that nothing is said about the devisees; exceptions ari; made as to those who may devise, but as to those who may take, the statute is silent, and as there is nothing to restrict the devisor, the only question is as to the capacity of the devisee to take at com- mon law, which capacity we have shewn, corporations have. And this enactment, although affirmative only, being intended to regulate wills, the same matter as the Act of 1734, must APPEALS IN EaUITY. 195 Columbia, November and December, 1859. reppal it, as the exception in tlie Act of 1734 is inconsistont with the iiniiinited power of devise given in the Act of 1789. So, if a subsequent Act be contrary to a former, in matter, it shall be a repeal of the former, though the words are affir- mative. Com. Dig., 5 vol., foot page 317, Tit., Parliament, R., 9, a. Every affirmative statute is a repeal, by implication, of a precedent affirmative statute, so far as it is contrary thereto. For, le^es posteriores prioi-es abrogant. Bac. Abr., 4 vol., Tit., Statute, D., 14. Then we have the uniform practice ever since the Act of 1789, in favor of this construction, for there is no vestige of a doubt of the power to devise to corporations, or of the ability of corporations to take under a devise, to be found in any of our reports, and such a doubt has been unknown to the bar, as I verily believe, until raised in this case, J>ut, if this be trie first time this Act comes to be construed, being a statute in favor of public right, it ought to be construed liberally to carry out its intent, more especially as those feudal rights which were sought to be protected by the restriction upon devise, were never of force in this State. Thomson^ for Morrow, cited : I Rop. on Leg., 248, 249, 257, 260, 262, 268; 2 Rop. on Leg., 1507, 1683; 1 Bro. C. C, 482 ; 1 Jarm. on Wills, 277, n., 698 ; Sayer vs. Sayer, 2 Vern., 688; 2 Rop. on Leg., 1475, 1476, 1478; Rawlhii^s vs. Jen- 7iiu£^s, 13 Ves., 39 ; ,]llen vs. Crossland, 2 Rich. Eq., 68. The opinion of the Court was delivered by VVardlaw, Ch. The circumstances under which this opinion is prepared, prevent that full discussion wjiich the importance of the interests and principles involved makes desirable, and enable me to do little more than to announce the judgment of the Court. We are all agreed that the direction of the will to the exe- cutors to sell the whf)lc estate, applies only to the " General Bull estate," and that the religious societies have no interest 196 APPEALS IN EaUITY. American Bible Society vs. Noble. beyond this portion. The direction to sell is in the midst of dispositions relating to that special snbject, and it is a forced constrnction to change its collocation with cognate disposi- tions, and make it applicable to tiie whole of testator's estafe. It is manifest, from a carefnl reading of the will, that while the testator intended to dispose of his whole estate, he made very different dispositions as to liie two parcels of it: his estate proper, and th^ " General Bull estate." The former he gives to his wife, and the latter he devotes to charity. That he should make the proceeds of the latter liable to his debts generally, and to a pecuniary legacy to his step-son, is not inconsistent, for he had added to this parcel a very valuable estate. In life, he kept the two parcels distinct and apart, and although we cannot resort to parol evidence, independ- ently of the will, to ascertain the testator's intention, it is allowable to receive information of his past conduct, and all the circumstances which surrounded him, to point and determine the application of the words used in the will. The intention of the testator must be ascertained, and the con- struction of his will made, from the terms of the will itself, but we may be aided in fixing the meaning of his terms by his iisuset norma loquendi. The direction to sell, of course, could not apply to the estate given to his wife, even for life, and could not, therefore, include his whole estate. In relation to his estate proper, the testator, so far from giving his execu- tors power to sell, as to the only portion directed to be sold, prescribes that the sale shall be made by an agent of his wife. There is no general residuary clause in this will, and if the testator has died intestate as to any subject not appurtenant to the General Bull estate, which is directed to be sold and divided, this subject must proceed to his next of kin. It is true, that the word remainder occurs in the directions to the executors for sale, but it is too obvious to need illustration, that the term applies only to the residue of the General Bull -estate not sold for cash. The next question is, whether the Berry Hill tract is in- APPEALS IN EaUlTY. 197 Columbia, November and December, IS-'iQ. clnclod, as an incident and incrcnuMit of tlie Goneral l^ull estate, within the yxnvor of the executors to sell ; and on this point we concur with the Chancellor. In a devise, if there be found two sorts of property, one technically and precisely corresponding: to the description of the subject in the devise, and another not so completely answering thereto, the latter will be excluded, although had there been no other property on which the devise could operate, it might be held to com- prise the less appro]iriate subject, 1 Jarni., 720. This is sound doctrine, and for myself I think it was rightly applied in Oxender Sr Chichester, 3 Taunt., 147, as I have elsewhere said in Lmvton vs. Hunt, 4 Rich., 247. But under John Bull's will no subject whatsoever technically and precisely corresponds to the terms of description in the will, nor any which can be brought within its operation, except in a pojMi- lar and secondary sense. Usually, and not including cases where, by imposing conditions, testators may create instances of election, a testator can dispose only of his own estate, and not of the estate of another, even of a deceased brother, however respected and lamented ; but one may designate his ])lantation by any appellative he chooses, and devise it by that name. If the testator had said, I devise the estate derived by inheritance from rny brother, probably the rule cited would have been applicable, but in fact he says, the estate of my brother, I will,&c. He had the right to denomi- nate, and he did denominate his Savannah River property as the General Bull estate, including Berry Hill, which was mainly paid for from the crops of the plantation inherited from his brother, and the proceeds of the sale of some of the negroes belonging to that plantation. It is unnecessary to add more to the circuit decree on this point. The next question is, as to the negroes born after the date of his will from the bodies of the females primarily given to his wife. Two sets of post nati arc involved in this inquiry. As to the descendants of Doll, we concur with the Chancellor, and cannot profitably add to his reasoning. As to the ser- 198 APPEALS IN EaUITY. American Bible'Society vs. Noble. vaiits on tlie Little River farm, I am instructed to deliver the opinion of the Court, (I reserve n\Y own,) approving the conclusion of the Chancellor that the post nati do not pass, and in this particular the decree must stand on its own rea- sons. The distribution of the fund from tliis source, how- ever, must be different from that provided in the decree, as our conclusion concerning the effect of the power of sale, excludes the religious societies, and leaves the fund as intes- tate property to the succession of the next of kin. Another question is, as to the bequest of $5,000 to testator's step-son. On this point we differ from the Chancellor. The testator, in the first instance, cheerfully gives this sum of money absolutely to the legatee, and then proceeds to express the desire that no person shall be allowed to deprive him of it during his natural life, and that the legatee himself shall not be allowed to squander the minutest portion of the prin- cipal, and be only allowed to use the annual interest. An absolute gift can be reduced in effect only by the clearest expression of the donor's purpose in the context to limit its effect. Here there is no limitation over of the principal fund, and yet there is distinct manifestation of testator's pur- pose to dispose of his whole estate. In similar terms the tes- tator expresses his desire to secure the estate given to his wife, so that no person shall be able to deprive her of it during her natural life. In both instances, we understand the testa- tor as attempting to give the property exempt from its neces- sary incident of liability for debt, which is impracticable. As to his step-son, probably the counsel or advice not to exceed the annual interest in the use of the legacy, was intended; but we do not perceive any sufficient indication to restrict his right to use it as he pleases. In general, pecu- niary legacies bear interest from a year after testator's death, and we see nothing as to this legacy to justify departure from the general rule. As to so much of the appeal as relates to the debt of tes- tator to the estate of David Morrow, we decide nothing, APPEALS liN EaUITV. I!>9 Columbia, November and December, 1659. except that there shall be no presnn)ptioii from the appeal or otherwise that the matter was decided against the appel- lant. The (Chancellor intended that tiiis matter shonld he embraced in the inc]niries directed to be made by the com- missioner, and we think it safer to reserve judgment until, by report and exceptions, the matter may be more distinctly pre- sented for adjudication. We may next consider tlie appeal on behalf of the execu- tor, that he, directed by the will to make the sale, and not the commissioner of the Court, as ordered by the decree, shonld make the sale of Berry Hill. We consider this appeal to be well taken. When the order for sale of the estate was ori- ginally granted, John Bull seemed to be intestate as to iiis whole estate, and this Court having custody of the estate, l)roperly directed the sale to be made by its own officer; and so far as the order has been executed, it must be sup- ported, and if the executor is dissatisfied with his compensa- tion for trouble and management, his remedy is in the Law Court for extra compensation nnd(!r the Act of 17S9. But as we understand the facts, Berry Hill is still unsold, and as we have adjudged this tract to be parcel of the General Bull estate, which the executors were directed by the testator to sell, and as there is no charge of insolvency or misconduct made as to the executor, we adjudge that it is his privilege to make the sale of Berry Hill, and that so much of the decretal order as directs it to be made by the commissioner, be rescinded. The remaining and most important question in the case is as to the capacity of the testator to give the residue of the proceeds of sale of the General Bull estate, to the religious corporations which are the objects of his donation. The right of these corporations to take personalty is not seri- ously contested, but it is insisted that, as the statutes of wills, 32 and 34 Henry VHl, and our Act of 1733 or 1734, (it is twice printed, in 3 Stat., and of these successive years, at the pages 341,382,) except corporations from the objects of 200 APPEALS IN EaUITY. American Bible Society t'.v. Noble. the devises of land, it is unlawful to bequeath the proceeds of land to corporations. Minute distinction might be made between exceptions in enabling statutes and positive prohibi- tions, and between the capacity of a testator to give, and of a legatee to take, but I have not leisure to dwell upon them. It was argued for the corporations, that before the statute of wills, by special custom in Kent, retained from ancient Saxon laws, proprietors of lands held in gavelkind, had the right to devise lands ; and that, as by the charters of King Charles II to the lords proprietors of South Carolina, lands were to be held of the king as of the manor of East Greenwich, in Kent, all lands in South Carolina are devisable, independently of the statutes of wills and of the Act of 1733. Rut we have no proof that this special custom authorized devises to corporations; and if this were conceded, the surrender of the charters to the king about 1727, brought lands here under the general common law of England; and such persons as claim privilege beyond the common law, must prove their right to be excepted from the operation of the system. Hence arose the necessity of passing the Act of 1733, briefly after the surrender of the charters. Again, it is urged that the Act of 17S9, prescribing the formalities according to which wills of land may be made, but making no mention of the devisees, and, of course, omitting the exception as to corpo- rations, amounts to a repeal of the Act of 1733. But there are no inconsistent provisions in the two Acts, and repeals by implication, are little favored, and affirm.ative statutes, in relation to the same matter, are properly construed in pari materia. We, therefore, assume, that devises of lands to corporations, are inhibited generally, and that particular cor- porations, claiming right to take lauds by devise, must estab- lish their right by their charters, or some other special law proceeding from the legislative authority of this State. But the inhibition, in terms, extends only to devises of lands, and the burden is on the heirs, or next of kin, to demonstrate that a bequest of the proceeds of lands is equivalent to a APPEALS IN EaUITY. 201 Columbia, November antl December, 1859. devise of lands specifically. The FJnglish statutes of mort- main are not of force in this State, and our only Act which can be denominated a statute of mortmain, is this Act of 1733. So, too, the statute of 37 Eliz., concerning charities, (wliich was greatly modified by the statute of 9 Geo. II, com- monly called the statute of morlmain,) is not of force here. The whole issue, therefore, hangs on the extent of the ex'ception in the Act of 1733. There are reasons of policy, which might induce the legislature to enact that lands should not be held in the dead clutch of those who owe no allegi- ance, and where there is no liability to escheat, which are inapplicable to money or other personalty. It is incident to corj)orations at the common law, to take personalty by be- quest, and this power is not totally or generally recalled by any statute, and it may be conceded, for the purposes of this argument, that they cannot take devises of land without license from the crown, in England, or here without grant from the legislature. Equity considers to be done that which should be done, and regarding the substance rather than the form of a will, considers land to be converted into money wherever testator directs the land to be sold, and nothing intervenes to prevent the execution of the direction on prin- ciples of equity. A testator has the power to change the nature of his estate as from realty to personalty, so as to preclude all questions between his heirs and personal repre- sentatives, 1 Wins., 551, 554. It is quite true, that if the testator direct the conversion for a purpose, wliich fails in whole, or in part, the heir is entitled to the whole, or resi- due, as land. Ackroyd vs. Smilhson^ North r.9. J'alk. And that if the conversion be not actually effected by sale, and be not necessary, the beneficial legatee may take, at his option, the land or the proceeds. But these apparent excep- tions in no respect limit or qualify tiie general doctrine of equitable conversion, where it is directed absolutely, or, as the phrase is, out and out, and the conversion is necessary to fulfil the purposes of the testator. Craig vs. Leslie, 3 203 APPEALS IN EaUITY. American Bible Society vs. Noble. Wheat., 563. It is argued that this doctrine of equitable conversion applies only between the objects of gift, and not as to the donor; and thus far I approve and follow the argu- ment, and it is further urged that it has no application to the instrument of gift. If no more be meant by this than that there must be, first, a devise established before a conversion can be etfected; this too may be admitted as sound doctrine, and estabhshed by this very case in the Court of Errors. The vice in the decision of Griffin vs. Matthews, following WiJkins vs. Taylor, 8 Rich., 291, was, that the Court applied the doctrine of conversion to the frame or structure of the instrument, and seeing that the will directed a sale of land, and distribution of the proceeds, allowed the will to be admitted to probate on proof adequate to a testament, yet insufficient to a devise. Here, however, the will has been admitted to probate as a will, and the only question is as to the effect of a devise directing conversion. It is further urged, that as our Act forbids the direct devise of lands to corporations, it forbids what is the same thing in substance, a bequest of the proceeds of lands; and that we tolerate eva- sion of the policy of the State by allowing bequests of the proceeds of lands. This view is plausibly supported by the decisions in the English Chancery on the statute of 9 Geo. II, which are collected in a note, 2 Fonb., 210. That statute, in express terms, only inhibited gifts of lands and of charges and incumbrances on them, and of money to be laid out in lands, to religious corporations, but in Attorney General vs. Lord Weymouth, Ambl., 20, Lord Hardwicke determined that a gift of the proceeds of the lands was likewise prohib- ited on a construction of the enactment in connection with the preamble; and his judgment was followed afterwards in several cases. Unquestionably this construction was attained by considering the spirit and policy of the Act; and one stiff in his notions of construction might well doubt of the pro- priety of the decision. Yet the terms of that are much more extensive than those in the statutes of wills and our Actj APPEALS IN EQUITY. 203 Columbia, November and December, 1S59. and (lie decisions proceed expressly on the terms of the statute. 14 Ves., 541. A like conclusion has been attained on the large words of the statute 11 and 12 Wni. Ill, as to gifts to Papists. Roper vs. liuclcUffe, 9 Mod., 167; 10 Mod., 89. So, too, in Delaware, on a statute of 1787, declaring all devises to religious corporations void, a like result was at- tained. Slate vs. fVilthank, 2 Harris, 22. But no case in England on the exception in the statute of wills, nor in New York, where the same exception j)revails, nor elsewhere, has been cited to show that the inhibition of a devise of lands also inhibits a bequest of the proceeds. On the contrary, the prohibition of direct devise of lands has been held not to inhibit the devise of a trust in lands. I regret that I have not time to pursue this investigation further, but Chancellor Jones has fully examined the cases in McCarler vs. Orphan jlsyhun, 9 Cowen, 437, and a fair summary of the doctrine may be found in Angell & Ames on Corporations, 137, 150. It may be granted that the corporations to whom the bequests are made must be competent to take not only by the laws of the States which chartered them, but also by the laws of this State. We have endeavored to show that there is nothing in our law which hinders them to take bequests as corporations, and on looking at their charters by the for- eign States, we find nothing to obstruct this capacity. All of them, in substance, are authorized to purchase, hold and convey estate. It may be that the term purchase, although usually including all modes of acquisition, except by descent, should be interpreted as to direct devises of land in a popu- lar sense, so to ctnbrace only acquisitions of land hy pay- ment of the price or value; but this is altogether unimportant where the gift is considered a bequest of personalty. It is ordered and decreed that the circuit decree be mod- ified according to this opinion, and that in other respects the decree be affirmed and the appeal dismissed. Du^KIN, Ch., concurred. 204 APPEALS IN EaUlTY. American Bible Society vs. Noble. Johnston, Ch., said: I concur throughout, except as to the right of the executor to sell; as to which, I apprehend that much inconvenience and perplexity will arise in future cases, where the executor is authorized to make partial sales. Sound practice (and this is only a question of practice) requires, that where an estate is to be administered by the Court, the whole fund should be in the hands of its officer. Decree modified. CASES IN EQUITY ARGUED AND DETEKMINED IN THE COURT OF APPEALS, At Charleston, January Term, 1860. JUDGES present HON. JOHN B. O'NEALL, Chief Justice. HON. JOB JOHNSTON, Associate Judge. HON. F. H. WARDLAW, Associate Judge. MiLBERRY S. Martin, Executrix, vs. James B, Campbell. Evidetice — Aiiswer — Solicitor — Fee. Defendant contended that an agreement had been repudiated, and to prove it oflered his own answer in another cause between the same parties : — Held, that if defendant could make proof in this collaieral way, still the answer did not prove the fact, as the matter was not distinctly alleged. A oolicitor who has an interest in attending to a cause, cannot, it seems, charge for his services, there being no express agreement to pay. BEFORE DARGAN, CH., AT CHARLESTON, FEBRUARY, 18r)8. The decree of his Honor, the Circuit Chancellor, is as fol- lows: Dargan, Ch. Benjamin F. Hunt many years ago became the purchaser of a plantation on the Pee Dee river, in Georgetown district, called " Richfield," and of the negroes 206 APPEALS IN EaUITY. Martin vs. Campbell. thereon, for the sum of $120,000; one-sixth of the purchase money was paid in cash, or its equivalent: the rest of the purchase money was payable in five equal annual instal- ments of §520,000 each, secureiJ by bond and mortgage of the plantation and negroes; the bonds all drew interest. Two of these bonds, the subject matter of this suit, came into the hands of William Aiken by assignment, and were his prop- erty in his own right, and were negotiated and assigned by him, as hereinafter stated. The late Robert Marti»i, with the intent of becoming the purchaser of said bonds from William Aiken, and having engaged James B. Campbell as his agent in the negotiation for the said purchase, on 2Sth August, 1849, paid to said Campbell the sum of f 30,000, the receipt of which the said Campbell acknowledged in the following manner: "Charles- ton, August 2S(h, 1849. Received of Robert Martin, Esq., the sum of thirty thousand dollars, in trust, to be paid this day to the Hon. William Aiken, for purchase money of his bonds of Col. B. F. Hunt, and all the securities thereto, con- sisting of mortgage of Pee Dee plantation and negroes, judg- ment in Common Picas for Charleston district, and an order for foreclosure in the same Court, which bonds and securi- ties, with interest to this date, amount to upwards of sixty thousand dollars." (Signed) "James B. Campbell." A few days afterwards, the defendant, James B. Campbell, executed an instrument which he delivered to the plaintifPs testator, Robert Martin, in which the terms of the contract were very fully and clearly stated as follows: " Broad street, September 1st, 1849. The assignment of William Aiken to myself, dated this day, of his claims upon Col. B. F. Hunt, consisting of two bonds for $20,000 each, with interest, and a mortgage of Richfield and negroes, with a judgment, and an order of foreclosure in Common Pleas to secure them, which assignment is herewith enclosed, is in trust for Robert Martiny Esq., who furnished the sum of thirty thousand dollars, which I paid to Mr. Aiken as the consideration for APPEALS IN EaUITY. 207 Charleston, January, 1860. said assignment. Mr. Martin has niy recoipt for the money, which will show tliat this declaration is correct, and he is fully authorised to write over my signature on the margin of said assignment, whatever may be deemed necessary to con- firm or establish his right to said claims, bonds and securities. The agreement between Mr. Martin and myself is, that after paying him in full thirty thousand dollars, with interest from the 28th of August, 1S49, the balance which may be col- lected on said claims upon Col. Hunt, is to bo equally divided. " I am to contribute my professional services to collect said claims free of charge. (Signed) James B. Cami)bell. This declaration is made in consequence of the weatlier prevent- ing me from seeing and settling with Mr. Martin this after- noon." (Signed) " J. B. C" On the first day of Sef)tember, 1S49, there was a still fur- ther declaration on the part of J. B. Campbell, of the terms of the agreement, in an instrument signed by him, and which is as follows: OF South Carolina, "I Jity of Charleston. j " The State of South Carolina, Ci "Memorandum of an agreement, made and entered into by and between Robert Martin, Esq., and James B. Camp- bell. The Hon. William Aiken having this day executed an assignment to James B. Campbell, in trust, of his claims upon B, F. Hunt, Esq., and Robert Martin having on the 2Sth .day of August, ultimo, (1849,) advanced the sum of thirty thousajid dollars in cash, being the full amount paid by tlie said James B. Campbell for said claims, and the said assignment iieing in fact in trust for the said Robert Martin alone: Now, be it rememl)ered that the said Robert Martin and James B. Campbell liave agreed, and it is hereby agreed between them, as follows: " The said James B. Campbell has undertaken the entire management of said claims, and agrees to prosecute the col- 208 APPEALS IN EaUlTY. Martin vs. Campbell. lection and security of the same, and to devote thereto his best professional services without fee or charge. "And the said Robert Martin is to take and receive the first money or monies collected thereon, and as fast as the same shall be collected from time to time, until the said sum of thirty thousand dollars, with interest thereon from the 28th day of August, 1849, shall be paid in full ; and then after the said sum, principal and interest shall be paid in full, whatever other or further sums shall be collected, received or paid on said assigned claims, shall be equally divided between the said Robert Martin and the said James B. Campbell, one moiety to each, share and share alike; and in case of the death or other disability of the said James B. Campbell before the final close and completion of his duties under this agree- ment, then the said Robert Martin shall be at liberty to select and employ such counsel or attorney in the place of the said James B. Campbell, as he shall prefer to complete his said duties, and the costs and fees and reasonable charges conse- quent thereon, shall be paid and deducted out of and from the share and interest of the said James B. Campbell, under and by virtue of this agreement. Witness our hands and seals, this first day of September, A. D. eighteen hundred and forty-nine. (Signed) JAMES B. CAMPBELL, [l. s.j In the presence of Virgil Maxcv." The whole principal and interest due on the two bonds of B. F. Hunt, assigned by William Aiken as aforesaid, have been received by Campbell, or are subject to his order; and this bill is filed by Milberry S. Martin, executrix of Robert Martin, deceased, against Campbell, for an account of said moneys so received by him, in pursuance of the agreement which has been recited, and which, so far as they have not been received, are subject to his order, and for general relief. The only controversy between these parties is, whether in APPEALS IN EaUITY. 209 Charleston, January, 1S60. respect to the Aiken bonds, the plaintiff's testator was the owner of said bonds, and Campbell, the agent and trustee, with the right to one moiety of the balance realized after Martin was reimbursed for his advances and interest, or whether Campbell is the owner of the bonds, with only a pledge of the same to Martin, to secure him for the money he had advanced for their purchase. If we accept the deftmd- ant's version of the transaction, he is entitled to the whole of the clear profits of the speculation, amounting to $34,000 or $35,000, and Martin is only to be reimbursed for his advances of money and interest. But by the plaintiff's statement, the defendant is only entitled to one-half of the profits, and Martin to the other half. If wo are governed by the original contract, reduced to writing by the defendant himself, there can be no ground for any difference of opinion. In that view of the case, the plaintiff's interpretation is the correct one. The language is peculiarly felicitous and significant to express the meaning and intention of the parties. In the receipt for the $30,000^ of the 28th August, 1S49, the defendant acknowledges that he has received that sum, not as a creditor or borrower, but in trust. In the defendant's statement of the contract of 1st September, 1849, he acknowledges that the assignment of the bonds, and the securities, is in ^^ trust for Robert Martiny. who furnished the siu7i of thirty thousand dollars, which was paid to ,/Jiken, as the consideration money for the assign- ment.^^ He authorizes Martin ^^ to write over his signature, on the margin of the assig7i?nent , whatever may be deemed * necessary to confrni and establish his righf to said clairns,. bonds and securities.'^ " The agreement between Mr. Mar- tin and myself is, that after paying him in full 'thirty thous- and dollars, with interest from 2Sth August, 1849,' the balance which may be collected on said claims upon Col. Hunt, is to be ' equally divided.' " " I am to contribute my professional services to collect said claims free from all charge." 10 210 APPEALS [N EaillTY. Martin vs. Campbell. Can anything be plainer? If there be any significancy in language, this means that Martin was to be reimbursed for his outlay of money, with interest on the same, and that he and Campbell were to be partners in equal shares or proportions as to the balance — Campbell contributing his services free of charge. He contributes his services as an equivalent for an equal share of the profits. If the specula- tion was entirely Campbell's, and the money advanced by Martin to be only a simple debt from Campbell to him, where was the necessity, or meaning of the provision, that Campbell was to contribute his professional services free of charge for attending to his own business! The same terms and stipulations are iterated in the memorandum of the agree- ment of 1st September, 1849. and the terms of the contract are made so clear and explicit, that the most ingenious sophistry cannot distort them into any other meaning than that which the language imports. In truth, this is so unambiguous, that I suppose it cannot be the intention of the defendant to deny the contract as it originally stood, and as I have construed it ; and I suppose him to have meant simply, that the contract was afterwards abandoned or modified, though I am not authorized to say, from anything that occurred in the trial, that this concession was made. The contract then stood originally as I have stated it. If this be true, it will hardly be disputed that the onus is upon the defendant to prove such modification or abandonment. I will proceed to consider the only evidence bearing on this question which has been submitted : One of the bonds for $20,000, given by B. F. Hunt to Charles T. Brown, for the Richfield plantation and negroes, had fallen into the hands of the late William Mathews, and was bequeathed by him to his grand-children, namely: Wm. M. Hunt, B. F. Hunt, Jr., and Mrs. Mootry, together with the mortgage and other secu- rities. John H. Tucker also held sundry bonds of B. F. Hunt, Sr., secured by a mortgage of Richfield and the negroes thereon, which he claimed to have an equal lien with APPEALS IN EQUITY. 211 Charleston, January, ISGO. tliat of the Mathews and Aiken bonds. On the 16th of Feb- ruary, 1S52,'' Tucker filed a bill against B. F. Hunt, to fore- close his mortgai^e on Richfield and negroes, and with the view of having the rights of all the parties who claimed to liave liens upon this property adjudicated, he made the afore- said legatees of Mathews parties defendants. He also made parties defendants to the bill, James B. Campbell and Robert Martin, as assignees of the Aiken bonds. Among other things, the plaintiff, Tucker, sought from Campbell and Mar- tin a discovery, " whether the transfer of the Aiken bonds was for his (Aiken's) own use or that of Robert Martin, or any other and what person, or for both, and for any other and what use or uses, and what were the terms thereof." Martin, in his answer responding to this part of Tucker's bill, says, "that some time in the summer, A. D. 1S49, James B. Camp- bell, one of his codefendants, being engaged in a negotiation with the Hon. William Aiken, for the purchase of certain bonds of Benjamin F. Hunt, secured by the mortgage of a plantation called Richfield, with the negro slaves thereon, applied to him to know if iti case he should make such pur- chase, whether he (the defendant, Martin,) would advance and loan hirn a large sum of money to aid him in said pur- chase ; to which this defendant assented, first informing Mr. Aiken of his intention to aid Mr. Campbell in case he should sell said bonds and mortgage to him. This defendant had previously known of said bonds and mortgage by reason of his confidential relations with Mr. Aiken, and had formed some opinion of their value, which, together with his reliance upon the confident opinion of Mr. Campbell, induced him to believe them to be ample security for the amount of the loan Mr. Campbell desired. Accordingly, on the 1st of Septem- ber, A. D. 1849, this defendant advanced and loaned to Mr. Campbell a large amount of money, which was paid by Mr. » Thi? is an error in the decree : the l)ill was filed December 27th, J 851 ; Mr. Martin's answer was filed February IGth, lb!)2. S. i D. 212 APPEALS IN EaUITY. Marlin vs. Campbell. Campbell to Mr. Aiken, and his pnrcliase completed ; very soon thereafter, Mr. Campbell deposited with this defendant the assignment by William Aiken of said bonds and mort- gage for the said loan. Snbseqnently, and since that time, this defendant and Mr. Campbell have had sundry under- standings and agreements about the loan and the said bonds and mortgage ; all of which have been entirely satisfactory to both parties, and are of no interest or concern to the plaintiff." This is the language of Martin in his answer to the bill of John H. Tucker vs. B. F. Hunt and others. I speak in the strictest conformity with the facts when I say, that this is the only evidence that tends to show that the contract, as ex- pressed in the instruments which I have recited, was in any respect modified or changed, from what it was expressed to be in those instruments. While there it is represented in the plainest language, that the assignment of the bonds and the securities was for Martin's benefit ; that the assignment to Campbell was in trust for Martin ; that the first money real- ized from Hunt's bond was to be paid to Martin, in reim- bursement for the sum that he had advanced in the purchase; that the clear balance was to be equally divided between Martin and Campbell, and that Campbell was to contribute his professional services free of charge : it is represented in this answer, (Martin himself speaking,) that the ^30,000 was a loan to Campbell, and Campbell a debtor to Martin for the same ; that the assignment was to Campbell for his own benefit, and that Martin had no other interest in the assign- ment by Aiken, and the deposit of the same with Martin, except that it was to be considered as a pledge for payment of the $30,000 due by Campbell to him. There is a discrepancy certainly, and an incompatibility between the statement in Martin's answer, and the only pos- sible construction of the terms of the contract as given in the instruments which have been recited. The conflict cannot be reconciled. It only remains for us to enquire, what was APPEALS IN EaUITY. 213 Cliarleston, January, ISCO. the contract, and whether in fact it was afterwards modified or changed. In the first place, it would be dilficult to assign a rational motive to Martin for vesting $30,000 of his cash in hand in this operation, with no other expectation than to get back his principal and interest — to get back that which he had in hand. To adopt the defendant's version of the matter would be to make Martin advance his money to a large amount in the ])urchase of Hunt's bonds, to incur the hazard and trouble of collecting them by a course of vexatious and pro- tracted litigation, with a view only to Campbell's benefit, and without the prospect of a contingent ])rofit to himself to the amount of one cent. Martin may have done this, but it would be very different from what a man would be likely to do under like circumstances. When the purchase of the bonds was made, there was due on them, of principal and interest, $60,000, and upwards; and to be repaid his advan- ces of money and the interest, and to realize that amount of j)rofit, even if it was to be shared equally between them, was a tempting speculation to the capitalist, and one which we may readily suppose he would embrace. But to go back to the answer of Martin, to the bill of Tucker vs. Hunt and others. This answer makes Martin admit, not only that the §30,000 paid to Aiken for the bonds was a loan by Martin to Campbell, but that Aiken's assign- ment was deposited with Martin as only a security for the loan. Now, what are the undoubted facts as proved by doc- uments under the signature of Campbell ? When he receives the money from Martin, (§30,000,) he says: "received of Robert Martin, the sum of thirty thousand dollars," (not as a loan, but) ''in trust, to be paid this day to William Aiken," &ic. When he delivers the assignment to Martin on the 1st September, 1849, he takes no acknowledgment from Martin that the assignment is deposited with him to secure the pay- ment of his debt to Martin, as he would have done if such had been the understanding between them, but he accompa- 214 APPEALS IN EaUITY. Martin vs. Campbell. iiies the delivery of it with a formal and written declaration, that the assignment " /^ in trust for Robert Martin, Esq., who furnished the sum of thirty thousand dollars, which I paid to Mr. Aiken as the consideration money for said assignment.''^ The rest of this document, and the whole of the instrument which is entitled "Memorandum of an agree- ment," &c., and bearing the same date, are full and explicit to the same effect. These contemporaneous documents con- clusively show that, whatever may liave been the motive or cause of the misrepresentation, the statement in Martin's answer is not true. The facts are not what they are there represented to be. In the defendant's version of the affair, there is one circumstance or feature that it is impossible to explain or reconcile. We are called on to believe that Mar- tin, a man of experience and sagacity, and acquainted with all the forms of business, loaned to the defendant the sum of ^30,000, without taking from him a bond, note, receipt, or any memorandum in writing, or evidence of any kind, to show the indebtedness, or the time and manner of its pay- ment. This would be strange, and it would be equally strange that Campbell should borrow from Martin $30,000, and. therewith purciiase well secured bonds, then worth $60,000, and immediately execute and deliver to Martin instrument after instrument, acknowledging that the bonds were purchased with Martin's money, and in trust for Martin, and for his benefit, and that he (Campbell) had no interest in the bonds, except ultimately to share with Martin, equally, the profits of the speculation. There is another fact, entirely subversive of the defend- ant's version. It was his own act, and shows that he then had impressions entirely different from those he advances at the present time. The plaintiff charges in her bill, "that the said James B. Campbell, on the 13th June, 1851, had a set- tlement with the said Robert Martin, under the agreement hereinbefore recited, and that on a calculation of what had been paid by the said Robert Martin, on the said several APPEALS IN EQUITY. 215 Charleston, January, ISiJO. matters, and what was due on the Aiken bonds, and suppos- ing th(Mn to be Hkely to be ]iaid in full, at tlie request of the said James 1?. Campbell, tlie said Rol)ert Martin agreed to advance to him what he would then have been entitK^d to receive, if the Aiken bonds had then l)een j)aid in lull in cash, and thereupon paid to the said James B. Cami)l)('ll the sum of seventeen thousand four hundred and thirty-five dol- lars, or thereabouts, being the sum agreed upon in their account stated, in full of all further claims, interest or de- mands on the part of the said James B, (^Jampbell; and the said James B. Campbell gave to the said Robert Martin a receipt for the said sum, expressed to be in full for all his claims, in respect to the said agreement, which said receipt, and the statement accompanying it, the said James B. Camp- bell subsequently obtained from the agent of your oratrix, alleging that it was necessary to enable him, the said James B. Campbell, to make up a statement of the claim for the Master; and which receipt and statement he has never returned, although repeatedly requested so to do." Jos. D. Aiken, a witness who was and is the agent of the plaintiff, and who was examined on the part of the plaintiff, deposed that the receipt and statement here spoken of went iiito the possession of Campbell in the manner charged in the bill, and that he has never returned them, though often applied to for that purpose. Campbell, in his answer, indignantly denies tlie possession or suppression of the receipt, or that he ever had possession thereof since it was executed and delivered to Mr. Martin. lint he says, " he has never, at any time, denied making and giving such a receipt, or the receipt of the money it called for, or the original i)argain and agreement under which the money was received," but on the contrary has expressly admitted the same, as it is charged in this bill, and his said admissions were placed on the file, and are of record in this Court since the day of February, 1857. In another part of his answer, speaking of this lost receipt, lie says, " wlielher it is in existence, and where it is, is un- 216 APPEALS IN EaUITY. Martin vi. Campbell. known to this defendant, and is of no consequence whatever, because he readily admits, and has always admitted its full purport and original intention as cliarged in the bill," but he denies that it is of force except as an acknowledgment for the amount of money received by him. I am unable to perceive why this receipt, and the state- ment accompanying it, should not be considered "of force" for what they purport. I have read with care and attention the defendant's statement of this transaction, as set forth on the fifth page of the printed copy of his answer, and see nothing there that should have the effect of invalidating them; on the contrary, I feel surprised that, admitting these facts, the defendant should imagine that he could successfully resist the plaintiff's version of the transaction. Here, as late as the 13th June, 1851, we have the parties making a compu- tation and statement, in exact conformity with the terms of the contract, as set forth in the instrument bearing date Sep- tember 1st, 1849; and assuming that the Aiken bonds were fully secured and would eventually be paid in full, they make a calculation of the amount that would be coming to Camp- bell, according to the terms of the contract; and finding that it would be $17,435, or thereabouts, Martin paid that sum to Campbell, and became the purchaser of all Campbell's share and interest, and took a receipt for that sum from Campbell, "expressed to be in full of all his claims in respect of the said agreement." Though on this occasion Campbell was content to take ot^e-half of the profits of the speculation, according to the express terms of the agreement, yet in his answer to this bill, he contends that the written statement of the contract prepared by himself does not contain the true stipulations between them, and that he (Campbell) was the borrower of the $30,000, and the true owner of the bonds, and that the assignment was deposited with Martin only as a pledge for the debt due to him by Campbell. But it is said that this settlement, as well as the terms of the contract, were repudiated by Martin. It is to be remark- APPEALS IN EaUITY. 2)7 Charleston, January, 1860. ed, that this idea of repudiation is inconsistent with the other ground assumed, that Campbell was the owner of the bonds, and Martin only tiie lender of the purchase money. But where is the evidence that Martin repudiated anything; either the terms of the contract, or the settlement? It is said, he held on to Bennett's guaranty. But that was given as a security to Martin for his cuflorsement of Campbell's note in bank. But he still held possession of it, after the note in bank was paid. Still, where is the evidence that Martin ever refused to deliver it up ? What witness has said that Martin's continued possession of it was anything more than an acci- dental and involuntary detention ? But suppose it was other- wise; I cannot conceiv(! what bearing it has on this question. The evidence, then, in support of the defendant's views, has narrowed down to Martin's statement in his answer to Tucker's bill. But why should Martin be unwilling to occu- py so favorable a position as that which he held as the true owner of the Aiken bonds, and take the position of the lender of money on the security of these bonds; and that too just at the time when he was about to realize the fruition of his spe- culation ? The answer to Tucker's bill was posterior to the settlement of June 13, 1S51. It was then reduced to a cer- tainty, that these bonds of Hunt would be paid, and if so, Martin would realize a very handsome speculation. What Campbell has said in his answer to the plaintifl's bill, in refer- ence to this transaction, must be born in mind. " In June, 1S51, he (Martin) was endorser of this defendant to a consid- erable amount, which had been discounted in bank. On or about the I3th day of that month, as stated in the bill, this defendant being about to leave the city for the North, and desiring to cancel said letter of credit (that of Bennett) by dis- charging Mr. Martin from his said indorsements; and //ic claim against Col. Hunt having been finally adjusted so that there appeared no reason to expect litigation or difficulty in receiv- ing payment from Col. Hunt's property; in due course of time, he suggested to Mr. Martin to become the purchaser of 218 APPEALS IN EaUITY. Martin vs. Campbell. his whole interest in said bonds and securities." Jit this time, when the profits of what had heretofore been a rather hazardous speculation were in his grasp — his claim being based npon the most palpable basis of a written contract, with no uncertainty about it — we find him repudiating all this, and taking the position of a creditor who has loaned out his money at interest. His statement of his relations with Campbell, in that answer, in my judgment, was incidental, without deliberation and attention. It was not the direct question at issue there. He was answering what he and Campbell both seemed to consider the pragmatical interfer- ence of Tucker. His attention was directed not to the question, what were his relations with Campbell ? but to what were his relations with Tucker? His answer was pre- pared lor him by one in whom he reposed the most implicit confidence. There is no evidence (and Campbell himself does not say) that Martin gave instructions for the prepara- tion of his answer. Nobody but Campbell says that it was read to him, and Campbell is not a competent witness on this point. There is pretty strong negative evidence that it was not read to him. Under these circumstances, and without considering the imbecile state of Martin's body and mind at the time the answer was sworn to, (to which I will presently advert,) I would say that the statement in the answer would not be sufficient to invalidate or destroy the evidence of a contract otherwise so clearly proved. ]3ut Martin was, at the time of his signing the answer, ill in body and mind. Campbell himself says he was in feeble health. Dr. Geddings and Dr. Bellinger, his physicians, were examined in reference to the state of his mine}. His disease was ramonllissement, or softening of the brain. The effect of the disease is gradually to undermine the understanding. His, eventually, became totally prostrate. But at the date in question his mental faculties, thongh not entirely in rnin, were very much impaired. He would certainly not be able to comprehend any complex matter of business. He could APPEALS IN EaUlTY. 219 Charleston, January, 1S60. have been imposed on. He would not have been able to give strong attention to any transaetion. My opinion is, that Martin's mind, at the time he signed his answer to Tucker's bill, was impaired to such an extent, that lie did not comprehend the full import of the language of the answer, if it was read to him. If this be a correct conclusion, it removes every seeming difficulty in the way of granting the plaintiff the relief which she seeks. The judgment of the Court is, that the contract between the defendant and the plaintiff's testator was, and is, that which is embodied and expressed in the receipt of the de- fendant to the plaintiff's testator, bearing date the first day of September, 1S49, and the memorandum of the agreement, bearing the same date; that is to say, the assignment of Aiken of the two bonds of B. F. Hunt was in trust for Robert Martin, and that Campbell became invested with the legal estate in the said bonds as trustee of Martin, and for his benefit; that by the terms of the agreement, Martin was to be reimbursed for his money advanced, with interest thereon from the 2Sth August, 1849, that the balance of money which should be collected on said bonds after all expenses were paid, in other words, the net profits, were to be equally divided between Martin and Campbell. And it is further adjudged that there is no sufficient reason to believe that this contract was ever cancelled or modified; that it is still bind- ing upon the parties, and that the account between them is to be taken accordingly. It is ordered and decreed, that an account be taken before one of the masters, for the monies that have come into the hands of both Martin and Campbell from the Richfield plantation, before the same was sold, according to the agreement between B. F. Hunt and James B. Campbell, dated 1st October, 1S49. It is further ordered and decreed, that from the receipts of money arising from the sale of ])rodtice from Richfield, and from the proceeds of the sale of Richfield and the negroes thereon, the said Robert Martin in the account to be taken, is 220 APPEALS IN EaUITY. Martin vs. Campbell. entitled to be reimbursed for the money which he advanced and paid on the debt due to Mary Legare, and interest thereon till the time of such reimbursement; and in like manner the said Robert Martin in the account to be taken, is entitled to be reimbursed for the money advanced and paid on the debt of Byrd, Savage & Byrd, with interest on the same from the time of its being paid and advanced, till the time of its reimbursement. It is further ordered and decreed, that the said Robert Martin, or his legal representative, from the proceeds of the sale of Richfield, and the mortgage of negroes thereon, is entitled to be refunded the sum of thirty thousand dollars, which he advanced in the purchase of the said bonds, with interest thereon from the 2Sth August, 1849, according to the agreement as hereinbefore adjudged. It is further ordered and decreed, that the receipt of Camp- bell of the 13th June, 1851, is a bar to any claim on his part to his moiety or share of the profits, stipulated for by the said agreements, he having for valuable consideration sold and assigned to the said Robert Martin all his claim, interest and share in the said bonds, assigned by Aiken as aforesaid. It is ordered and decreed, that the sum of $17,435, paid by the said Martin to the said Campbell was in full, and intended to be in full of all his claim and share in the said bonds; so that the whole amount of said bonds became the property of the said Robert Martin, and so far as the same was not paid to him in his lifetime, it is now due and payable to his legal representative, the plaintiff in this suit. It is further ordered and decreed, that in stating the ac- counts, all charges and fees, or compensation for services rendered by the said Campbell in and about the prosecution and collection of the said bonds, are disallowed ; first, be- cause such was the stipulation in the original agreement as expressed in the instrument bearing date the 1st September, 1849, and, secondly, because the payment and receipt of the 13th June, 1851, is a bar to any such account or claim. It is further ordered and decreed, that James B. Campbell APPEALS IN EaUITY. 221 Charleston, January, ISGO. do account for all the money which has come into his hands on account of the assignment hj'' William Ailcen to him of said bonds, at any time from the date of said assignment to the present time, whether the same be from the proceeds of the sale of produce from Richfield under the agreement between himself and B. F. Hunt of the 1st October, 1849, or from the proceeds of the sale of Richfield and the negroes, and that so far as the same have come into his hands, he do on an account stated upon the principles of this decree, pay to the plaintiff the balance so found to be due to her, and that so far as there be any balance due to the plaintiff in the hands of the master arising from said bonds, upon an account staled according to the principles of this decree, the said master do pay the same to plaintiff. It is further ordered and decreed, that the defendant pay the costs of this suit. The defendant appealed upon the grounds: 1. The Chancellor has entirely misconceived the issue made by the pleadings, and upon this misconception the decree is predicated ; the same will appear by comparison of the pleadings with the following extract from the decree: "The only controversy between the parties," says the Chancellor, " is whether, in respect to the Aiken bonds, the plaintiffs testator was the owner of said bonds, and Campbell the agent and trustee, with the right to one moiety of the balance realized after Martin was reimbursed for his ad- vances and interest; or whether Campbell is the owner of the bonds, with only a pledge of the same to Martin, to secure him for the money he had advanced for their pur- chase. " If we accept the defendant's version of the transaction, he is entitled to the whole of the clear profits of the specula- lion, amounting to $34,000 or $35,000, and Martin is only to b3 reimbursed for his advances and interest, lint, by the plaintiffs statement, the defendant is only entitled to one-half the profits, and Martin to the other half." 222 APPEALS IN EaUlTY. Martin vs. Campbell. The defendant humbly submits that, by an inspection of the pleadings, the version of the transaction here above charged upon iiim will nowhere appear, but the contrary that he claims exactly that which the Chancellor erroneously puts down as (he plaintiff's statement of the case. 2. The defendant, so far from meaning or claiming, as the Chancellor supposes, that the contract of September 1st, 1849, was afterwards abandoned or modified, on the contrary, throughout the pleadings, insists that it is subsisting and binding, wliile the plaintiff" claims that it has been aban- doned, and that defendant has no longer any rights under it. 3. The Chancellor entirely misconceives the purpose of the defendant, in supposing that Mr. Martin's answer to the bill of John H. Tucker was introduced, or relied upon, to show that the original agreement of September 1st, 1849, had been modified, changed, or abrogated, or for any other purpose than to establish said agreement, and to show that Mr. Martin did not, at that time, consider himself, as is now claimed by the complainant, the sole owner of the Aiken bonds; and that Mr. Jos. D. Aiken, the son-in-law of Mr. Martin, who, as a magistrate, procured liis signature and oath to the answer, and was Mr. Martin's general and confidential agent, at that time, did not consider Mr. Martin as the sole owner. That if Mr. Martin had considered the inchoate agreement of the 13th June, IS51, as existing at the time, he could not have answered as he did, nor could Mr. Jos. D. Aiken, as a magis- trate, have taken his signature and oath to the answer, if lie had then taken the same views, either of Mr. Martin's imbe- cility, or of Mr. Campbell's relations to the bonds, which he now testifies to. 4. The only controversy in issue between the parties, made by the pleadings and tried, was, whether the agreement of September 1st, 1849, between Mr. Martin and the defendant, is of force. The defendant claims that it is, and that at the proper time, when called upon, he ought to account accord- ingly. The complainant denies this, and claims that the defend- APPEALS IN EaUlTY. 223 Charleston, January, 1860. ant sold out on the 13ih June, 1851, and from that date liad no interest in the Aiken bonds. That the money then re- ceived by the defendant is to be considered as a payment in fnll, and not as a loan or advance. 5. If the complainant's view is adopted, and the agree- ment of the 1st September, 1849, is to be considered extin- guished, then the defendant is entitled to reasonable compen- sation for his services from June, 1851 ; and the defendant, also, appeals from that part of the decree which disallows such compensation, and also excludes him from participation in the profits derived from his services; he is entitled to one or the other. McCrady, Richardson^ for appellant. Simons, contra. The opinion of the Court was delivered by Johnston, Ch, The issue between these parties was not, as the Chancellor seems to have conceived, whether the pur- chase of Aiken's bonds was made by Campbell, for his own benefit, by means of money borrowed from Martin. It was never denied by Campbell, that though the purchase made in August, 1849, was in his name, and ostensibly to his nse, ' it was made on the joint account of himself and Martin. This he took pains to put beyond doubt, in September, 1849, in an unequivocal declaration, that the speculation was in trust to reimburse Martin for his outlay, and then to divide the net profits between the two: Campbell's services to be gratuitous. Nor was it denied that in June, 1851, Campbell sold his share of the profits to Martin, at a stipulated price; or that he gave a receipt for the sum paid. This bargain is not denied by Campbell, though he does deny that he got at the receipt — a matter of very little conse- quence, since its loss or disappearance could not, under his fair adinissions, occasion any material injury. The real contest between the parties is, whether, after the 224 APPEALS IN EaUITY. Martin vs. Campbell. bargain of June, 1851, was made, it was repudiated by Mar- tin, as Campbell inferred from his conduct. There is no proof of this repudiation. It would not do to say, had Campbell expressly avowed the fact, that it should be assumed without proof. It is contended that the proof is to be found in Campbell's answer to Mrs. Martin's petition, which is said to have been given in evidence in the present cause. But supposing proof can be made in this collateral way, out of the defendant's answer in another cause, such answer is only prima facie, and not conclusive, and is evidence according to the mean- ing to be obtained by a proper construction of it: and Mr. Campbell's answer is not, substantially, in the nature of a positive averment of the fact of repudiation, but rather that from Martin's equivocal conduct, Campbell understood him to intend to repudiate, and concluded, as it would not mate- rially vary their relative interests, to make no opposition. We are to conclude, then, that the contract of June, 1851, remained of force ; and that being the case, we do not per- ceive that the results attained by the Chancellor are erron- eous. Mr. Aiken (Joseph D.) proves that in the receipt given by Campbell, he agreed to continue his services in winding up the business gratuitously. The same result, it appears to us, would have followed had that special provision been omitted in the receipt. The concern must be wound up: Campbell had an interest (being accountable for what he had received, and for his contracts with third persons) in winding it up; to say nothing of his claim of the Mathews' bonds; and, there- fore, was under a necessity to continue his attention to the business. It is ordered that the appeal be dismissed, and the decree affirmed. O'Neall, C. J., AND Wardlaw, J., concurred. Appeal dismissed. APPEALS IN EaUITY. 225 Cliarleistoii, January, 1860. Jacob F. Moorer vs, Jacob Kopmann. Specific Performance. A and B agreed as follows: A agreed to make title to B for a certain plantation, and to pay him $2,000, and B agreed to make title to A (or certain lots in Charleston, and each hound himself, in case of his refusal or failure to coniply, 10 pay to the other '"$1,000, with all costs and charges, as damages sustained for noii-oompliaiice on his part." A delivered possession of the plantation to B, and tendered hini the $2,000 and interest. B retained possession of the plantation, and refused to comply wiih his part of the agreement. Held, that notwithstanding the agreement to pay $2,000 as damages, A was entitled to a decree for specilic performance of the agreement. BEFORE WARDLAW. CH., AT CIIARLE.STON, FEBRUARY, 1859. This case will be .sulUciently understood from the circuit decree, and the copy of the agreement. The circuit decree is as follows : Wardlaw, Ch. This is a bill, by the vendor, for the spe- cific performance of defendant's agreement to conclude a trade for the purchase of the plantation called the Mims' tract. On the fifteenth day of March, eighteen hundred and fifty- eight, the parties entered into an agreement, under seal, whereby Jacob F. Moorer, in consideration of a clear and unencumbered title to certain lots of land, and the buildings thereon, in the City of Charlestoti, on the west of King street, and north of Rodgers' alley, containing sixty-four feet deep on King, and two hundred feet deep on the north side of Rodgers' alley, to be made, duly executed and delivered to him, by Jacob Kopmann, covenanted and agreed to sell and convey to the said Jacob Kopmann, a tract of land known as the Miins' tract, in St. James Goose Cr.^ek parish, Charles- ton district, containing about twelve hundred acres, more or less; and, also, to pay the said Jacob Kopmann, on his bond 16 236 APPEALS IN EaUITY. Moorer vx. Kopmann. to E. H. Rodgers, two tlionsand dollars, the said bond being secured by a mortgage of the two houses and lots in King street. If either party to the said agreement should refuse or fail to make a good and unencumbered title, it is agreed that he shall be bound to pay the other one thousand dollars, with all costs and charges, as damages sustained for non-com- pliance.* •STATE OF SOUTH CAROLINA. Articles of Agreeinevt heticeen J. F. Moorer and Jacob Kopmann. Whereas, I, J. F. Moorer, do hereliy ngree, and liiiu! my heirs, ndininistrators and assigns, to make the above-named Jacob Kopmann, a clear and imenunm- bered title to a piece, parcel, or tract of land, icnown by the name of the Mims' tract, situated, lying, and being in St. James Goose Creek parish, Charleston district, and State aforesaid, conlniiiing about twelve binidred acres, more or less; and 1 further agree to pay said Kopmann. on his bond in favor of E. H. Rodgers, two thousand ($2,000) dollars, secured l>y a mortgage on two houses and lots, on the west side of King street, and north and binding on Rodgers' alley, containing sixty-four (64) feet front on King street, and two hundred (200) feet deep, and binding on the north side of Rodgers' alley, be the same more or less; and should I, .T. F. Moorer, refuse or fail to comply to make the above- named title to said Jecob Kopmann, I do hereby bind myself, my heirs and assigns, to pay the aforesaid Jacob Kopmann, one thousand ($1,000) dollars, with all costs and charges, as damages sustained for non-compliance on my part. Whereas, T, Jacob Kopmann, do hereby agree and bind my heirs, administra- tors and assigns, to make the above-named J. F. Moorer, a clear and unencum- bered title to the above-named lots, with all the btiildings thereon, situated, lying, and being in the City of Charleston and Stale atbresaid, west of King and north of Rodgers' alley, conlainiiig sixty-four (01) feel front on King, and two hundred (200) feet deep on the iiortli. binding on said Rodders' alley; ami should I, Jacob Kopmann, rel'iise or I'ail to comply to make the above-named title to said J. F. Moorer, I do hereliy l)ind myself, my heirs and assigns, to pay the aforesaid J. F. Moorer, one thousand ($1,000) dolliirs, with all costs and charges, as damages sustained for non-compliance on my part. Given under our hand and seal, this, the tilteenth day of March, in the year of our Lord one thousand eislit hundred and lirty-eight, and in the eighty-second year of the Independence of the L-uiled Slates of America. (Signed) JACOB KOPMANN, [l.s.] (Signed) J. F. MOORER, [l.s.] Signed, sealed, and delivered, in the presence of (Signed) J. A. Snklt-, (Signed) Geosge Addison. APPEALS IN EaUITY. 227 Charleston, January, 18fi0. The plaintiff, in pursuance of said agreement, made all necessary preparations for the performance thereof; delivered possession of the said tract of land in St. James' parish to the defendant, and tendered him $2,000, with a deed of con- veyance of the Minis' tract. Whereupon, the plaintiff was informed hy the solicitors of the defendant, in a note which is in evidence, that the said Jacoh Kopniann could not per- form his agreement to procure a clear and good title to the property in King street, the wife of the defendant having refused to renounce her right and claim of dower; and that the defendant was thus prevented from performing his con- tract, and refused to pay the penalty imposed upon liim for the breach of his agreement. If a plaintiff presents a case prima facie good, as this appears to l)e, he is entitled to a decree for s]iecific perform- ance, unless the defendant can prove that this would he inequitable. Much less evidence is necessary to induce the Court to leave the parties where it finds them, than to annul an agreement in writing, under seal. And there is a great difference in the position of a plaintiff seeking to sot aside a contract, and a defendant resisting specific performance. There is, in this case, no evidence to prove accident, mis- take or fraud, affecting tlie interest of the defendant. This was an agreement for the sale of an old settled plantation, in the District of Charleston, witii facility of access to the city. The defendant had all the necessary means of knowledge, and made the contract after he |)ossessed them. There is no evidence of any description of the property outside of that in the agreement. No misreprescnlaiiou on the part of the plaintiff has been proved. Nor does it appear that there was any mistake on the part of the purchaser, as to the quality and location of the Mims' tract, which he knew to be a plantation in the low country. He lived for more than a year within a few miles of it. After paying two visits to the place in the country, subsequently to the trade, he returned 22S APPEALS IN EQUITY, Moorer vs. Kopmann. to Charleston and expressed his satisfaction with the pur- chase. This Court cannot release the defendant from obligation to perform a lawful contract, because of his carelessness or neglect to use the knowledge in his possession, and to acquire additional information if he desired it. With the facts in evidence, it is a necessary and natural conclusion, that the vendee acted upon his own judgment in making this trade. The perfect indifference maniftisted by him to the usual and easy means of information, his neglect to examine the property for himself, or to get a description of it from others, and his anxiety to hasten and conclude the contract, certainly is enough to place him, as to matters within the reach of his own observation, in the condition of one who purchases on his own judgment, without reliance on the statements of the vendor. He miglit have protected himself from the consequences of his negligence, by exact- ing explicit and unequivocal warranty or representation from the vendor ; but this has not been done. As regards the quality and value of the land, the evidence of several wit- nesses residing near the place represents it as some of the best high land and swamp in that part of the country, which section is thickly settled. The overseer, employed by the defendant to occupy and cultivate the plantation during the last year, raised a crop upon it, and testifies to the same effect. The defendant has failed to perform his part of the agreement. He has declared his inability to procure and deliver to the plaintiff a clear and good title to the property in Charleston. He has refused to pay the penalty for the breach of his agreement. He has held possession of the plantation in St. James' parish, and the two houses and lots in King street, since the conclusion of the trade. Since the filing of this bill, he has made a confession of judgment to McKenzie, Cadow & Co., and also executed an assignment for the benefit of his creditors, /?e;i- dente lite. APPEALS IN EaUITY. 229 Charleston, January, l8t)0. I am of opinion that the contract of sah^ is made in proper form, is fair, certain, upon sufficient consideration, free from accident, mistake or fraud, and in every respect lawful and binding at this time; and that the jjlainlilf is entitled to have specific performance of the defendant's agreement for the purchase of the Minis' tract. It is ordered and decreed, that Jacob Kopmann,the defend- ant, shall jirocure and deliver to Jacob F. Moorer, the ]ilain- tiff, a good and clear title to the t\vc» lots of land in King street, described in the agreement; and that he shall pay rent for the same to the plaintiff, from the date of the tender of the price; and it is referred to Mr. Tupjier, one of the mas- ters of this Court, to report the amount of rent due for tlie use and occupation of the said premises. And if the defendant shall fail to [irocure the renunciation of dower, the master shall report an assessment for the saiue, as a proper amount to be deducted from the purchase money of the said property. And the i>laintifF shall tender to the defendant two thousand dollars, within one month from the dale of this decree, on pain of having his bill dismissed ; and the defendant shall pay the rent due to the plaintiff at the time of such payment. The deed of conveyance of the Mims' tract, introduced in evidence, shall be delivered to the defendant, so soon as he shall procure and deliver to the plaintiff a good title to the two lots in King street. The costs of these proceedings shall be paid by the de- fendant. Note. — A vendor may sustain a bill for specific perf(um- ance. Gregorie vs. B\ihw^ Rich. Eq. (3a., 235. Inadecjuacy of consideration, without fraud, is not sufficient to prevent the enforcement of a contract. Sarter vs. Gordon, 2 Hill Ch., 121. Defendant cannot take advantage of his own carelessness or neglect. O/r/Jieh/ vs. Round, 5 Ves.. 503 ; EUard vs. Lan- duff, I Ball & B., 249. 230 APPEALS IN EaUITY. Moorer vs. Kopmann. Equity regards not the form, but the substance of the agreenjent. 2 Story Eq., § 715, 751 ; 2 Powell on Contra., 167 ; Howard vs. Hopkins ; 2 Atkyns. 3S7, [371.] Tiie intention of the parties is the rule of construction. Batten on Spec. Perf, 270, 271. In cases of covenants, especially when fraudulent misrep- resentations occur in the making or execution of such con- tracls, the Court of Equity exercises a concurrent jurisdiction witli the Couits of Law. 2 Powell on Con., 11. One of the parties to a contract being by liiniself incapable of performing it, furnislies no ground for dispensing with specific execution. 2 Powell on Con., 167. The defendant appealed on the grounds: 1. Because the parties having, themselves, settled the mea- sure of damages, and tlie method of redress, for the non-ful- filment of the contract of sale, it is not competent for this Court to substitute any other in its ))lace. 2. Because the complainant, having a complete remedy at law under the agreement made, is not entitled to relief in tfiis Court. 3. Because the evidence having shown misrepresentation and fraud on the part of the complainant, the bill ought to have been dismissed. Ruthdge^ for appellant. Flagg, contra. The opinion of the Court was delivered by Johnston, Cii. The Chancellor has decided that there was no fraudulent conceahnent or misrepresentation on the part of the plaintiffs, and this Court has no reason to dissent from his conclusion. It is objected that the Court was ousted of its jurisdiction to decree a performance of the contract, by the parties having stipulated damages for its non-performance. APPEALS IN EaUITY. t>:n Cli:irlestlace of the performance: and unless there is something special in the case to call for a different conclusion, it should leave the parti^^s to the legal remedy thus ])rovided by them- selves. This abstinence is proper for the most part in cases, how- ever, wliere there has been no part j)erformance on either side; when nothing has been done to change the original posture of affairs, and where the damages fi.xed may be fairly assumed as the fair value of the disap[)ointment experienced. How should we regard the damages expressed in this con- tract, in the face of the fact that Kopmann has been let into possession of Moorer's property, and still retains his own? Is he to be allowed to hold all the advantages of this fraud ? Would it be less than a wilful dereliction of duty, on the part of the Court, to hold its hand, unless it were satisfied that ^1,000. the sum stipnlatinj in this case, was the full value of the property acquired by Kopmann from Moorer, irrespective of wliat he, Kopmann, was to give in exchange for it? This was manifestly not so. It is ordered that the decree be affirmed, and the appeal dismissed. O'Neall, C, J., AND Wakdlaw, J., concurred. Appeal dbnissed. 2:i2 APPEALS IN EaUlTY. Anderson vs. Aiken. John W. Anderson vs. Hugh K. Aiken. Mortgage — Fraud — Jurisdiction — Parties. A purchaser in Florida of a mortgaged slave, removed the slave to this State, and here sold him to one who carried him beyond the jnrisdiclion : — Ihld, that the purchaser, who bought with notice of the mortgage, was liable in equity to the morigagee : and that the mortgagor v/as a necessary party to the bill. BEFORE DUNKIN, CIL, AT CHARLESTON, JUNE, 1S59. This case was heard upon the report of the master, which is as follows : I beg leave respectfully to report that I have been attended by the solicitors, and have taken testimony in this case as follows : On 6th March, 1856, W. E. Chambers, Jr., then a resident of Florida, being indebted to the plaintiti' in the sum of $2,000 on note, executed a mortgage of certain lands and slaves in Florida, to secure the payment of this debt and future advances — the plaintiff being his factor and doing business in Savannah. That at the maturity of the note in January, 1S57, the debt had reached about $4,000, and is sfill due at the date of this report. This mortgage was duly recorded in the proper oflice, and within the proper time, as required by the laws of Florida. Among the negroes mortgaged was one described in that instrument as "a mulatto man named Thomas, aged about twenty-two years." It is in evidence that Chambers owned another negro man named Tom, described as " of a black complexion ;" his age is not given. That besides Thomas, to be hereinafter more particularly referred to, two of the mortgaged negroes have been sold by W. E. Chambers, Jr., viz: one to W. E. Chambers, Sr., with the consent of the APPEALS IN EaUlTY. 2:i:3 Charleslon, January, 1860. mortgagee, but the mortgagor received the purchase money, and one to some person unknown. The value of these negroes and their price have not been proved before me. The phiintifl' is not shown to have consented to any other sale but tliat to W, E. Chambers, Sr. It further appears that about the early part of the year 1857, W. E. Chambers, Jr., became indebted to H. K. Aiken &: Co., (of which firm defendant is a partner,) in the sum of ^2,300. That in the spring of 1857, defendant visited Cham- bers on his plantation in Florida, to procure a settlement of his debt, and then or at some other time, as he states in his answer, he saw the mortgaire on record, but he alleges that Chamliers told him tlie mortgaged negro was not this Tho- mas, but another of tiie same name. That he procured from Chambers a bill of sale of the negro, and brought him lo Charleston, and there is no proof that lie used any disguise or concealment in doing so. Tiiat soon after his arrival he offered hiin for sale to a witness, who describes him as named Thomas, "a likely brown man, about twenty-two y^ars of age." That Aiken represented to this witness, that he got liim from a man in Florida, named Chambers; that Cham- bers was indebted to parlies in Savannah, and had mortgaged some of his negroes to secure the payment, and that he (Aiken) was not certain whether this was one of the negroes or not, and as there was some doubt about it, he would not guarantee the bill of sale. That Chambers had inforu)ed him there was no mortgage on this negro Tom; that there was another Touj, who was in tin? mortgage. The witness took legal advice, and declined tlie sale. He says Thomas was ruptured, but as he was recommended by Aiken as a good coachman, he would have given ^700 for him, if the title had been good. Immediately thereafter, viz: 9th June, 1857, Aiken sold the negro by public auction, in Charleston, for ^800, to a negro trader — the purchaser receiving Aiken's bill of sale. 234 APPEALS IN EaUITY. Anderson vs. Aiken. I report as my opinion that Thomas was worth $800 when sold, and his hire is worth, annually, f 120. The proof is tiiat the jilaintift" cannot realize his debt from Chambers witliout the mortgaged property. It has not been shown to my satisfaction whether, after the sale of the negroes referred to, the balance of the mortgaged property would or would not be sufficient to pay the plaintiff's debt. I further find that H. K. Aiken & Co, have obtained judg- ment at January Term, 1858, in Charleston, against W. E. Chambers, Jr., for ^1,494 10, being the balance due tliem after crediting the amount of the sale of Thomas, In this suit Chambers was lield in bail, and W. E, Ellison, S, C, E. Chambers and John Adger, became his sureties, and the bail has been lixed by the return of 71011 est on the ca. sa. DuNKiN, Ch, The facts of this case are presented in the report of the evidence. If the charge of the bill had been established, that the defendant fraudulently assisted Chambers in the clandestine removal of his property, with a view to defeat his creditors, the suit might be maintained upon the authority of Pickett vs. Pickett, 2 Hill Ch., 470. But the denial of any fraudu- lent design, or even clandestine removal, is corroborated and sustained rather than impugned by the testimony. So, too, assuming the identity of the slave Tom, the plain- tiff holding a mortgage from Chambers, of both real and personal estate, might maintain his bill in this Court for account and foreclosure; but in such proceedings the debtor and mortgagor. Chambers, would of course be a necessary party. Nor is this the scope of the bill. It has been held that, after condition broken, the mortgagee of a chattel is regarded as the owner. Wo// vs. O^FarreH, I Tread. Const. Rep., 151. Whether he should be considered owner in the sense of enabling him to maintain a bill for specific delivery against the person in possession of the slave, upon the principle of APPEALS IN EaUlTY. 235 Cliarleston, January, ISOO. YoiDig VS. Burton, McM. Eq., 25n, it is not necessary liere to inquire. The bill is filed on the assumption lliat the plain- tiff is "the actual owner of the slave," sets forth the sale by the defendant before; any deinaud made, and the only specific remedy which the plaintdf seeks is, that "the defendant may be decreed to pay over to the plaintiff the full value of the slave Thomas, wi(h interest, &c." If the plaintiff is entitled to this, it may be recovered by an action of trover, according to the case ah'eady cited, TVolfva. O^ Farre/l ; or, if an action of trespass would be more appropriati% the ordinary tribunal is open fi»r tliat [purpose. See Montgomery vs. Kerr, 1 Hill, 291. It is ordered and decreed, that the bill be dismissed. The plaintiff ajipealed on the grounds: 1. That the def(;ndant is shown to have acted fraudulently in assisting Chambers to remove his property, with the inten- tion of defeating the plaintiff's claim. 2. 'IMiat whetlier Aiken and Chambers did or did not intend Xi defraud Anderson, "by their conduct, their success, and a fraud upon an innocent creditor, have become insepar- able," and tliis entitles the jilaintiff to relief in this Court. 3. That the bill is filed inter alia to compel defendant, a creditor, with two adeijuaie securities, to surrender one to the plaintiff, who had but one: and this is a familiar grt)uud of equity jurisdietil, C. J., AND Johnston, J., concurred. Decree reformed. 264 APPEALS IN EaUITY. Glover vs. Adams. Thomas W. Glover and others vs. Frances Adams and OTHERS. Limitation of Estates. By marringe settlement, the property of the wife was settled to the joint use of husband and wife during coverture, and if the husband survived, to his us« for life, with remainder to "the legal heirs and representatives" of tlie wife. The husliand survived, and upon his death, held, that the persons entitled to talce were the heirs and distributees of the wife, including the husband, at her death. BEFORE DUNKIN, CH., AT CHARLESTON, JUNE, 1859. The bill was filed for the sale and distribution of certain property of Mrs. Lydia Adams, deceased, which, upon her marriage with Benjamin Adams, had been settled upon James W. Gray as trustee of the contracting parties. The clause of the marriage settlement under which the distribu- tion is to be made, is as follows, to wit: "In trust for the sole and separate use, benefit and behoof of the said Lydia Surr, until the solemnization of the said intended marriage, and from and after the solemnization thereof, in trust for the joint use, benefit and behoof of the said Benjamin Adams and Lydia Surr, during the time of their coverture, without the said premises, or any part of them, being in any way liable or subject to the debts or incumbrances of the said Benjamin Adams. And from and immediately after the death of the said Lydia Surr, should the said Benjamin Adams survive her, then in trust to and for the use, benefit and behoof of the said Benjamin during his natural life, and after his death, to result to such person, or persons, as the said Lydia Surr may, by her last will and APPEALS IN EaUITY. 205 Charleston, January, 1S60. testament, duly executed in writing, appoint (and the power to make such will is hereby given to the said Lydia Snrr, notwithstanding her coverture); and in case of the failure of the said Lydia Surr to make such will, then, in trust for her legal heirs and representatives ; and should the said Lydia Surr survive the said Benjamin Adams, then all of the said estates to remain in the said Lydia, free and unincumbered of all trusts." Benjamin Adams was the survivor of the parties, and died, having enjoyed the life estate in the property as provided for in the deed. Lydia Adams left no will, and the parties to the suit claim the property as her heirs and legal representa- tives, under the last clause of the limitations. DuNKiN, Ch. Until the marriage of Mrs. Lydia Surr with Benjamin Adams, she was the absolute owner of the prop- erty. After that time, the legal estate was in the trustee; and Mrs. Adams had no interest, except as declared by the marriage settlement. It has been often remarked, that a more liberal construction is put upon such deeds than upon conveyances at common law. The intention of the parties is here more particularly looked to, and the words more made to bend to the intention. As was said by an eminent advocate in a similar case, " it is not what is the effect of a limitation to a man's heirs, but who is meant by the descrip- tion contained in the ultimate limitation in this deed? They are words of description, and nothing else; and in order to see who it is that the party means to describe by that limita- tion, you must take into consideration his professed inten- tion, and what is the whole effect and tendency of the deed in all the preceding limitations." In giving construction to this instrument, it may be premised that the [troporly was that of the wife; and, moreover, that the parties did not probably contemplate the existence of issue, as no provision is made with reference to such event. The primary pro- vision is, for the joint use during coverture, but so as not to 266 APPEALS IN EaUITY. Glover vs. Adams. be subject to the husband's debts. The provision next made is for the contingency which actually occurred. "Should the said Benjamin survive her, (the said Lydia,) then in trust for the use, benefit and behoof of the said Benjamin, during his natural life; and, after his death," (on failure of appoint- ment on her part,) "then in trust for her legal heirs and representatives." In order to enable the trustee to discharge his duty finally, and surrender the property to those entitled, his only enquiry is: Who, after the death of Benjamin Adams, fulfilled the description of "the legal heirs and repre- sentatives" of Lydia Adams, deceased? The enquiry is not who may have been her heirs at the time of her death, but what persons answered that description at the time when the trustee was to perform his final act. It is not unlike the case of a legacy to a class of persons at a future period, in which the constant rule has been, that all persons answering the description at the period of distribution, and none other, are entitled to take. See Matthews vs. Paul, 3 Swan., 328. In this case, the manifest intention of the parties was to prevent the marital right from attaching, and, therefore, the legal estate was vested in a third person. Regard was had to the interest of the husband by securing to him a joint use during the coverture, and the exclnsive use during his life, in the event of his survivorship. When his power of enjoy- ment should cease, provision is made for the final disposition of the property to such persons as could then substantiate their title under the description of the deed. When it is declared that the trustee shall hold for the use of the hus- band during his natural life, and after his death, then in trust "for her legal heirs and representatives," these latter are in contradistinction to, and exclusive of him, for whom the previous use was declared. It is ordered and decreed, that the trustee account for his transactions as such, and that the property be divided among the parties entitled thereto, according to the principles of this decree. Costs to be paid out of the fund, except those of the APPEALS IN EaUITY. 267 Charleston, January, 1S60. adniiiiistratrix of Benjamin Adams, deceased, which arc to be paid ont of the assets of said intestate. The defendant, Frances Adams, appealed on the gronnd: That tlie" heirs and legal representatives" of Mrs. Lydia Adams are those who were such at the time of her death ; and it is respcctfnlly submitted, that his Honor erred in rul- ing, that her heirs and representatives were not fixed until the death of Benjamin Adams, who survived her. Press lei/, for appellant. Sinio7iton, contra. The opinion of the Court was deliv^ered by Johnston, J. Had the limitation, after Mrs. Adams' life, been to a stranger instead of her husband, and, upon his death, then over to her heirs, it would, since Tompldiis vs. Rochelle, 1 Strob. Eq., 114, Seabrook vs. Seabrook, and many other cases, scarcely have been doubted in this State, that the husband must come in among those entitled to succeed under this designation. Nor is it doubtful, under Hicks vs. Pegues, Buist vs. Dawes, 4 Rich. Eq,, 413, and other cases, to the same effect, that a class of persons, designated to take as heirs of a given indi- vidual, became fixed and ascertained, and their interests vested at the death of that individual; so that if they should afterwards die before the time assigned for their enjoyment of their interests, these interests would be transmitted from themselves, as a new stock. The conclusion to be naturally drawn from these princi- ples, would seem to be, that, under this deed, the husband, in addition to the provision made for him, as survivor of his wife, took an interest along with her distributees, upon her death ; an interest, which, when it became vested in him, became of value, and might have been aliened, either along with his life estate or separately. 268 APPEALS IN EaUlTY. Glover vs. Adams. These interests were cumulative. But tiiough these positions seenri clear, it has been con- ceived that to allow the husband to take as heir would defeat the intention of the parties to the deed. The intention of parties is not so much to be conjectured, as derived, by con- struction, from their words. In this case, it has been argued that it was not intended to provide for the husband under the description of heir, because he was provided for under another designation. But it will hardly do to blot out one express provision, because there is another express provision. It seems to be going too far to make the husband's exclusion or inclusion depend upon the fact tliat provision has been made for him, unless we can be certified that that provision was intended to exclude all further provision ; and how can we know that, in the face of express words, that do include him ? How can we know, in the absence of language to inform us, that the words, heirs of the luife, were not intended to have their natural meaning, and designate heirs living at her death, hut those living at her husband's death? Do they mean the one or the other, according as the husband is or is not provided for ? I should draw a different inference as to the intention ; an inference that heirs at her death were contemplated, from the fact that the deed, on its face, provides an alternative which must then take effect, either in those who were the)i to take from the wife by testament or by intestacy. It is ordered, that the decree be reformed according to these views; and that the distribution be made accordingly. The provision, in the decree, as to costs, to remain unaffected by this judgment. Wardlaw, J., concurred. O'Neall, C. J. I concur in Chancellor Dunkin's decree. Decree reformed. APPEALS IN EaUITY. 269 Charleston, January, 1&60. W. C. Smith and others vs. B. F. Hunt, Executor of B, F. Hunt, and others. Trusts and Trustees — Implied Trust — Lapse of Time — Cotnmon Fuud. II. being attorney on record in a judgment, of which he owned one-half, pur- chased, at sheriff's sale, a tract of land, sold under the execution on the jud^r- ment, and without paying the purchase money, received from the sheriff a deed of conveyance for the land: — //eZri, that H. must be presumed to have pur- chased as trustee, and that he held the land as equitable tenant in common with the other owners of the judgment. Lapse of time, more than twenty years, held, under the circumstances, not to rebut the pre^'umption that H. had purchased as trustee. The land having been sold by the master and the proceeds being in Court, AfW, that the other owners of the judgment, who had another demand against II., growing out of a similar transaction, had the right, as against other creditors of H., lo look to the proceeds of the sale as a common fund tor payment of both of their demands. BEFORE DARGAN, CH., AT CHARLESTON, FEBRUARY, 1808. This case came before llie Court on exceptions to the master's report. The report is as follows : Under a special order made hy Chancellor Dargan in this canse, at the last term of the Court, I am directed to examine and " report as to whether the complainants are entitled to any portion of the Crow Island, or the proceeds of sale, either as equitable part owners, creditors or otherwise, and if so, to what amount, and that I make a special report of the same, with leave to report any special matter relating thereto." In pursuance of this order, I have investigated the matters thereby submitted to me, and proceed to submit the conclu- sions at which I have arrived. The land in question must formerly have been the prop- erty of Nathan Huggins, a resident of Georgetown district. 370 APPEALS IN EaUITY. Smith vs. Hunt. It appears to have been levied upon as his property by the sheriff of that district, under an execution issued upon a judgment in a suit instituted in the name of William S. Smith and Peter Cuttino, as administrators of George Smith, surviving copartners of George and Savage Smith, against C. Huggins, executor of Nathan Huggins. It was by a deed bearing date the second day of December, 1833, conveyed by John Harrelson, sheriff of Georgetown district, to Benjamin Faneul Hunt, for the sum of $3,200, as stated in the deed. The slieriff's conveyance recites as the authority for the sale, a " Fieri Facias, issued out of the Court of Common Pleas held for the District of Georgetown, tested the second day of February, in the year of our Lord one thousand eight hundred and thirty-two, at the suit of W. S. Smith and Peter Cuttino, administrators of George Smith, who survived Savage Smith and Cuttino, partners in trade, under the firm of Smith & Cuttino, commanding that of the goods and chattels, lands and tenements of Nathan Huggins in the hands of Charles Huggins, his executor, to levy the sum of three thousand and two hundred and sixty-five dollars debt and damages, and costs, &c," This deed is filled up in the handwriting of Mr. Hunt, the purchaser, and contains in the printed form the usual acknowledgment of the receipt of the purchase money, and is endorsed as recorded in the office of the Register of Mesne Conveyance, 3d December, 1833. It is also endorsed with the signature and seal of the pur- chaser in blank, witnessed by Thomas F. Purse. By a transcript from the record, it appears that the purchaser, Mr. Hunt, was the plaintiff's attorney in the suit, under which the execution was issued. The complainants first insist, that this purchase was made by Mr. Hunt for him and themselves, as the persons entitled to the joint copartJiership estate; that no money was paid, but that it was to be held on joint account, and that therefore they are entitled to one-half of the proceeds of the sale, APPEALS IN EaUlTY. 271 Charleston, January, 1860. recently made by me under the order ofthis Court, reserving the equities of the parties. No testimony of any agreement or arrangement to that effect has been produced before me, but the relations of the parties, and the proceedings in the cause then pending in this Court, for the settlement of the mutual claims between Mr. Hunt and the heirs of Savage Smith, are relied on to establish this. The purchase for joint benefit is denied in the answer of B. F. Hunt, executor of his father, (who had made the purchase,) and he insists that the purchase was made for himself exclusively, and whatever may be conjectured as to the probable intentions of the parties at the time, there is not, it seems to me, suflicient ground now to presume a distinct contract or agreement on the part of Mr. Hunt in the sense now contended for, and I am, therefore, not able to assent to such conclusion. The complainants, however, insist in the alternative, if the former view should not be sustained, that as the purchase money was not paid, half of which they would have been entitled to receive, they are clearly entitled to the same amount Avith interest from the time of the purchase, to be paid out of the proceeds of sale now in my hands, and after examining the matter, I have come to that conclusion. In examining the claim made on this ground, as well as a further claim to be considered hereafter, it is necessary to advert somewhat to the proceedings prior to the conveyance by the sheriff. Several years before this, C. T. Brown and wife had filed their bill in this Court against the administrators of the sur- viving copartner, George Smith, and the complainants, as the distributees of the deceased copartner, Savage Smith, praying a partition of the copartnership estate, and setting up besides large claims (on grounds not now necessary to be considered) against the co])artnership estate. In this cause a partition of certain lands and negroes was made specifically between the distributees of the two copartners, and the debts and 272 APPEALS IN EaUlTY. Smith vs. Hunt. choses in action due to the copartnership, as appears by the receipt of the commissioner, Mr. Heriot, dated February 7th, 1S52, were taken out of the hands of the administrator, and transferred to the commissioner. In the list of debts thus transferred, my attention has been called to one from Nathan Huggins, which, it is affirmed, was the subject of the suit under which the sale was subsequently made. These debts were, by a report in the cause afterwards made by Mr. Heriot, recommended to be placed in the hands of an attorney for collection. After the partition in 1825, C. T. Brown and wife sold and assigned all their interest in the copartnership estate to Mr. Benjamin F. Hunt, deceased, and he took up the proceedings which had been previously commenced in the name of Brown and wife, and afterwards, February 1st, 1833, filed a bill entitled a bill of supplement and revivor, in substitution for bill filed in 1822, setting up the claims which had been originally set up by C. T. Brown and wife, claiming a large amount over and above a moiety against the copartnership estate; praying an account of all these claims ; and praying, besides, that a suit which had been commenced against him, on a bond given by him for a purchase from the commissioner, of a portion of the copart- nership estate, should be enjoined, alleging that the bond was only given to enable the commissioner to close his sales; and that when the account should be taken, it would appear that he was entitled to a much larger amount from the copartner- ship estate. It was shortly after this that the sale of the sheriff was made, as the conveyance bears date December, 1833. The account claimed by Mr. Hunt in his supplemental bill, would clearly, I think, have embraced any such purchase or debt from him. He could not ask an account against the other persons entitled to the joint estate without bringing into it all that he had himself received from the same source, and these proceedings have been regularly continued to the present cause, in which an order was made, at the last term, reviving APPEALS IN EaUITY. 278 Charleston, January, 1860. all the former proceedings and decretal orders not already carried out. It is admitted by the answer of the executor, that the pur- chase money expressed in the deed, was never paid by the testator, on the ground, as it is alleged, of existing claims, which, if established in his favor, would have superseded the necessity of such payment; and it is further admitted that the testator always acknowledged his obligation for the said purchase money, and that it is now payable out of the pro- ceeds of sale. But it has been contended before me, upon the defences on behalf of the creditors of Mr. Hunt, that this claim is barred by lapse of time and the statute of limitations ; that it was so before the death of the purchaser, and that a claim thus extinguished, cannot be subsequently revived as against creditors by the admission of an executor. Whether an executor is, in all cases, bound to set up the bar of the statute against a claim which he knows not to have been paid, but to have been constantly acknowledged by his testator, and whether a creditor can set up such bar against such acknowl- edgments, might admit, perhaps, of some doubt. Kut I do not rest my conclusion upon this. I think the plaintiff's claim cannot be defeated by the statute, for two reasons: first, because proceedings have been constantly pending in this Court for the settlement of claims within which it is em- braced; and, secondly, because the purchaser was himself the attorney of the commissioner or receiver having charge of the copartnership estate. If another person had been the pur- chaser, Mr. Hunt, as the attorney for the plaintiffs on the record, or for the commissioner to whom the assets had been transferred, would have been entitled to receive the purchase money from the sheriff; but being himself the purchaser, he may be considered to have received it in that character; and therefore could not have set up the statute of limitations, at least while proceedings embracing such an accountability were pending. If the purchase money had been paid to the lU 274 APPEALS IN EaUITY. Smith vs. Hunt. commissioner by Mr, Hunt, or, if upon non-payment, the land had been re-sold, and the proceeds so paid into Court, I think there can be no doubt that the complainants would have been entitled to one moiety of the amount that Mr. Hunt had contracted to pay, and it does not appear that this right should be defeated because the sale has only been lately made. I therefore report as my conclusion, that the complainants are entitled to one-half of the purchase money expressed in the conveyance, with interest from the date of the deed, to be paid out of the proceeds of sale now in my hands. Besides this, however, the complainants contend that they are entitled to have the residue of the proceeds of Crow Island applied in liquidation of the amount which has been hereto- fore decreed to them, on account of the purchase by Mr. Hunt of a piece of land called Clegg's Point, which was included in the copartnership or joint estate. The character of this demand will be understood by reference to the decree of Chancellor Dnnkin, made June, 1850, by which it is recog- nized. 3 Rich. Eq., 522. It appears (Chancellor Dunkin's decree, 1S50) that the plantation known as Clegg's Point, had been mortgaged to secure a debt due to the copartnership estate, that the first purchaser not having complied, it was re-sold by the commis- sioner under the order of this Court, for the benefit of the parties entitled to the copartnership estate, and purchased by Mr. Hunt for the sum of $8,010, and a claim for a portion of this amount being subsequently established in favor of third parties, Mr. Hunt was declared liable for the difference between such claim and the amount of his bid, to one-half of which the complainants were decreed 'to be entitled to be paid by Mr. Hunt. The complainants insist that the funds recently received from the proceeds of Crow Island are to be considered as precisely of the same character; in fact, that the money to be made in the execution against Nathan Huggins and the APPEALS IN EaUITY. 275 Charleston, January, 1860. procepds of sale of Clegg's Point, are portions of one com- mon fund, to one moiety of which they are entitled; and that if they have not received it out of one portion, they are entitled to receive it ont of the other; and I think tliis posi- tion correct. If both amounts liad been paid into Conn as part of the copartnership assets, tiiey would have composed one fund divisible in moieties between the complainants and Mr. Hunt, or his estate; if only one, liowever, had been so paid in, then neither party would have been allowed to take out any portion until he had been charged with what he had already received out of the same or an equivalent fund, and a debt of this sort for a purchase, must be regarded as equi- valent to a receipt, so that the fund now in the Court, from the sale of Crow Island, must be paid in such manner as to equalize the share of those entitled in moieties. I therefore report, lastly, that the residue of the proceeds of sale of Crow Island now in my hands, after providing for the claim previously made, or so much as may be necessary, should be applied in liquidation of the amount decreed to be due to the complainants as their moiety of the amount due on the purchase of Clegg's Point by Mr. Hunt. The complainants excepted to so much of the report of master Tupper, in this cause, in the matter of the rights of the parties to the proceeds of Crow Island, as concludes that the purchase made by Banjamin F. Hunt, deceased, of the tract of land called Crow Island, is not to be treated as made for the joint benefit of himself and the complainants, so as to render them equitable tenants in common, according to their interests in the copartnership estate, and entitled to the proceeds in that proportion. The defendant, Benjamin F. Hunt, executor of B. F. Hunt, and a creditor, excepts to the report as follows: 1. Because Crow Island never was copartnership property, and a copartnership interest in the debt of Huggins, in pay- 276 APPEALS IN EaUITY. Smith vs. Hunt. ment of which it was sold, could not affect the property itself ill the hands of a purchaser. 2. Because, when Col. Hunt jjurchased Crow Island, he became responsible to the sheriff' for one-half of the purchase money, and was accountable therefor, as a personal debt, while Crow Island itself, by conveyance from the sheriff', became his own absolute property, and subject as snch to all judgments then existing against him; whereas the master, in his report, would displace such legal liens in favor of parties who could only charge Col. Hunt with one-half of what he owed to the sheriff, as one item of an unsettled account. 3. Because the equitable lien that is now claimed by the complainant, and sustained by the report, was never pretended to until a comparatively recent period, while they had per- mitted Col. Hunt to hold the property as his own unencum- bered estate for more than ten years, during which entire period he held adversely as to any such presumed lien. 4. In the decree as to Clegg's Point, the liability of Col. Hunt was expresslj' decided to be merely personal; and there is no reason for subjecting the Crow Island purchase to a different rule of construction. 5. This defendant, as executor and creditor, concurs in all the exceptions filed by other parties to the said report, so far as they are consistent with his answer and the above excep- tions. The defendant, Milberry S. Martin, excepted to the report, on the grounds and for the reasons following : It is submitted tliat the master is in error in supposing the complainant to have any lien or priority on the funds derived from the late sales of Crow Island. Because — 1. The complainant had no equity arising out of the pro- ceedings referred to by the master, for those proceedings originated 1st February, 1833, and had relation to the state of accounts between the parties at that time; whereas, the sale to Mr. Hunt, of Crow Island, took place in December APPEALS IN EaUITY. 277 Charleston, January, 1860. thereafter, and was wliolly independent of tlie state of the account existing at a former period. 2. The sale and deed of conveyance to Mr. Hunt, by the sheriff, invested Mr. Hunt with an absohite title, in his own right, without any trust; whereas, the master's ruhng has, in effect, declared a trust, of which there is not the least evi- dence in fact. 3. Mr. Hunt not complying with the sale, the sheriffshould have re-sold, and otherwise proceeded under the Vendue Act of 1785. Not having done so, the complainants should have l>ursued the sheriff; none of these proceedings having taken place, they lost all claim to the land, and consequently to the funds arising from the sale. 4. Mr. Hunt held an adverse possession for over twenty years between his purchase and the master's sale; this period was enough to render any equitable demand a stale claim, and would have barred a legal claim to the land twice over, 5. That the claim, if any, having been barred by the stat- ute, and by lapse of time, whilst testator lived, the executor could not revive it by any admission on his part. 6. That the decree, in the matter of Clegg's Point, made by Chancellor Dunkin, .Tunc, 18.50, was a mere general lien, and did not entitle complainants to any priority of payment out of the proceeds of Crow Island. 7. That, according to said decree, the Clegg's Point trans- action constitnted no part of the original matters of contro- versy in issne between the parties, and consequently is not affected by any of the equities incident to them. 8. In all other respects, the former grounds will apply to the Clegg's Point transaction. Dargan, Cn. The report of master Tupper, as to tlie pro- ceeds of Crow Island, in this cause, with the exceptions to the same, having been submitted for some conclnsion, by the Court; without opportunity for argument or consideration, it is, with a view to the ultimate decision of the questions 278 APPEALS IN EaUITY. Smith vs. Hunt. involved, ordered, that the exceptions severally be overruled, and the report be confirmed. The complainants, and tlie defendants, Mrs. Martin and B. F. Hnnt, executor, appealed on the grounds taken in their several exceptions. Mitchell, for complainants. Northrop, Simons, Campbell, IVhaley, contra. The opinion of the Court was delivered by O'Neall, C. J. The greatest difficulty experienced in this ancient and vexed case, has arisen more from the accumula- tion of documents and the obscurity of facts, than from any intrinsic difficulty in the questions at issue. 1. Crow's Island. It appears that this land was the pro- perty of Nathan Huggins (deceased). It was sold, as such, under a fi. fa., issued upon a judgment recovered by Wil- liam S. Smith and Peter Cuttino, administrators of George Smith, surviving copartner of George and Savage Smith, against Charles Huggins, executor of Nathan Huggins, deceased. This debt was part of the assets of George and Savage Smith, which was undivided, and placed in the hands of Mr. Heriot, as receiver. Col. Hunt was his attorney for the collection of the debt ; and also his agent for the manage- ment of tiie undivided partnership assets. He, by purchase from Brown and wife, the only child of George Smith, deceased, had an interest of one-half in the debt ; the other parties, the children of Savage Smith, had an interest in the other half. The land (Crow's Island) was sold, and pur- chased by Col. Hunt, for a sum very nearly the whole amount of the debt ; the deed was made to him the second day of December, 1833. There is no plea of the statute of limita- tions. The first question which arises, does lapse of time, twenty years, raise the presumption " omnia esse rite acta^^ APPEALS IN EaUITY. 279 Charleston, January, 1S60. and therefore, that it cannot now be questioned, that the pur- chase of Col. Hunt was in his own interest, and not as trustee of himself and the other parties in common interest with himself? This presumption, it must be remembered, is a presumption of fact, and not an irrcbuttible presumption. Nor is it like the statute of Hmitations, which is a statutory bar to the remedy, and, in general, cannot be thrown aside by an executor where the remedy is barred at tlie time of the death of the testator. Keeping these distinctions in mind, let us turn to this case. How is Col. Hunt to be regarded independent of the lapse of time? He bought under an execution obtained by him as an attorney, and also as an agent for the receiver, in the col- lection of a debt which, in equity, belonged to him and the children of Savage Smith. Beyond all doubt, he was at the option of his copartners to be rated, either as a trustee, in the purchase, or accountable for the purchase money. The master's report finds the fact that he paid the purchase money, by the use of the debt, but declines to charge him as trustee principally because no express trust was proved. That was not necessary. Equity implies such a trust, from two circum- stances: the relation of confidence, which he occupied, as attorney, and also from the fact, that whatever was paid for the land was the debt, in which he and the children of Savage Smith had an interest in moieties. These facts make him an impliod trustee. Hut, it is said, these are mere presumptions, and cannot now be sot up after this great lapse of time. There are two answers to this. First, that the settlement between Col. Hunt and the children of Savage Stnith, of the partnership, has been the subject of " hot litigation," as is said, in Smith and Ilunf, 3 Rich. ?>]., 465, since February, 18.32, and that in a case so situated, the presumption cannot arise, and in con- nection with this it may be remarked, that this objection does not come from Col. Hunt himself, who, it is probable, from statements made by liis executor, and hereafter to be noticed, 2(50 APPEALS IN EaUITY. Smith v.1. Hunt. would never have resorted to lapse of time, as a defence, but it is interposed by persons who claim to be creditors of Col. Hunt. They cannot set up an equity superior to the present claimants, who are not only creditors but who have furnished the very means of acquiring the property. But the second answer is, that the executor states "that Crow Island, formerly belonging to Nathan Huggins, against whom a judgment had been recovered, in favor of the said copartnership, for about $3,265, was put up for sale, and was purchased, as this defendant believes, by the said Benjamin F. Hunt, to whom a deed of conveyance was made and delivered : and this defendant believes it to be true, that the purchase money was not made, and that payment was refused U)itil a final settlement of the accounts between the said Benjamin F. Hunt and the other parties concerned could be made, respecting which, there was much controversy up to the time of his decease." This admission certainly ends all pretence of lapse of time, as a bar, if the executor's admission can be allowed to liave any weight in a case like this. He is both executor and creditor, and as to him and his rights it must have effect. So, too, I think it must govern the case as to all other parties. For it is not like the statute of limitations, which as a statu- tory bar, he might not be at liberty to waive. But lapse of time is a mere presumption in fact, which may be rebutted, and the executor's admission is a statement of fact, which completely destroys the presumption. I am, therefore, satis- fied that the deceased Col. Hunt must be regarded as a trustee for himself and his copartners in the purchase of Crow Is- land, and that, of course, he and they are entitled to moieties of the proceeds. 2. So, too, as to Clegg's Point. I concur in the view of the master, that the proceeds of sale in that respect are a com- mon fund with the proceeds of Crow Island, and that the complainants are entitled to moieties of both, and that Col. Hunt, or his estate, is entitled to the other moieties. Of course. APPEALS IN EaUITY. 281 Charleston, January, 1860. if Hunt has received any part, or parts, that must be cledtictcd from his moieties, so that he shall receive that much less, and thus equality be produced. The circuit decree and the master's report are modified according to these views, and the master is directed to pay out the fund accordingly. Johnston and Wardlaw, JJ., concurred. Decree modified. 282 APPEALS IN EaUITY. Sessions vs. Stevenson. The Administrators of J. T. Sessions vs. Samuel M. Stevenson and others. Presumptioti of Payment — Judgment — Levy — Sovereign State. Levy, under execution, on a house and lot, with other circumstances ; held suf- ficient, after a lapse of near twenty years, to raise the presumption that the judgment was satisfied. A sovereign State, coming in as a creditor, under a bill to marshal assets, stands as other creditors, and is liable to the ordinary presumptions of payment. BEFORE JOHNSTON, CH., AT HORRY, FEBRLTARY, 1859. This case will be sufficiently understood from the opinion delivered in the Court of Appeals. Connor, for appellant. The defendants rely on the pre- sumption of payment. Less than twenty years has elapsed, and the deficiency in time must be aided by other circum- stances in order to raise the presumption. Butler vs. fVight- ynan, 2 Speer, 359; Williams vs. Clinton and Sims, 1 Rich. Eq., 53. The levy and laches are relied on. The levy being on real estate is not prima facie satisfaction, Clerk vs. With- ers, 1 Salk., 322. Neither can laches be relied on to aid the deficiency of time. The maxim nullum tempus accurrit regi rests not so much on prerogative as on grounds of public policy, and the crown or government cannot be prejudiced by lapse of time or the laches of its officers. Co. Litt., 70, b, 119, a, note 1; LegatVs case, 10 Coke Rep., Ill, 114; Com. Dig. Prerogative, D., 86 ; Regina vs. Fenton, per Pollock, C. B., 2 Excheq., 220 ; United States vs. Knight, 14 Pet., 315. Harllee, contra. APPEALS IN EaUITY. 283 Charleston, January, IS60. The ()[iinion of the Court was delivered by Wardlaw, J. In a suit pending in the Court of Equity, for Horry district, to marshal the assets of Josias T. Sessions, the creditors were regularly called in, the amount of debts ascertained were paid, and at February Term, 1853, a balance remained in the hands of the commissioner for distribution among the heirs of said J. T. Sessions. At February Term, 1855, the United States, through the post-master-general, interposed a claim founded on a judgment against said Ses- sions, obtained in July, 1836, and at February Term, 1859, the commissioner reported in favor of this claim. The administrators excepted to this report on the ground that the circumstances in evidence warranted the presumption of the satisfaction of the judgment ; and the Chancellor sustained the exception. The circumstances relied upon in aid of lapse of time are, that ihefi.fa. for execution of the judgment was levied on the house and lot of Sessions by the deputy mar- shal, March 10,1837: that J. T. Sessions, in April, 1838, (after payiug $40 to the marshal in February, 1838,) sent off two negroes to be sold, to raise money for the payment of a debt in Charleston — probably that in question: and that Ses- sions afterwards was apparently solvent, and was undisturbed by the pursuit of this claim. It is true, as asserted in the first ground of appeal, that not quite twenty years had elapsed from the rendition of the judgment before the presentment of this claim. And it docs not appear that the estate of Sessions has been actually distributed. Yet it is clearly settled by our cases, that the presumjition of satisfaction of a debt of record may be legitimately deduced within less than twenty years, where there is considerable lapse of time, with corroborating circumstances. The presumption of satisfaction prima facie arising from the levy, the disposition of which is not accounted for, is supposed, in the second ground of appeal, to be rebutted by the partial payment afterwards to the marshal, followed by llie delivery of his negroes by defendant in execution to an 284 APPEALS IN EQUITY. Sessions vs. Stevenson. agent, to sell, and from the proceeds of sale to pay this debt. It seems to us, that if the plaintiff in execution did not receive the proceeds of the negroes, this furnishes no reason for not proceeding on the levy. If the plaintiff did receive the proceeds, the whole sequence of things is natural. In the third ground of appeal, it is asserted that no laches can be imputed to the petitioners. The argument is, that the United States is the petitioner, and that that government as sovereign, is entitled to the benefit of the maxim, nullum tempus occiirrit regi : applicable to all sovereigns deriving their institutions from the common law. Individually, I dispute the sovereignty of the United States, and consider it as a mere agency of sovereign States ; and, especially, I deny that the rights of a sovereign pertain to one of the officers or departments of the government. But it is enough for the occasion to say, that when a sovereign State interposes as a mere creditor in a bill for marshalling assets, in the absence of statutory or positive regulations, it stands on the same footing as any other creditor. Under all the circumstances of the case, we approve the conclusion of the Chancellor: to which in this tribunal we feel bound to give all the efficacy of a verdict. Ordered, that the appeal be dismissed. O'Neall, C. J., and Johnston, J., concurred. Jippeal dismissed. APPEALS IN EaUITY. 285 Cliarleslon, January, 1S60. John N. Maffitt vs. John H. Read. Evidence — Settlement — Account. Bill by a cestny qiietrn.it against trustee, for account, dismissed, certain dealings between the parties being held sufficient evidence of a final settlement be- tween them. BEFORE DUNKIN, CH., AT CHARLESTON, JUNE, 1859. DuNKiN, Ch. About 12th May, 1S42, the late James Withers Read intermarried with CaroHiie Laurens, who was at that time about eighteen or nineteen years of age. In contemplation of the marriage, the fortune of the lady, con- sisting chiefly, though not entirely, of personalty, was conveyed and transferred to Edward R. Laurens and the defendant, in trust for the uses therein and thereby declared. The estate thus settled, was composed of a moiety of some eight slaves, and certain articles of plate, held by her brother and herself, and which constitute no part of the enquiry to be made; and also of her moiety of certain bonds and stocks, of a lot in Hasel street, and her interest (being a sixteenth) in certain marsh lands. Her moiety of the stock and bonds (as afterwards ascertained on partition) amounted to (^41,079 66) forty-one thousand and seventy-nine 66-100 dollars, and her interest in the realty was afterwards sold for ($2,962 50) two thousand nine hundred and sixty-two 50-100 dollars, or in the aggregate forty-four thousand and forty-two dollars sixteen cents ($44,042 16.) The uses declared were, among others, for the joint use of husband and wife, during coverture, and in the event of the survivorship of the wife, with or without issue, then to her absolutely, discharged of all other and further trusts. It was also provided, that in 286 APPEALS IN EaUlTY. Maffitt vs. Read. the event that the said Caroline Laurens and James W. Read should, at any time during their joint lives, &c., think it beneficial to their interest to have the estate, or any part thereof, sold, disposed of, invested in, or exchanged for other property, real or personal, and the purchase money invested in any other property whatsoever, or placed at interest, that then the said trustees, on being thereunto requested in writ- ing by the said Caroline and James, shall dispose of, convej'', invest or exchange the same, or any part thereof, as the case may be, without any right of refusal on the part of such trustees, and invest the purchase money in such other prop- erty, real or personal, or invest or place it at interest, as may be required by them, the said Caroline and James, &c., and such purchased property or invested funds, &c., shall stand subject to the same uses, &c. For about four years after the marriage, and until 5th March, 1846, the corpus of the estate remained substantially in the same condition, the interest, dividends, or use being enjoyed by the parties according to the terms of the settle- ment. On the day last-mentioned, the trustees, at the instance and by the request of the cestuy que trust, pur- chased one moiety of the Rice Hope plantation on Cooper river, and of the slaves thereon, for the sum of forty-one thousand seven hundred and sixty 37-100 dollars ($41,760 37,) to wit: $20,000 for the plantation, and $21,760 37 for the slaves, and to secure the payment of the same, the trustees executed their bond to the vendor, J, Harleston Read, the elder. Subsequently, the trustees added to the gang two negroes, purchased for thirteen liundred and sixteen dollars, making the agricultural investment forty-three thousand and seventy-six 37-100 dollars ($43,076 37). James Withers Read and his wife entered into possession of the premises, and continued in the use and enjoyment of the same until the death of the former, which took place 28th June, 1851. In fulfilment of the terms of the marriage set- tlement, in such contingency declared, the trustees, on the APPEALS IN EaUITY. 287 Cliarleslon. January, 1860. 12th August, 1S51, conveyed and transferred to Mrs. Read the moiety of Rice Hope plantation and the slaves, which had been purchased for the trust estate. On 1st January, 1852, Mrs. Read conveyed her moiety of the plantation to J. Harleston Read, Sr., for the sum of twenty-thousand dollars, and executed to him a bill of sale for her moiety of the slaves for tlie consideration of twenty-four thousand dollars — making an aggregate of forty-four thousand dollars ($44,000). But in adjusting the payment with J. Harleston Read, Sr., the balance due on the bond of the trustees for the original purchase money (being upwards of seven thousand dollars) was deducted and allowed. Early in August, 1S52, the plaintiff intermarried with the widow of James Withers Read, deceased. These proceedings were instituted, on behalf of the plaintiff and his wife, on 8th May, 1854. The scope and object of the bill is not to charge the trus- tees, or either of them, for any sums by them, or either of ihcm, actually received and misapplied, but to render them responsible for permitting the late James Withers Read to receive certain funds belonging to the trust estate, which were either wasted by him, or not properly re-invested, or in any other manner applied to the purposes of the trust. After the answers had been filed, an order of reference was taken, without prejudice to the defence set up by the defendant, and the bill was dismissed as to the defendant E. R. Laurens, by consent of plaintiff and the codefendant, J. H. Read, and without prejudice to the plaintifPs right of account other- wise. The report of the master had been filed, when, in March, 1859, the wife of the plaintiff departed this life, and on 14th May, 1859, the proceedings were revived by the plaintiff in his own right, and as administrator of his deceased wife. Preliminary to the consideration of the exceptions to the master's report, it may be well to notice the answer of the defendant, John Harleston Read, as the order of reference was made subject to the defence therein disclosed. This defend- 388 APPEALS IN EaUlTY. Maffiit vs. Read. ant does not shrink from the responsibility which, according to the principles of this Court, he incurred in becoming a party to the marriage settlement. For the consequences of any misplaced confidence in his deceased brother, he admits his liability, but tlie defendant contends, that by far the greater part of tiie trust fund received by the said James W. Read, and to which he may not have been entitled as the usufruct of the estate, was re-invested by him with the full knowledge and consent of his wife, for the use and as part of the trust estate; that such investments were not only with her approbation at the time, but received her further and confirmed sanction when she afterwards became his widow, and entitled absolutely to the estate. The defendant admits that a portion of the fund received by the said James W. Read was not thus re-invested; but that about two months before the death of the said James W. Read, an adjustment was made of this deficiency, ascertained in the presence of his wife and of his solicitor; that for this amount the said James W. Read, then and there, confessed a judgment to his said trustees (who were not aware of the transaction nntil some time afterwards). That more than twelve months after the death of the said James W. Read, to wit : on 15th July, 1852, the defendant, who had become administrator of his deceased brother, settled the said judgment, then amounting to about ($2,200) two thousand two hundrei dollars, by executing to her his own individual bond for the payment of the same; and that the said bond was subsequently paid in full to the plaintiff, John N. MafFitt, after his intermarriage with the widow of the said James W. Read, deceased ; that all this took place some time prior to the institution of these proceedings, and the defendant insists on the same as a final settlement of any defalcation of the said James W. Read, in relation to the trust estate. In order to appreciate a part of this defence, it is necessary to advert to some of the provisions of the settlement. It is therein declared to be the duty of the trustees, upon the re- APPEALS IN EaUITY. 281> Charleston, January, 1860. quest, in writing, of the cestiiis que trust, to dispose, &c., of any part of the trust estate, and re-invest in such other prop- erty as niay he required of them, " without any right of refusal on the part of the said trustees." It will be perceived that the right of control and direction, as to the mode and manner of investment, was in the cestuis que trust absolute and unlimited. It was only necessary that the request or requisition of these latter should be distinctly signified. It was probably for the protection of the trustees, or of a pur- chaser, that it was required to be in writing. Their assent or desire might be otherwise established, as by their acceptance and use of the property taken in exchange or as a re-invest- ment. This is illustrated by the purchase of Rice Hope and the slaves, in March, 1846, and the sales of stocks, &c., to meet the payments. No evidence appears of any request in writing, on the part of the cestuis que trust, but they took possession of the estate and enjoyed the same in common during the coverture. After the death of James W. Read, the plantation and slaves were, in pursuance of the provis- ions of the settlement, on 12th August, 1S51, conveyed by the trustees to the survivor, Mrs. Read, by whom they were subsequently (1st January, 1852) conveyed to another pur- chaser for valuable consideration. After this, it would not have been competent for Mrs. Read, or her representative, to have impugned the investment in Rice Hope, for the want of evidence of a written request on the part of her deceased husband and herself, nor is the same, in any manner, now called in question or impugned. So, in regard to the sale of the marsh lots, and also of the investment in the Morris island lot, there is no evidence of any written request on the part of James W. Read and wife, but the master has cor)- cluded from the circumstances detailed in his report, that these transactions were at the instance and by request of the parties, or received their subsequent sanction ; and he has accordingly sustained the same, without objection to his judgment. It would scarcely be competent for the cestuis que 20 290 APPEALS IN EaUITY. Maffitt vs. Read. trust, accepting the property purchased as a re-investment, afterwards to repudiate it as such, as between themselves and the trustees, because there was no evidence of a written request. Nor can it any more be properly objected to a re-invest- ment, that it was not of a character which this Court would have selected, or which a prudent trustee ought to have sanctioned. The terms of the marriage settlement expressly defined the authority of the trustees in this respect. They were required to pursue implicitly the requisitions of the cestuis que trust, who were thereby constituted the sole judges of the expediency, as well as the mode of re-investment, " without any right of refusal, on the part of the trustees." Duriiig the five years which elapsed between the purchase of Rice Hope, and the death of James W. Read, in June, 1851, agricultural investments on Cooper river proved entirely unprofitable. For four, out of the five years, there was a failure of crops, in consequence of the condition of the river. Within this period, James W. Read had put valuable improvements on the trust estate, and he had also improved and furnished the liouse on Morris island, which was their summer resi- dence. For none of these have any allowance been made, and for the reasons stated in the master's report, upon which it is not proposed, at this time, to make further observation. In his answer, the defendant states that his intestate, James W. Read, died insolvent, and, at the hearing, records of unsatisfied judgments to a large amount, existing against him at the time of his death, were adduced in evidence. Upon the death of her husband, Mrs. Read, as survivor, became entitled absolutely (as already stated) to the whole of the trust estate, consisting as well of tlie original investment as of any re-investments. In this way she took and con- veyed to a subsequent purchaser, the moiety of Rice Hope and the slaves for forty-four thousand dollars ; and to the same purchaser, she conveyed for valuable consideration her moiety of the stock, plantation, horses, &c. In addition to APPEALS IN EQUITY. 25)1 Charleston, January, ISGO. these, Mrs. Read, (as proved by the testimony of N. H. Gnyton, for many years manager on the place,) claimed and took possession of many other vahiable articles of property. A large portion of these she SMbscqupiitly sold or otherwise disposed of. A paper was prodnccd (marked D) which the witness proved to he in the handwriting of Mrs. Read. This purports to be a list of stock, tools, &c., on Rice Hope, and at the latter part, the names of various horses are given, with this caption: "Horses bought by J. Withers Read for the use of his wife and self." All the horses thus designated were taken and disposed of by Mrs. Read. There was also (he slave Clarinda ; she had been purchased by James W. Read for three hundred and ten dollars ; she was a cook, and not a field negro. When Mrs. Read came to town, after the death of her husband, she brought Clarinda with her, and hired her out, as a cook, in Charleston, where she died the early part of the following year. It was satisfactorily estab- lished, that for the various articles of property thus taken by Mrs. Read, her husband, James W. Read, had paid upwards of three thousand dollars. In addition to this, she had also a i)romissory note of James Smith Col burn to James W. Read, for five hundred dollars, which was subsequently collected by the plaintiff in this cause. It further appeared that on 19(li April, 1851, about two months prior to the death of James W. Read, he, of his own accord, confessed a judgment to his trtistees for the sum of two thousand and twenty-nine G3-100 dollars (^2,029 63). In the defendant's answer it is staled, (and as the Court understood, was so conceded,) that "this confession of judgment was executed in the country before his (J. W. Read's) own solicitor, and in the presence of his wife, and with her full knowledge." Further, it is stated that "this confession was arranged by the said James W. Read and his wife, the said Caroline," &c. Taking into com- putation the original price paid by James W. Read fitr the articles of property above referred to, and thus claimed and received by Mrs. Read after his death, the amount for wliich 292 APPEALS IN EaUITY. Maffitt vs. Read. the judgment was thus confessed rather exceeds the balance of the trust funds, for which the master regarded the said James W. Read as at that time chargeable. The intestate, in his actual situation, had no conceivable motive to diminish the amount for which he was about to give a security to his trust estate. The various articles of property in which re- investment had been made were before him. It must have been as well known both to his wife and himself, to which of them the trust character attached, and the deficiency of the trust fund, for which he was, therefore, accountable. In con- firmation of this view, Mrs. Read, after the death of her hus- band, (as the master reports,) rented out the Morris island property, and subsequently conveyed the same to a purchaser, from whom she received the proceeds. She also held posses- sion of Clarinda, whom she carried with her to Charleston, and there hired her out; and this slave afterwards died while in her employment, or under her control. Several other of these articles she afterwards sold or disposed of, and among them, of the carriage, horses, &c., which she had designated, in the list given to the manager, as having been purchased '' by J. Withers Read for the use of his wife and self" Further- more, the present plaintiff in her right, demanded payment of the promissory note given by James Smith Colburn, and subsequently received satisfaction of the same from him. Unless Mrs. Read, as the survivor, had been entitled, under the terms of the settlement, to these several articles of prop- erty, she had no authority to receive, dispose of, or appro- priate the same, nor had the legal representative of the intes- tate's estate any excuse for permitting it to be done. But, on the death of her husband, Mrs. Read had the right to demand of the trustees an account of any portion of the corpus of the trust estate, which her husband had been per- mitted to receive, and which he had failed properly to re-in- vest or appropriate; and the trustees had a correspondent right to account from the estate of the intestate. With a full knowledge of this, and knowing, too, the circumstances under APPEALS IN EaUITY. '293 Charleston, January, ISfiO. which the confession of judgment was given, and tlie pur- poses for which it was given, Mrs. Read, more than twelve montlis after the decease of her husband, to wit: on 15th July, 1852, received from the defendant, J. Harleston Read, his own bond for the full amount of the said judgment and interest. The caption of the receipt run as follows: " Mrs. James Withers Read, in account with J. Harleston Read, Jr., trustee;" and after charging the amount of the judgment and interest, and crediting an account paid or allowed to the solicitor, "Received, Charleston, July 15th, 1852, from J. Harleston Read, one hundred and eleven 25-100 dollars, in full for balance of interest of the above-mentioned judgment, also his for $2,029 63, in full of the principal of the same, as per statement above." Signed, " Caroline L. Read." The defendant, in his answer, says that "at the time of giv- ing his bond, this defendant was under the most certain con- viction that he was making a full and entire settlement of his trust with the complainant, and nothing was intimated on her part, that she either expected or demanded any further account, or that she had any other claim against the said James W. Read and this defendant; and defendant then believed that she considered as he did — that the settlement was final and conclusive, well understood and apprehended by her, and entirely acquiesced in on her part. Nor did defendant ever hear of any dissatisfaction on her part until after her intermarriage, &c., and then not until the lapse of some time after the marriage," &c. The bond thus given by the defendant to Mrs. Read in July, 1852, was payable in one and two years, with inter- est from the date. On 20th July, 185.3, the plaintiff, who had in the meantime intermarried with Mrs. Read, received from the defendant the annual interest on the bond, and on 30th September of the same year, he received full payment of the bond, which was thereupon delivered up to l)e can- celled. On 21st Jiine, of the same year, the plaintiff had also received payment from James Smith Colburn of the 294 APPEALS IN EaUITY. Maflitt vs. Read. note, which had been given by him to the intestate, James VV. Read. Until nearly two years after the arrangement of Jul}', 1852, and nearly eight months after the final payment of the bond, no proceedings were instituted against the defendant. It is not suggested that in the meantime any discoveries had been made, or any new light shed upon the condition of the parties. Up(M) a full review of the transactions of the several par- ties, the Court is of opinion, that the plaintiff's bill should be dismissed, and it is so ordered and decreed. The complainant appealed on the grounds: 1. Because there was no sufficient evidence of any final settlement between the complainant's intestate and the de- fendant. 2. Because, even if the dealings of the parties were intended as a final settlement between the trustee and her cestiiy que trust, it is respectfully submitted that this would not have barred an account, or entitled the defendant to have the bill dismissed, unless, 1st, It had been consummated by a release, under seal; or, 2d, There had been such a lapse of time as would authorize the application of the statute of limitations; or, 3d, The settlement had so changed the condition of things, as to render it inequitable to subject the defendant afterwards to an account. 3. Because, upon the examination of the report and testi- mony, it does not appear that the purchases and expenditures referred to in the circuit decree, to support the settlement, were made on beiialf of the trust estate, but were in fact pur- chases made by James Read personally, and constituted no portion of the trust estate. Mitchell, for appellant. Simons, contra. APPEALS IN EaUITY. 21)5 Charleston, January, ISGO. Per Curiam. We concur fully in the excellent decree of ChanccII(H- Duiikin, and, for the reasons therein given, it is allirnied. O'Neall, C. J,, AND Johnston and Waiidlaw, JJ., con- curring. Decree affirmed. 296 APPEALS IN EaUITY. Jewell vs. Jewell. Daniel Jewell and others vs. Benjamin Jewell and OTHERS. Parties — Account— tddministrator — Rents — Agent. To a bill, against an administrator, for account of the estate of the intestate, received by a deceased agent and attorney of the administrator and heirs, for whose professional services a large amount was claimed, held, that a repre- sentative of the attorney was a necessary party to the bill. H was the agent of B, an administrator, to receive the rents of a certain lot. After some years, a son of H claimed the lot as his own, and received the rents for many years, but permitted his father to use them: held, that the eon was liable to account to B for the rents received by him. Where an administrator receives, himself or by agent, the rents of real estate of the intestate, though his sureties may not be, he is liable to account to the heirs for the rents thus received. BEFORE DUNKIN, CH., AT CHARLESTON, JUNE, 1S5S. This case will be understood from the reports, exceptions and circuit decree. The first report of the master, Mr. Gray, filed on the 20th June, 1856, is as follows: The order of Chancellor Dargan, on the 11th March last, after directing a sale of the house and lot at the corner of East Bay street and Unity alley, and providing for the dis- tribntion of the sale, proceeds to direct the master to take the account of the defendant, John Meyer, the tenant of the house, for the rent due, and to receive the same and distrib- ute the same as the sales-money. Also, that the master take and state an account with Benjamin F. Hunt, the defendant, of the rents received, or to be accounted for by him. And also, to take and state the account of the administrator, Benjamin Jewell, with the estate of his intestate in South Carolina, and to receive testimony as to the administration APPEALS IN EaUlTY. 297 Charleston, January, 1860. and distribution of the estate in Louisiana, and report the same. I respecttully report my investigation of the matters so referred to me, in the order of lime. First, as to the adminr istration account of Benjamin Jewell, with the estate of Benjamin Jewell, the elder, in South Carolina. I find that the said administrator executed his bond and surety to the ordinary for Charleston district, on the 27tli March, 1829, in the penal sum of ^8,000. There does not appear to have been any inventory of the estate made by the administrator; and the estate of Benjamin Jewell, the elder, in South Caro- lina, as far as I can discover, consisted of the house and lot at the corner of East Bay street and Unity alley, and of eleven shares in the Union Insurance Company of South Carolina. I find that the administrator applied to the ordinary, by petition, on the 15th June, 1834, for leave to sell the said shares, for the purpose of dislriljulion ; and on the 25th of the same month, in that year, leave to sell them was granted by the ordinary. I further find that the administrator passed his accounts before the ordiruiry, commencing the 23d J\ine, 1829, to the 6th April, 1832, showing a balance to the credit of the estate, on the last-named day, of nine hundred and fifty dollars eighteen and a quarter cents, (.^950 18|,) a copy of which is herewith filed. In stating an account with the administrator, I have charged him with this balance, from 6th April, 1832, with the rents of the house from that time, and the dividends on the Union Insurance shares, up to the time when he obtained leave to sell them, viz : in 1834; I have, then, cliaiged him with the sales of these shares, at the then market value, viz: .^84 each, amounting to ^924; I have giv,en him credit for the taxes and insurance of the property, from year to year, and have charged him with interest on the annual balances, to the Giii April, 1845, when the rents passed into other hands, so that the amount due by the said administrator, on the 5lh June, 1856, is seventeen 398 APPEALS IN EaUlTY. Jewell vs. Jewell. thousand seven hundred and eighty-three dollars, thirty-five cents, ($17,783 35,) as will appear by the account herewith filed. 1 further report, that I have stated an account with Benja- min F. Hunt, Jr., for the rents of the said house, from the 6th April, 1S45. From an inspection of the tax returns, 1 find that the house and lot have been returned as the property of the said Benjamin F. Hunt, Jr., from 1846 to 1852 inclu- sive, before which time they had always been returned as belonging to the estate of Jewell. I have charged him with the rents of the house from the 6th April, 1845, to 16th June, 1854, at the rate of |300 per annum, for which his receipts have been produced, and have credited him each year with the taxes and insurance, and have charged interest on the several balances, so that the amount due by the said Benja- min F. Hunt, Jr., with interest to the 6th June, 1856, is $8,549 48. The rents from the 16th June, 1854, to July, 1855, at an increased rent of $27 50 per month, were received by Mr. M. Goldsmith, as agent of B. F. Hunt, or for estate of Jewell. I further report, that I have received from the tenant of the house, the rent from the 16th July, 1855, to the 8th April, at the rate of $27 50 per month, amounting to $240. And lastly, I report, that no testimony has been submitted to me as to the administration of the estate in Louisiana. Exception to the report of master Gray, in behalf of Ben- jamin Jewell and B. F. Hunt, and of other defendants: Because the said report was made up and filed after the above-named defendants had filed their answers, and neither they nor their solicitors had notice to attend any reference before the master previous to the filing of the said report. f AGREEMENT IN THIS CASE. It is agreed between Mr. Campbell and Mr. Northrop, that Mr. Gray shall reconsider his report of 20th June, 1856, and APPEALS IN EaUITY. 299 Charleston, January, ISGO. that Mr. Northrop shall have the right to file cxci ptioiis to said report as if it hud not been filed ; and that it shall he considered as open in all respects, exce{)t that whatever report shall finally be made hy Mr. Gray, shall be considered as bearing date on the 20th June, 1856. References to close and report to be made up as early as practicable, Mr. Northrop engaging to avoid all delay. (Signed) J AS. B. CAMPBELL, C. li. NOPvTHROP. Charleston, 16th February, 1S57. Exceptions in behalf of Benjamin Jewell to the report of James W. Gray, master in Chancery: I. That in the account stated against Mr. Benjamin Jewell, he should not have been charged as administrator of his deceased father, with any of the rent of the real estate. 1. Because there was no evidence that he ever authorized any one to collect the rents on liis account as administrator; for, as administrator, he had no concern with the real estate, and he never received any rents. 2. Because it was in evidence that all of the said rents were actually received by the late Benjamin F. Hunt, who was the attorney of the heirs-at-law of the intestate, for whom he conducted the litigation, affecting their rights to said real estate and their status as legitimate children and heirs of the intestate. 3. Because the evidence before the master showed that the late Colonel Hunt managed the said real estate for the heirs of Jewell, who had entrusted him with the prosecution of their rights; and that the said Benjamin Jewell never assumed any authority, or exercised any trust, in respect to the real estate, except as one of the co-heirs of his deceased father. H. That it appeared, from the evidence before the master, that the said Colonel Hunt claimecl to appropriate all he had received in payment for his professional services, and for 300 APPEALS 11^ EaUlTY. Jewell vs. Jewell. his advances, as the attorney of the distributees and heirs- at-la\v of the intestate, who were as much concerned in the same as this defendant, and as well able to protect their interests; but that the importance of the litigation to the whole family was such that they were all in the power of their said attorney. III. That, even if the defendant, Benjamin Jewell, could be held responsible, as administrator, for the rents of the real estate of his intestate, it appeared in evidence that all of the rents were received by Hunt & Shand, and their successor, Benjamin F. Hunt, who were lawyers, in good standing, and that the defendant, who was residing in another State, was justified in employing them as professional men, and could not be made responsible for the losses occasioned by any pretended defalcation of his attorneys, in the absence of fraudulent collusion, which is charged in the bill, but dis- proved by the evidence. IV. That there was no evidence before the master, in sup- port of the charges of fraud against this defendant; that it was proved that he never received any of the rents of the real estate; and that there was nothing in the evidence to warrant the master's charging him with interest, or with interest upon a calculation with annual rests. Exceptions in behalf of Benjamin F. Hunt, one of the defendants, to the report of James W. Gray, master in Equity: 1. That after the coming in of this defendant's answer, and the evidence before the master, there was no ground for any account whatever against him. 2. That at the time of the filing of complainant's bill of complaint, the said defendant was not in the possession of the property, of which the complainants prayed a partition, nor in the reception of the rents. 3. That, even if it should be conceded that this defendant had, for a period of years, intrnded upon the real estate of the complainants, and his codefendant, who were the legal APPEALS IN EaUITY. 301 Charleston, January, 1&60. owners, there is no evidence that he did so, as their confiden- tial agent, or that there was any relation of trnst between him and them, whicii conld snhject him to an account in chancery, as a defanUing trustee. 4. That it appears, from th(^ answer of this defendant, and the evidence of Mr. Philips and Mr. Goldsmith, that his only conneclion with the property in question, was under the direction of his deceased father, who was, up to the time of his death, the attorney of the heirs of Jewell; and, wiih their consent, had the entire control of the property, and that he claimed, without objection from them, to be entitled to treat it as his own, on account of his professional services and advances. 5. That the master has charged this defendant, in the account for rents received by him, with rent from the 6th of April, 1845, ujitil 6th April, 1S53, or for eight years' rent, at the rate of $300 yearly ; whereas, the receipts given by this defendant, in evidence, only show that he received the sum of ^315, and it was proved that up to Mr. Phillips, the clerk of Col. Hunt, actually received all of the rents, and credited them to Col. Hunt ; and that Mr. Goldsmith received the rents, in the same way, from January, 1853, after which lime it is not pretended that this defendant ever received any portion of the rents. 6. That the master has charged this defendant interest, with annual rests, as if he were a defaulting executor, or trustee, whereas, there is no pretence that he ever had any such relation to the parties in interest. SECOND REPORT OF THE MASTER, MR. GRAV. Since the filing <»f my report of the 20th June, 1856, I have been atte;)ded by the solicitors of the parties, and taUen the testimony of several witnesses, and have investigated the claim of licujamin F. Hunt, for professional services ren- dered to the parties in the cause. 302 APPEALS IN EaUITY. Jewell vs. Jewell. After much consideration of the testimony and the char- acter of the cause, I have conchided that my former report ought to be modified in several important particulars. From the testimony given in relation to the claim of Benj. F. Hunt, I am satisfied that his services were of the greatest importance to the parties interested in the estate, and I have conchided to allow for the claim, five thousand and ninety- four dollars forty-three cents, ($5,094 43,) to be paid out of the assets chargeable to Benjamin Jewell, the administrator of the estate, which were in Mr. Hunt's hands, as his attorney. This has rendered necessary a re-statement and modification of the account filed with the former report. In taking the account with the administrator, under this new aspect, I have charged him with the monies received, from time to time ; but not with the interest on the annual balances, as the items constituting the claim of Mr. Hunt run through the long space of time in which the important cause of Jewell vs. Jewell had been pending in the various courts. After stating t!ie account in this matter, I find there is due by the administrator, Benjamin Jewell, Jr., to the estate, two thousand seven hundred and eighty-six dollars forty-eight cents, ($2,7SG 4S,) as per account A, herev/ith filed. In taking the account with Benjamin F. Hunt, Jr., the defendant, I find, as stated in my former account and report, that the rents of the house on East Bay were received by him from 1S45, and that the tax returns from 1846 to 1852, inclusive, were made in his name, as his property; and his receipts for the rents, from 6th xVpril, 1845, to 16th June, 1854, have been exhibited to me at the rate of ^300 per annum. I have taken this account in the manner stated in my former report, charging interest on the annual balances, and crediting each year the taxes and insurance. In the former report, I found that the balance stated in this account was due by Benjamin F. Hunt, Jr., as his acts, in relation to the property served to indicate that he treated it as his own. APPEALS IN EaUITY. 803 Charleston, January, 1860. But I have re-considered this matter, and from the testimony since produced, am disposed to think that this amount ought also to be charged to the administrator. Mr. Phillips, who was clerk in Col. Hunt's oflice from 1841 to 1849, testifies, that with the consent of Col. Hunt, these rents were received by him, and applied to the pMyment of his salary as clerk. Another witness, Henry Goldsmith, testifies, that to 1853, the rents were collected by Mr. Whitney, and applied to the payment of rent due by Col. Hunt to Dr. Geddings ; and that the witness afterwards collected the rents, and accounted for them to Col. Hunt; also, that he made the return in the name of B. F. Hunt, Jr., beginning in 1853, as he tiien found it made, and so he made it at the direction of Col. Hunt. It would seem then that B. F. Hunt, Jr., did not derive any benefit from the rents, and his answer corroborates the fact. I find that the amount due on this account is three thou- sand nine hundred and thirty-seven dollars fifty-five ce nts (§3,937 55); and if I am right in the above conclusion, the administrator will be liable for Account A ^2,786 48 And for the account B 3,937 55 Amounting, together, to 6,724 03 I further report, that the rents from the 16th June, 1854, to the lf)th July, 1855, at an increased rate of §27 50 per month, were received by Mr. Goldsmith, as agent of B. F. Hunt, or for the estate of Jewell; and that one quarter's rent was paid to Mr. J. B. Campbell. The rents from the 16th July, 1855, to the 16th April, 1858, liave been paid to me by the tenant, John Meyer, now deceased, and by Mr. Meyer, the present occupant, at the rale of §27 50 per month. I further replic registry, could well have sustained such an imputation, if he had made it. S28 APPEALS IN EaUITY. Ciilleton vs. Garrity. The only questions in the case were, whether the contract made with Garrity entitled him to charge the trust estate, or Garrity's interest in it, for the work done by him. Supposing it to be true that a trust estate is liable to be charged for repairs, according to the estates held by the suc- cessive tenants, or that the corpus may be charged for perma- nent improvements, proportionably to the value of such work, as explained in Magwood vs. Johnston, I Hill Ch., 228, (ref- erence being had, perhaps, to how far the trustee, or person making the contract, is a debtor, or in advance to the settled estate,) and moreover, that any interest such contracting party may hold in the trust property, may be subjected, in order to supplement the workman's wages, on the principle of Rivers vs. Thayer : it appears to us that the Chancellor should have made no decree until he had directed an inquiry into the nature of the contract ; by whom made; and tlie degree of his authority; the value of the work to the estate; its cost, and the different interests held in the estate by the persons to whose use it was settled, as well as by Garrity, with whom the workman is supposed to iiave contracted. . Inquiry might, also, have been made as to a proper scheme of pro- viding for paying the demand of CuUeton. It is ordered, that the decree be set aside, and the cause remanded; that these inquiries be made; when the case will be properly before the Circuit Court for its judgment. O'Neall, C. J., AND Wakdlaw, J., concurred. Decree set aside. CASES IN EQUITY ARGUED AND DETERMINED IN THE COURT OF APPEALS, At Charleston, April Term, 1S60. JUDGES PRESENT HON. JOHN B. O'NEALL, Chief Justice. JOB JOHNSTONE, Associate Judge. F. H. WARULAW, Associate Judge. Executors of Dr. J. \V. Schmidt vs. Robert J^ebby. Partnership — ^iccount Stated. Where iwo pliysiciaiis agree to iiracticc in copartiiersliip. nnd divide the receipis of their practice, each is bound to devote his labor, skill, and services, as a physician, to the |>roiiioiion of the common benefit; to keep books, and make entries of charges and receipts, and have tiiem always ready for inspection and ex!)lanation ; and if one should, for a considerable time, when in good health and full practice, neglect to keep any acconnt of his practice, he must, nevertheless, be required to account for what he made, upon such evi- dence as may be adduced. Wiiere. after the dissolution of a (inn, one of the p:irtnt>rs took the i)ooks to collect the accounts, and he rendered siatenients showing balances due by him on account of his payments and collections : Ihid, thnt such statements did not amount to an account staled, so as to preclude him from demnnding an account from the other partner. BEFORE DARGAN, CII., AT CHARLESTON. FEURUARV, lSr)S. This case was rofpired to tho master, and was heard on exce[)tiotis to his report. The report is as follows: 330 APPEALS IN EaUITY. Schmitit vs. Lebby. "This case was referred to me to take an account of tlie partnership of Drs. J. W. Schmidt and Robert Lebby, and to report thereon, " The articles of partnership have been snbmitted to me. They are dated the 2d January, 1S50, and provide that the receipts arising from the practice of medicine by the parties to the said partnership, shall, during the term of its continu- ance, he divided in the proportion of three-fourths to Dr. Schmidt, and one-fourth to Dr. Lebby. On the 1st January, 1853, the health of Dr. Schmidt having failed, a new arrange- ment was entered into, whereby it was agreed that the said partnership should terminate on that day, and that for the year 185^, Dr. Lebby should receive two-thirds, and Dr. Sclimidt one-third of the amount collected, and that Dr. Leb- by should attend to making out and collecting the bills due, and the final closing up of the partnership. "• Dr. Lebby has filed accounts, showing a balance due to the estate of Dr. Schmidt, on the 1st January, 1854, of $2,302 32, and an additional balance due said estate on the 1st June, 1856, of $407 84. In all, $2,710 16. " These accounts are satisfactory to the complainants. But the defendant. Dr. Lebby, contends that Dr. Schmidt did not render any account of his earnings for the first tiiirteen months of the partnership, and that whatever said earnings were, he (Dr. Lebby) is entitled to his share, according to the partnership articles, and the same should be set off against his indebtedness to the estate of Dr. Schmidt, as shown by the accounts herewith filed. The complainants, wlio are the executors of Dr. Schmidt, allege that they have no account of the professional business of their testator, dur- ing his connection with Dr. Lebby. " From the evidence submitted by the defendant, it appears that the books of the partnership, in the possession of Dr. Lebby, do not show what was Dr. Sclimidt's practice between the 2d January, 1850, and. the 9th February, 1851. The whole sum of the accounts, for the entire term of the part- APPEALS IN EaUITY. 331 Charleston. April, ISfiO. nership, (three years,) is about ^18,000. Of this amount, only about §^3,000 was earned by Dr. Schmidt, and this between P\-bruary, 1S51, and June, 1852. No books were furnished by Dr. Sclimidt to show what were the services rendered by him to the partnership, except the one from which the accounts filed by Dr. Lebby are made up, and all that is contained in that book is embraced in the said account. " There being no written data, from which an account can be stated of the practice of Dr. Schmidt during the first thir- teen months of the partnership, the defendant relies upon the evidence of Dr. Fitch and others, herewith submitted, to sustain his claim to a set-oti" against his indebtedness to the estate of Dr. Schmidt, as shown by the books of the part- nership. *' Dr. Fitch, who was in jiartnership wilh Dr. Schmidt until the latter part of 1849, says that Dr. Le])by immedi- ately succeeded him; that Dr. Schmidt had, at that tiiue, a large business and a fine reputation; that he appeared to be in active practice during the first year of his connection with Dr. Lebby, and expresses the opinion that Dr. Sclimidt ought to have made, during the first thirteen mouths of the part- nership, twice as much as Dr. Lebby, who had then but little practice and influence. Dr. Panknin, apothecary, testifies to Dr. Schmidt having ordered, in 1850 and 1851, medicines fi)r the office of Schmidt & Co., but not fi)r pre- scriptions. And an extract from the books of Drs. Simons and Dawson, shows that those gentlemen attended a patient in consultation with Dr. Schmidt, from 25tli September to 22d October, 1850. "While this evidence clearly establishes the fact that Dr. Schmidt did practice in 1850, it does not enable me to deter- mine the extent of that practice, or what were his earnings during that year. The opinion of Dr. Filch, that Dr. Schmidt ought to have made twice as i7iuch as Dr. Lebby. seems to be based upon the relative amount of their individual busi- 3:« APPEALS IN EaUlTY. SchiuiJi vs. Lebbv. ness previous to the partnership, and not to the proportion of service which wonld properly be performed by each after the connection. The testimony, also, of Dr. Fitch, that Dr. Schmidt was engaged in active practice in 1850, is rendered uncertain in respect to the extent of that practice, by the explanation of the intelligent witness himself, that he did not meet with Dr. Schmidt in his practice, but that his opin- ion, as to the extent of his business, was formed from seeing liim riding tlirough the streets, and stopping at ditferent houses, where he knew he attended. The only positive evi- dence on this point is that furnished by Drs. Simons and Dawson, of their attendance, in consultation, with Dr. Schmidt, upon a single patient. "But whatever may have been (he practice of Dr. Schmidt in 1850, it appears to be certain that he entered no charge against his patients, and received no compensation for his services during that year. Dr. Fitch states that during the time he was in partnership with Dr. Schmidt, he, (Dr. Schmidt) kept no regular account of liis own practice, and was careless about making entries in the partnership books, but that he believes that the books at the office exhibited all the collections made by Dr. Schmidt. ' He had no idea that tiie Doctor acted unfairly in the matter of the accounts. He was negligent, but not dishonorable.' "13iit, while it is not claimed on behalf of the defendant that the complainants are liable to account for monies ac- tually received by their testator for his services in 1850, it is contended that under the articles of partnership, Dr. Schmidt was bound to give his professional services in aid of the part- nership, and if he chose to do nothing, or, if practising, neglected to charge for his services, his partner should not be the loser by his indolence or neglect. "The articles of partnership are silent as regards the ser- vices to be rendered by each partner, and I know of no principle of law wliicli undertakes, when this is the case, 'to settle between the parties the relative value of their unequal APPEALS IN EaUITY. 333 Charleston, April, 1S60. services in coiidncliiig tlio joint business.' And the reason given for this not being attempted is obvious in this case, where 'it is impossible to see how far in the original estimate of the parties when the connection was formed, the relative experience, ri^pulatioii and business of each, entered as ingre- dients into the adjustment of the terms of the partnership.' " Dr. Fitch paid to Dr. Schujidt $2,500 upon the formation of their pnrtn, as a bonus. WhiMi the connection was formed with Dr. Lebl)y, he had but little practice, while that of Dr- Schmidt was large, ami it does not appear that Dr. Lebby paid any bonus. It is reasonable to suppose that the reputation and l)usiness of Dr. Schmidt, and perhaps his pros- pective retirement from business, were considerations for Dr. Lebby to lorm the partnership. The fact that no objection is made to the comparatively small sum earned by Dr. Schmidt ($3,000) from Isi February, 1851, to 12th June, 1852, a large portion of which (as alleged by the answer) has never been collected, gives countenance to the opinion that the |)ersonal services of Dr. Schmidt were not the main considerations which moved the defendant to engage in the partnership. And, lastly, the articles of dissolution executed on the 1st January, 1S53, while it provides that Dr. Lebby, in consider- ation of the failing health of Dr. Schmidt, should receive two-thirds and Dr. Schmidt one-third of the amount collected for the year 1852, expressly stipulates that the proceeds of all business of the partnership for the two preceding years, shall be distributed according to the articles of copartnership. " I find that Dr. Ilohert Lebby is indebted to the com- plainants as executors of Dr. J. Schmidt, in the sum of two thousand seven hundred and ten dollars and sixteen cents, as stated in the account herewith filed." The defendant excepted to the report : 1. liecause the said n)aster has reported a l)alance of ^2,710 16, as due by this defendant to the com|»lainants upon a mutual accounting between them, when, in I'uct, the 334 APPEALS IN EaUlTY. Schmidt vs. Lebliy. complainants have omitted to account for the earnings and receipts of their testator for a period of more than one-third of the whole copartnership, whereas he ought to have refused to report any balance against this defendant until such ac- count had been given by the complainants, or a fair allow- ance offered to be made by them upon reasonable grounds shown by tliem. 2. Because the said master had no right to infer any such condition of the copartnership as that suggested in his report, namely, that complainants' testator was not to be bound to practice for the joint benefit, as such a condition would be contrary to the nature of the copartnership proved. 3. Because even if there had been a condition expressed in the articles of copartnership, whereby Dr. Schmidt was at liberty to decline practice, yet as the evidence shows that he did actually practice, and that for reward or pay during the period for wliich there is no account, the master should have required of the complainants a sufficient account, or a fair allowance for that period, before striking a balance against this defendant. 4. Because the evidence does not justify the master's con- clusion, that Dr. Schmidt did not receive anything for his professional services and practice during that period, as the proof to the contrary is full and conclusive, and as much as the defendant was bound to offer. 5. Because there was sufficient evidence before the master to have enabled the complainants to have proposed, and the said master to have allowed, or on the failure or refusal of the complainants to propose, for the said n)aster to have found and reported a sum to be brought into account on the part of the complainants, as the amount of the earnings of the said Dr. Schmidt for the period alluded to, and that the said master should so have found and reported. Dargan, Ch. I refer to the commissioner's report for the facts of this case. APPEALS IN EaUITY. 335 Charleston, April, 1S>60. I am with the defendant in all liis exceptions ; that is to say, I agree to all the propositions asserted therein. By the necessary in)plication of the articles of copartnershiii, l)earing date 2d Jannary, 1850, it was stipulated that Dr. Schmidt should practice medicine in conjunction with Dr. Lcbby ; that he should charge those on wliom he attended for those services, and that the benefit or gain of such practice should result to the copartnership for their mutual profit. Any other interpretation than this would make the instrument of copartnership illusory. Dr. Schmidt, by the terms of his compact, was bound to practice fi)r the benefit of the firm, and to make charges. When the partnership was fiirmed, he had a large practice, and an established reputation. Dr. Lebby was a young prac- ^ titioner and a stranger in the city. He considered it, therefore, as conducive to his interest to enter into a copartnership with Dr. Schmidt; in which the latter was to receive three-fourths of the profits, and Dr. Lebby one-fourth. Dr. Schmidt was a man far advanced in life, and though, at the time the part- nership was formed, he had a large practice, and was able to attend to it, his decadence afterwards was very rapid. The partnership was entered into on the second day of January, 1850, and was of indefinite duration. For the first part of the first year, Dr. Schmidt attended to his professional busi- ness, was active as usual, but so rapidly did his bodily infirmities grow upon him, that in the year 1852, he did but little in the way of practice ; nor was he able. There was, by this time, almost a total prostration of body and mind. Still, the partnership continued till the 1st of January, 1S53, when Dr. Schmidt being entirely incompetent for any busi- ness transactions, some members of his family intervened, and acting in the name of Dr. Schmidt, entered into other articles with Dr. Lobby, by which the partnership was dis- solved, and the original arlicl(\s modified. These last articles recite the fact of the incapacity of Dr. Schmidt, and the fact that the principal burthen of the duties of the partnership :i3f> APPEALS IN EaUITY. ' Schmidt vs. Lebby. had devolved upon Dr. Lebby, and in consideration thereof it was agreed, that for the last year of the partnership, (1852,) Dr. Lebby shonld receive two-thirds and Dr. Schmidt bnt one- third of the profits. Each of the parties had kept books, in which tlieir earnings were registered at the time when their medical services were rendered ; except that for the year 1S50, no book of Dr. Schmidt was forthcoming. On the death of Dr. Schmidt, his will was admitted to probate, and his executors, the plaintiffs, have filed this bill for an account. Bnt before the fihng of the bill, they had demanded of Dr. Lebby an acconnt. He accordingly stated an acconnt of the date of 1st August, 1853, by which he acknowledges a balance due to the estate of Dr. Schmidt of $2,157 OS. He subsequently rendered another account of the date 1st January, 1854, by which he states the balance due the estate of Dr. Schmidt to be $2,302 32. This state- ment of account was based as well upon the books kept by Dr. Schmidt, so far as they were to be had, or known to exist, as npon the books kept by Dr. Lebby. The balance was struck without condition or reservation. No other books kept by Dr. Schmidt, than those used in making up this account, are known to exist. Dr. Lebby now resists the payment of the balance thus struck by liimself, on the ground that he is entitled to demand an account of the representatives of Dr. Schmidt, for what he should have made by his practice, or of which he did actually make; or, at least, he should have an account of that kind for the year 1850, when it does not appear that Dr. Schmidt kept any books at all. It was in evidence that Dr. Schmidt sometimes rendered professional services, for which he made no charge, Bnt I am of opinion that whatever may have been Dr, Lebby's original riglits in this regard, he has concluded him- self by the account which he has slated; in which, without insisting upon the claim now set np, he has stated an ac- count, and struck a balance against himself, as before stated. He did this deliberately, and with a knowledge of all the cir- APPEALS IN EQUITY. :«7 Charleston, April, ISfiO. cnmstances. He did it twice; for the second account is the same as the first, with the additions of some further collec- tions. I do not perceive any proper ground upon which he can open this statement, and surcharge it in his own favor. Nor do I think that there is any ground for fear that injus- tice will he done hy this view of the case. By the terms of the dissolution, Dr. Lebhy was allowed two-tiiirds for the year 1852. By this arrangement, he realized about $1,446 more than he would have done under the original agreement. This, I think, was a compromise, and was intended to cover all Dr. Schmidt's short-comings and deficiencies; and would probably have not been conceded, if it had been then known or believed that Dr. Schmidt was to be called to a strict ac- count. This inference is strongly corroborated by the fact that Dr. Lehby, shortly afterwards, stated an account precisely in the way in which it would have been stated, if such had been the understanding. Upon tlie whole, I think that the defendant is concluded by his own statement, rendered by him to the representatives of Dr. Schmidt, without condition or reservation. And I also think, all the circumstances con- sidered, this view fulfils the strict justice of the case. It is ordered and decreed, that the defendant pay to the comjdainant the sum of two thousand seven hundred and ten dollars and sixteen cents, with interest from the first day of January, A. D. 1S.54. The defendant appealed, upon the ground that his Honor, the Chancellor, has erred in supposing that the agreement of dissolution of the partnership was an adjustment of the part- nership accounts, and a discharge of the testator, or his exec- utors, Irom liability to account, or that tl»e defendant's rendi- tion of his accounts as a partner was a copartnership account stated, which discharged the complainants fron» liability to account for their testator's earnings in behalf of the partner- shi[», and for monies thereby received in that behalf McCrad}}^ Campbell, for appellant. Mcnwn'nger, contra. 23 338 APPEALS IN EaUITY. Schmidt vs. Lebby. The opinion of the Court was delivered by Wardlaw, J. Tlie Chancellor adjudges that, by fair impli- cation from the articles of partnership between the testator of plaintiffs and the defendant, testator was bound by his con- tract to practice as a physician, to make proper charges for his skill and services, and to bring the compensation and gain of these services into the common fund for the advan- tage of both partners. Indeed, he adjudges in favor of the defendant all the propositions affirmed in his exceptions ; and to this extent his opinion is uncontroverted and incon- trovertible. It is of the very nature and essence of a part- nership, that each partner shall exert due diligence and skill, and devote his services and labors for the promotion of the common benefit of the concern, at such rate of compensation as may be stipulated ; and that he shall not divert from the business of the firm that portion of diligence and skill he is bound to employ, nor engage in other business adverse to the common benefit. Sto. Part., 174-185. The partners are pledged to each other that the business shall be so conducted that each njay see that it is proceeding prosperously, and not injuriously, to the common interest; and, as Judge Story says, sec. 181, each partner should keep precise accounts of all his own transactions for the firm, and have them always ready for inspection and explanation ; if he receives any money for the firm he ought, at once, to enter the receipt in the books of the firm, so that it may be open to the inspec- tion of all the partners. The testator of plaintiffs, while apparently in good health and full practice, from the begin- ning of the partnership, in January, 1850, until February, 1851, has rendered no account of his services and gains whatsoever, although, in the opinion of Dr. Fitch, he should have made twice as much as the defendant; and, although testator did enter charges in the books of the firm to the amount of $3,000 for subsequent services. In the course of the year 1852, the body and mind of testator greatly failed, and the present plaintiffs intervening in his behalf, the part- APPEALS IN EaUITY. 'Mi9 Charleston, April, 1800. nership was dissolved January 2, 18.03, and the proportion of defendant in the profits of 1852 was extended largely heyond his prof)ortion as stipulated in the original articles. The con- sideration ex|)ressed for this change in favor of defendant \v;is "justice'' to the defendant from tjie condition of Dr. Schmidt's health in 1852, in consequence of which the "larger part" — it is not said tlie whole — of the jiractice of the office had devolved on the defendant. It was stipulated in the articles of dissolution that defendant " will attend to the making out and collection of the hills and dehts due, and final closing up of the business of said partnership, distributing proceeds as collected, in accordance to the articles of copartnersliip up to January J, 1852, and for that year,'' as therein stipulated. Testator died in the former part of the year 1853; and after- wards defendant rendered an account of his receipts and dis- bursements, with the caption: " Dr. J. W, Schmidt, in account with Dr. R. Lebby, in liquidation of late firm of Schmidt & Lehby," closing with the entry: "• 1853, Aug. 1. Jialance due estate of J. W. Schmidt, $2,157 08." He also rendered a second account for 1853, with the caption: "Estate of Dr. J. W. Schmidt in account with Dr. Robert Lebby in liquida- tion ;" by which, after bringing in the former balance, he states, as of the date of December 31, 1853, " Balance of account to credit of Dr. S. to date, $2,302 32." In this con- dition of things, the bill was filed March 4, 1856, praying that defendant should pay to the said i)laintifrs " the said balance of $2,302 32, and account to them for amounts received by liim on account of the said partnership since January 1, 1854," and for general relief The defendant, in his atiswcr, filed May 14, 1856, admits that he rendered accounts exhibiting a balance in his hands from his transac- tions for the firm of $2,302 52; but he stales that no account whatever has been rendered by Dr. Schmidt or his represent- atives of testator's transactions in the business of the firm for the first thirteen months of the partnership, and he claims to retain the sum in his hands until the plaiiitifls shall so ac- 340 APPEALS IN EaUITY. Schmidt vs. Lel)l)y. count; and swears to his belief that if such account were fully and fairly stated, little or nothing would be left due by him. After answer, defendant filed a third account, headed: " Estate of J. W. Schmidt in account with Robert Lebby,"' and closing: " 1856, June 1, by balance to credit (of plain- tiffs) brought down, $407 84." All the items in all of the accounts seem to be derived from the books kept by defend- ant, and the single book kept by Dr. Schmidt, beginning in February, 1851 ; and no full adjustment from all sources is professed. The Chancellor rejected the defendant's claim for an account from the representatives of his partner, on the ground that defendant had "concluded himself by the ac- count he has stated." The defendant appeals for supposed error in this respect. The defendant does not seek to surcharge or falsify the accounts he has rendered; on the contrary, ailirms their accuracy: but he denies that they exceed a statement of his own transactions and of such of. Dr. Schmidt's as are found in one incomplete book, and that they amount, in any j)roper sense, to an account stated. We do not perceive, in tlie lights afforded to us, that these accounts are not exactly such in form and in substance as the defendant should have ren- dered, in case Dr. Schmidt or his representatives had rendered likewise full accounts as to his transactions concerning the partnership; nor that tliey were final; for defendant may have made subsequent collections, and consequently we do not find the evidence that they were intended to bar or waive an accounting from the other side. In bills for account, it is usually necessary to give jurisdiction to the Court of Equity, that there should be debits and credits, or one of them, on both sides; and in such suits the defendant is as much an actor as the })laintitf, and entitled to equal remedy and relief Cross bills in such cases are very rare, unless the defendant seek discovery from the plaintiff as to matters not suggested in the bill or insusceptible of proof aliunde. The plaintiff is entitled to an account current from APPEALS IN EaUlTY. :i4I Chnrlesion, April, 1860. the defendant, sustained by oath, and the defendant ought to be in no worse position in regard to the phiintilf. In this case, the master reports that j)laintitls " allege that they have no account of the professional business of their testator during his conneclion with Dr. Lebby ;" but this is probably an unsworn defence made tlirongli counsel, and may be for- mally true, although they have, or might obtain, full inform- ation and belief as to the extent and value of his services. The defendant has made a pi'iuia facie showing that Dr. Schmidt bestowed valuable services in the joint business, in the year 1S50 and early i)art of 1851, and the plaintiffs should not be excused from all liability by reason of vague allegations or defective information on their part. An account stated, in its proper meaning, implies a mutual accounting, and striking a balance, acknowledged on one side and accepted by the other. Sto. Eq. PL, 798; Sto. E. J., 523, 526. Between partners, where there have been dissolu- tion of the partnership and an adjustment of their affairs, showing that the concern was unprofitable, and that nothing was due from one partner to the other, but that their debts to creditors were payable by the |)artners in unequal portions, and such actual payment to creditors has been made — these circumstances are equivalent to an account stated. Such was our case of Main vs. Howland, Rich. Eq. Ca., 352. This matter of account stated is frequently pleaded by defendants in bar of further accounting, but it would be difficult to find a sound precedent for a plaintiff to employ it as ground for recovering a specific sum in equity. If he be really entitled, for such reason, to a certain sum, his ajipropriate remedy is at law by action of assumpsit. The plaintilfs in this case do not set up, in their bill, an account stated with any strict- ness of averment; and they certainly claim a further account from defendant; and it is not of regular procedure to do both in the same suit, and still bar the defendant from any counter claim. Courts of Equity wisely foster the private adjustment and 842 APPEALS IN EaUlTY. Schtiiidl vs. Lehl)y. settlement of disputed claims, but it is very unsafe to con- jecture compromises without adequate proof. We do not see in tile agreements for formation or dissolution of the partner- ship or elsewhere, satisfactory evidence tliat defendant has abandoned or waived, to any extent, or in any respect, the rights afforded to liini by the law. It may be, as the master and Chancellor suppose, that by some process of irregular justice the defendant has obtained all the profit from this partnership that he is entitled to receive; but as ministers of the law, we think the defendant has the strict right to have the result ascertained by a regular procedure. We are aware that the master may have difficulty in attaining precise results in this case, but we trust that an approximation is at least probable. It is ordered and decreed, that tlie circuit decree be set aside, and that the matters of account be recommitted to the master. Johnstone, J., concurred. O'Nkall, C. J., dissenting, said: I think the master and the Chancellor took the right view of the case. The ac- counts made up by the defendant is plainly an account stated, in which the balances struck are in favor of the deceased. If the suit was at law, the defendant would be concluded, unless error could be shewn. The same rule, I apprehend, prevails in equity. For equity is bound to fol- low, and obey the law. This is not disputed, I am told, by the majority, but they think it is not an account stated. Why? It is a statement of mutual accounts: that makes it an account stated. But it is supposed that Dr. Schmidt's accounts of his operations, as a partner, are not brought in. How does that appear? Certainly not from the account. In 1853, the defendant, and the children of Dr. Schmidt, dissolved the partnership, and in the deed drawn up on that APPEALS IN EQUITY. • 343 Charleston, April, ISOO. occasion, it is stated that Dr. Schmidt, during the year 1S52, was incapacitated by disease from attending to practice, and, therefore, it was agreed that Dr. Lebby should take, of the profits of 1852, two-thirds, and Dr. Schmidt one-third. The accounts were made up, acccording to this, by Dr. Lebby, on the 9th June, 1S56, admitting the balances due Dr. Schmidt December 31, 1853, $2,302 32, and June 1, 1856, $407 84, making an aggregate of $2,710 16. These are plain admis- sions of indebtedness to that amount, as a partner. I have seen no evidence of any n)istake in the accounts. The defendant contends that Dr. Schmidt has not account- ed for what he did as a partner. There is no doubt, if he made anything, it should have been brought into the ac- counts between them, before a balance was struck. A part only, it is alleged, was brought in, and now it is contended that Dr. Schmidt should be charged further. Striking a bal- ance, it seems to me, concedes that everything is accounted for. The master and the Chancellor are the judges of the dis- puted facts; they hold there was no evidence that Dr. Schmidt made anything beyond what is accounted for. IIow can we say otherwise ? The compromise, by which the defendant took a larger interest for 1852, and the accounts made up under it, satisfy me that the defendant is properly charged. I am, therefore, for alfirming Chancellor Dargan's decree. Decree set aside. 344 • APPEALS IN EQUITY. State Bank vs. Cox & Co. The State Bank of South Carolina vs. Hermann Cox & Co. AND OTHERS. Principal and Agent — Power of Jittorney — Bank Stock — Sale. S. befng the owner of certain shares in the stock of the State Bank, which, by the usage of the bank, could be transferred only by entry in the l>ooks of the bank, delivered her certificate of stock to her attorney B., with a blank power of attorney, authorizing a sale of the stock. B. borrowed money for his own use from C, and to secure the payment transferred to him the certificate and power of attorney: Held, that the transfer to C, who acted bona fide, and without notice ot S.'s title, was valid. BEFORE DARGAN, CH., AT CHARLESTON, FEBRUARY, 1S5S. This case will be understood from the circuit decree. Dargan, Ch. Madame Leopoldine Szemere, nee Turko- vics, a Hungarian lady, residing in Paris, wife of liarthelemy Szemere, became the owner, by purchase, of fifty shares in the State Bank of South Carolina, in Charleston ; which shares were transferred upon the books of the bank, accord- ing to the custom of that institution. Afterwards, the bank issued a new certificate of stock to her for the fifty shares, in the following form : "South Carolina, No. 5,600. " This certifies that Madame Leopoldine Szemere, nee de Turkovics, Paris, is entitled to fifty shares in the State Bank, transferable only at the bank, by the said Madame Leo- poldine Szemere, nee de Turkovics, personally, or by her attorney, "Witness the seal of the Company, and the signature of the President, at Charleston, this tenth day of July, 1852. (Signed) EDWARD SEBRING." APPEALS IN EaUITY. 345 Cliarleston, April, ISCJO. Upon this stock, Madame Szernere, by attorney, received the dividends to the ISth January, 1856. One John Boldin, a merchant in Paris, dealing in cotton, was Madame's agent, in that city. The said certificate of stock, with a power of attorney, were delivered by Madame Szeniere to said Boldin, for the purpose, as she says, of being transferred by him to one II. W. Kulitmann, of Charleston, to enable him to receive the dividends for her. Kulitmann wan her agent in Charleston, and did receive the dividends from 1852 to 1855, inclusive. It does not appear that Kuht- luann was ever in possession of the certificate of slock, or of the power of attorney, delivered to Boldin ; though Kuht- mann acted under another power to him by name, bearing date 6lh April, 1852. The power of attorney delivered to Boldin, is in words as follows: " Know all men by these presents, that I, Leopoidine Sze- rnere, nee de Turkovics, do hereby make, ordain, constitute and appoint for true and lawful attorn for and in name, to transfer one certificate, No. 5,600, dated lOth July, 1852, of the South Carolina State Bank, for fifty shares inscribed in my name on the books of said bank; and to make and execute all necessary acts of assignment and transfer thereof, with j)ower to the said attorn to substi- tute an attorney, or attornies, under for all or any of the purposes aforesaid, and to do all lawful acts re([uisite for clfecting (he premises, hereby ratifying and confirming all that the said attorney, or substitute, shall do therein by vir- tue of these presents. " In witness whereof have hereunto set hand and seal the eleventh day of November, in the year of our Lord one thousand eight hundred and fifty-two. "Signed, sealed and delivered in the presence of us, (Signed) J^eopoldine Szemere, nee de Turkovics, "Approved, Barthrlemy Szemere," [l. s.] 3*6 APPEALS IN EaUITY. State Bank vs. Cox & Co. Indorsed upon the power of attornr^y, is the following cer- tificate : "Be it known, that on the eleventh day of Novemher, one thousand eight hundred and fifty-two, before me, S. G. Good- rich, consul of the United States of America, at Paris, per- sonally appeared Leopoldiue Szemere, nee Turkovics, known to me to be the constituent named in the foregoing letter of attorney, and acknowleged the said letter of attorney to be her free act and deed. In testimony whereof, I have here- unto set my hand seal. (Signed) S. G. GOODRICH, U. S. Consul." The said Boldin being in possession of the said certificate of stock, and the power of attorney of the 11th November, 1S52, opened a negotiation with Hermann Cox & Company, commission merchants in the City of London, in which, claiming to be the owner of the stock, he proposed to them to make him certain advances of money, upon the pledge or hypothecation of the stock. Having agreed to his proposals, Boldin forwarded to the said Hermann Cox & Company, the certificate of stock and the said power of attorney; where- upon they accepted his three several drafts at three months, for ^400, £240, and £l69 10s. By their agent in Charles- ton, tliey have sold the said bank shares, and the proceeds have come into their hands. From the allegations of Mad- ame Szemere's answer, it appears that Boldin has committed a breach of trust, and has not accounted to her for the pro- ceeds of the sale of the stock ; and has become a bankrupt, with a total loss of character. Under these circumstances, there are two adverse claimants of the ownership of the stock: Hermann Cox & Company, by virtue of their pur- chase from Boldin, and Madame Szemere, on the ground that Boldin was without authority to sell, and that the sale by him to Hermann Cox & Company was, on various grounds, null and void, as against her. The bank, not knowing with which party to deal as the true owner, has APPEALS IN EaUITY. %47 Charlef'toii. April, 18C0. interpleaded them by this bill, and called them into this Court, with the view of having their rights adjudicated. To the bill, each party has filed an answer, setting forth the grounds of her and their claims. In a bill of interpleader, the answer of a defendant cannot be evidence in his favor, against the other defendant, with whom he has been inter- pleaded. As to evidence, therefore, the case must be tried on the undisputed, or authentic facts of the case, as they have been developed in the progress of the cause. The defendants, the Szemeres, do not deny the delivery by them to Boldin, of the power of attorney, with the oriuinal certificate of stock, but they deny that this was done for the purpose of clothing him with the power to sell the stock, and aver that it was, " upon the special trust and confidence, and with the express authority and instruction that they (the cer- tificate and power) should be transmitted by the said Boldin to a certain H. W. Kulitmann,in Clurleston, South Carolina, for the purpose of collecting the dividends on the said shares." Here is, indeed, a seeming inconsistency. Kuht- mann had already a formal power of attorney of (Hh Ai)ril, 1S52, to him by name, (and not in blank as to the name, as was the case in that of the Ilth Nov., 1852,) under which he (Kuhtmann) had received the dividends due on the 2d July, 1852. For what end could another power be given ? Or why send the certificate of stock, when the power which he already had, was sufficient to enable him to receive the dividends ? In tlie argument at the trial, there was much discussion on the question, whetlier certificates of bank stock were trans- ferable by delivery. Much can be said in favor of such a rule, founded upon the convenience and customs of com- merce. I incline to think that the preponderance of au- thority, as well as reason, is in favor of the affirmative of the proposition. In this particular certificate of stock, (as all others that are issued by this bank,) there is a condition expressed, that it was " transferable only at the bank." The 348 APPEALS IN EaUlTY. State Bank vs. Cox &■ Co. charter of the State Bank, S Stat., 10, contained no provision for the transfer of stock, but in sec. 17, declared that " the stock of the bank shall be assignable and transferable accord- ing to such regulations as may be instituted in tliat behalf by the directors." The president, (Mr. Edward Sebring,) who was examined as a witness, said, that so far as he knows, there is no rule, regulation, or by-law on the records or journal of the bank, by which the form or manner of trans- ferring stock is governed ; but from the time he has been con- nected with the institution, the form of language in which this certificate is couched has been used, and that they keep a transt'er book, in which all transfers and assignments of stock are made by the parties themselves, or their attornies. But I apprehend that regulations of this kind, even when they are introduced into the bank charters, are intended for the convenience, protection and security of the banks them- selves. It is to give the bank notice and information as to who are the stockholders. If the purchaser of a certificate of stock with such a provision upon its face, should not have it transferred or assigned to him at the bank, and upon the books of the bank, according to the regulation, he could not complain, if the bank should regard the original stockholder as the true owner, pay the dividends to him, and otherwise deal with him as still the owner. But as between other con- tracting parties, the rule is, must be, different. And I think I may say, without the fear of contradiction, that the transfer of stock by the owner, though not in accordance with the form prescribed by the charter, or the by-laws, will pass all the right of the shareholder, in equity, if not in law. Bank stock is property, and there is, and can be (reasonably) no inhibition in the general law of the land against its transfer, as other incorporeal chattels are transferred. The condition, then, in the certificate, that it was transferable only at the bank, &c,, I do not think can aftect, much less conclude this question. Upon the question, whether certificates of bank stock are transferable by delivery sim[)ly, I incline to think, as I have APPEALS IN EaUITY. 349 Charle^ston, April, 1800. intimated, that the prepoi)derance of authority and argument is witli tlie affirmative. But I do not affect to have arrived at a clear and assured conclusion as to this i)oint, and do not wish to predicate judgment on this principle. I wish to rest it ui)on other grounds, upon wliicli I can rely with greater confulence. Madame Szemere admits in her answer, that she delivered the power of attorney and the original certificate of stock to Boldin; not, as she says, for the piirjiose of authorizing him to sell liie stock, or to do any act in relation to the same, except simply to transmit the power and the certificate to H, W. Kuhtmann, in Charleston, South Carolina, to enable hiin to collect the dividends for her. I have already commented upon the absurdity of this statement, by referring to the fact, that she had already, on the 6th April, 1852, execute^l and delivered to Kuhtmann, a power to receive iIk; dividends ; under which he had, at the time of the execution of the power to Boldin, received one installmeni of uividends. Whatever may have been the motive for the delivery of the certificate of stock and the j)ower of attorney to Boldin, she invested him thereby, with all the indicia of properly and ownership as to said shares of stock, and if he abused her confidence, she must bear the conseqnences. From the fact that she received the dividends up to January, 1S56, it is, I think, fairly to be inferred that Madame Szemere continued to be the owner of the stock, notwithstanding the delivery of the certificate and power to Boldin. Bnt for this fact, and the inference from it, her continued ownershiji would not be proved, except by her own statement, and it would not ap- pear but that Boldin was the assignee, as the transaction with him would import. I shall assume in all that I have to say in this judgment, that Madame Szemere continued to be the true owner of the stock, and that Boldin committed a fraud in disposing of the same as his own property. Kuhtmann, her agent in Charleston, already having a formal and sulRcient power, under which he was successfully acting 350 APPEALS IN EaUITY. State Bank vs. Cox & Co. in the collection of the dividends, I can conceive of no motive for the delivery of the certificate and the j^ower to Boldin, except it was to enable him, at his own discretion, to effect a sale for her benefit. Bnt the motive is immaterial. She held him out to the world as the j)roprietur. The evi- dence is plenary that, according to commercial nsage, this possession of the certificate and a power of attorney in this form, imported ownership. Hermann Cox & Company conld not know the secret trusts and equities that subsisted between Madame Szemere and Boldin. She armed him with the le?al title to go forth and sell the stock for her; he went forth and sold for his own benefit, and put the proceeds in his own pocket. There is no doctrine of equity jurisprudence better supported by reason, as well as authority, than this : that where one or two innocent persons must sufi:er loss, it must fall on the party who, by incautious and misplaced confi- dence, has occasioned it, or placed it in the power of a third party to perpetrate the fraud by which the loss has happened. But let us look at the transaction in another light. Sup- pose that the possession by Boldin of the original certificate, and a power of attorney in this form, did not imply an owner- ship by him of the stock ? What then ? He was then her authorized agent to sell the stock. It is vain for Madama Szemere to say, that he was not to sell under the power, but to transmit it to Kahtmaim. If that be true, it was a secret arrangement between them, and not binding upon third parties. It is equally vain to say, that the language of the power conveys no authority to sell. In the plainest language it invested him with the power " to transfer" •' the fifty shares of stock, and to make and execute all necessary acts of as- signment and transfer thereof," &c. She clothed him with the power to sell; whether wisely or not, is immaterial. In pursuance of the power, he did sell. The breach of trust did not consist in the act of selling, but in not accounting. Whether Madame Szemere had a good title to the shares of APPEALS IN EaUITY. 851 Charleston, April, 1860. Stock, and Boldin a valid power to convey lier title, it con- cerned the pnrcliaser to know. But whether Boldin account- ed for the proceeds to his principal, was no concern of the purchaser. It has not been made to appear, except hy Mr. and Mrs. Szemere's own statement, tliat Tioldin has embez- zled or misappropriated the proceeds of the sale. 15nt, ad- mitting that he has, and. admitting further, that, by a parol reservation, he was not to sell under the power, it was Mad- ame Szemere who put it into his power to commit the fraud. (See 1 Dong., 529 ; Code Nap., lex IncL Story Conflict. Laws, 3S4.) There was nothing of a suspicious nature in the trans- action, (according to the evidence,) except the lapse of linie, from the execution of the j)ower, and the offer to sell to Hermann Cox & Company. This, and nothing else, (the witnesses, persons dealing in slocks, said,) was calculated to awaken suspicion. But, considering Boldin as the owner, I cannot see how that circumstance was calculated to excite suspicion. If it was considered as Boldin's stock, the pos- session of the certificate, and the power, constituted the evidence of his title. Considering him as a mere agent to sell, there was no limitation in liis power, either as to time, price, or any other terms. It was as good a power then as it was when first executed. It only behooved the purchaser to inquire if the principal was still living, and the power not being limited as to time, and remaining unrevoked, its etli- cacy remained unimpaired. It was argued that Madame Szemere was a resident of France, and that as personal property had no locality, and was attendant upon the person, tlie transfer should have lieen made according to the law of the dornicil. Two French advocates, living in Paris, were examined by coui- mission as to what form was required by the French law for the transfer of such property, or rather their of)inion was sought as to the nianner in which this particular case should be decided. 'I'he case was subiuitted to them for their opin- ion, which was very frankly and decidedly given in favor of 332 APPEALS IN EaUlTY. State Bank vs. Cox &; Co. Madame Szetnere. Such an opinion, or judgment, of course, cannot be decisive here. But when a general or abstract principle of foreign law has, or is supposed to have, a bear- ing upon a judicial question pending in our courts, it is com- petent, in this way, to seek information as to such principle of foreign jurisprudence. In this point of view, a portion of these depositions is competent evidence. It was shown by these advocates, in their depositions, that this transfer by Madame Szemere, in the form and manner in which it was made, would be invalid, and ineffectual to transfer the stock, under the provisions of the Code Napoleo7i. The fallacy of this argument consists in the assumption that the assignment, though not good under the Code Napo- leon, would not be good if made according to the lex loci sitae. The general rule, that the laws of the owner's domicil should, in all cases, determine the validity of every transfer of personal property made by the owner, is subject to some exceptions. One exception is, where tiie lex loci sitae pre- scribes some particular form of assignment or transfer; another exception is, where, from the nature of the particular property, it has a necessarily implied locality. "In Robinson vs. Bland, 2 Bur., 1079, Lord Mansfield has mentioned, as among the latter class, contracts respecting the public funds or stocks, the local nature of which requires them to be carried into execution according to the local law." And Justice Story, in commenting upon the rule, (De Con- flictu Legum, ch. 19, sec. 363, 383,) says: "the same rule may properly apply to all other stocks or funds, although of a personal nature or so made by local law ; such as bank or insurance stock, turnpike, canal and bridge shares, and other incorporeal property, owing its existence to, or regu- lated by peculiar local laws." Subject to exceptions like these, says this eminent com- mentator, ib., sec. 384, "the general rule is, that a transfer of personal property, good by the law of the owner's domicil, is valid wherever it may be situate. But it does not follow APPEALS IN EaUITY. 35:^ Charleston, April, IS60. that a transfer made by the owner, according to tlic law of the place of its actual situs, would not as completely divest his title ; nor even that a transfer by him in a foreign coun- try, which would be good according to the law of that coun- try, would not be equally eflectual, though he might not have his domicil there. For purposes of this sort, his per- sonal ])roperty may, in many cases, be deemed subject to his disposal wherever he may be at the time of the alienation." Nothing can be plainer and more directly to the point. If Judge Story is good authority, this settles the question arising on this part of the argument. The equity of Hermann Cox & Company, however, extends only to the amount of their actual advances of money. It is only upon the ground of their ])aying valuable consideration for the stock in ignorance of Madame Szemere's claim, and upon Boldin's apparent title, and authority to sell, that their equity becomes paramount to hers. Otherwise, hers would have prevailed. If they had had notice before they paid their money, they would not have been entitled to the pro- tection of this Court. It follows, that they are entitled to be reimbursed from the said stock, the sums which they advanced thereon, and the accruing interest. The opinion and judgment of this Court is, that the fifty shares of the stock of the Slate Bank of South Carolina, mentioned in the bill, standing in the name of Madame Leopoldine Jiee Turkovics, is to be, and is considered, the property of Hermann Cox & Company, to the extent of the consideration paid by them for the same. It is, therefore, ordered and decreed, that one of the masters lake an account of the sums of money advanced by the said Hermann Cox & Company, to the said John Boldin, from the date or dates of such advancements, to the time of the sale hereinafter ordered. It is further ordered and decreed, that one of the masters of this Court, on some convenient day, to be fixed by him, after duly advertising the same, do sell the said fifty shares 24 354 APPEALS IN EaUITY. State Bank vs. Cox & Co. of bank stock at public auction for cash ; and that from the proceeds of said sale, he pay to Hermann Cox & Company the aggregate sum of the money paid by them for said stock, with interest thereon, as herein directed to be calculated, and that out of the overplus, if any, he pay the costs of these pro- ceedings. It is further ordered and decreed, that the defendants, Bar- ihelemy Szemere and Leopoldine Szemere, pay the costs of this suit, out of the proceeds of the sale of the stock as above directed, if the proceeds of that sale be sufficient for that pur- pose, after satisfying the claim of Hermann Cox & Company, and if not, that they be liable for said costs generally. The defendants Szemere and wife appealed on the grounds : 1. That no right of property is vested in a vendee, even by a bona ^de sale made to him for valuable consideration by a person having possession of chattels personal, without prop- erty or authority to sell, and that such naked possession does not authorize the application of the principle, that when one of two innocent persons must suffer loss, it must fall on him who has placed it in the power of a third person to perpetrate a fraud. 2. That a certificate of bank stock is not a negotiable in- strument; nor does the legal title in the stock pass hy a delivery of the certificate ; and that the delivery and custody of the certificate passes no equitable interest, unless done with that intent. 3. That by the rules of the State Bank, the shares in that institution are transferable only at the bank, personally or by attorney. 4. That Boldin had neither properly in the shares, nor authority to sell. Or, if it be supposed that there was any authority to sell, his transactions with Messrs. Cox & Co. were by way of hypothecation or pledge ; and that an agent or factor, with authority to sell, has no authority to pledge or transfer the goods of his principal to secure his own debt. APPEALS IN EaUITY. 355 Charleston, April, 1S60. 5. That the power of attorney from Mons. and Madame Szcmere was a naked power to John Boldin, not coupled witfi any interest, and as such was revocable at any moment before action under it, and that it was so revoked. 6. That the blanks in the said power cannot be filled up, ■without authority from Monsieur and Madame Szemere, expressed or implied. 7. That the lapse of time since the execution of the power, and all the circumstances attending its transfer from Boldin to Messrs. Cox & Co., were suflicient to excite their suspicion, and caution them of his want of authority and property. S. That the question involved is not one of fraudulent dealing by an agent, within the apparent limits of his power, but one of an agent exceeding his power. 9. That although the mode of transferring a title to stock should be referred to the regulation of the bank, or the lex loci reisi/x, the acquisition of any equitable interest, under a special contract, may be governed by the law of the domicil of the contracting party. Pringle, for appellants. Messrs. Cox & Co. stand only in Boldin's shoes; their title is his. There is no evidence that any consideration was paid by Boldin to Madame Szemere, for the certificate of stock, or that he had in any way purchased it, or had any interest in it. Nor is there any proof of any contract or agreement be- tween Boldin and Madame Szemere respecting the shares. Boldin stands before the Court in no other situation than holding in his hand the naked blank power of attorney and the certificate of stock. Under these circumstances, it is only in consequence of either one of two conditions that Messrs. Cox & Co. can claim any property or interest in these shares. 356 APPEALS IN EaUlTY. State Bank vs. Cox & Co. Either, 1st, In consequence of the legal character of the certificate ; Or, 2d, In consequence of title derived by force of the cir- cumstances under which the certificate was delivered to Boldin. As to the first position that Boldin has acquired property in these shares in consequence of the legal character of the certificate — There is but one species of character which in- struments in writing possess, by force or virtue of which alone Boldin can claim title in these shares, and that is negotia- bility. Is a certificate of stock a negotiable instrument ? No contract was assignable by the common law ; bills of exchange are an exception by universal commercial law. But it required an Act of Parliament to make even promis- sory notes negotiable. This strict rule is by no means one of a technical charac- ter. As late as 1856, in Dixon vs. Bovil, 39 Eng. Law and Eq. Rep., 47, a case decided in the House of Lords, the Lord Chancellor said : " It is a rule founded in extremely good sense. In England, a plaintiff suing on a contract, unless it be under seal, must prove a consideration. In Eng- land it is a perfectly good defence to show illegality of con- sideration. When an action is brought by one of the con- tracting parties, illegality of consideration can always be pleaded as a defence. It is the policy of the law to preserve this principle intact, in order to prevent Courts being made ancillary to violations of law. Now this principle is entirely defeated if a contracting party can make a floating contract enforceable by bearer, for the bearer does not sue as assignee of the original contracting party. He may be, and probably is, a stranger to the original contract. His right, if any, is under an independent contract with himself, against which no illegality, as between the original parties, can be set up. Bills of exchange have been made an exception for the con- venience of trade, but it is an exception not to be extended. The drawer of the bill gives to the endorser a better title APPEALS IN EaUITY. 357 Charleston, April, 1S60. than his own, and (his leads or may lead to many ill conse- quences, but mercantile convenience has sanctioned it. No such necessity, however, exists in the case of other contracts, and there is no authority to warrant it. Indeed, I iriay ob- serve that the Stat. 12, Geo, III, c. 92, sec. 36, art\)rds statuta- ble authority by analogy against the present claim, for if a promissory note could not have been made transferable by indorsement, at common law, there would have been no necessity for that statute." This being the wisdom and policy of the law, an examina- tion into the principles of negotiable paper and a deduction from all the decisions will show that, in order to entitle any instrument to the character of negotiability, there must be invariably two essential ingredients — First That it must be by the custom of trade transferabie like cash upon delivery. Second. That the legal title must be conveyed to the per- son holding it, so that he may maintain an action in his own name. See note to Miller vs. Race, 1 Smith's Leading Cases, 250, and Broom's Commentaries on Common Law, 441. As to the first point, that to make an instrument negotia- ble it must by the custom of trade be transferable like cash upon delivery. The custom of trade cannot be permitted to control the policy of law, and evidence of its custom must be permitted only in subordination to that general policy. No proof of custom would permit usury. But even if evidence of cus- tom were permitted, it has utterly failed in the present in- stance. There is not a particle of proof by any one of the witnesses that such is the custom. As to the second point, that it is of the essential character- istic of a negotiable instrument, that it must be capable of being sued on by the party holding it. 358 APPEALS IN EaUITY. State Bank vs. Cox & Co. The certificate of Stock is in these words : CERTIFICATE OF STOCK. South Carolina. No. 5,600. Tliis certifies that Madame Leopoldine Szemere, 7i^e de Tiirkovics, Paris, is entitled to fifty shares in the State Bank, transferable only at the bank, by the said Madame Leopold- ine Szemere, ?iee de Turkovics, Paris, personally, or by her attorney. Witness the seal of the company, and the signa- [Seal.] tnre of the president, at Charleston, this tenth day of July, 1852. EDWARD SEBRING, President Slate Bank. It is to be observed that this is not a contract for the pay- ment of a sum certain ; it is a declaration that one is entitled only to a division in the uncertain profits of the corporation. Next — even with regard to bills of exchange and promis- sory notes, they must be made payable to bearer, liolder, order, assigns, or some such equivalent word, in order to give the person holding them, by assignment, or endorsement, a right to sue upon them. Byles on Bills, 62. Next — the certificate is under seal, and even a sealed note loses its negotiability by the seal. Foster vs. Floyd, 4 McC, 159. But the case of the Commercial Bank vs. Kortright, 22 Wend., 348, will be quoted to prove that an action of assump- sit will lie against a bank by one holding the certificate of shares, and a blank power of attorney, even when there was no transfer on the books of the bank. The case of Kortrighl, however, is essentially different from the present case. It was this: Barker, being owner of stock, sent the certificate, with a blank power of attorney, to one Barton, to efi"ect a loan of $10,000. Kortright advanced the money, and took the certificate and the blank power. Barton paid the money to Barker, and then absconded. Kortright APPEALS IN EaUITY. 359 Charleston, April, 1S60. then ticmaiided a transfer of the shares from the bank, but it was refused from some reasons connected with another bank. Upon the refusal, Kortright brought an action of assumpsit against the bank for damages. There was much question whetiicr the action should not have been in case, but the Senate of New York, constituting the highest Court of Appeals, decided, with a strong dissenting opinion, from the Chancellor Walworth, that assumpsit would lie. Now, the essential difference between Kortright's case and this is, that the consideration money, the value of the shares, was paid by Kortright, and was received by Barker, the original owner of the shares. Barker never resisted the transft'r, but the bank undertook to do so, and Kortright being, in conse- quence of the receipt of the money by Barker, the equitable owner of the shares, the Court held that there was an under- taking, on the part of the bank, to permit the transfer, and having refused, an action lay for damages. In the present case, no money has been paid to Szemere; there is nothing to constitute Messrs. Cox the equitable owners in the sense and manner that Kortright was. This view of Kortright's case was afterwards sustained and expressed in another case which arose in New York, in reference to the same bank, the case of Dunn vs. The Com- mercial Bank, W Barb., 581. This case, besides suslaining the point under discussion, is, in all its other circumstances, so very similar to the present, that it may be regarded as conclusive of the whole matter. The action in Dunn's case, as in Kortright's, was in as- sumpsit. The certificate of stock was as follows: No. 314. COMMERCIAL BANK OI-' BUFFALO. It is hereby certified that John Cleveland Greene is entitled to one hundred shares, of one hundred dollars each, in the capital stock of the Commercial Bank of Buffalo, transfcra- 3(50 APPEALS IN EaUITY. State Bank vs. Cox & Co. ble only in the books of the bank by the said stockholder or his attorney, on surrender of this certificate. In testimony whereof, tlie cashier has set his hand, this 24th day of June, 1836. 100 Shares. J. STRINHAM, Cashier. To the certificate was attached a power of attorney in the following form : Know all men by these presents, that I, John Cleveland Greene, for value received, have bargained, sold, assigned and transferred, and by these presents do bargain, sell, assign and transfer unto one hundred shares of the Capital Stock of the Commercial Bank hereunto annexed, standing in my name on the books of the said bank, and do hereby constitute and appoint my true and lawful attorney, irrevocably, &c., &c., do sell and transfer, &c., &c. Signed by J. 0. GREENE, [l.s.] At the trial in the Court below, it was insisted that no evi- dence had been presented that the plaintiff was the assignee of the stock or entitled to the same. The Judge charged for the plaintiff against the bank, and a verdict was found ac- cordingly. But the Supreme Court sent the case back, and in doing so said, after stating the facts of Kortright's case : " There is a manifest distinction between that case and this. Here there is no evidence that the plaintiff, Dunn, purchased the certificates. He does not prove that he owned them or had any interest in them whatever. It is true, he had pos- session of the certificates standing in the name of Greene and Buckland, and attached to such certificates were blank assignments and powers of attorney, authorizing the transfer to blank by blank attorney. If the plaintiff was the purchaser of these certificates, he was undoubtedly authorized, by rea- son of such purchase, and his ownership thereof, to write in his own name as he chose, as the attorney to make such APPEALS IN EaUITY. 361 Charleston, April, 1860. transfer. So far, the case of Kortright vs. The Com7uercial Bank of Bnjfalo decides. But it does not decide that the naked possession of the cert if cat es and blank assigmnents and poicers of attorney is evidence of both. Are certificates of slock, ill reference to negotiability, placed on substantially the same ground as bills of exchange and promissory notes ? Are they transferable by mere endorsement and delivery ? Are a bond and mortgage, or any other evidences of debt not negotiable, assignable by the mere act of writing the name of the party on the back, and delivering the iiistru- inent with the name on so endorsed, without any considera- tion or agreement? If not, is it not incumbent upon the party claiming under such transfer, to prove the contract or consideration? I have found no case where the holder of an instrument was authorized to write the contract under which he claimed, over the signature or endorsement, except when the proof of the consideration and contract was first made. See Leonard vs. Vredenburgh, S John, 29; Bailey vs. Free- man, 11 lb., 121; Herrich vs. Carman, 12 lb., 159; Nelson vs. Dubois, 13 lb., 175 ; Catnpbell vs. Butler, 14 lb., 340. "So, in the case o( Kortriqht vs. Commercial Ba?ik,a\i agreement and consideration was proved. But in this case the Court are called upon to presume, from the plaintiff's possession of the certificates and blank assignments and powers of attorney annexed, that he purchased t/ie stock of Greene and Buckland, and that his name was inserted or as- sumed to be inserted in the instrument as assignee. The plaintiff not only asks the Court to assume the existence of the contract or consideration to support the assignment, but that the name of Isaac T. Hatch, or the bank itself, is in- serted in the instrument as the attorney of Greene and Buck- land, and that ihey are thereby authorized to assign the stock on the books of tiie bank to the plaintiff. It seems to me that this is carrying the rule — already sufficiently broad — be- yond all precedents on that subject, and for one, I cannot consent to extend it beyond cases already adjudicated." 3()2 APPEALS IN EaUITY. State Bank vs. Cox & Co. But the argument has been pressed that from the following clause in the Act of Incorporation, of 1S02, 2 Faust, 464, " That the stock of the bank shall be assignable and trans- ferable according to such regulations as may be instituted in that behalf by the directors," it is the intention and effect of the Act to make the certificate negotiable. Directly the re- verse is the case. The object of that clause was not to con- fer any assignable or transferable qualitj^ upon the shares, for that to the same intent as all other non-negotiable contracts they already possessed by the general law; but the very plain and evident intention was to confer the authority upon the directors to make such rules as they desired. It was in ref- erence to the regulations of the directors that this section of the Act was drawn — not to the transferability of the stock. And for tliis very excellent reason, that it concerned the di- rectors very much to know who were and how many were stockholders of the bank. It would have been most ruinous if the bank were exposed to the suit of every one who hap- pened to have in his possession a certificate of the stock. But it is said that the bank has made no regulation on the subject. This certainly is not so. The bank has made reg- ulations. There are regular transfer-books kept, which, of course, are the highest evidence of the title to the shares. And the directors have fixed the terms and the language of the certificate of shares. This certificate declares that the shares are " transferable only at the bank." This is the reg- ulation which the directors have made upon the subject. It is not the less a regulation because it is contained in the cer- tificate. It is, perhaps, the most solemn and authentic regu- lation of the directors, because it is certified by, and has the sanction in each case, of the signature of the president and the seal of the corporation. So far from affording any greater facilities to the transferability of the shares, this clause of the charter was expressly enacted to enable the directors to restrain this facility, and this for the safety of the bank and the com- munity, as will appear from the remarks of ('hancellor Wal- APPEALS IN EQUITY. 363 Charlesion, April, ISGO. worth, in 22 Wend., 353: "Indeed," he says, s])eaking of JNew York, "the Legislature of this State, when they wished to restrain the negotiahility of the certificates of deposit of the New York Life Insurance and Trust Company, so as to prevent them from forming a part of the currency or circu- lating medium of the State, supposed it to be merely neces- sary to insert a provision in the Act of Incorporation that such certificates should only be transferable on the books of the company according to such regulations as the directors should establish, in the same manner as the stock was trans- ferable. I recollect distinctly being applied to by a com- mittee of the Senate on the subject — (as the principal object of the Legislature, in granting that Act of incorporation, was to provide a safe place for the investment of funds belonging to suitors of the Court of Chancery, and of infants whose funds were under the protection of that Court and the Surro- gate's) — and that this amendment was inserted for the express purpose of preventing a custom of Wall street, or any other custom, making that negotiable by a blank transfer which the Legislature had determined should not be negotiable by mere endorsement or delivery." The certificate of stock, upon these principles, not being negotiable, the direct authorities on the subject entirely sus- tain all that has been said. The first to be noticed is that of Dunn vs. The Commercial Bank, 11 Barb., 581, which has been already noticed. The question of negotiability of cer- tificates of stock was also made in the case of The Mechan- ics^ Bank vs. The New York and New Haven Railroad Com- pany, 3 Keruan, N. Y. Rept., 59.9. [n this case, the Judge, in delivering the opinion of the Court of Appeals of New York, says : " It seems to me, therefore, that we are brought directly to the question, wheth- er certificates of stock in the defendant's corporation are to be regarded as negotiable instruments, in the sense of the commercial law, so that by their endorsement and delivery to a purchaser, in good faith, a title to the stock they profess 364 APPEALS IN EaUITY. State Bank vs. Cox & Co. to represent may be acquired, although in the hands of the vendor they are spurious and void, and although the com- pany itself has never recognized the transfer. This question, I think, must be answered in the negative. They contain, in the first place, no word of negotiability. They declare sim- ply that the person named is entitled to certain shares of stock. They do not, like negotiable instruments, run to the bearer, or to the order of the party to whom they are given. "1 have examined attentively the authorities cited upon the question, but do not find that the doctrine contended for has in them the least support. In the case of Kortright vs. the Comynercial Bank, 20 Wend., 91, and 22 Wend., 347, it was held that an action of assumpsit will lie against the cor- poration in favor of the assignee of a stock certificate for refusing to permit a transfer on the books. This, and the class of cases to which it belongs, proves that a transfer, not made according to the charter or by-laws of a corporation, confers upon the transferee, in an equitable sense, the title of the previous owner. That, being thus clothed with the equi- table title, it is the duty of the corporation to permit him to take a legal transfer on the books, and that the law will imply an assumpsit for the performance of that duty. For a breach of this duty, actions of assumpsit and case have been indif- ferently maintained. In principle, the remedy should have been a special action on the case. Such was the opinion of Chief Justice Nelson, in the case referred to ; but he adds : 'It being once settled that assumpsit will lie, there is no occasion for disturbing it.' It is only material to observe that the assumpsit is not in the certificate itself, and so passing by endorsement and delivery to the transferee, but is implied after the transfer, from the duty of the corporation to clothe the equitable owner with the legal title. Such cases, so far from tending to show that a dealer in certificates acquires rights better than those of the person with whom he deals, seem to me to justify quite an opposite conclusion. They APPEALS IN EQUITY. 365 Charleston, April, 18(30. necessarily assume that the change of title is incomplete until the proper transfer is made on the books. * * * * " Looking at the question upon principle, I am not aware of anything in the nature or uses of this kind of property, which requires an application of the rules ivhich belong to negotiable securities. Stocks are not like bank bills, the immediate representative of money, and intended for circu- lation. The distinction between a bank bill and a share of bank stock, is not difficult to appreciate. Nor are they like notes or bills of exchange, less adapted to circulation, but invented to supply the exigencies of commerce, and governed by the peculiar code of the commercial law. They are not like exchequer bills and government securities, which are made negotiable either for circulation or to find a market. Nor are they like corporation bonds, which are issued in negotiable form for sale, and as a means for raising money for corporate uses. The distinction between all these and corporate stocks, is marked and striking. They are all, in some form, the representative of money, and may be satisfied by payment in money at a time specified. Certificates of stock are not securities for money in any sense, much less are they negotiable securities. They are simply muniments and evidence of the holder's title to a given share in the property and franchises of the corporation of which he is a member. The primary use and design, I must be allowed to say, of this species of property is to atTord a steady invest- ment for capital, rather than to feed the sj)irit of speculation. I am aware that peo])le will speculate in stocks, as they sometimes do in lands, and there is no law wiiich absolutely forbids it; but such, I am persuaded, is not the use for which we should hold them chiefly intended." In Edwards on Bills of Exchange, page 61, it is said : "A certificate of stock, which is not a contract for the payment of money, and is not in its tern)s negotiable, is an entirely dif- ferent instrument, and is not placed upon the footing of com- mercial paper, and,conse(iucntly, the lender taking it in good 366 APPEALS IN P^aUlTY. Stale Bank I's. Cox & Co. faith as a security for a loan of money, does not thereby acquire such a right as against the corporation, as will enti- tle him to compensation, notwithstanding the certificate was fraudulently issued by the assent of the corporation. In other words, certificates of stock in a banking association, or in a railroad company, are not securities for the payment of money that may be transferred, subject to the rules applicable to negotiable paper; on the contrary, they are simply the muni- ments and evidence of the holder's title to a given share in franchises of tlie corporation of whicli he is a member." The question of the negotiability of instruments, similar to bank stock, has very recently, in 1858, been examined by the Supreme Court of the United States in the case of Combs vs. Hodge, 21 Howard, 397. The following is a statement of that case : Combs was the proprietor of bonds issued by the State of Texas, which concluded in this way: "This certifi- cate is transferable by the said Leslie Combs, or his legal attorney or representative, on the books of the stock commis- sioner only." In 1S40, Combs endorsed two of these certificates in blank, and placed them in the hands of James Love, of Galveston, for the purpose, as he alleged, of enabling Love to receive payment, which was then expected, but which was not made. Love transferred the bonds fairly to one Andrew Hodge, for valuable consideration. By subsequent legislation of the United States and of Texas, the bonds became payable at the Treasury of the United States, where payment of them was demanded by J. Ledgear Hodge, the administrator of Andrew Hodge. Whereupon, an injunction was obtained by Combs, to stay the payment of the money until it could be decided to whom it was legally due, by proceedings between the parties, in the nature of a bill of interpleader, which were instituted in the Circuit Court of the District of Colum- bia. This Court dismissed the bill of the plaintiff. Combs; upon an appeal to the Supreme Court of the United States, APPEALS IN EaUITY. 367 Charleston, April, 1S60. the Court reversed the decree of the Circuit Court, dismissing the bill ; but in dcHveriug their opinion, the Supreme Court said, that the "case is presented in an unsatisfactory man- ner," and ordered the cause back to the Circuit Court, " with directions to allow the parties to amend the pleadings and to take testimony, if they should be so advised." Although the case was thus not finally disposed of, the Supreme Court expressed itself very emphatically and dis- tinctly, as to the character of the class of instruments which was the subject of the suit. The Court said : " The title of the defendant, therefore^ depends upon the effect to be giren to the endorsement of the certificates i?} blank by the plaintiff and their deposit wit/i Love. The question is, was he invested with such a title that a bona fide purchaser, iiaving no notice of its infirmity, will be protected against a latent defect? The law merchant accords such protection to a holder of a bill of exchange taken in the course of business, and for value, and without notice; and legislation, in Great Britain and some of the States of the Union, has extended to the same class of per- sons a similar protection in other contracts. " But this concession is made for the security and con- venience, if not to the necessities and wants of commerce, and is not to be extended beyond them. It is a departure from the fundamental principle of property — which secures the title of tlie original owner against a wrongful disposition by another person, and which does not permit one to transfer a belter title than he has. '•The party who claims the benefit of the exception must come within all the conditions upon which it depends. In the case of bills of excliange that have originated in fraud or illegality, the holder is bound to establish that he is not accessory to the illegal or fraudulent design, but a holder for value. If the bill is taken out of the course of trade, or over- due, or with notice, the rights of the liolder are subjected to the operation of the general rule. In Aishunit vs. The Man- 368 APPEALS IN EaUITY. State Bank vs. Cox & Co. ager of /he Bank of Australia, 37 L. and Eq. R., 195, Justice Erie says : ' It seems to me extremely important to draw the line clearly between negotiable instruments, properly so- called, and ordinary chattels, which are transferable by delivery, though the transferrer can only pass such title as he had. As to negotiable instruments during their currency, delivery to a h una fide holder for value gives a title, even though the transferrer should have acquired the instrument by theft, but after maturity the instrument becomes, in effect, a chattel only, in the sense I have mentioned.' "When the instrument is one which by law is not negoti- able, or when the negotiability has been restricted by the parlies, the rule of the law merchant has no application. The loss of the instrument with the name of the payee upon it, or its transfer by a faithless agent, does not impair the title of the owner. Nor can a purchaser safely draw any conclusion from the existence of an endorsement on such a paper, that the holder is entitled to sell or discount it. [Berdebach vs. Wilkins, 10 Harris, 26; Ames vs. Drew, II Foster, 475; Synunds vs. Atkinson, 37 L. and Eq., 585; 25 L. and Eq., 318.) Nor can the holder write an assignment or guarantee not authorized by the endorser (4 Duer, 45 ; 25 L. and Eq., 19; 6 Harris, 434). This doctrine has been applied to deter- mine conflicting claims to public securities which were not negotiable on their face, though the subject of frequent trans- fers. " The suit of Tonkin vs. Fuller, 3 Doug., 300, was for four victualling bills, drawn by commissioners of the victualling office on their treasurer, in favor of their creditor. These were sent to an agent, with a power of attorney, ' to receive the money and give receipts and discharges;' who pledged them for an advance of money. Lord Mansfield said, the only question is, who has the right of property in this bill ? It must be the plaintiff", unless he has done something to entitle another. It is deposited with the defendant, by one who had it under a limited power of attorney. If the plaintiff" had APPEALS IN EQUITY. 3fi9 Charleston, April, ISfiO. ever consented to the disposal of the bill, he would not be allowed to object, nor w^onld he if the money had ever come to his use. But here there is no such pretence." Glynn vs. Baker, 13 East, 500, was a suit for bonds of the East India Company, payable to their treasurer, and sold with his endorsement. Le Blanc, J., said: " Here are persons intrusted with the securities of A and B, who part with the securities of A/and when called on for them, give the securities of B. That difficulty can only be met by assimilating such securities to cash, which, whether it has an ear mark set upon it or not, if passed by the person entrusted with it to a bo?ia fide holder for valuable consider- ation without notice, cannot be recovered by the rightful owner, but how does the similitude hold?" And Lord Ellenborough said, " any individual might as well make his bond negotiable." ***** " JVe have considered this cause upon the assumption that the defendant was a holder for value.'' * * * * In delivering their opinion in this case of Combs vs. Hodge, the Supreme Court of the United States quoted and relied upon the case of Dunn vs. Commercial Bank of Buffalo, II Barb., 5S0. It has beeu urged, in argument, that certificates of stock are negotiable from their analogy to certain instruments of nego- tiable qualities, such as dock warrants, exchange bills and India warrants, and to bills of lading, whose negotiability is by no means conceded, but yet contended for. To this it may be conclusively answered that, it is evident that the first of these documents are not negotiable since it required the Stat., 6 Geo. IV, c. 94, to render them so, even in certain cases. And, in Evans vs. Ti-uinan, 2 Barn, and Adol., 886, it was decided, with regard to East India warrants, one of the most important of the class, that where the provisions of that statute do not apply, there is no negotiability for those war- rants at the common law. The argument in favor of the negotiability of bank certificates, from a comparison to bills 25 370 APPEALS IN EQUITY. State Bank vs. Cox & Co, of lading, is equally untenable, for a hill of lading is not a negotiable instrument — it is not transferable, like cash, upon delivery, nor can the person holding it maintain an action on it in his own name. The case of Lickharrow vs. Mason, 2 T. R., 63, is relied on as establishing the doctrine of the nego- tiability of a bill of lading. But "that case refers only to those instances in which a previous sale of the goods has been made to the consignee, and merely determines that if the vendee of goods re-sell them after they have left the cus- tody of the vendor, to a bona fide purchaser for value, the right of property acquired by the latter shall not be defeated by a subsequent stoppage in transitu, if he have taken an assignment of the bill of lading." Tlie idea which has been sometimes inaccurately expressed with regard to the negotiability of a bill of lading, has been very ably confuted in a tiote, by the American editor of Smith's leading cases, to the case oi Lickharrow vs. Mason, the conclusion to which is as follows: "The whole of the argu- ment against the negotiability of the bill of lading, may be summed up in a single sentence, by saying that to impress a character so new and extraordinary upon an instrument not for the payment of money, requires the authority of at least one decision, while no such decision can be found." Tliis certificate being thus in no respect negotiable, the next ciuestion is, whether Messrs. Cox & Co. can claim title [o it from the transfer to them by Boldin, by virtue of the cir- cumstances under which it was placed in Boldin's possession by Madame Szemere. These circumstances can, but from two considerations, be supposed to conter any authority upon Boldin to convey a title to Cox & Co. 1. It may be said that Madame Szemere, having invested Boldin with all the indicia of title, and liaving held him out to the world as the owner of the shares, should be liable upon any transfer which he may have made. 2. That Madame Szemere, having invested Boldin as an agent, with the power to sell, she is bound by his agency. APPEALS IN EaUITY. 371 Charleston, April, 1860. In Other words, that Madame Szemere, having rcpresontod Boldin either as owner or as agent, she is bound by all that he has done. As to the first proposition. It is not true that Madame Szemere invested B ildin with all the indicia of title, or held him out to the world as owner, so as to be liable upon any transfer which he might make. For this could be so only because the possession of the certificate conferred the legal title upon him, which is contrary to all the testimony, (see Sebring's, the president's,) and is in effect establishing that the certificate is a negotiable instrument. Or, because the mere possession of the certificate and the power of attorney indicated such absolute ownership, that any transfer which he might make, was conclusive against tlie true owner. It is difficult to ascertain upon what precise ground the cir- cuit decree rests its decision. In the first |iart of the decree, on the sixth page, the Chancellor says that he is inclined to think that the preponderance of argument and authority is in favor of the position that certificates of bank stock are trans- ferable by delivery, but that he does not rest his judgment upon that ground. On the next page, when he is discussing the principles upon which he does rest his decree, he says, and the same idea is repeated throughout the decree, that by delivering the certificate of stock and the power of attorney to lioldin, IMadan)e Szemere invested him with all the indicia of property and ownership, as to the said shares. This is btit declaring that the certificate and the power of attorney are negotiable, and that Ity the delivery of them the right to the shares passes. How can the mere delivery of the crtifi- cate and the power of attorney invest one with all the right of ownership, unless they be negotiable in their character? Atid yet the Chancellor says that he will not rest the decree upon tlie ground that the title to the shares passed by the delivery of the certificate. This is a manifest inconsistency, and shows that while the Chancellor thought he was decid- ing the case upon other principles, he was, in reality, dccid- •372 APPEALS IN EQUITY. Slate Bank r.s. Cox & Co. ing it upon tlie ground that the title passed by tlie delivery of the certificate. On the top of the 8th page, there is a declaration which at first appears to afford the unconfused idea upon which the decree rests. The Chancellor says: "There is no doctrine of equity jurisprudence better sup- ported by reason, as well as authority, than this: that where one of two innocent persons must suffer loss, it must fall on the party who, by incautious and misplaced confidence, has occasioned it, or placed it in the power of a third party to perpetrate the fraud by which the loss has happened." Now, this doctrine of equity jurisprudence, to which the Chancellor refers, proceeds upon the ground of constructive fraud — that is the reason of tlie rule. See 1 Story Eq., sec. 385. And fraud cannot be implied unless upon the doctrine of estoppel, that is, that a party has done some improper or wilful act, to which another has given credence, and to which the assertion of his own rights would be contradictory. If Madame Szemere had invested BolJin with all the indicia of title — if she had regularly transferred the shares to his name on the books of the bank, she would now be estopped from gainsaying the language which such indicia of title would hold, even although Boldin was not the owner of the shares. But, if she has not done an act which invests Boldin with the indicia of title, and by which she would now be estopped from saying that the title is still in her, she cannot be held amenable to a principle of equity jurisprudence, which pro- ceeds only upon the doctrine of estoppel. That the mere possession of the certificate and the power of attorney, is not the possession of the indicia of title, is apparent from the testimony, and every authority which has been cited. The Chancellor's application of the doctrine of constructive fraud, can proceed only from the idea that the title to the shares passed upon the delivery of the certificate, the ground upon which he desired not to rest his decree. The mere possession of property is not the possession of APPEALS IN EaUITY. 373 Cliarleston, April, 1S60. all tlio indicia of title, and the application of this doctrine of constructive fraud, that in cases where one of two innocent persons must sutler loss, the loss should fall upon hini who is the occasion of that loss, to instances of the disposal of property by one who is merely in possession of it, is entirely inconsistent with a number of well recognized and adjudi- cated cases. If the doctrine referred to by the Chancellor can be made to apply to the case of Madame Szernere, it should equally have applied to the deposit by Combs in the hands of Love, of the Texan certificates, with the blank endorsements, and yet the Supreme Court decid(>d that Love could convey no title. So, in the very recent case of Car- 7nic/ia el vs. Buck, decided in this Court, it is said: " If the mere custody of property is such evidence of ownership as to mislead, then what can a bailor do? Must he lose his property unless he go along and make continual proclama- tion of his rights and the limited contract he has made? " There is no other solution of the difficulty, it seems to me, but to declare that when one, for a specific purpose, commits his property to a limited agent, in the usual way of doing such things, he is not to be accused of holding out the agent as more than he is, or giving him the indicia of prop- f^Y'i \7 "^ "^ ^ * ^ ^ ^' "Now, what indicia of ownership did Carmichael impart to Huggins ? None whatever, according to the proof, exce])t giving him possession, and if the possession of a ballet; of this description is a sufficient indicium of ownership, to be construed into a misleading of the public, it will no longer be safe for a planter to send his cotton to market by a wagon or boat." There is this difference between Carmichael's case and that of Madame Szernere, that the raft, in his case, contained no evidence whatsoever that it did or might belong to any one else; while Madame Szemere did that which, in the striking language of Carmichael's case, was a " continual proclamation of her rights." The certificate was in her 374 APPEALS IN EaUlTY. State Bank vs. Cox & Co. name; it declared that the shares were her property, and the power of attorney which accompanied it, was special and limited by its terms to the execution of a single act. There are many other cases whicli illustrate these views; and here it will be proper to notice the case of Pickering vs. Busk, 15 East, 3S, which will be quoted on the opposite side. In that case, the purchaser of hemp had, at the time of the purchase, given orders in person that it should be transferred on the books of the warehouse from the name of the owner to the name of a broker, and a subsequent sale by the latter, without further proof of authority, was held valid against the first purchasor, in consequence of the particular course of conduct adopted by the latter. It was not the mere possession of the hemp that rendered the sale valid by the broker, but the possession of the hemp in connection with the transfer to the name of the broker on the books of the warehouse. Here was a concurrence of possession and of the indicium of title, as the entry ou the books was an evi- dence of title. If Madame Szemere had actually made a transfer on the books of the State Bank, of the shares to the name of Boldin, this case would have been perfectly analo- gous to Pickering vs. Busk, but wanting that transfer, it wants everything which makes Pickering vs. Busk, applica- ble to her case. In the case of McCombie vs. Davis, 6 East, 538, a broker, who had been in the habit of dealing in tobacco on his own account, purchased a quantity of it in his own name, and had it entered as his own in the king's warehouse. He sub- sequently pledged the tobacco as his own property, and for valuable consideratioti, to the defendant, against whom the real owner, on whose account the original purchase was made, brought trover. The questioti here presented was, whether the owner of goods, who has entrusted them to the possession of an agent, under circumstances whichr will ena- ble the agent to impress other parties with the belief that he is the owner, will be bound by the contracts of the agent, APPEALS IN EaUlTY. Charleston, April, ISGO. and the ('onrt detprruined that, in the absence both of prop- erty and anthorit}^ in the broker who had made the pledge, the jihaintilF was entitU^d to maintain his action. In this case, as in the case of Pickering vs. Busk, an entry was made of the jjroperty, on the books of the warehonse, in the name of the agent; bnt with this great difTerence between the cases, that in Pickering vs. Busk, the entry was made by the owner, in McConibie vs. Davis, tlie entry was the act of the agent. In Guerrdro vs. Pcik, 3 Barn, and Aid., 61G, 5 Eng. Com. Law, 399, the plaintiffs entrnsted Bnrmeister & Vidal, mer- chants, in London, with twenty-five pipes of wine, and a general anthority to sell. Bnrmeister & Vidal bartered the wine with the defendants for a qnantity of rnm. The de- fendants did not know that Bnrmeister Sc Vidal were merely factors, bnt, upon an action brought for the recovery of the wine, tipon the ground that the anthority of the agent was to sell and not to barter, the Conrt held that the plaintiff con Id recover. To the same effect see also Monk v<. Wkittenhunj;, 3 Barn, and Adol., 4S4 ; Taylor vs. Kijmer, 3 Barn, and Add., 320; .Indrews vs. Dietrich, 14 Wend., 31. On the sixth page of the printed decree, the Chancellor says, that the provision of the charter of the State Bank " that the stock of the bank shall be assignable and transfer- able according to such regnlations as may be instituted in that behalf by the directors," was " intended for the conven- ience, proleciion and security of the bank, and it is to give the bank notice and infcjrmation as to who are the stock- holders;" and "that the transfer of stock by the owner, though not in accordance with the form prescribed by law, will pass all the right of the shareholder in equity, if not in law." To this it may be answered, that it is difficult to per- ceive in what way the provision of (he charter referred to can conduce to the convenience, protection or security of the bank, or inform them who are the stockholders, if, as in the 37G ■ APPEALS IN EaUITY. State Bank vs. Cox & Co. present instance, the certificate of stock could, without the knowledge of the bank, be floating over the continent of Europe for three years, the property of, it may be, a dozen different proprietors, conveying at each transfer the title to the shares in equity, if not in law. If by the word " trans- fer^ used by the Chancellor, he meant anything done by the person in whose name the stock stood on the books of the bank, in consequence or furtherance of a contract proved with him, or a consideration paid to him, the law undoubt- edly is as lie has stated it. But, if by the word " transfer,^^ lie means merely the passing or delivery, or the possession of the certificate of stock, without proof of any contract or con- sideration, he has overlooked what was decided in the cases of Dunn vs. The Cofumercial Bank, 11 Barb., 581, and Combs vs. Hodge, 21 How., 359, and is amply supported by other authority, that the naked possession of the certificate and power of attorney, without proof of consideration paid to,' or contract made with the owner of the stock, is no evidence of title. The question has been made in a number of instances, but it is very important to remark, that in every case in which it has been decided that the holder of the certificate was entitled to the shares without the formality of a transfer on the boo/cs of the corporation, a consideration has been proved to have been paid to the former owner of tfie certifi- cate, or a contract made with fiim. This essential condition has escaped the Chancellor's attention throughout the whole of his decree. The following are some of the cases which have been and will be relied on to prove that the title to stock will pass even although there had beeti no transfer on the books. But in all of them it will be seen there was either a contract proved or a consideration received by the owner. In the United States vs. Vauglin, 3 Binney, 394, the question was between an attaching creditor and a bona fide purchaser for valuable consideration, to whom the certificate of the stock and a power of attorney has been delivered, although as yet there APPEALS IN EaUITY. :J77 Charleston, April, 1860. had been no transfer on the books of the bank. It was held that the attachment wonld not lie. Hnt it was the bona fides of the transaction, and the payment of the pnrchase money which gave the pnrchaser all his eqniiy. In B(iJ)Je of Utica rs. Smallay <^* Bdrron, 2 Cowen, 770, a person had been called as a witness for the bank. He was objected to becanse he was a stockholder. He immediately made a transfer of all his shares to one N. Williams, and was called again as a witness. He was again objected to, on the gronnd that the transfer was not complete, not having been made on the books of the bank. But the Court held that he was competent. This was evidently upon the gronnd that the assignment thus made was done it] pursuance of the ex- press consent and contract of the owner of the shares. In Turner vs. Marbleheud Ins. Co., 10 Mass., 476, there was a bona fide sale by a debtor to his creditor, and the Court said that such a sale in satisfaction of the debt, was sufficient to transfer the equitable interest. Here the debt was the con- sideration. So little regard do the banks pay to the possession of the certificate, that it is said in Angel and Ames on Corp., sec, 565, "A person to whom shares have been bona fide trans- ferred, will hold them without any certificate." And it is the common and constant practice to issue a new certificate of stock upon affidavit of the loss of a former one, after three months advertisement in the papers. Now, this certificate and power of attorney had been three years and three montlis in the possession of Boldin, without the knowledge of Sze- mere, during the whole of which time the bank was recog- nizing his wife as the owner of the shares, and paying her the dividends. Suppose that Szemore, finding tint Kuht- mann had not, as he thought, the certificate, had, after six months or a year, or even two years, made an affidavit of the loss, as he supposed, of the certificate, and advertisement had been made in the Charleston papers, of which Boldin, in Paris, might very probably have had no knowledge, and that 378 APPEALS IN EaUITY. State Bank vs. Cox & Co. then a new certificate had been issned to Szemere ; upon the supposition that the certificate is the true indicium of title, which of these two would have been regarded as the true one? Could the fraudulent concealment of the certificate by Boldin have given him any title? Besides, if the power of attorney and the certificate of the shares are indicia of title and of ownership, they must have been so from the date of the power, November 1 1th, 1852. In the meantime, and until the 14th February, 1S5G, the date of the transfer to Messrs. Cox & Co., a period of three years and three months, what had become of the dividends of the shares? The certificate still at that date, in the name of Mdme. Szemere, was proof that the shares had been un- transferred on the books of the bank, and, of course, that she alone could receive the dividends. If, according to the Chancellor's view, the mere delivery of the certificate was a disposal of the shares, what right could she have to the dividends? This severance of the right of the shares and the right of the dividends, is the necessary consequence of the idea that the delivery of the certificate passes the title to the shares. In the three years which had elapsed since the date of the power, six dividends had accrued, and it is in proof that they were received by Mdme. Szemere — they could have been received by no one else. If the delivery of the certificate lias the consequences contended for, six persons may have been the owners of the shares without having received the dividends. Of this extraordinary embarrass- ment Messrs. Cox & Co. must legally be supposed to have been informed. If Szemere had been curious to impress upon these shares the fact that his wife was the trne legal owner of them — if he had tasked his ingenuity to excite investigation and challenge suspicion, and invite and warn people to be upon their guard, what more could lie do than he has done. Not only did the certificate announce that it was his wife who was entitled to the shares, not only does it contain no words analogous to APPEALS IN EQUITY. 379 Charleston, April, ISGO. assigns, not only does it say that the shares can be trans- ferred, not in Europe, or anywhere, but only in a particular place, and according to the directions of a particular body, but it was accompanied with an imperfect power of at- torney — a stale, antiquated power of attorney — n)ore tiian three years old, whose very dates and gaps were sufficient to excite the alaru) and suspicion of any man wlio was not careless as to how he might ruin and embarrass himself. And this is called arming Boldin with all the indicia of title to entrap the unwary. Laying aside all legal considerations and authorities, there is not a single witness wlio has not expressed himself with great distrust as to the property which he thought Boldin had in this certificate. In the opinion of the Chancellor, the statement made by Mdme. Szemere in her answer, that she delivered the certifi- cate of the shares and the power of attorney to Boldin, for the purpose of his sending them to Kuhtmaiin to collect the dividends, is an absurdity, which is inconsistent with the possession of Kuhtmann of another power of attorney, under which all the dividends had been received. But whatever may have been the motive of Mdme. Szemere, such motive cannot control the legal effect and operation of the certificate. If her acts, of themselves, are not necessarily illegal and fraudulent, the mere conjecture and surmise of their absur- dity cannot give them that character. The intention of Mdme. Szemere is not a matter of any proof in the case, it is her own declaration which must be taken as she states it, or not at all. But attention to the imperfect knowledge which Mons. and Mdme. Szemere possess of the English language and commercial custom, and to the dates of the two powers of attorney and the certificate of stock, would have convinced the candid and impartial mind of the lamented Chancellor, of the consistency of her statement. It will be seen from the testimony of Mr, Ravcnel, and from the tran- script by Mr. Jervey, from the books of the State Bank, that prior to July, 1852, Mdme. Szemere was entitled to lliirly 380 APPEALS IN EQUITY. State Bank vx. Gcx & Co. shares in the hank. The dividends in these shares were col- lected on the 2d July, 1S52, hy Kuhtmann, under the power of attorney which he possessed, dated 26tli April, 1852. The additional shares, which are the suhject of this suit, were purchased on the 10th of July, 1852, a few days after the re- ceipt by Kuhtmann of the dividends of the thirty shares. On the 11th November, I S52, before the accrual of any dividends on the recently purchased fifty additional shares, the second power of attorney was given to Boldin to be sent to Kuht- mann in time for the collection of the January dividends on the fifty shares. Mdme. Szemere believing that without this additional power of attorney, the dividends could not be col- lected. That the power of attorney is to transfer and not to collect the dividends, can be explained from their imperfect knowledge of the English language and ignorance of busi- ness. The whole transaction is stated in the answer under the sanction of their oath, with the unreservedness of persons who prefer to rest the defence of their right upon a statement of the actual occurrence of facts. If the supposition of the Chancellor be correct, that the certificate and the power of attorney were entrusted by Mdme. Szemere to Boldin for the purpose of disposing of them, that purpose must date from the date of the power of attorney, 11th November, 1852. Yet the receipt of the divi- dends, by Mdme. Szemere, for three years, would show that she was aware that during the whole of that time he had dis- regarded her instructions. It is not usual nor natural that public securities should be allowed to remain for three years in the hands of an agent for sale. The acquiescence for so long a time in the conduct of an agent, is presumptive that that conduct is in pursuance of instructions, rather than that instructions have been given contrary to the continued con- duct of the agent. As Mdme. Szemere continued to receive the dividends from her agent, we must presume that the instructions to tliat agent were rather to receive and pay her the dividends than to sell the stock. APPEALS IN EaUlTY. :WI Charleston, April, 1S60. The Chancellor has said that the rule of the French law, which it was contended in the argument upon the circuit, should govern the transfer or pledge hy Boldin to Messrs. Cox &. Co., can have no application to the case, because, ac- cording to INIr. Justice Story, in his Conflict of Laws, ch. 19, sec. 3o3, 3S3, an exce|)tion to the general rule, that the laws of the owner's douiicil should, in all cases, determine the validity of every transfer of personal property, must be made with regard to certain stocks or funds, " such as bank or in- surance stocks, turnpike, canal and bridge shares, and other incori)orcal property, owing its existence to, or regulated by peculiar local laws." The legal title to personal property of this character is not acquired unless the local requirements are complied with. Now, in the present instance, the local requirements are, that the stock should be transferred on the books of the State Bank by Mdme. Szemere or her attorney. The application, therefore, of the rule as laid down by Mr. Justice Story, taken in connection with the idea so often ex- pressed in the circuit decree, that the entrusting Boldin wiih the certificate of stock and the power of attorney, was "in- vesting him with all the indicia of property and ownership," and "arming him with the legal title," presents this dilemma. If the possession of the mere certificate and power of attor- ney by Boldin was, by reason of the requirement of the local law, the lex loci rei sila', not such an investment of absolute title in liim as to give application to the Frencli law, the lex domicilii, then the possession of the mere certificate and power of attorney was not such an "arming him with the legal title" as was sufficient to enable him to deceive any one, or impose himself upon any one as the owner of the .sjiarcs. On the other hand, if the mere possession of the certificate and the power of attorney was, in the words of the Chancellor, " investing him with all the indicia of pro[)erly and ownership," and was "arming him with the legal title," then the requirements of the local law, the lex loci rei silx were unnecessary to the perfection of the absolute title in 382 APPEALS IN EaUITY. State Bank vs. Cox & Co. him, and the French law, the lex domicilii, should have application and govern the case. Since the delivery of the decree by Chancellor Dargan, the case of the Union Mutual Insurance Company vs. The State Bank has been decided in the Circuit Court of the United States for this State. His Honor, Judge Magrath, there ex- presses the opinion that certificates of bank stock are nego- tiable instruments. The facts were these: F. S. Lathrop, being in possession of a certificate of stock in the State Bank certifying that E. W. Bancroft was entitled to forty shares in that institution, and of a blank power of attorney executed by Bancroft, left the certificate and the power with the plain- tiff as a security for a loan made to him, the said Lathrop. Some time afterwards, the plaintiff presented the certificate at the bank and requested a transfer of the said shares to its own name. The bank refused, on the ground that it had a lien on the shares, in consequence of the indebtedness of Bancroft to it. The action was brought to recover damages in consequence of this refusal. It is to be observed that the transfer here was refused, not, as it was in Dunn's case, in 11 Barb., 581, because of there being no proof of any con- sideration received by, or contract made with Bancroft, the owner of the shares; nor was there any question of misap- propriation on the part of Lathrop. Bancroft seems to have acquiesced in the fact that the shares had been bona fide dis- posed of by him to Lathrop. He laid no claim to them. The single question was, whether a bank has a general lien upon the shares of its stockholders for their indebtedness to it, so that no transfer can be made to other persons till that indebt- edness is discharged. In determining this question, the nego- tiability of certificates of bank stock was discussed. Judge Magrath argues for the negotiability of certificates of bank stock, from their supposed analogy to railroad bonds, payable in blank, no payee being inserted. He refers to the case of White vs. The Verrnont and Massachusetts Railroad Com- jnmy, in 21 How., 575, where it was decided that bonds APPEALS IN EaUITY. 383 Charleston, April, 1S60. issued by a railroad company, payable, in blank, to a citizen of Massachusetts, which had passed through several inter- vening holders, could be filled up by a citizen of New Hamji- shire, and suit be maintained upon them. In applying the principles of this case to certificates of stock, he says that " the prhiciple laid down by the Court would be applicable to any other paper possessed of the same or similar qualities, and in that case, as has been seen, in testing the question of negotiability, the Supreme Court directed its attention to the form in which the pnper was made, as indicative of the inten- tion with which it was made, and to the mode of giving cir- culation to it, and then made reference to the usage and prac- tice of the company by which it was issued, and of capitalists and business men, and, finally, to the decision or recognition of the principles applicable to such case by Courts and Judges." Now, it is remarkable that at the same term of the Su- preme Court at which this case of JJ7iife vs. The Vet^mont and Massachuscils Railroad Company was decided, in which the Court gave its attention to the negotiability of railroad bonds, the case of Combs vs. Hodge, in which the negotia- bility of certificates of the public debt of Texas was discussed, was also decided; and, while the Court held that the railroad bonds, issued in a certain form and for certain purposes, might be regarded as negotiable, it expressed itself with equal distinctness and emphasis as to the non-negotiability of the 'I'exas certificates. The reason of this is ap[)arent, for, upon the very principles indicated by Judge Magrath, there can be no comparison or analogy between that class of instruments known as railroad bonds and that known as certificates of stock. They are not possessed of the same or similar (|ualities. They are dilTerent in their form, in their intention, in the mode by which circulation is given to tliem, and in the usage and j)ractice of the companies by which they are issued. It was the recognition of these differences which guided the Supreme Court in their decision in the «84 APPEALS IN EaUlTY. State Bank vs. Cox & Co. two cases, and which alone can make them consistent. A railroad bond, such as was the subject of suit in fVhite vs. The Vermont and Massachusetts Railroad Company, differs from a certificate of tlie public debt of Texas, and from a cer- tificate of the State Bank stock, which is similar to the Texas certificate in its form. One is an obligation for the payment of money to a blank payee, his assigns or order. The other, the bank certificate, simply certifies, without any words of assignment, that a named individual is entitled to an unas- certained division of the profits of a franchise. Judge Magrath is of the opinion that the blank power of attorney which, in the case before him, was printed at the foot of the certificate of stock, is a part of the certificate, and he would, apparently, infer that some negotiable quality was imparted to the certificate from such an incorporation of the power into it. But it is surely not the case that the power of attor- ney, so often printed at the foot or on the back of certificates of stock, is any part of such instruments, or enters at all into the contract made by them. Such blank powers of attorney are only printed, where they are, for the convenience of the holder. They are not contained under the seal of the corpo- ration, or the signature of the president, and add nothing to the character of the instrument, any more than if they were written on a separate piece of paper. A railroad bond also differs from a certificate of bank stock in the intention with which it is issued ; in the mode by which circulation is given to it ; and in the usage and prac- tice of the companies by which they are issued. One is a security for money, issued in a negotiable form, for sale, in order to seek a market, and to raise money, and is satisfied by the payment of money. The other is simply a muniment of title and evidence of the owner's right to a given share in the property and franchises of the corporation, and is designed only to afford a steady investment for capital, not for circula- tion. These differences are not slight, and being founded in APPEALS liN EaUITY. :}s5 C-hnrle^;lon, A aril. ISdO. the nature of the two classes of instriinients, are quite suffi- cient to destroy any anah)gy hetween them. Judire Magrath is also of the opinion that a certificate of stock in the State Bank is a negotiable inslrunient, in conse- quence of the section of the Act of Incorporation, which declares "that the stock of the hank shall be assignable and transferalile, according to such regulations as may be insti- tuted in that behalf by the directors." His argument is, " that when the law gives tlie stock an assignable quality, and does not at the same time qualify the effect of such an assignuHMit, it thereby makes it negotiable." I'he proposition of Judge Magrath in this part of his argu- ment is, that if without qualification a statute affirm, in refer- ence to a particular subject, the same qualities which the subject already possessed by the general or common law without the statute, the inference must be that other and dif- ferent qualities must, by the force of the statute, be conferred upon the subject, although the language used be an exact legal definition or description of the qualities or capacities possessed before the i)assing of the statute. If this be so, if a statute cannot repeat or declare the common law, without, at the same time, making new law and dilfercnt law frorn that which it repeats or declares, there can be no such thing as a " declaratory or atfirmative statute." But it has escaped Judge Magrath's attention that there is in this section of the Act of Incorporation the very qualifica- tion which, in his own opinion, would make an exc(q)tion to even his own proposition. The stock was, as he says, assign- able at common law, and the statute says that it should be assignalile and transferable according to such regulations as the directors should institute. What is this but a qualifica- tion — a limitation of its assignaliility ? If, by law, it was assignable generally, and by the statute it was assignable as the dircfttors may institute, surely this is a qualification of the assignability. ^V||atever regulations were instituted by the directors became incorporated into the statute, and had 26 386 APPEALS IN EQUITY. State Bank vs. Cox & Co. the same force and effect as if they had been specially desig- nated. When, therefore, the directors said that the stock should be transferred only on the books of the bank, it was the same thing as if the statute had so regulated the assign- ability. The effect of the enactment was to declare that the stock, which by law was assignable generally, should be assignable only on the books of the bank. There can be no doubt but that this was intcmded to be, not an extension, but a restraint upon the transferability of the stock. See the remarks of Chancellor Walworth, 22 Wend,, 353, quoted in a former part of this argument. It remains to discuss the position, that Madame Szemere, having invested Boldin as agent, with the power to sell, she is bound by the acts of his agency. The Chancellor, on the 8tli page of the circuit decree, assumes it as beyond dispute, that Boldin was the agent of Mons. and Mdme. Szemere, for the purpose of selling and disposing of the shares, and being thus authorized, he says that the breach of trust committed by him did " not consist in the act of selling, but in not accounting." He also says, that it is vain for Madame Szemere to say that Boldin was "not to sell under the power, but to transmit it to Kuhtmann ; if that be true, it was a secret arrangement between them, and not binding npon third parties." These conclusions of the Chancellor could not be denied, if it were established as niidoubtedly as he supposes that Boldin was Mdme. Szernere's " agent to sell." But this is far from being the case, for against the fact of Boldin's agency, the following propositions can be maintained: 1. That the power of attorney being in blank, and no con- sideration being paid to Mdme. Szemere by Boldin, the meie possession of the papers conferred no authority upon him to complete them by the insertion of his own name, or to con- vey a like authority to any one else by a simple transfer of the documents. APPEALS IN EaUITY. 887 Charleston, April, 1860. 2. Tluit even if he had anthnrity to complete the papers, the power is to " transfer,'' and not to " sell." 3. That even if he had the power to "sell," his transactions with Messrs. Cox & Co. are, as the Chancellor has said, hy way of hypothecation or [)ledge for his own indehtedness, and so not warranted hy a power to sell. 4. Tliat the paper in Boldin's ])ossession was, after all, only a power of attorney, not coupled with any interest, and so revocaiile at any nion)ent hofore exccntion. If either one of these propositions can be snccessfnily main- tained, the conclnsion of the Chancellor that the instrnctions of Mdme. Szemere to IJoldin to transmit the certificate and power to Knhtmann are not binding upon third persons, and that Boldin's breach of trnst did not consist in the act of sell- ing, but in not accounting, must fall to the ground. As to the first proposition, that the power of attorney bein^ in blank, and no consideration being paid to Mdme. Szemere by Boldin, the mere possession of the papers conferred no authority upon him to complete ilicm by the insertion of his own name, or to convey a like authority to any one else by a simple transfer of the documents. No man can be bound by a contract which he has not been proved to have made. If a man execute a paper with blanks, before those blanks can be filled, it must be proved how he has authorized tfiat they should be filled. This rule is so strict, that in England it has been decided that the authority to fill up the blanks in a deed must be proved by an instrutnent as solemn as the deed itself, and that it cannot be done by parol. Hobhiewhite vs. Mc- Morinc, 6 M. & W., 200. In our State, the rule has been so far relaxed, as to permit the blanks in a deed to be filled by parol authority; but still, some authority, beyond the mere possession o( the papers, is necessary. Gonrdin vs. Corn- viandcr Sr Head, n Rich,, 497. An exception has also been made to the rule in the instances of promissory notes and bills of exchange. See Russell vs. Lans^.siajf^ 2 Doug., 514 and other cases which have followed that decision, lint the :W'^ APPEALS IN EaUITY. Slate Bank v.s. Cox & Co. principle of these cases depends upon the character of the instruments. It is from their negotiability that the law raises a presumption not only of a consideration paid, and of an intention of an nncontrolled circulation, but of an implied autFiority in furtherance of their design to fill up the blanks which may be found in them. But this implication is con- fined to instruments of this description, and no case can be found which has decided that the holder of any other than a negotiable instrument is permitted to fill up blanks, unless he prove either express authority to do so, or a consideration paid by him to the maker of the instrument, from which authority may be equitalily implied. This is piecisely the point wliicii has been ruled in Dunn vs. The Com/nercial Bank of Buffalo, W Barb., 581, and confirmed by Coombs vs. Hodge, 21 How., 398. As to the second proposition, that even if Boldin had authority to complete the papers, the power is to " transter," and not to " sell." The word to " transfer" is not a syno- nyme witli the word to "sell." The difference in their signification is constantly recognized in business transac- tions. "To sell" involves the idea of bargain and negoti- ation, which is comjileted by the act of transfer. One refers to an act of contract, the oilier to tlie mere execution of the title. If it needed anything to make it appear what " transfer" means in the present instance, it is to be found in the certifi- cate which accompanied the power of attorney. In the cer- tificate of stock it is a part of the stipulation that the shares are " transferable only at the bank." Here a definite and precise meaning is attached to the word transferable, and its interpretation limited to the act to be done at the bank. In the power of attorney, which was fasttuied by a wafer to tliis certificate, the same word, "transfer," occurs. It is the only word occurring which directs what is to be done with the shares. Now, it is impossible to say that the same meaning should not be assigned to the same words in the different APPEALS IN EaUITY. 'W.) Cliarlesion. April, IS60. iiistruinents ; (hey must bo similarly coiistniod ; fhcy i^nmiot be madn to bear difrcrciit mrauiiigs. " Traiisfcr,'' in iho power, cannot mean to sell in l^ondon, or Paris, or anywliere — and " transfcM-able," in the certilinate, be confined, as it is by its context, to an act to be done only at the bank. As to the third proposition, that even if he liad power "to sell," his transactions witli Messrs. Cox & Co., are, as the Chancellor has said, by way of hypothecation and pledge for his own indebtedness, and so not warranted by the power to sell. Nothing can be clearer than tiiis, that an agent to sell lias no authority to jiledge for his own debts. No point can be more fully sustained by authority. The case of De Bou- chnunt vs. GoULsmid, 5 Ves. ,Ir., 210, is singularly similar in its circumstances, and will be sulficient. The plaintiir and his wife were entitled to one hundred and ninety-one shares in a London Assurance Company, and they executed a power of attorney to Muilman & Co. to " sell, assign and transfer all or any of the said shares." Muilman & Co., being ijidebted to the defendants, pledged to them a part of the shares belonging to the plaintiff, and a transfer was actu- ally made. IVruilman & Co. failed, and the bill was brought for a re-transfer of the shares and an account of tiie divi- dends, upon the ground that an authority to sell did not per- mit a pledge of the agent for his own di^bt. The Lord Ci.an- cellorsaid: "It has been settled with regard to goods, and there is no doubt that if goods are consigned to a factor to sell, he canmit pledge them. It must be a bona fide sale for valuable consideration. The defendants are certainly wrong in point of law, I take it not merely to be a principle of the law of England, but of tlie civil law, that if a persoji is act- ing ex maiidaln, those dealing with him must look to his mandate." The decree was, that the defendant re-transfer the stock, and pay the dividend and costs. The fourth proposition is, that the power of attorney in Holdin's possession n(»t being coupled with an interest is :^90 APPEALS IN EQUITY. State Bank v.s. Cox & Co. revocable at any momeiil before execution. The shares are yet nntransferred on the books of the bank, and still stand in Madame Szeniere's name. Up to the point of transfer, Messrs. Cox & Co. took the shares at their peril. Before the transfer which the power authorized, Messrs. Cox & ('o. have been informed of the revocation, and the power remains void in their hands. Memmin^er, De Saussure, contra. Mitchell, in reply. The opinion of the Court was delivered by Johnstone, J. This case has been pressed upon the Court as if I he transfer of the scrip by Boldin was made in the character of agent, and by way of pledge; whereas, u})on a careful examination of the facts, the scrip was represented and accepted as Boldin's own property: and it was a sale, and not a pledge. If the scrip was put into Boldin's hands by Madame Szemere under any restrictions, it was her duty to liave proved what they were ; but the only fact that bears on her transfer to him is, that she made a general delivery, with an indefinite power, in blank, before Mr. Consul Good- rich. This, according to the general course of fair business, exhibited Boldiii as the owner: and so he acted. Indeed, it it appears that from that time he received the dividends, whicli was further proof of ownership. The only formality omitted was that of filling up the blanks, and the taking out new scrip. It is well known that Courts of law as well as Courts of equity, recognize the title of a person who purchases a secur- ity in the course of a fair business, although it be not nego- tiable. If, for instance, a note payable to A, be transferred by him to B, the latter is recognized as legal holder of the paper, and although he may be obliged to use the name of APPEALS IN EaUlTY. 391 Charle.-'loi), April, ISGO. A, ill suing for the dt^bt, A will not be allowed to release the action. That the security is liable, in the hands of B, to the equities between the maker and the original payee, may be conceded. That does not touch the point now under con- sideration, which exclusively concerns the property, the security itself, as between the original payee and one to whom he has transferred it without formal assigninenl. This morning the Chief delivers an opinion, in the case of Salas vs. Carj, that the assigntnerit, comprehending not only tangi- ble property but choses, enables the assignee to sue in his own name. Whoever comes fairly by a security, as Cox did in this case, in the course of business, is entitled to hold it against him who passed it, or enabled another to pass it to him. It has been argued that the inscription of Madame S.'s name in the scrip notified Cox of her right, so as to oblige him to eiifjuire of her. Hut the plain authority was to trans- fer, wliicli (no gratuity being reasonaiily intended) was a power to sell: and a sale was made. In a large proportion of cases, especially when such scrip is carried abroad, and considerable time has elapsed from the original issue, it has passed through many hands; so that the greater has been the efllux of time, the less reason has a buyer to suppose that the ownership remains in the original party, and the more insufficient is the guide for eiupiiry. Boldin had been put in possession o{ this scrip, with an indcfinit(! power of disposition, by Madame Szemere, and if he was not the owner (of which ownership there is much evidence) she exhibited him in a light which enabled him to lay claim to the stock. Under such circumstances, ('(piity would not permit her to avail herself of the dry skeleton of title, which yet stands formally in her name, to defeat him whom she has contributed to deceive. The transfer should have been formally made ; and this Court will not take notice of that as undone which oimhl to have been done. It '.Wi APPEALS IN EaUlTY. State Bank vs. Cox & Co. will, ill all f irinaj matters, execute agreements in good faith, and as they, in fairness, should he carried out. It is ordered, that tiie appeal he dismissed, and the decree affirmed. Wardlavv, J,, concurred. O'Neall, C. J., dissenting, said : That the majority con- cede that the legal estate in the hank stock (fifty shares) is in Madame Szemere, the defendant. They hold, as I do, that the shares are not negotiable by delivery, or by any writing except that which operates to cause them to he transferred on tlie books of the bank. In this case, there has been no transfer on the books of the bank, and, of course, the shares remain in the name of Madame Szemere. But, it is contended that the other defendants, Hermann Cox & Co., who hold the scrip, and blank power of attoriif>y, which they received from Boldin, are, in equity, entitled to be reimbursed their advances out of the stock. This claim is no more than that they are entitled to hold the shares on hypothecation; and so the Chancellor's decree allows. If they had purchased, and could shew that Madame Sze- iDere intended to sell, and placed the stock and power in Boldin's hands for that purpose, then an equity would arise to ]ierfect the sale. But there is no such proof Boldin called the stock his own, and sold, or pledgfKl it as such, to raise money for his own use. Not a dollar has been traced to Madame Szemere's use. How an equity against her, under such circumstances, can arise, is what I cannot under- stand. These views are so fully sustained by the recent New York case, 7'he Mechanics Bank vs. The New York and New Haven Railroad Company, 13 N. Y. Reports, (3 Kernan) 599 to 641, that I may refer to the decision there for an answer to all the grounds assumed for Cox & Co. So, too, I concur fully in the excellent argument of Mr. Recorder Pringle, and beg leave to r(ifer to and adopt it, as fully illustrating the grounds oti which I place my dissent. *^ppeal dismissed. APPEALS IN EQUITY. '.VS.) Cliiirleslon, April, ISrtO. Wade J. Markley and Wife vs. Daniel M. Singletary. Limifatinn of Estates — Separate Estate — Parties — Infant. a father gave, by deed, a nefrro girl, to his daiipliter C, "for her support, diirinif her natural life, and at her, the said C.'!" death, the said negro grirl, together with her future is.^iie and inciease, shall he the properly of the issue of the said C." — Ilfld. that C. took an estate for life, with a v;ilid limitation to her issue as purehasers. A gift to a married daughter "lor her support during her natiirnl life"' creaies a separate estate in the daughter — Stnible. A liill for distribution of the estate of an infant who died when eleven years old. and who has been dead near twenty years, may proceed vrithoul n)aking an ad- ministrator of the infant a parly. BETORE INGLIS, CH., AT CHARLESTON, FEBRUARY, 1S60. The decree of the Circuit Court is as follows: Inglis, Ch. Elislia Mellard, late of the parish of St. James, Goo.se Creek, on 20th day of February, A. D. 1S30, made and duly delivered his deed of gift of that date, the disposing part of which is in the following word.s, to wit: "For certain causes, I do give unto Celia Ann Singletary, a certain negro girl, Sue, together with her future issue and increase, for her support during her natural life, and at her, the said Celia Ann Singletary's death, the said negro girl Sue, together with her issue and increase, shall he the property of the issue of the said Celia Ann Singletary." The immediate donee, Celia Ann Singletary, was the grand-daughter of the donor, Elislia Mellard, and at the dale of the gift, was the wife of the de- fendant, Daniel M, Singletary, and had issue, one child, Elislia Mellard Singletary, then about nine months old. The girl Sue went into the pos.session of the defendant, and if not recently removed fiy him, out of lln; jurisdiction, is still in his possession, as is also her son, 'I'oney, the only issue born to her since the gift. Celia Ann Singletary died in July, 894 APPEALS IN EaUITY. Markley vs. Singlelary. A. D, 183-5. leaving surviving her, her said husband and two children, Elisha Mellard Singletary, above nanieiJ, then six years old, and the plaintiff, Celia Ann, then about a year old — the former of these two ciiildren, died (intestate of course) in June, A. D. 1840, at the early age of eleven years, leaving his father and sister as the only distributees of any estate he was possessed of or entitled to. There has been no grant (jf administration on the personal estate of the mother, CeHa Ann, nor on that of the son, Elisha Mellard. The plaintiffs, Wade J. Markley and Celia Ann Singletary, the younger, the other child of tlie donee surviving at her death, intermarried in May, A, D. 1S55. In tlieir present bill they claim to be entitled, in the right of the wife, to an undivided share m tlie slaves Sue and Toney, and in their hire, and pray an account from the deiendant of the hire and a parti- tion of slaves and liire, conceding to the defendant the right to a share. The defendant, under the form of a demurrer, denies wholly tlie title thus set up by the plaintiffs to Sue and her increase, or any share therein, and insists that the effect of the deed of Elisha Mellard was to convey an abso- lute legal estate in the girl Sue, to the donee, which instantly became vested in the defendant, by virtue of his marital rights. The issue thus made requires for its determination the construction of the deed of gift. A gift of personalty, in terms which, if the subject were realty, would create an estate in fee conditional, carries to the donee the absolute ownership of tlie personalty. Where an estate of freehold in realty is limited to one, and in the same instrument there is contained a limitation in re- mainder, whetiier immediately or mediately, to the heirs of his body, as such, the first taker has thereby an estate in fee conditional. This is a rule of property lound:d in principles of feudal policy, absolute and invariable in its application to all cases falling within its terms, not only wholly independ- ant of the intention of the maker of the instrument, but by its very terms in positive contravention of that intention. In APPEALS li\ EaUITY. 395 Charleston, April, ISHO. deviftes the same result will follow evc^i where the forbidden purpose expresses itself by the use of other than the strictly technical words, " heirs of the body." The single int^niry in all cases is this : did the party using tiio words have in his contemplation and purpose, and tluMcfore indicate by the words used, all those indefinite successions proceeding from the body of the first taker, whensoever existing, to whom the terms ap|»ly, '' the whole line of inheiilable succession," "all the issue of every generation to come?" Or did he thereby only designate a particular individual or class of individuals, as, for example, all in a certain degree of relationship to the first taker, or all in existence at a particular period ? "Meirs of the body," and (in a devise) issue without more, import, ex m fef'rm'ni, the former objects of contemplation, that is, the indefinite succession of persons embraced within the terms. I say "without more," because this prima facie meaning of the terms may be controlled by an explanatory context. But the context must be explanatory, the purpose — to use the words in a misapplied sense, (Hayes' Lim., 17,) as designat- ing particular individuals or classes, must be evidenced "so clearly that no one can misunderstand it," or, as is elsewhere said, " by distinct and unequivocal demonstration." (Mayes' Lim., 1.5.) When we come to inquire of the adjudged cases, what it is which constitutes this distinct and unequivocal demonstration, of an inleuti(»u to use the words in a restricted sense, such as shall place the particular case out of the terms of the rule of policy, the parallel between realty and person- alty soon terminates, and we find the lines in which the cases of the one and the other sort of proj^eriy are ranged, begin presently to diverge. That which will dem(M)strate the inten- tion to designate by the words, " heirs of the body," issue not the indefinite succession, but jiarlicniar individuals or classes, as the objects of donation especially present to the donor's contemplation, when the subject of donation is personally, is often wholly inefTectual for the same purpose when it is realty. Thus, a limitation over of the subject of gift tipon the :J9«J APPEALS IN EaUITY. Markley vs. SiiisfK-tary. failure of " heirs of the body," &c., of the first taker, in terms which clearly evince that the iiltitiiate estate so limited is to take effect, if at all, not upon an indefinite failnre of heirs of the body, &.C., whensoever occnrring, but at the death of the tenant of the first freehold, is held to demonstrate certainly when the subject is personalty; and as to some of such terms, when it is realty,a purpose to indicate by the words " heirs of the body," " issue," &c., the particular individuals or class of persons, who, at that point of time, are in existence, and to whom (as part of the whole) [McCorkle vs. Black, 7 Rich. Eq,, 407,) the words may be applicable. A limitation over to ^'survivors" of the first taker has this effect, whether the sul)ject of gift be realty or personalty. {Henry vs. Archer^ Bail., 535 ; McLure vs. Young, 3 Rich. Eq., 559.) A limitation over upon the event of the first taker " leaving" no heirs of liis body, issue, &c., lias the same effect as to personalty. {Hull vs. Hull, 'J Strob. Eq, 175; Chaplin vs. Turner, 2 Rich. Eq., 130.) So, too, words of distribution, as " share and share alike," &c., or words of limitation, as " to the heirs of the body of A, and their heirs and assigns forever," superadded in the terms of direct gift to the words " heirs of the body," " issue," &c., as to personalty, but not as to really, are equally held to demonstrate such intention. And, as coming within the reason of the last rule of exception, a gift to "A for life, and after his death to be the absolute properly of the heirs of his body forever," have been adjudged to constitute such a de- monstration. Cases, such as these now alluded to, where there is considered to be the necessary " distinct and une- quivocal demonstration'" of a purpose, to use the otherwise technical words, "heirs of the body," "issue," &c., as only designating particular individuals or classes, are not excep- tions to, or relaxations of the rule of policy above stated. (Hayes' Lim., 13; 2 Jarman, 240.) They do not come within its ternjs ; there is not a limitation in remainder to the heirs of the body, as such, and, therefore, they are outside of the application. The persons designated by the words, APPEALS lx\ EQUITY. :J'J7 Chiirleston, April, IStiO. "heirs of ihe Ixxly," "issue," &c., take not by succession to, or descent from the ancestor, or first tak(!r, but directly from tfie donor, and are therefore said to take as "purchasers." There is one other general remark proper to be made. In the terms of the rule of policy, as stated iti the early part of this judgment, it will be observed, the limitation to the heirs of the body of the first laker, is said to be a limitation, " in remaintji'r."' (Hayes' Lim., 4-51; 2 Jarman, Wills, 24-4.) This word " remainder," necessarily supposes tliat the two '' limitations are of the same quality," both legal or both equitable estates. When, therefore, the freehold, limited to the ancestor, is "ecjuitable, and the remainder to his heirs special, is legal, or vice ver,^a,'" the rule is silent. The rule of policy lo which allusion has been made — tlie rule in Shelley's case — has, it is true, no direct application to estates in personalty, but when it is said that terms which create an estate in fee conditional in realty carry the absobite ownership of personalty, it becomes necessary to inquire what terms do create an estate in fee conditional in realty ; and when to this inquiry it is, among other things, answered, that an estate fur life to one, followed in the same instrument Ity an estate in remainder to the heirs of his body, &ic., \n'.- comes an estate in fee conditional in the first taker, it seems to result that instruments creating estates in personalty can- not escape wholly from the operation of the rule; it becomes, therefore, important in cases like the present, to incjnire into I he extent of its application, and how far, if at all, that appli- cation is modified, wlien the subject of gitt is personally, by the flexibility of the principles of interpretation. I proceed lo ap|)ly the general principles wbicii have been stated to the determination of the issue made between the parlies now before the Court — What estate did Celia Ann Singleiary, the immediate donee, lake in the negro Sue, under the deed of Klisha Mcllard ? What estate did her issue lake ? It luusl be observed that the instrument which created 898 APPEALS IN EaUITY. Slate Bank vs. Cox &: Co. these estates is a deed, and the term used to describe those to whom the remainder is Hmited is " issue." The word " issue," iu a deed, is designalio persojiae, always a word of purchase. An estate in fee conditional, (Hayes' Lim., 15, 52,) could not be created by deed by the use of this word, even when clearly designed as a word of limitation as " to A and his issue." Again, in il^eyerf vs. t/]nderson,[\ Strob. Eq., 344,) already adverted to, it was held that when the gift was "to A for life, and after her death to be the absolute property of the issue of her body forever," the issue of A took as pur- chasers. The reason assigned was, that the words showed an intent to constitute the "issue" a new stock of inheritance or succession ; but where personal property is the subject of gift, the words " to be the property of" are fully as effective as those other words, " to be the absolute property forever." (Williams on Personal Property, 205.) " A gift of personal- property to A simply without more, is sufficient to vest in him the absolute interest.'' How can the addition of the superfiuous words "absolute" and "forever," any more strongly import a purpose to make the " issue" a new stock of inheritance or succession ? Perliaps, too, the peculiarly definite form of expression "at her death" ought not to ])ass unobserved, in an effort to ascertain wliether there is in this instrument the required demorjstration of an intention to use the word " issue," as a designatio personurum. In order to ascertain the quantity of estate which Celia Ann Singletary took under this deed, it is pertinent to inquire into its quality. Is it legal or equitable? The gift is to her "for her support during her natural life." Do these words create an estate for the separate use of Celia Ann Singletary? No i)articular technical form of words is necessary to create a trust for the separate use of a married woman, (l Lead,, Cas. Eq., 539;) but as such separate use is in derogation of the coiumon law rights of the husband, it can be recognized only where the intent to create it is "clear and unequivocal." The cases on the subject cannot be easily, if at all, reconciled APPEALS IN EaUlTY. 899 Charleston, April, l&GO. An arrangement into three classes, of the modes in which a separate estate in a wife can be created, has been made by an eminent Chancellor of this State, {J\'''ix vs. Brad/e)/, (i Rich. E(]., 48,) thus: — 1st. Where the technical words "sole and separate nse," or others equivalent are used ; 2d, Where the marital rights are expressly excluded ; and, 3d. Where the wife is empowered to perform acts concerning the estate given to her, inconsistent with the legal disabilities of cover- ture. But the same able jurist, in a subsequent case, [Ellis vs. IVonds, d Rich. Eq., 19,) says: — "The only safe and rational rule that can be laid down, as applicable to cases of this kind, is one the enforcement of which must depend on the discreet judgment of the Conrt. If it appear to the satis- faction of the Court, upon a fair constrnclion of the whole iustrnmcnt, without wresting the meaning either to sustain the marital rights, or the separate rights of the wife, that there is a manifest intent to create a separate estate, such intent should be elfectnaled, thongh no express words of that import shonld be employed." Each case, therefore, as it occius, must be decided npon its own circumstances. In IVylie vs. fVhife, {]0 Rich. Eq., 294,) the testator gave to his son William, " during his natural life, the use atid benefit of the following negroes, &c. ; the said negroes not to be removed (mm the Slate, or be disposed of by him, or any other person whatsoever, but to remain exclusively for the annual support of my said son and family." It was held that these words creat<'d a Irnst, which extended to the wife and children of the legatee, William, and luevcnted the property from being dealt with by the creditors of William, as his le^al proj)erty, and the creditors were perpetually enjoined from selling the property under their executions at Kiw. It is true, that in the argument of the Court, some stress is laid upon the prf^hibition of removal or dis|»osiiioti, and upon the use of the word "annual." But the course of reasoning, and (^specially the anihorities cited in support of the judgment, show that the effective words were, " for the 400 APPEALS IN EaUlTY. Marliley vi. Sins'Ietarv. support of my said son and family." In the case before the Court, the gift is to a woman, at the time married, and is declared to he "for her support." These words do not seem merely to express diffusely what is implied in the gift itself, but rather a devotion of the gift to a special purpose, and by analogy to the case of ff'7/lie vs. IFhife, they import a trust for the support of t\\e /e?ne covert, which can be effectuated only by regarding it as a separate estate. So in Darky vs. Darleij, (3 Atkins, 399,) a gift to a liusband "for the liveli- hood" of the wife, was held to constitute an estate to her sole and separate use. And of what quality is a separate estate in a married woman ? It is surely equitable. Such an estate is unknown to the common law. (Adams' Eq., 243; 2 Story's Eq. Jur., sec. 13,78,82; 1 Lead. Cas. Eq., 541 ; Ellis vs. JVoocl, 9 Rich. Eq., 19.) It is the creature exclusively of equity. The instant it ceases to be an equi- table and becomes a legal estate, it perishes. "The interven- tion of a trustee is not necessary to the validity of an estate to the separate use of a married woman. If real or personal property be given to her separate use. her interests will be protected by converting the husband into a trustee." "When the inlention appears that the property bequeathed to or set- tled on the wife, shall be to her sole and separate use, whether it is so given immediately without the intervention of trus- tees, or to the husband for her. a Court of Equity will effec- tuate the intention, by converting the husband into a trustee *for the wife.'" If the words here used in the circumstances of lliis case, constitute a trust for the separate use of Celia Ann Siugletary, (and such, in the judgment of the Court, is their effect,) her husband, tlie present defendant, will be re- garded as having taken the legal estate as trustee for her dur- ing her natural lif<;. But, " at lier death," the trust ceases, and then the slave Sue and lier increase are " to be the prop- erty of the issue of the said Celia Ann Siugletary." 'JMiese latter words carry directly to the issue a clear, legal estate. And th(! life estate in the mother being equitable, and tiie APPEALS IN EQUITY. 401 Charleston, April, 1S60. remainder in licr issue being legal, the rule in Shelley's case does not apply. {.9i(.sfi>i v.s. Payne, S Ricli. Eq., 1 ; but see, as to real estate, Doug/as vs. Congrcvc, I Beav., 59.) The issue of Celia Ami Singletary, take, as purchasers. Ahhough not, perhaps, strictly necessary to the conclusion attained, it has been thought the fairer course toward the parties to consider and determine all the questions made in argument at the bar. It is the judgment of this Conrt, that under the deed of Elisha Mellard, the immediate donee, Celia Ann Singletary, took an estate for the term of her own life only, and that the issue of the said Celia Ann Singletary ioak, as pu?-c/iaser.'i, an estate in remainder after the determination of this her life estate. This disposes of the first ground of demurrer, which denies any right whatever in the plaintiffs, to the negroes Sue and Toney, or to any share in the same. It is not necessary, at this stage of the cause, to determine what persons are enti- tled to ilie estate in remainder, under the designation of " issue," whether all the issue of Celia Ann Singletary, living at her death, or only such as was alive at the date of the deed. In cither of these cases, Elisha Mellard Singletary was enti- tled at the death of his mother to take. In the one case, he would take one-half of the property, in the other, the whole of it. And this renders necessary the determination of the question made by the defendant's second ground of demurrer. Is it absolutely indispensable that a personal representative of Elisha Mellard Singletary, should be a party to these pro- ceedings? If so, the plaintiffs cannot go on in the present condition of the pleadings. It has been suggested on the part of the plaintiffs, tha< by our legislalion, making real property subject to the claims of the owner's creditors equally with personalty, and directing a comtiKMi distribution of the real and personal property of intestates, the distinction between the two classes of property, which, at the common law, was so deeply drawn, has been virtnallv abolished. And, therefore, that as in realty the legal 27 402 APPEALS IN EaUITY. Markley vs. Singletary. title is cast by descent upon the heirs, subject only to a charge for debts, so the distributees of the intestate should be con- sidered as directly succeeding to liis legal title in the per- sonalty subject to a like charge. This view of the matter is not destitute of plausibility, but this Court has so often decided that the common law distinction is not wholly abolislied, but for many purposes remains in ail its force, and that the legal title to the personalty is in the executor or administrator, as the case may be, that such a suggestion cannot be entertained. It is, however, certain, that all the persons really interested in the subject matter of this suit, are parties to it, and now before the Court. Whatever interest Elislia Mellard Singletary took under the deed of his great-grand-father, Elisha Mellard, pa sed at his death to his father, the present defendant, and his sister, the plaintiff, Celia Ann, in equal shares. It is true that, according to the strict letter of the law, this interest could reach them only through the conduit of a personal represen- tative, but a personal representative intercepts the succession only that the rights of creditors may be protected and pro- vided for. It is not possible that Elisha iVIellard Singletary could have owed any debts at his death. He lived to be only eleven years old, and his father, the present defendant, was bound in law to maintain him. [Edwards vs. Hui^gins,2 McCord, Ch. 16.) Under such circumstances, this child could not contract debts, nor be responsible in property for debts contracted for his benefit by others. To attribute debts to him is the merest fiction. He has been dead almost twenty years, and during all this interval the defend- ant has had his property in possession, and has received the income thereof; creditors of the child, if such there could be, might at any time during this long period have treated him as executor in his own wrong, and certainly would have done so. Must these proceedings be delayed, and new expense .incurred, for the purpose of making a merely formal party? And for what end? in order that such party, when made, may go through the empty show of receiving the share of Elisha APPEALS IN EaUITY. 403 Charleston, April, 1S60. IMellard Singlctary, and in the same instant distribiiliim that share between the very parties now before the Conrt, between whom it conld as well be at once distributed ? It will not be insisted that such personal representative shall give the usual public notice to creditors, and that these proceedings shall be slayt.d until twelve months from the grant of administration shall have expired. (A. A., 1789, sect. 27, 5 St., 111.) Yet, if the jirotection of creditors is the object to be secured by ail administration, that would seem to follow. Cases can certainly be found in our own books, in which it is said that where an infant, {Read vs. Ready 8 Rich., 145 ; Petigi'u vs. Fers;tison, 6 Rich. Eq., 378 ; Walker vs. May., Bail. Eq., GO; Marsh vs. Neil, Rich. Eq. Cas., 115; Spann vs. Jennings, 1 Hill, Ch., 324 ; Huson vs. Wallace, 1 Rich. Eq., ],) who has been interested in the subject matter of the suit, has died, and liis interest has, therel'ore, passed by descent to others, it is belter that a personal representative of such infant shall be a party; but no case has been cited in which such a course has been made imperative under all circumstances, or atiirmed as an invariable rule of practice, nor has any case been adduced in which, under circum- stances like the present, such a course has been required. I am of opinion that it is not indispensable that a personal representative of Elisha Mellard Singletary should be a party to this suit, but that the cause maij proceed without it. The demurrer is overruled. The defendant appealed on the grounds: 1. That the plaintitf had no title in the premises, the whole estate being vested in the defendant by the terms of the lim- itation in the deed of gift. 2. That there was not a separate estate in Mrs. Singletary. 3. That the personal representative of the estate of ilic deceased, Elisha Mellard Singlctary, was not a party to this suit, admitting that there was a gift to the issue. Simons, for appellant. Duryea, contra. 404 APPEALS IN EQUITY. Markley vs. Singletary. Per Curiam. This Court concurs in tiie decree of Chan- cellor Inglis. The motion is, therefore, dismissed, O'Neall, C. J., AND Johnstone and Wardlaw, JJ., concur- ring. Appeal dismissed. APPEALS IN EaUITY. 405 Charleston, April, 1860. William T. O'Neale vs. James Dunlap and others. Parent and Child — Advancement — Guardian and Ward — Election — Real Estate — Intestate's Estates — Acts of Le- gislature. A father being the guardian of his children, and having a sum of money of theirs in his hands, invested it in land, and the amount not being sullicieni, paid a balance from his own funds. The title he took to himself, styling him- self guardian : — Held, under the circumstances, that the balance paid was an advancement, and that the whole of the land belonged to the wards. The wards having elected to take the land, not the money, held, that it must be considered as real estate, and so treated in the distribution of the estates of the wards, some of whom were dead. The Act of 1S51, 12 Stat., 80, amending the Act of 1791, must be read as if it were part and parcel of the Act of 1791. and incorporated in it. BEFORE IXGLIS, CII., AT CHARLESTON, FEBRUARY, 1S60. This case will be sufficiently understood from the circuit decree, which is as follows: Ixglis, Ch. Catherine Dunn, widow of George Dunn, by her last will, which was admitted to probate on the 5th December, 1846, and of which James Dunlap, one of the defendants in this cause, became the qualified executor, devised a lot of land with the improvements thereon, con- sisting of a dwelling house, &c., situate on Lynch street, in the City of Charleston, to her three nieces, Ann, Margaret, and Elizabeth Dunlap, the infant daughters of the said de- fendant. For some reason mit disclosed by the evidence, this devise did not take effect in specie. Under proceedings, had in a cause wherein Robert Adams and others were plaintiffs, and James Dunlap, in his capacity of executor, and others were defendants, (the record of which has not 406 APPEALS IN EQUITY. O'Neale I's. Diiiilnp. been put in evidence on the hearing of the present cause,) the lot of hind on Lynch street, above mentioned, was sold by E. R. Laurens, Esq., then one of the masters in chance- ry, on the 20th March, 1851, and purchased by the defend- ant, James Dunlap, for th(i consideration price of twelve hundred dollars, and a conveyance tliereof was executed to him, under the style of "James Dunlap, guardian," In March, 1851, James Dunlap was, by the order of this Court, appointed guardian of the estates of liis three infant daughters, above named, and entered into bond with his codefendant, A. Dorrill, as his surety, to one of the masters, in the penalty of six hundred and sixty-four 74-100 dollars, for his fidelity as guardian. If, in the order of the Court, making this appointment, there were any terms of qualifica- tion or restriction introduced, they have not been brought to the notice of the Court. It will be assumed, therefore, that it was a general grant of guardianship, and all receipts of money belonging to the daughters, must be referred to the authority to receive thereby conferred. Crenshaw vs. Cren- shmv,4 Rich. Eq., 14. About the time when this appoint- ment was consummated, or soon thereafter, James Dunlap received from the administrator of George Dunn's estate the sum of three hundred and thirty-two 37-100 dollars, as the aggregate shares of his three wards, " in the personal estate of George Dunn," whether as distributees immediately of that estate, or, through Catherine Dunn, the widow of George, as residuary devisees and legatees, taking under her will parts of the distributive share to which she was entitled in her husband's estate, does not very clearly appear. About the same time he received from master Laurens the sum of seven hundred and fifty-eight 16-100 dollars, as "the shares of his three daughters in the sales money of the real estate of Mrs. Catherine Dunn," and gave a receipt therefor, styled in the cause aforesaid of Adams et al. vs. Dunlap et al. The bill in the present cause, which is brought by Wil- liam T. O'Neale, administrator of his deceased wife, Eliza- APPEALS IN EaUITY. 407 Charleston, April, ISr.O. bptli, fdrnirrly Elizabeth Diiiilap, one of the aforesaid three daughters and wards of the defendant, James Dnnlap, .9/a/e.?, that tlie eonsideration price of twelve hnndrcd dollars, express- ed in the deed of conveyance of the hit on Lynch street, was the ainonnt to which the three danghters were entitled as devisees of Catherine Dunn. It states, further, the appoint- ment of Uiinlap, as gnardian of the estates of his three danghters, and his receipt in that capacity of the shares to whirji, as legatees nnder the will of Catherine Dnnn, they became entitled in the personal estate of George Dnnn. And \\ prai/s that he rnay answer the premises, "as Inlly and par- ticnlarly as if the same were here rei)eated, and he therennto sp(;cially interrogated," and that he may account for the monies received by him as guardian In direct response to these statements, he says in his answer, that the aggregate Slim received by him for his danghters, to wit, one thousand and ninety dollars and fifty-three cents, including the amount ($332 37) received from the administrator of George Dunn, as their share of the i)ersonal estate of the said George, &c., and the amount (75S 16) received from master Lam ens as "the shares of his daughters in the sale money of the real estate of Catherine Dunn," was used liy him in paying the consideration price of twelve hundred dollars, and that the deficiency, to wit, one hundred and nine 47-100 dollars, was advanced out of his own funds. His answer which, in these particulars, is thus made evidence by the plaintiff, is well sustained by the circumstances disclosed by the testi- mony, as exhibited in the master's report. The three wards, Ann, Margaret, and Elizabeth, all mar- ried ; Elizabeth, who was the wife of the plaintiff, had died before the commencement of this suit, leaving surviving an infant child and her husband, to whom administration of her personal estate has been granted. Margaret, who inter- niarned with Thomas Divine, has died during the pendency of th(>se proceedings, leavini: her husband, but no issue, sur- viving. Ann intermarried with John A. Wotlon, and is still 408 APPEALS IN EaUITY. O'Neale vs. Dunlap. living. All of these persons, who were alive at the institu- tion of the suit, were made parties thereto. There has been no adrninistralion sned out on the personal estate of Marga- ret Divine, who has died since, and no proceeding, therefore, to revive as to the interest which she had in the subject mat- ter of the suit. The bill claims a partition of the lot on Lynch street, as the joint property of the three wards, and an account from the defendant, James Dunlap, of the rents of the same, (he having occupied the place since its purchase,) and also an account of all other monies received by him, as guardian, from the administrator of George Dunn, or otherwise. The evidence satisfies me, that the sum of money, to wit : one thousand and ninety 53-100 dollars, received by the defendant, James Dunlap, for his daughters, constituted the whole aggregate of their several estates. He received and lield it m the capacity of guardian. So he regarded, and such, in fact, was the character of his possession. Of his own motion, and without any authority of law, he invested this money in the lot of land on Lynch street, and added thereto of his own funds the further sum of one hundred and nine 47-100 dollars, to complete the purchase money. He, honestly enough, impressed upon the face of his title deed the fiduciary character in which he held the property. If he had done otherwise, and taken tlie title to himself, without the addition of such description, it would have made no difference, in so far as their money was invested in the purchase. There is, indeed, authority for the proposi- tion, that where such investment of trust funds is wrongful, and more especially where the purciiase has been made partly with the trustee's own funds, the beneficiaries can only claim a lien for their money upon the property ac- quired. Adams' Eq. (33) and Amer. Note; lb., 143, 2 Story's Eq. Jar., sec. 1210, 1211; lb., sec. 1258, 62; Ed- wards vs. Crenshaw, Harp. 224; Myers vs. Myers, 2 McC, 214; Zimmerman vs. Harmon, 4 Rich. Eq., 165; Hill on APPEALS IN EaUITY. 409 Chflrleston, April, 1860. Trustees, 97 and 103, 5. It seems, however, mort; conso- nant to equity and the rules which here govern the fiduciary relations, as well as more in accordance with the weight of authority, to give to the beneficiary his free choice between the pro])erty itself and tlie restoration of his money invested in it. To the extent of their money, tlierefore, used in the purchase of the lot in I>ynch street, the wards of Dunlap, or their representatives, are entitled to the exercise of this choice in the present instance. But, further, if a father pur- chase property witli his own money, and take the title in the name of his children, '*tlie transaction will be regarded, pri77ta facie, diS an advancement for the benefit of the chil- dren." The presumption thus arising may be rebutted by declarations or acts of the father wholly inconsistent with an intention to give the benefit of the purchase to the children, wade co/e??7poraneous/^ with the purc/iase ,• subseciuent acts or declarations of the father, or any other matter arising ex posl fuc/o, cnuuQt be admitted for this purpose. Here, the title is taken, not in the nawe of the children, but of the father, as tlieir guardian, which is stronger evidence, if pos- sible, of an intention to advance tlie children, as it amounts to an express declaration of trust, and precludes all idea that the purchase was, in his own intention, at the time, for his own benefit. And then, too, in the fact, that tiiis particular property had been devised to his daughters by their aunt, there was inducement, in order that her benevolent purpose should not be defeated, to supplement by tlie addition of so inconsiderable a sum from his own resources, their means, which, alone, were insutficient for tlie purchase. It is the opinion of the Court, that the daughters of the defendant, .lames Dnnlaf), or those who now represent their interests, are entitled to the whole lot on Lynch street, as the joint equitable property of the three. The lot having been thus ascertained to be the pro|H'rty of the wards, it follows that the defendant, .James Dtmlap, hav- ing had it in charge, must account to them for the annual 410 APPEALS IN EaUlTY. O'Neale vs. Dimlap. rent. Indeed, he has himself had the use and occupation of the premises, and they are still in his possession. Tlie Court is informed, at the bar, that the desire of the daughters, or those who represent their interests, is, that this account for rent with eacli daughter shall not extend further back than to the date of her marriage; for that the one-third of the rent to which each would be entiiled, may he deemed to have been rightfully used in her support and education up to that time. Wlien the terms of the devise by Catherine Dunn are adverted to, the course thus indicated seems eminently proper, and the decree will be moulded accordingly. The deaths of Elizabeth O'Neale and Margaret Divine n)ake it necessary, in order to ascertain the course of devolu- tion of their shares, to determine the nature of the property, in the regard of the Court, whether it is to be treated as realty or as personalty. The question is not free from embarrass- ment, not so much in reference to the rules of law which must determine it, as to the practical application of those rules. In the form in which the Court finds the property when called to deal with it, it is realty, and the funds of the wards wherewith it was purchased, were, in very large part, the proceeds of real property devised directly to tliern. A small portion, however, of these funds, is stated to have been their shares in the personal piroperty of George Dunn. In strictness of law, this portion must be treated as personalty, and the shares of the deceased cotenants therein must devolve accordingly on their personal representatives. Adams' Eq., 142. The same course must be pursued as to all that part of the rent which shall be found due to each, which had accrued and was in arrear at her death. 1 Will, on Ex'rs, 733. Some doubt has been suggested as to the distribution proper to be made of tlie share of Mrs. Margaret Divine, in this land and in the rent thereof The several Acts of Assem- bly, which regulate the distribution of intestates' estates, are to be regarded as constituting one system, and to be con- APPEALS IN EaUITY. 411 Charleston, April, ISOO. striied toL'ether, and so as, if possible, to harmonize the whole. The modification introdnced by the late Act, 12 Stat., SO, is to be so applied, that the original statute of 1791 shall read as if the canon applicable to the slate of things conteni plated by the new Act, stood there as now modified. The share of Mrs. Margaret Divine will, therefore, be dis- tributed — one-half to her husband, Thomas Divine, and the other half, in ecjual parts, among her father, the defendant, James Dtinlap, her sister, Mrs. Ann Wotlen, and her niece, the infant, Ella II. O'Neale. So far as the property is per- sonally, her share must, for the present, go to her pi^sotial representative. The defendant, James Dunlap, in his an- swer, sets up a demand of compensation for the boarding of Mrs. Elizabeth O'Neale and her children, during a large part of the interval between her mnrriage and her death, and for care and nursing bestowed during her illness, and claims to subject her share in the property, now to be partitioned, to the satisfaction of this demand. Whatever may be due to him on such account, must constitute a demand against the husband pe-rsonally. Much testimony was introduced at the references before the master, toiicliing the merits of his claim. I have examined it carefully, and although it might not be easy to make out from it the exact state of the a«*count between the parties, I am satisfied by this testimony, that the plaiiitilf, William T. O'Neale, is fairly indebted to the defend- ant, Jafiies Dunlaji, after all reasonable deductions are made from the aniount claimed, in a balance larger than any share iV which he is directly entitled in this property. As no decree could l)e given him, for any ascertained excess of his claim over such share, it is enough to know that an excess exists, without taking its exact measurement. In so far as the defendant, James Dunlap, holds the property in contro- versy in trust, itmnediately, for the plaintitf, O'Neale, and that is to the extent of his share in the realty, he is entitled to ask that this Court, before wliich the plaintiff has brought him, shall not compel him to surrender the means which he 4 J 3 APPEALS IN EaUITY. O'Neale vs. Diinlap. has ill his own hands, for satisfying, in whole or in part, his just demand. Morton vs. ^dams-, 1 Strob. Eq.,72; 1 Story Eq., sec. fi40. But Mrs. O'Neale's share in the personahy goes to the plaintiff, not in his own personal right, but in his capa- city of administrator, and wliat shall be his several share in this, cannot be ascertained until he shall have closed his administration and settled the estate. There may be debts to be paid. Certainly there have been expenses attending the administration, and the assertion of the rights and inter- ests which were of the intestate; all of which must be paid, before tliere can be any distribution. Beyond the share, which the plaintiff, O'Neale, as an heir of his wife, is entitled to take in the realty within the control of the Court, no pro- vision can be made in this cause for compelling him to pay the claim of the defendant, Dunlap, against him. It is ordered and decreed, that James Tupper, Esquire, one of the masters in chancery for Charleston district, after hav- ing given twenty-one days' public notice, by advertisement inserted on alternate days, in one of the daily newspapers of the City of Charleston, do sell, at public outcry, at the usual place of master's sale of real estate, all that lot of land, situ- ate on Lynch street, in the City of Charleston, which is par- ticularly described in the pleadings, on the following terms, to wit : one-third c«.?/i, and the residue in two equal instal- ments, at one and two years, with interest on the whole from day of sale, payable annually, the purchaser to secure the payment of the credit portion of the purchase money, accord- ing to the tortus, by bond, with two or more good and suffi- cient sureties, and a mortgage of the premises ; that from the cash part of the purchase money, he pay first, all the costs of the proceedings in this cause, except the costs of the refer- ences held for the investigation of the claim of the defendant, Dunlap, against the plaintiff, O'Neale, as to which each of those parlies will pay his own costs ; that he separate the residue of the purchase money into two distinct funds, in the proportion to each other of $758 16 to $332 37, holding APPEALS IN EaUITY. 4i:J Charleston, April, ISGO. and trcntiiii? the former or larger stun as realty, and the latter or smaller snm as personalty; that he slate an account between the defendant, James Dnnlap, and each of his three daughters, for one-third of a reasonable rent of the lot on Lyncii street, from the date of the marriage of the daughters respectively, until the day of sale; that he regard and treat so much of the said rent, included in each of those accounts with his two daughters, who are deceased, as was in arrear at the deatli of the said daughters, as personalty, and all the other rent as realty; that he distribute the wiiole fund which is herein directed to be treated as realty, in the manner fol- lowing, to wit: seven-eighteenths (7-ls) thereof, to John A. Wotten and wife, Ann ; three-eighteenths (3-lS) thereof to Thomas Divine; five-eighteenths (5-lS) to the infant, Ella Hamilton O'Xeale, to be delivered to her guardian, and three- eighteenths (3-18) to James Dunlap, being one-eighteenth (1-18) in his own right as heir of his daughter, Margaret, and two-eighteenths (2- IS) being the share of the plaintiff, W. T. O'Neale, as heir of his deceased wife; that he distrib- ute the fund, which is herein directed to be taken and treated as personalty, in the manner following, to wit ; one-third to John A. Wotten and wife, Ann ; one-third to the plaintiff, William T. O'Neale, as administrator of the estate of his deceased wife, Elizabeth O'Neale, and the remaining third to the personal representative of Margaret Divine; and that the share which shall fall to the defendant, James Dunlap, in this distribution, be subjected, in the master's hands, to the satisfaction of any claim arising against liim in favor of the other parlies, or any of them, upon the accounting directed in this decree. It is further ordered, that the said master do inquire and report, whether tlie infant, Ella Hamilton O'Neale, has any duly appointed guardian of her estate; if not, who is a fit and proper person to be plarcd in that trust, and will accept it; what is the probable gross value of her whole estate, what is her present age, and in what amount the person appointed 4i4 APPEALS liN EQUITY. O'Neale vs. Diinlap. to the guardianship ought to give bond for his fidelity in the trust, with leave to said master to report any special matter. The defendant, James Dunlap, appealed, and moved that the decree may be reformed, so as to declare that the house and lot in Lynch street is his own property, standing only as a security for the amount that may be due by hirn, as guard- ian, or as executor of Catharine Dunn, to his three daughters, or to their legal representatives. That this amount is cor- rectly stated by the master's report, which ought to be con- firmed. Or, failing in this, that it may be declare J he has a lien on the premises for so much of the purchase money as was his own, and did not contribute it as an advancement for the benefit of the children. And the personalty consists only of the accumulated inter- est or rents. And also, to declare that the share of Mrs. Divine, whether it be regarded as realty or personally, is to be distributed, one-half to her husband, and the other half to her father, James Dunlap, tiie appellant. 1. Because, the case, as developed by the pleadings and evidence, is not that of a guardian, executor, or trustee, specu- lating with, or trading upon, trust funds, but the contrary. The defendant, in good faith, securely and lawfully in- vested, by way of mortgage, the money of his wards, and thereby save 1 from defeat the intention of his testatrix, whose bounty it was, and he is ready and willing to account for, and })ay over the money that came to his hands, as this Court may direct, or the law require. 2. Because the Act of Assembly, of 1851, does not apply to the distribution of Mrs. Divine's share of the estate, but the same is distributable under the provisions of the Act of 1791. Campbell, for appellant. Buisf, T. Y. Simons, contra. APPEALS IN EaUITY. 415 Chiirleslon, April, ISGO. The opinion of the Court was delivered by O'Neall, C. J. In this case we concur in most of the points ruled by the Ci)anccIlor's decree. Indeed, he has so well discussed and reasojied out the matters brought in con- troversy, in that as well as in other cases brought before him, as to save us the labor of re-examination. In this case, however, we are constrained to differ with him as to the character of the property to which the wards of the defendant, Dunlap, are entitled. When they elect to take the property in which he had invested their funds they must take it, as a whole. It is all realty. The house and lot in Lyncli street, by his investment and their election, became their property. There is no i)ropricty to say that a part of the investment arising from real estate sold should be classed as realty, and a part arising from personal property should be considered per- sonalty. The whole investment made by their father of tlicir funds, and a small part of his own, as their guardian, made the house and lot theirs, and of course it is all realty. So much of the Chancellor's decree as makes a distinction can- not be sustained. We agree with him. that the Act of 1851, 12 Stat., SO, SI, is to he regarded as part and parcel of the Act of 1791. My view of the effect of an amendment is presented in my dis- senting opinion, Hill r.«. Connclhj, 4 Rich., 62fi. It is un- necessary to do more than to express our concurrence in tlie view there expressed, and which the Chancellor has enforced in this <-ase. It is, therefore, ordered and decreed, that the de be reformed in the single particular in which we differ from him, and in all other respects be atfirmed. JoH.NSToNE, J., concurred in the result. Wardlaw, J., concurred. Decree modified. 416 APPEALS IN EQUITY. Martin vs. Pelit. Mrs. M. S. Martin vs. E. W. Petit and L. F. Petit. Usury. Where the obligor of a bond, when about to re-issiie it for the purpose of raising money, represented to the new lender that the bond would be punctually paid at the end of the year : — held, that such representation did not jireclude the obligor from setting up the defence of usury. Where a bond was originally negotiated at a usurious, and then taken up and re-negotiated at a less usurious interest, to another lender, ignorant of the ori- ginal usury, Jirlrl. that the obligor could not be compelled to pay to the new lender more than the amount he received when he first negotiated the bond. BEFORE IXGLIS, CH., AT CHARLESTON, FEBRUARY, ISGO. Tliis case will be sufficiently understood from the circuit decree. Inglis, Ch. In January, 18.56, Edmund W. Pelit, one of the defendants in this cause, being under the necessity of raising a sum of money wherewith to meet demands then pressing upon him, applied to J. E. P. Lazarus, a broker, who had been in tiie habit of doing business for him, to negotiate on his behalf, a loan of $5,000. Proposals for this end were duly advertised, and an offer in reply was received from one W. K. Stewart, to advance the required amount for one year, at a discount often per centum, as the consideration therefor, in addition to the lawful interest of the whole sum. There- upon, on 15th day of that month, the defendant, E. W. Petit, made his bond of that date, conditioned for the payment of $5,000 on the 15lh day of January, 1857, with the interest on the said sum, payable semi-annually; and to secure the payinent of the same, according to the condition, by deed of the same date, mortgaged an improved lot on Hasell street, in the City of Charleston, particularly described in the plead- ings. This mortgage was duly recorded. The bond was APPEALS IN EaUITY. 417 Charleston, April, 1S60. made payable to the broker, and he was likewise the grantee in the mortgage. On the same day on which these securities bear date, they were, each, by endorsement duly made, assigned by the nominal payee and mortgagee to the lender of the money, W. K. Stewart, and the defendant, E. W. Petit, received the sum of $4,500, of which he paid $50 to Lazarus as his commissions for his services as broker in negotiating the loan. The interest was paid regularly and promptly by E. W. Petit, according to the condition of the bond during its currency. As the year of credit was about expiring, E. W. Petit was advertised by Lazarus of the necessity of being prepared to j)ay the bond at its maturity ; not being provided with the means to do this, he employed the same broker to negotiate a new loan of the same amount upon other security, with a view to discharge the former. Proposals were again advertised, but this time without success. " Petit desired Lazarus to raise the money" for him, in order to take up the bond: Lazarus knowing that the plaintiff sometimes had money for invest- ment, offered the bond " for sale," as it is said, to Mr. Aiken, the plaintitPs agent. A negotiation between the plaintilFand Petit was thereupon carried on, through Mr. Aiken on the part of the former, and the broker, Lazarus, on the part of the latter. The bond was already past due, the condition broken, but a new currency was, as the result of the negotiation, given to the old securities for a new period of another year, in consider ation of a discount of seven per centum, in addition to the lawful interest payable semi-annually as before. There was, at this point, no negotiation between the plaintiff and the assignee and holder, Stewart. The latter did not, cither per- sonally or by agent, sell the bond to the plaintitf; he only required payment from the obligor. Lazarus, in this second transaction, as in the first, was acting as the agent of Petit, from whom, in each itistance, he received his compensation for the service rendered. This negotiation was consum- 28 418 APPEALS IN EaUITY. Martin vs. Petit. mated on the 10th February, 1857, when the plaintiff paid into the broiler's hands, as the net proceeds of the bond, now issued anew, the sum of $4,650, and Petit paid the balance, $350, together with the interest in arrear from the date of the maturity of the bond, to wit, twenty-six days. The semi- annual interest on the whole sum was duly paid by Petit, on the ISth August, 1857, at the expiration of six months, and again on the 19th March, 1858, at the expiration of twelve months from the date of the re-issue, or bargain with the plaintiff, to wit: February 10th, 1857. In May, 1858, the mortgaged premises were sold to L. F. Petit, who is made a party defendant in the cause; and he, afterwards, in November of the same year, sold and conveyed with warranty against incumbrances, to a third person, who is not made a party. E. W. Petit having failed to satisfy the bond according to its condition as modified in the regard of the parties, and having ceased even to pay the semi-annual interest, the plaintiff has filed her present bill to enforce the payment by decree of this Court, and, if necessary, by a foreclosure of the mortgage security. The defendant, Edmund W. Petit, after having derived from these several transactions, originated by himself, and into which the other parties have been decoyed, at his instance, all the benefit for which, in his circumstances, he can hope, now repudiates them, and interposes between himself and the demands of those who, in his extremity, relieved him on terms, certainly in a commercial community not obnoxious to censure, the defence of usury. The law permits him to do so. The other defendant, L. F. Petit, being a purchaser for value of the mortgaged premises, and a vendor with warranty, bound to his vendee to remove the iticumbranne, naturally and reasonably desires to do this, at as little cost to himself as possible, and he puts up the same defence. The law accords to him this privilege. The duty of the Court is to administer the law. The disguises wliich men's purposes put on may not be APPEALS IN EaUITY. 419 Charleston, April, 1S60. permitted to cheat the Court, when called to pass judgment on the legal character of their acts. No doubt, '■'' bona fide notes and other securities are subjects of legitimate tratlic," and perhaps this is generally known among those who trade in money. It seems quite probable that the defendant, E. W. Petit, and those too perhaps who dealt with him, designed to rescue their several bargains, now passing under review, from the imputation of usury, by clothing them with the semblance of sucii a tratlic. But it is without controversy, that the transactions of 15th January, 1856, in which the existence of the securities before the Court had its origin ; and the subsequent transaction of the 10th February, 1857, wherein there was imparted to them a new vitality for a fur- ther term, when their real nature is discerned through their outward form, was, each of them, in fact, tainted with usury. The bargain made between the defendant, E. W. Petit, and W. K. Stewart, through the agency of Lazarus, was usu- rious. The bargain made through the same agency, between the same defendant and the plaintiff, was equally so, in the quality of the transaction, though not in its extent. Where bonds, or other securities, are originally usurious the taint of usury, and the reprobation of the law conse- quent thereupon, follows them even into tlie hands of an innocent holder. And so in the instance before the Court, if the plaintiff, on the 10th February, 1857, had in fact pur- chased this bond of Petit, and W. K. Stewart, the assignee, she must have taken it subject to the infirmity wherewith the original usury had affected it, however ignorant she might have been of the real character of its origin. The question how far, as between her and E. \V, Petit, this infir- mity might have been, in effect, cured by any misrepresenta- tions or assurances on his part, whereby she was entrapped in the purchase, which would have, in this Court at least, precluded him from setting up this defence, is not intended to be touched. Here the interest of the purchaser claims protection. 420 APPEALS IN EaUITY. Martin w. Petit. If, however, E. W. Petit had, on the 10th February, 1S57, borrowed |5,000 from the plaintifl', at seven per centum dis- count, and for tlie securing the re-payment thereof, had deliv- ered and made to her a new bond of that date, conditioned for the payment of that sum at twelve njonths, with interest semi-annually, and a new mortgage of the lot on Hasell street; and with the money thus raised, and the addition from his other resources of such further sum as was necessary, had satisfied and extinguished the present bond and mortgage, it is apprehended that such new bond and mortgage would not in that case have been, in any sense, tainted with the vice of the original securities. In what does the real nature of the transaction of the 10th February, 1857, between the plaintiff, and the defendant, E. W. Petit, ditier from the case supposed ? The fact, that, in order to avoid the expense of new papers, or for convenience or other cause, the parties, instead of passing new securities, chose to set up again the old ones, and give them a new term of probation, cannot, as it seems to the Court, change the substance of the transaction, or transmute its legal char- acter, though it may embarrass the mind in its efforts to apprehend it. Contemplate all the circumstances of the transaction as we may, it comes at last to this — the negotiat- ing a new loan by Petit from the plaintiff, the taking up by him of the old securities by payment thereof in full, effected chiefly by means of this loan, and the putting those old securities anew into currency and circulation, by their deli- very to the plaintiff with the formal assignment of the last holder. If the plaintiff had in fact bought this bond from the assignee, Stewart, by the payment to him of its full amount, she would, as has been seen, have been entitled to recover from Petit only the amount actually received by the latter from Stewart, reduced by all the payments made in the meantime. If having so bought it, after its maturity, she had agreed to forbear, and had forborne the debt for another year for the additional discount of seven per centum, the APPEALS IN EaUITY. 421 Charleston. April, ISfjO. proiiiium for such forhearancp, and all subsequent paytneiits, must have gone that much further to reduce the recovery. But the actual transaction does not seem to be either the one or the other of these supposed cases. The plainiilf lent or advanced her money directly to the defendant, Edmund W. Petit. Mr. Ailcen, the agent of the plaintiff, in his note of 23d August, 1S58, addressed to the defendant, E. W. Petit, says: "Mr. J. E. P. Lazarus, y/'o/n ivhom, as your anthorized agent , I purchased, in February, 1857, a bond of yours for ^5,000." Mr. Petit himself says, that "on the 10th February, 1S57, he paid Lazarus ^?50, commissions for iiis services in getting the money for him" — and that ^^Lazarus was his agent in this matter.''^ And Mr. Lazarus says it was at the request of Mr. Petit that he (Lazarus) tried to negotiate the bond. The bond produced is the one he nego- tiated with Mr. Aiken to enable Petit to pay Stewart the bond, Mr. Petit gave; " he was authorized by Mr. Petit to get a loan, or the extension of the bond for one year inore.^^ The Act of Assembly, A. A., 1830, 6 Stat., 409, now in force on the subject of usury, does not make void the bond, note, or other security, given for a usurious consideration; on the contrary, so much of the former Act as so provides, is, by the present Act, expressly repealed. The bond, &c.. now stands as security for the re-payment of the amount or value actually lent and advanced. The present is not the case of a borrower seeking the interposition of the Court for his relief against a usurious contract, and therefore the familiar principle of equity, a(lirm- ed in Jones vs. Kilgore, 6 Rich. Eq., 64, cited in the master's report, and designed for cases of that kind, does imt apply. The usurer, or lender, is here, seeking to enforce the usu- riotis contract, and the statute has declared in positive terms, that "the principal sum, amount, or value, lent or advanced, without any interest, shall be deemed and taken by the Courts to be the true legal debt or measure of damages, to 422 APPEALS IN EaUITY. Martin vs. Petit. all intents and jvi^'po^^^ whatsoever, to be recovered without costs." It will have appeared from what has been already said, that in the opinion of this Court, the plaintiff is the lender, and the defendant, E. W. Petit, the borrower, from her; the principal sum, amount or value lent, or advanced, is the sum ($4,650) actually received by Petit from the plaintiff, on the 10th February, 1857; and that for the re-payment of this sum the bond and mortgage were, by the agreement of the parties, to stand as security. $350, in two equal parts, intended as interest, have been received by the plaintiff. To this state of facts the provisions of the statute are to be applied. It is adjudged and decreed, that the plaintiff, M. S. Martin, do recover against the defendant, E. W. Petit, the sum of $4,300, without interest, and without costs, and have leave in the usual manner to make the mortgage security effec- tual for enforcing the payment of the same; and that for this purpose such further orders as are necessary may be taken by the plaintiff' at the foot of this decree. The complainant appealed on the ground: It is respectfully submitted, that the defendants are not entitled to set up the defence of usury upon the case made by the evidence, because whatever might have been the nature of the deahng between Stewart, the former holder of the bond, and the obhgor, yet the latter and his assigns were estopped by his conduct and assurances from setting up such a defence afterwards against the innocent assignee who had taken the bond upon the faith of this. The defendants also appeal on the ground: Because it is respectfully submitted, that they are entitled (in addition to the discount allowed on the bond) to the fur- ther discount of $500, being the difference betv/een the amount specified in the condition of the bond, and that actually received at the time of its execution. Mitchell, for complainant. APPEALS IN EaUITY. 423 Charleston, April, l&GO. It is submitted, on behalf of tlie appellant, that whatever may have been tlie rights of the original parties to the con- tract, the present defence cannot now be set up against the complainant. It may be admitted, without interfering with the positions taken on behalf of the complainant, that as a general rule, the assignee of a bond takes it in the condition in which it was, as between the original parties, and subject to the same equities; and therefore, that any objection on the ground of usury would follow it, even in the hands of a bona fide assig- nee for value ; but then to enable the obligor and his assigns to take any benefit from the application of this rule, it must appear that he has not lost it by any subsequent assurances or dealings which would make it fraudulent or unconscien- tious to set up such defence. We present it as a well-settled rule of equity jurispru- dence, that one wlio relies upon the intentional represetita- tions or conduct of another, in a matter of business, shall be protected against any subse(|uent disavowal of the party mak- ing such representation, or any claim inconsistent with it; and this principle may even be applied to the protection of one who has relied upon the mere passive conduct of an- other. The earliest application of this was probably to the pro- tection of the purchasers of land against those who, having claims, were held bound to expose such claims at the time of the purchase. " There is no principle better established in this Court, or one founded on more solid considerations of equity and ])ub- lic utility, than that which declares that if a nian knowingly, although he does it passively by looking on, suffers another to purchase and expend money on land under an erroneous opinion of title, without making known his claim, he shall not afterwards be permitted to exercise his legal rights against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estop- 424 APPEALS IN EaUITY. Martin vs. Petit. pel." P. Cii. Kent, TVendel vs. Van Renselaer, 1 Johns. Ch., 354. Here, it will be seen, the prinarlicipating in the slave; trade, hy pnrchasing tlie beings who arc its vic- tims, a jnrist must seareh for its legal solution in those prin- ciples of action which are sanctioned by the nsages, tlie national acts, and the general assent of that portion of the world of which he considers himself a part, and to whose law the appeal is made. If we resort to this standard as a lest of international law, the (picstion is decided in favor of the legality of the trade; and a jurist could not say that one engaged in it was punishable in person or property." If all this be true as to the foreign slave trade, how much less can the lawfulness of slavery, as it exists in South Carolina, be doubted hv her Judges. Personal slavery arising out of for- cible captivity, is coeval with the earliest periods of the his- tory of mankind. It is found existing, and so far as api)ears, without animadversion, in the earliest and most authentic records of the human race. It is recognized by the codes of the most polished races of antiquity. Under the light of Christianity itself, the possession of persons so acquired has been in every civilized country invested with the character of property, and secured as such by all the protections of law. Solemn treaties have been framed, and national monopolies eagerly sought to facilitate the commerce in this asserted property ; and all this with all the sanction of law, public and municipal. Le Louis, 2 l)od.,250; Wildm. Int. L., 10. 1 must hrsoii every- where; but on the return of tiie person to the place of his domicil, he will occupy liis former position ; if a slave, that of a slave. And that in case of the removal of a slave into Ohio temporarily, who returns with or to his owner of Ken- tui'ky, the effect upon the sfatns of the slave is to he deter- mined by the law of the latter State, atid not that of the State where the slave had been. To the same effect are Strader vs. Graham, supra ; Collins vs. »,^f7ierica, 9 H. INIon., 565. 14 lb., 358. In Lewis vs. Fullerlon, I Rand. Va., 15, it was held that a slave going from Virginia to Ohio, with the consent of his master, for a temporary purpose, animn rcver- tendi, does not thereby acquire title to freedom in Virginia, although by judgtnent in Ohio on habeas corpus, such right in the slave had been declared. The case of Dred Scott which, however contemned in Ohio, is law here, maintains the same general doctrine. It is argued for the executor that, conceding the soundness of this doctrine in tfie main, it is inapplicable to this case, which is within an exception to the rule, because before the slaves reached Ohio, their master had repeatedly announced his settled intention to emancipate them, as his motive for conducting them thither. This is really the special and dis- tinguishing point of this case; and it has been carefully and deliberately considered. Intention is defined by Webster, the fixed direction of the mind to a particular object, or a determination to act in a particular manner; and it is distinguishable from motive, that which incites or stimulates to action, and from attempt, which is an inchoate elTort towards action. In legal contem- plation, intention means the purpose or design with which a wilful act is done, characterizing the act; yet it is properly inferred, that one who does an act wilfully intends the natu- ral and proximate consequences of the act, although unfore- seen. An attempt to commit a crime is in matiy cases of iisclf a misdemeanor, and in treason it has been held, that a 490 APPEALS IN EQUITY. Willis v.1. JoUiffe. mere imagination of the heart, evinced by some overt act towards effectuating it, is equally culpable and punishable as if carried into execution ; but a bare criminal intent, ex- pressed in words, gestures or otherwise, without further pro- ceeding to the crime contemplated, is not punishable. The same principle is applicable to contracts, and all dealings cognizable in Courts. Intention alone is utterly insufficient and inadequate. 14 Jno., 324; 19 Jno., 53. An intention to give, sell, or manumit, is not a gift, sale, or manumission. Every intention or purpose is revocable. A formal distinc- tion is sometimes made between a transient purpose and a fixed purpose, and such epithets serve well enough to indi- cate the comparative feebleness and strength of the determi- nation for the time being to do the thing, but they lead to confusion if employed or understood to intimate a difference in the nature of purpose. In strict propriety of speech, no bare intention is fixed, in the sense of being unalterable. It must be either abandoned or executed, and in both cases ceases to be intention. In the present case, the general intent of the testator to take Amy and her children to Ohio and emancipate them, was repeatedly expressed, but he said nothing as to the time and mode of emancipation. He never intimated the purpose of setting them free by the mode of visiting with them the land of Ohio, and there is no proof of any act or speech towards emancipation, not even of the continuance of his general intent, after his arrival there; indeed, he died almost instantly after leaving the steamboat Strader. It is quite consistent with all his declarations proved, that it was his purpose to emancipate these slaves, by formal deed, months after his arrival there, provided, after examination of all the circumstances, he remained of the same mind. The question is as to his purpose after he reached Ohio, not before. The condition of adhering to it, or the right to retract it, applies as well to a purpose of emancipation, as to any other purpose; and adherence to it can be demonstrated only by some sufficient and irrevocable act. On a former APPEALS IN EaUITY. 491 Columhia, May, 1860. occasion, when he visited Maryland with the same view, "Willis did retract, and the locus penitentias still abided in him when he touched Ohio. By our law emancipation can be accomplished only by the legislature, and the master has no power by any act of his within the limits of the State, to achieve such j)urpose; and, surely, when it is asserted that a master has emancipated his slaves by something done abroad. Courts of the State should be fully satisfied of the complete- ness of the foreign emancipation. A will for most purposes speaks at the testator's death, or as it has been quaintly expressed, "utters his last words." 1 Ves. Sr., 53. In the present instance, the testator directs his executors to emanci- pate Amy and her children, and tiie acting executor pursued the direction, and delivered to them formal deeds. In Simon- ton vs. TVigg, Charleston, January, 185S, where certain slaves were sent by their master from South Carolina to Cuba, a slaveholding country, for the purpose of making them {ree, it was adjudged by the law Court that they were not free. In Cross vs. Black, 9 Gill and J., 19S, a master started with his slaves to a non-slaveholding State for the jjurpose of set- ting them free, but changed his mind before reaching his destination. Held, that this was not emancipation, as there was no consummation of iiis purjiose. It is adjudged that Amy and her ch'ldren were not free persons at the death of testator, and consequently that the bequests for their benefit are void by 4 sec. A. A. 1841. Since Morris vs. Bishop of Durham, 9 Ves., 399, 10 Ves., 522, it has been the rule, that when a trust has been imposed, and no beneficial ititerest is designed for the trustee, if the trust fail for any cause, the trustee shall not hold for his own benefit, and a trust results to the grantor or his next of kin. In Johnson vs. Clarkson, 3 Rich. E., 305, a testator gave his estate to his executor on trusts or conditions for the benefit of his slaves, which trusts were void by the Act of lS41,and it was held, that no beneficial interest was given to the exec- utor, and that a trust resulted to the next of kin of testator. ^ibercrombie vs. Id., Ala. R., 489; 3 Alk., 72. It follows 492 APPEALS IN EaUlTY. Willis vs. JollifTe. that the next of kin of Elijah Willis are entitled to the estate given ineffectually by his will, for the benefit of his slaves Amy and her children. No issue is made by the pleadings as to the liability of the executor, regularly a party, for the value of the negroes in Ohio, and the question has not been considered. It is ordered, that a writ of partition be issued under the direction of the commissioner, to divide the lands and slaves of the testator among his distributees, in the proportions prescribed by the Act for distributing the estates of intestates. It is further ordered, that the parties to the cause have leave to apply at the foot of this decree for such further directions and orders as they may deem expedient. Extracts from the testimony read on the hearing of the cause, at Barnwell, February Term, 1S5S. I. CERTIFICATE OF CHAUACTER. South Carolina — Barnwell District : This is to certify to all whom it may concern, that we are well acquainted with Mr. Elijah Willis, of the District and State aforesaid, and that he is a gentleman of unimpeached cliaracter and standing. He has stated to us his intention of taking on a lot of negroes to Maryland, with a view to put- ting them at trades in that State, and has desired of us this certificate, which we cheerfully give. (Signed) JOHNSON HAGOOD, Com. in Equity, Barnwell Dist. ANGUS PATTERSON. R. C. FOWKE, Ordinary, Barnwell District. V. J. WILLIAMSON. J. L. DAVIS, Clerk of Court. WM. R. HALFORD, Sheriff Barnwell District. L. O'BANNON, Magistrate. J. J. RYAN. A. P. ALDRICH. H. D. DUNCAN. F. F. DUNBAR. GEORGE W. MOYE. 8th June, 1852. APPEALS IN EaUITY. 493 Columbia, May, li>60. IT. ADMISSION OF COUNSEL. It is admitted that Amy and her children are now residing in Oliio, in the enjoymcMit of whatever rights they acqnired by Ix'ing carried there, or nnder the deeds execnt<>d by John JolHffe for their emancipation. It is also admitted, that Wilhs carried the above persons, in 1S52 or '.53, to the City of Baltimore, and bronght them back to Barnwell after a few months. Also, that there is no person in Ohio claiming them as slaves. ALDRICH & OWENS. BELLINGER & BAUSKETT. 4th February, 1858. Jouafhan Pender, of Barnw(^ll district, sworn. — Witness knew Elijah Willis for thirty-five or forty years before liis death, during which time he lived within thirteen or four- teen miles of the said Willis. Witness and he were always friendly, and he often stopped at witness' liouse. He had lent witness money once or twice in his lif(\ Witness traded at Williston, and was frequenily tliere, where he met Elijah Willis. Williston was E. Willis' P. 0., the place where ho did his country trading. E. Willis had no lawful wife or child; was an industrious, money-making man. Witness had been at E. Willis' house as often as five or six times in his life. On one occasion he saw a negro woman named Amy, whom Wm. Kirkland had owned, and some three or four mulatto children. This is the woman whom Willis was said to keep as a mistress, and these were the children said to be the offspring of the conneciion. It was so generally reported and believed in the neighborhood, and there was a great deal in Willis' own behavior to confirm the belief. On the occasion alluded to, witness saw him with one of the children in his lap; witness to(»k dinner there that day, and thought Willis, during the meal, in giving them the best victuals from the table, and in other 494 APPEALS IN EaUITY. Willis vs. JoliifTe. ways, treated them as his own children; it was then that one of the small ones got in his lap. Witness had heard of Willis' connection with Amy several years before the day he was at Willis'. He had seen Amy trading largely, and as freely as a white woman, at Williston, at James Willis' store. James was a nephew of Elijah W^illis, and would make much of Amy, in order to induce her to take up goods, calling her Aunt Amy, and saying to witness, with a wink, "now T am going to make a big bill.'' Elijah Willis' rela- tions lived in the Williston neighborhood, and around E. Willis'. I saw Amy at James Willis' store making pur- chases, on one occasion, when James Willis told me she had ridden there in his uncle Elijah's carriage. Something like four years ago, in the court house square, at Barnwell, on a sale day, Willis said to witness, ''I have travelled a great deal and spent a heap of money to fix my business." He then asked me, particularly, "if I knew any one who would buy out his possessions in Barnwell — lands, negroes, stock, and everything else; that he would sell out low, and he was then going to act under the advice of Henry Clay," The conversation was here interrupted. Before this, in that con- versation, Willis also said that he had been acting under the advice of others about his business, and had found that it would not do. What business he alluded to particularly, he did not say; I thought he referred to Amy and her children. I have never seen Amy and her children in tliis State since Willis' death, nor have I heard of tlieir being here. James Willis, a month or so after Elijah Willis' reported death, told me that he and Michael Willis had been on to Cincinnati; and afterwards, Michael Willis told me the same thing. James Willis told me that the man who had died there was Elijah Willis, and that they went to where he was buried, in a negro-graveyard. I asked why they did not fetch his body home, and he replied, "he carried himself there, and he may lie there." I think James Willis told me he saw JoUiffe there — that he was kindly treated by him. APPEALS IN EQUITY. 495 Columbia, May, 1860. Cross-examined. — Witness' well is a public place, good water, and many persons stop there in passing. I borrowed money from Willis bnt twice; this was several years ago; it is five or six years since I dined at E. Willis'. I had lost my way in going to Reason Wool ley's, and happened there accidentally. I have seen other while men take np their little negroes in their laps — some coal black little negroes. I think Willis' property was in market several years before his death — a good while before my conversation with him at Barnwell. I am pretty certain Willis did not mention Amy or her children in that conversation. Direct, resumed. — I dined at Willis' on 30th March, 1S52, Reason JVooIley, sworn. — Witness has known P^lijah Wil- lis for forty years; lived in one mile of liim for ten or fifteen years before his death. Witness knew Amy; went to Wil- lis' house often; worked a great deal for him; witness and Willis were nsnally very friendly; sometimes a little at vari- ance, not long. Willis and Amy lived in the same honse; slept in the same honse; as witness saw, they did not sleep in the same bed; several mulatto children; Amy had five mnlatto children afier Willis bought her; two of them died ; Willis carried oti' three; Willis called the children his; he treated the children as his own ; acted as a father towards them; eat at his table, nurse them, &c. He has seen Amy eat at Willis' table after he had done eating. Willis knew that it was generally reported that he kept Amy, and the children were his. Witness never heard him deny the re- port. Amy traded considerably at Williston ; generally at James H. Willis'; generally upon credit when Willis was from home. Witness has purchased goods for her at James H. Willis'; the goods were charged to Elijah Willis. Saw Amy riding in Willis' carriage once. He went with her, and left her at the honse of his brother's widow till he re- turned home. W'itness knows about the last time Willis left the Slate; he carried Amy and all her children — three black and ihree white ones — and Amy's mother; lie said he was 49G APPEALS IN EaUITY. Willis t)5. Jolliffe. going to carry them to Ohio, to Cincinnati; he said he wanted to go and carry them and free them, so they could have the henefit of his property. She (Amy) wanted to come back witii him; he said to her, that when he got her out of South Carolina she should never come back again. He said he would come back in three weeks if he had good luck, and then he intended to sell all his property — make a clean sweep. He said he was doing well here, but he could not remain here and free his children, and let them have his jH'operty. He said he did not intend his people to have one cent of his property, if he could help it. He said, if he stayed here his relations would make slaves of Amy and her children ; he said his relations were gaping for his property, but they should not have it. Amy and her children, and her mother, the night before they started, came to witness' house, and told him and his wife good-bye. Willis and Amy, and her mother and children, took the car next day for Augusta. Witness went to Willis' house the morning he left; did not tell him good-bye; had no heart to do it ;' did not want to part with him. Willis wanted witnes.^ and fam- ily to go with him ; otfered witness to pay his expenses, and settle him better than he then was; said witness' wife had been so good amongst liis children in time of sickness, he wanted her to go with him ; witness told him his wife could not go, because she could not ride in a car or carriage. Willis never returned; none of Willis' party that he carried off ever returned. Amy had a brother, a mulatto, named Gilbert; was nearly white; Willis told witness that when he came back he would carry Gilbert, and free him. Cross-examined. — Willis had been trying to sell his prop- erty before; three or four years before he finally left, Willis carried Amy and her mother and children off; and before, about three years before he left the last time. Amy and her family were gone about two months, and then Willis went and brought them back. Willis never told witness where he carried them, or why he brought them back. Had not ad- APPEALS IN EaUITY. 4»7 Columbia, May, 1S60. vertised his property for sale the last time he went. Heard Willis say he had right smart of money owing to him. Amy was not handsome. Amy had several husbands before she took lip with Willis. Willis said as soon as he could come back, and make a clean sweep, he would leave. Direct, reiiimed. — Willis said he had as much property as he wanted ; that he should never need the half of what he had. Amy's last husband is still on Willis' plantation ; his name is Albert. Willis was distressed when one of the children died ; Dr. Harley attended it. Depositiotis of Ary Woollcy. The witness answers and says: She did know Elijah Wil- lis, of Barnwell district, now deceased, at least twenty-five (25) years, and has lived near him, the said Elijah Willis, during the whole term of her acquaintance, and never at any time during her acquaintance with him lived further than four miles from him, and a good portion of the time herself and husband (R(>ason Woolley) were in the employ- ment of said Elijah Willis, and not living more than from half to three-fourths of a mile from his residence in Barn- well district. Second liiterrogaiory. — Witness answers and says: That she has often and repeatedly heard Mr. Willis say that he intended to carry a family of colored persons he had, known as Amy and her family and children, to some country where they would be free. Witness says she could not tell any particular time or date, as she repeatedly heard him make such declarations, and the last time she heard him speak of taking Amy and her family olf was some lime in the spring of 185.5, when he was making preparations to carry ihcm otf to Cincinnati, and did go olf with them. Third Interrogatory. — Witness answers and says: That Mr. Willis did, some weeks previous to his leaving this State with the family o( colored persons referred to, tell her his 498 APPEALS IN EaUITY. Willis vs. JollifTe. object for taking them off was to carry them wliere they would be free, and to provide for them. Fourth Interros;utory. — Witness answers and says: That a negro woman named Amy, and her mother CeHa, or Cely, and three black children and three mulatto children, consti- tuted the family of colored people that Mr. Willis carried witli him to Oliio. Witness says Mr. Willis always claimed to be the father of the mulatto children and treated them as such, and Amy as his woman, but never heard him call her his concubine, but she certainly was such, and was so looked upon. Fifth Interrogatory. — Witness answers and says: She knows that x\my was tiie reputed concubine of Elijah Wil- lis, or in other words, his housekeeper, who seemed to man- age his housekeeping, and acted pretty much as man and wife. Witness says slie was intimately and well acquainted with Mr. Willis, and Amy and her family, and often heard ]Mr. Willis pity the condition of the mulatto children, and said what he intended to do with and for them by taking them to Ohio, where they would be free, and then could and would provide for them. Witness further says: That Mr. Willis did leave his resi- dence in Barnwell district with Amy and her family, as mentioned in the fourth interrogatory, to carry them to Cin- cinnati, in the State of Ohio, and wished her, the witness, and her family, to go with them, which she declined doing on account of her infirmity. Since which time she has not seen Mr. Willis, nor has he returned, and hears and believes that he is dead, and that he died in Cincinnati, in the Stale of Ohio. Examination of William Knotts. 1. The witness says he knows Michael Willis, but does not know the plaintiff. 2. The witness answers and says, that he knew Elijah Willis intimately from the year 1S27 to 1833, during which APPEALS IN EaUITY. 499 Columbia. May, 1860. time he viewed hiin as a (Vieiicl, and saw liiin occasionally from that time np to his death. 3. Witness says that some time in the year 1850 or '51, Elijah Willis sent for this deponent to come to his honse, and consnlted him i^.pon the propriety of making a deed of trust to this deponent of all his property, to be held by him in trust, for the support and benefit of two colored women, and the children of the younger of the two women ; that he did not wish these two women and the chiUlren ever to become slaves. 4. Witness says that upon the proposition of Mr. Willis to iiim of this deed of trust, he advised him not to make it at all, but if he wished these persons to be free, he had better take tliem out to a non-slnveholding State, to which he said, "I think that would be a good idea." 5. Witness says he knew Mr. Willis about twenty-three years. 6. Witness says he was a man of strong mind, deter- mined will, and fully ca[)able of attending to his atfairs, as far as this deponent could judge. 7. Witness says he has answered in the sixth interrog- atory. S. Witness says he knew all the persons intimately as named in the interrogatory, excepting Dr. .Toseph J. Harley and James Willis, the younger. His acquaintance with them refers only from the year 1828 to 1S3.}. 9. Witness answers and says, that he is not able to an- swer this question, as he is not able to judge of the relative strength of the min(]s of the persons. 10. Witness says that at the conference referred to, Mr. Willis' health was bad, but was of sound and disposing mind, as persons of his age and health. To the Jirst cross-iiiterro<^(ilory witness says, that he knew him intimately from the years 1827 to 1833, as he was then his neighbor; since then deponent moved from there, and only saw him occasionally afterwards. 500 APPEALS IN EaUITY. Willis vs. Joliiffe. 2. Witness says he only saw Iiini occasionally, as above stated, and can only judge of the state of his inind from the conference above alluded to, at whicli time he stayed with him one night, 3. Witness says he saw no change in his mind when he occasionally met him, only such change as age and sickness might produce. 4. Witness says that Mr. Willis did send for liim at the lime alluded to, to come and buy his land and negroes; that when deponent went there, Mr. Willis told him "that al- though he sent for him to purchase his lands and negroes, he only wished to see him to consult with him to make this deed of trust, above mentioned," and this was the only in- terview on business. Depositions of JVillison B. Beazley. 1. Witness knew the late Elijah Willis, in Barnwell dis- trict. South Carolina, for about the period of fourteen years. Witness was merchant and post-master at Williston, a rail- road village in Barnwell district, and in both of these capa- cities had dealings with said Elijah Willis, who v/as a planter, and owned a saw mill, residing about five miles from Williston. 2. Witness cannot say that the said Elijah Willis ever lold him directly or positively what he intended to do with cer- tain colored people of iiis; but on several occasions, for a period of about one year previous to the death of said Elijah Willis, said Elijah Willis did converse with said witness about selling his plantation, negroes and stock, with a view to moving to a free State, on account of his colored family he was raising; seemed to regret his course of life; the dis- respect he had brought on himself, and thouglit it best he should move, with said colored family, to some free State. He wanted witness to find him a purchaser; otlered to sell to witness his lands, other negro slaves, stock, growing crop and produce on hand, for thirty-five thousand dollars. Wit- APPEALS IN EaUITY. 501 Columbia. May, IbOO. ness took two weeks to consider the projiosition, but fiiiMlly declined the purchase. These were tlie circuuistances which led to these frequent conversations. 3. Elijah Wilhs finally left Williston, on the railroad cars, (on the Western train of cars,) with a colored family, a mu- latto woman named Amy, her children, and Amy's mother, a black woman, about the first of May, in the year eighteen hundred and fifty- four or fifty-five, witness is not distinct now in bis memory which year, but thinks the latter. He left iinexpecledly to witniv-^s. Elijah Willis came into Wil- liston the day he lei't, some three hours before the cars left, and bis wagon, with the -family alluded to, came about two hours before the cars left. They unloaded their baggage at the usual car landing, in front of witness' store. Said Elijah Willis came into witness' store, asked for his letters and papers, and store account, as he wished to settle, as he was going away. Witness did not have them drawn off, and said Willis then told him to have them ready, as he would be back in about three weeks. He did not speak farther then as to the object of his journey. That was the last time, when he bid him good bye on the cars, witness ever saw Elijah Willis. 4. The colored people I have referred to in previous an- swers were a mulatto woman called Amy, lier mother, a black negro, name not recollected, two black children of Amy, (the oldest of her children about grown when Elijah Willis left the State,) names not recollected, and four chil- dren of Amy who were mulattos, thinks they were all girls, names not recollected. The last four were generally con- siderfMj, in the neighborhood, to be the children of said Elijah Willis. Elijah Willis never told witness in so many words that Amy was his concubine, or that any of her chil- dren were his, but spoke of them in the manner described by witness in his answer to the second interrogatory herein- before asked, which is hereby referred to as an answer to this part of this interrogatory. Wiine.ss further says, that 502 APPEALS IN EaUITY. Willis vs. Jolliffe. said negro woman, Amy, generally traded in Williston, bought largely for a negro, often had plenty of money, and frequently bought without cash, on credit. The merchants generally let her have what she wanted, gave her a copy of the bill, and tlie next time the old man, Elijah Willis, would come to Williston, he would pay all such bills without objec- tion or inquiry. Depositions of John H. Howard. 1. The witness answers and says, I did know E. Willis for five or six years immediately before his death. I was his agent to sell lumbei', and he visited me about twice a year. 2. Witness says, I had two conversations with him in relation to certain colored people. On the occasion of one of his visits, in the year 1854, I think, he expressed great anxie- ty about these people; his mind was very much disturbed about them. He asked my advice what he had best do about them to get them free. I told him he could not free them in this State. On the occasion of his visit in 1S55, in March or April, he said as he could not do so in this State, he had determined to take them to Ohio, and free them there; that he had been to Ohio, and had made arrange- ments to take them to Cincinnati. 3. Witness says, I don't know under what circumstances he finally left the State. I have stated all I knew of his intentions, and the object of his journey, in the answer to the second interrogatory. 4. Witness says, the colored people were Amy and tiiree mulatto children ; he named Amy, but he did not mention the names of the three children; Elijah W^illis spoke of them as his colored concubine and children. James Meredith, examined by commission. — I knew Elijah Willis ten or twelve years before his death, as a citizen of Barnwell district, S. C, and often saw him travelling on the railroad, I being a conductor. About the month of April, 1855, as well as I remember, APPEALS IN EaUITY. 503 Columliia, May. 1S(>0. Elijah Willis took passage on the upward train of cars on the South Carolina Railroad, having witli him a family of negroes. In rcjily to a question, asked hy me, E. Willis stated that he was not taking them to Hamhnrg for sale, hut was on his way to Cincinnati, Ohio, with them, and my recollection is that he spoke of them as his family. He iiad, as baggage, several new trunks, and no such luggage as negroes usually carry. Tiie negroes were all dressed in much better style than is usual with negroes; and Mr. Willis sat with them in the car nearly all the time. He entered the cars with them at Williston. I do not remember to have heard him speak of them at any other time. My belief is, that on the occasion referred to in the forego- ing answer, E. Willis finally left the State of South Carolina. Nothing more than is stated in the preceding answer was said by him as to his intention, nor as to the object of his journey. Depositions of Dr. John G. Guiij^nard. 1. I was acquainted with Willis twenty years or more. 2. We occasionally visited each other. I had very few professional calls to his jilace previous to 1850, and not very many since. 3. His business appeared well conducted, his habits regu- lar, and his ability fully suMicient for the management of his business. 4. About five years or more previous to his death, he appeared to become reserved and melancholy in social inter- course. 5. Elijah Willis, about two years, more or less, jircn'ions to his decease, took occasion to spend a night with me at my residence. We were not incumbered by company, and as it were tete-a-tete; he conversed freely, staling that his situa- tion was apparent to his neighbors, distressing to him. That the connection he liad formed was evidently nnpleasant to his relations and acquaintances, and disreputable. He 504 APPEALS IN EaUITY. Willis vs. Jolliffe. wished to place the cause of his disquietude ou some small farm, remote from this region, where they could be in socie- ty of their own class. He had an idea of purchasing a small farm in Tennessee for them. I recommended placing them in the neighborhood of Norfolk, Virginia, where about two thousand or more free persons of color resided, and an inef- fectual attempt for their expulsion had been made before the legislature of Virginia. He expressed himself under obliga- tion to me for the recommendation or suggestion, and, as I understood, was governed by it so far as soon afterwards to carry tlie slaves alluded to, viz: Amy and children, to Vir- ginia, for the purpose of settling them. But little commu- nication was held between us afterwards. I did, on one occasion afterwards, at iiis house, in presence of F. W. Mat- thews, suggest to him in strong terms the propriety of shak- ing off liis connection with Amy, and endeavoring to regain his proper position in society. 6. I had some business transaction with him early in May, 1855. He stated to me that ho would travel abroad soon, and return in a few weeks, and probably occupy the sum- mer, as he did for a year or so past, in travelling. James M. Gitchell, sworn. — The paper marked A (the will) is in my own handwriting. It was written under the immediate direction and supervision of Elijah Willis. Said Elijah Willis came to the office of Jolliffe & Gitchell, in the City of Cincinnati, Ohio, on the day previous to the date of the will, and introduced himself as Elijah Willis, of Barn- well district, in the State of South Carolina, and said that his object in coming to Ohio was to make his will, and provide for certain persons whom he held as slaves in South Caro- lina. That he desired to make those slaves his heirs, and wished to find some persons of property and character in Ohio, who would consent to act as his executors. Mr. Jolliffe recommended several persons, and finally went with Mr. Willis to see Messrs. Ernst and Harwood, who agreed to act as executors, and with whom Mr. Willis seemed to be satis- APPEALS IN EaUlTY. 505 Columbia, May, 1860. fied. When the will was being written, Mr, Wilhs insisted that Mr. Jolliffe should act as one of the executors. He, at first, declined, hut finally consented at the urgent solicitation of Mr, Willis, and his name was inserted as one of the exec- utors, Elijah Willis was present during the time said paper (the will) was being written, and read it himself after it was finished. Said paper was executed in duplicate, either copy- to be and have the effect of an original, and one copy was retained by Mr, .folliffe and myself, at the request of Mr. Willis, and the other taken by liimself. Mr. Willis told me at the time said paper A (the will) was being written, and after its execution, that it was his pnrjiose to have Amy and her seven children, Elder, Ellick, Philip, Clarissa Ann, Julia Ann, Eliza Ann, and Savage, the persons named in said paper, as his heirs, brought to the State of Ohio, and set free. On parting with Mr. Willis, he told me that he would return to South Carolina, and so arrange his business there as to bring the persons named to Ohio him- self, and that he thought he should be in Cincinnati with them in about one year from that time. After that, I saw or heard nothing further from Mr, Willis until I heard that he had died upon the wliarf, and I saw his corpse at the Dumas House, in this city, on the 21st day of May, l.Soo, Thomas Ewiiii^, Jr., sworn. — I am a practising lawyer in the State of Ohio, There is no statute in the State of Ohio relative to emancipation or manumission that I know of. In my opinion, wlicre a slave is brought into this State, or comes into it by or with the consent of the owner, such slave is emancipated (without formal act or deed of emancipation) by operation of the common law. I believe that such is the opinion of gentlemen of the legal profession in the Slate of Ohio. I never heard a contrary opinion expressed by any member of the profession here. I believe that there have been decisions by the inferior Courts of this Slate to that effect. But I have been unable to ascertain that the ques- tion has ever been presented to the Supreme Court of the 50G APPEALS IN EQUITY. Willis vs. Jollifle. State, and have been unable to find any decisioti upon the question in any of tiie Reports of its decisions. William C. McDowell, sworn. — I am a lawyer, practising in Cincinnati, Oriio. In Ohio there is no statute on tiie sub- ject of either emancipation or manumission. Nor is there, so far as I know, and I have made some examination on the subject, any case upon that subject reported in our Supreme Court Reports. I take it that no formal act of emancipation, by deed or otherwise, is required in the State of Ohio; the law being, as I understand it, that thu moment a slave, with the consent of his master, comes into the State, he is thereby free. Section 6 of Article I of Ohio Constitution provides that "There shall be no slavery in this State, nor involun- tary servitude, unless for the punishment of crime." From this, and the common law on the subjt^ct, it is universally held by the lawyers here, so far as I know, that when a slave is in Ohio, by his master's consent, he is there- by freed. I have understood that the Supreme Court of Oiiio on the circuit, viz: in Warren county, Ohio, held the same doctrine. But decisions of that Court on the circuit are not reported in our Reports. The law was so held by Judge Norris, of the Common Pleas Court, in a circuit ad- joining this county. I regard the law upon that subject to be without doubt, as I have just indicated. Jilex(i)ider H. McGnffey, sworn. — I am a practising law- yer in the State of Ohio. I am not aware of any law of Ohio in regard to the emancipation or manumission of slaves. No formal act of emancipation, by deed or otherwise, is requi- site. Our Courts have uniformly held, that if a slave is brought into Ohio, by consent of his master, he is thereby emancipated. William Citllutn, sworn. (Dec. 5th, 1855.) — I saw a man with his family on the Strader, who was said to be Elijah Willis, of South Carolina. He was a large man and fieshy; about forty-five or fifty years of age. The clerk of the boat APPEALS IN EaUITY. 507 Columbia, May. 1860. told me tliat was hi.s name. I do not recollect the time; it was last summer. I talked with him, and asked him where he was going with the colored family. He said he was going to Ohio, to set them free, and school the children. There were five or six children, two a good deal older and darker than the rest; and then there was the mother of the family, who was a dark yellow woman. The yonnger children were light miilattoes. One was an infimt, and the others between three and ten years of age. Mr. Willis said, too, that he was going to buy them a farm ; but whether he did so or not, I don't know. I asked him if the children were his own. He said he was the father of part of them. Robert S. Dumi/is^, sworn. — I did see a person represent- ing himself to be a Mr, Willis, who came iii)on the boat "Jacob Strader," of which I am the clerk, and at Lonisville. He gave his name to me, to be entered n[)on the hooks, as Mr. Willis, and paid for a passage for himself, and a colored woman and some colored children, from Lonisville to Cin- cinnati. This was some time in May, 1855, as well as I can recollect. I never take any colored persons npon the i>oat when brought by a stranger to me, without referring tlie per- son bringing them to the captain of the boat. I referred Mr. Willis to him, before giving him passage, and the captain came to me and said it was all right, and the colored persons were then received as passengers. He told me that the woman and children were his. Charles E. Cist, sworn. — I am a practising lawyer in the State of Ohio. There is no law of Ohio in the statute book as to emancipation or manumission. Onr Courts have uni- formly held, I believe, that no formal act of emancipation, by deed or otherwise, is necessary. There is no decision in the printed Reports of the Supreme Court in Banc, (which is the only State Court whose Reports are printed by author- ity, I believe,) upon the subject. Edward Ilancood, sworn. — I did decline to qualify as 508 APPEALS IN EQUITY. Willis vs. Jolliffe. executor of Elijah Willis. The written renunciation is on file in the Probate Court, and I have no control over it. Mr. Willis came to my laboratory with a letter of intro- duction from Mr. Jolliffe to me, about that time, (February, 1854.) He informed me that he had asked Mr. Jolliffe to give him an introduction to two persons, one of whom was myself, requesting me to act as his executor. He stated that he bad a family of colored persons in South Carolina, a part of whom were his own children, and that he wished to bring tbe family to Cincinnati, and free them. He stated tbat lie considered himself worth in tbe neighborhood of $75,000, which property he wished to settle upon his family. He said that he was inclineJ to apoplexy, and was liable at any moment to be called away, for which reason he wished to make his will, and asked me if I was willing to act as his executor. Before answering him that I was willing, I asked him if he had other slaves besides this family. He said he had. I then stated to him that if he expected to be taken away suddenly, and expected me to act as executor in sell- ing tliem, I could not consent to do it. He said I should not bave anything of that kind to attend to; that he intended to make arrangements with reference to them liimself, at once. I urged him to liberate them, and he left the impres- sion on my mind that he would seriously consider the ques- tion. He made known to me his desire, in case he should be taken away, in reference to the disposal of his property for the benefit of his family. He said that he wished them located on Western lands, in the farming business, eitlier in this State, Illinois, or Wisconsin. He said that he hoped that his life would be spared long enoua:h not to give me any trouble in reference to the family; that his only object in making a will, and having executors, was to provide for the contingency of a sudden death. He came to my office in a buggy, and aft(ir our conversation together, requested me to accompany him to see Mr. Ernst. I went with him, APPEALS IN EaUITY. 509 Columbia, May, 18b0. but Mr. Ernst was not at homo, and Mr. Willis returned to his boarding house. I saw him but once afterwards, and that for but a moment, until I saw him in his coffin. I necessarily looked at him with a Rood deal of interest and care, to know what kind of a fiian I was in company with on such an important occasion. I got the im|)ression that he was a careful business man, perfectly sound in mind. jindrew H. Ernst, sworn. — Was appointed executor, but renounced and declined to qualify on tfie will. I first saw Mr. Willis at the Broalway Hotel, where I called at his request, and where he broached the subject on which he wished to see ine. He told me that he liad a fam- ily in South Carolina, which he wisiied to free, and that he wanted to make arrangements to bring them away. He gave me to understand the condition of the faniily — that the children were his children by a colored woman, and that he wanted to transfer them to a free State, with his property. The object of his visit seemed to ])e for that purpose ; he not having fully determined in his own mind what course to take to accomplish his Qud. He wished to acquaint himself with the character of parties who would execute his pur- poses in regard to the disposition of his family and his prop- erty in case he was unable to carry out his purposes himself. He asked me whether I would act as one of his executors, in case he should not live to carry out the object himself. My interview with him led me to regard him as a man of sound mind. His plans seemed to be well arranged, I think my inlerview fully justifies me in saying that he was then a man of sound and calculating mind. The defendant, John .Tolliffe, a|)pealed on the grounds: I. liecanse the negro woman Amy, and her children, were not slaves, but free persons of color, at the death of the tes- tator; and were, therefore, comptient legatees, under said will. And to sustain the above ground, he submitted the follow- ing propositions : 510 APPEALS IN EaUITY. Willis vs. Jolliffe. 1. That there is no law in South Carolina, either by statute or otherwise, nor any State policy in regard to slave- ry, on which the Courts can found their judgments, or of which they can take cognizance or judicial notice, that pro- hibits a citizen of this State from removing his slaves from this to any other State, either to enhance the value of their labor, if to a slave State, or for emancipation, if to a free State; and that any judgment to the contrary is against law, and in derogation of the rights of the owner of slaves. 2. That if an owner voluntarily takes his slave to a State or country where slavery is known to be prohibited, with an expressed and avowed intention that such slave shall never return, but remain there for the sole purpose, and none other, of being free, and leaves such slave in the free State or coun- try, by death, or otherwise, then the slave is ipso facto free; and that there is no law in South Carolina, or elsewhere, to the contrary. 3. That it is the duty of South Carolina, as one of the Confederated States of this Union, to concede to the other States the same power and authority of sovereignty \vhich she claims for herself, of declaring and maintaining the status and condition of all persons., whether white or Afri- can, voluntarily coming within their borders for permanent residence; and a judgment to the contrary assumes and arrogates to ourselves more than we are willing to concede to the other States, having equal dignity and sovereignty. II, Because, while Amy and her children, and tlieir for- mer master, were within the limits of the State of Ohio, there was not only no Constitution or statute law, provid- ing for their slavery, but the most solemn and positive Con- stitutional law, to the etfect that a master taking his slave, voluntarily, into Ohio, jnanumission takes place as efiectu- ally as if by deed; and although this case is to be tried in our Court, the South Carolina law retires, and leaves the question to be decided exclusively by the Ohio law. III. Because the decree is predicated mainly on the basis that Willis, in Ohio, and up to the time of his death, had APPEALS IN EaUITY. 511 Coliiiuhia, Mny, IbfiO. the power and the right to brnig Amy ^^nJ her cliihlrcn back to South CaroHna — and thus to redintegrate them into their original state of slavery. But to this view we submit, as a conclusive answer: 1. If Willis had such right and power, then, not having exercised it to restore them to slavery, he has as ctfectually left them in a state of freedom, as if he had executed a deed of manumission. 2. If such was the condition of Amy and her children, the result must, on every principle of justice and equity, fix their fate, whether for slavery or freedom. More especially, when it is remembered that, in Ohio, slavery is prohibited by bei fundamental law. A slave carried into a State where slavery is proliibited, with master's consent, and not for a temporary purpose, be- comes free. When a negro slave, with the permission of his owner, takes up his residence in a free State, and afterwards returns to this Slate, such owner cannot resume his property in Iiim. 3. But the fact is not so. By the positive Statute of South Carolina, Amy and her children, whether slaves or free, would inevitably be expelled from the State, or be re- dintegrated into their former state of slavery, by way of for- feiture to the State, and not as the property of Willis. 4. Because bequest of property to slaves is substantial emancipation, and the slaves are manumitted by the will, and not by the executor's deeds of manumission. 5. Because the assent of the executor is always to be presumed, and when given, is proof of assets, and is irrevo- cable, and has relation to the time of testator's death. Bau.skelt, Jol/iffc, Cobb, Petigru, for appellant. Jlldricli, contra." •The llcpnrtiT (leeiiis it iinnceessiiry to pnlilisli ihe arjfiiinents of fiMiii>fl, the case having heen fully and elal)orntely di^»c^^^s!>e(l hy the Court, and e.Hiift-iaJly l>y Chancellor Wardlaw, in hit* two alile and nia.-lcrly opinious. 513 APPEALS IN EaUITY. Willis vs. Jolliffe. The opinion of the Court was delivered by O'Neall, C. .1. The elaborate decree of my brother Ward- law (while a Chancellor) is in many of its parts entitled to tlie commendation of every well-informed mind. Yet there are parts which have not met with the concurrence of this Court. One, a very material part, on which the whole case depends, has not been satisfactory to a majority. Indeed, on it we have come to a conclusion er.tirely antagonistic to ihe decree. Ill the first place, I turn to the Act of 1820, referred to and considered in Frazier vs. Frazier, 2 Hill Ch., 311. By that Act the evil was stated "the great and rapid increase of free negroes and mulattoes in this State, by migration and emancipation,^^ the remedy provided was, "that no slave shall hereafter be emancipated but by Act of the legislature." It was argued that the statement of the evil was the increase of free negroes and of mulattoes but the true read- ing of the Act, is, the adjective free qualifies mulattoes, as well as negroes: and read in that way we have the evil as the legislature intended to state it, the great and rapid in- crease of free negroes and free mulattoes in this State. What is the efl'ect of the enactment that "no slave shall hereafter be emanci{)ated but by Act of the legislature ?" In Frazier vs. Frazier, twenty-five years ago, with the con- currence of my distinguished brother and friend. Judge David Johnson, I stated that this Act could not "have effect upon emancipation beyond the limits of the State." It is very true my brother Harper, the other member of the Court, did not sign the opinion, but he gave no dissent, and I hap- pen to know that his objection was more to the competency of slaves to have such a decree pronounced in their favor than to the principles of the decree. He recognized the general principles of the decree in Gordon vs. Blackiiian, 2 Rich., 45, in which he said: "In Frazier vs. Frazier, the Court decided that it would not interfere to prevent the execu- tion ot the trust when there was no law to forbid it." The APPEALS L\ EQUITY. 513 Columbia. May, 1860. case of Frazier vs. Frazier was also recognized in Fhiley vs. Hunter, 2 Strob., 214. The case of Frazier vs. Frazier was the law until the Act of 1841; that Act provided that a devise for the removal of a slave from the State for emancipation should be void. That introduced a new rule of action, and it is our duty to enforce it when a proper case arises. If the objects of the testator's bounty, Amy and her children, had remained in the State until the testator's death, there can be no doubt that the devise directing them to be taken by his executors to Ohio, and there to be manumitted, would have been contrary to law, and the other devises in their favor must have failed. But Elijah Willis, in his lifetime, removed them to Ohio, with the avowed purpose to emancipate them. He died when he and they were on the northern bank of the Ohio, in the City of Cincinnati. If that act made Amy and her children free, then it follows that the devises in their favor are good. The Constitution of Ohio, in the spirit of the Ordinance for the government of the territory north-west of the Ohia river, provides "there shall be no slavery in this State, nor involuntary servitude unless for the punishment of crime." It is vain to say that this is contrary to the Constitution of the United States. Each and every State as it emerges from a territorial government, is free to adopt their Constitution, allowing or rejecting slavery. This provision cannot reach cases of persons passing through Ohio with slaves, or where a slave accompanies his master or mistress on a temporary sojourn for business or pleasure. For, in point of fact, the master, and the slave, as his property, are entitled by the comity of States, and also by the Constitution of the United States, to be protected. Cobb on Negro Slavery, chap. 7, sec. 1. 52, 153. But the case is very different when the master puts his slaves on the soil of Ohio with the purpose of making them free. It is then true, that they become free by his act. The eloquent counsel for the defendant, in his own work on^ 34 514 APPEALS IN EQUITY. Willis vs. Jolliffe. negro slavery, (Cobb on Negro Slavery, chap. 7, § 154, 1 para- graph) states the pruiciple which applies to and governs such a case " where there is a change ,of domicil from a slave holding to a non-slaveholding nation, the animus remaneiidi works of itself ai]d instanter [simul ac imperii fines inlrarunt) the emancipation of the slave." It is true Mr. Willis did not change his own domicil, althongh his last act in life was reaching the soil of Ohio. He intended to retnrn, and there- fore his own domicil was not changed, but his act and inten- tion both concurred in placing his slaves, who before were mere chattels personal, in a country where they assumed the character of free persons. This was making Ohio their domicil, and they are there now in the full enjoyment of freedom ivhich cannot he disturbed. It seems to me, looked at in this plain way, that they are, and were free from the moment when, by the consent of their master, they were placed upon the soil of Ohio to be Uce. I have no idea that the soil of Ohio per se confers freedom. It is the act of the master which has that effect. In Guillemette vs. Harper^ 4 Rich., 190, I stated, in 1850, the principle which governs this case. "If the master carrier a slave to Great Britain to set him free, or while there in any way assents to his free- dom, there can be no objection to the validity of freedom thus acquired." I do not understand that the law of that case, which was the unanimous judgment of the Law Court of Appeals, has ever been questioned. In this case, if the facts be as I now assume them to be, that Elijah Willis car- ried Amy and her children to Ohio to set them free, there can be no doubt that the moment they reached that destina- tion, they became ipso facto free. To have effect it needed no deed. It is true Mr. Jolliffe, the executor, did, on the 25th of June, 1R55, May term of the Court for Hamilton County, execute a deed of mannmission. But clearly that was unnecessary. It might have been well enough to place a record of freedom within the constant jeach of the parties. If it were necessary, I should be dis- APPEALS IN EaUITY. 515 Columbia, May, 1S60. posed to hold that such a deed would have relation back to the m'omciit of arrival. The law of Ohio, 1841, chap. 7G, p. 591-(>,* was brought to our view; it requires blacks or inulat- toes entering into the State, to give security and to register themselves. This does not aftect the question of freedom. It is a mere police regulation for the internal government of such people. This great case turns upon the narrow cpies- tion: what did Elijah Wilhs intend and do, in going to Oliio, and carrying with him Amy and her children ? His purpose was clear; he intended to free the negroes. This required, according to the testimony of experts in Ohio, no other act than merely placing the negroes within the territorial limits of Ohio. But if he intended to do something more, such as buying land for them, schooling the children, &c., I do not see how that can alter the case. For those acts were not at all essential to the act of freedom. They are very important for the comfort of the negroes. When about setting out from home with the negroes, he said to Reason Wooliey " he was going to carry them to Ohio, to Cincinnati; he said he wanted to go and carry them, and free them, so they could have the ben«'fit of his property. Sbe, Amy, wanted to come back with him; he said to her that when he got her out of South Carolina she should never come back again." To Mrs. Ary Wooliey, a few weeks before leaving with the negroes he stated his "object in taking them off was to carry them wlicre they could be free, and provide for them." To John H. Howard, in March or Ajiril, 1855, he stated "he had determined to take them to Ohio, and free them there." To William Cnllnni on the boat, the Jacob Strader he said, "he was going to Ohio, to set them (the negroes) free, and school the children." After this array of testi- motiy, there can be no doubt what was his purpose. Indeed from what is proved by other witnesses, he had long had the ♦These laws have tieen etilirely repealed by the Act of 1819, which hns bt-en placetl in my hands since the delivery of ihis opinion. See Ads of a general nature, 47lh General Assembly of Ohio, vol. 17, page IS, sec. U. 516 APPEALS IN EaUITY. Willis vs. Jollifie. purpose in his mind, in some way to accomplish their free- dom. He reached the wharf at Cincinnati, disembarkecl him- self and the negroes, and when about taking a hack to the hotel, wiili them in company, he fell and expired. Upon his person was found a duplicate of his will. I think these facts show that the intent and the act concurred. He intended to confer freedom on the slaves, he had travelled hundreds of miles to consummate that intention, and had reached a point where they could be free. What more was to be done? It seems nothing further was legally required to give freedom in Ohio. Shall we undertake to say otherwise? Can we reach a hand to Ohio and draw back those people to servitude? They are in the enjoyment of freedom, and we cannot and ought not to interfere. To allow them to be free, and to permit the devise in their favor to operate, is, we are told, contrary to the policy of South Carolina. I know no policy, except that which her laws de- clare. To that I shall always (as 1 have done for thirty-two years, my judicial life) yield obedience. But I should feel myself degraded if, like some in Ohio and other abolition States, I trampled on law and constitution, in obedience to popular will. There is no law in South Carolina which, not- withstanding the freedom of Amy and her children, declares that the trusts in their favor are void. As soon as they are acknowledged to be free one moment before the death of Elijah Willis, they are capable to become the cestui que trusts under his will. Indeed, in one case [Bowers vs. Newman, 2 McMul., 659,) of which we have a very imperfect report, Harf)er, J., and myself held that a slave could take freedom and property by the same devise. It is supposed it is necessary to ascertain " what was Elijah Willis' intention after he reached Ohio, not before." We can only judge of that by what had occurred before. We know what he intended up to the monient when he reached Cincin- nati. What did he intend when the boat reached the wharf? APPEALS IN EQUITY. 517 Colniiibia, May, ISGO. He might possibly then have remained on the boat with his slaves and have retnrned to Sonth Carolina. But he did not do that, he made the act of freedom absolute by landing with- in the territorial limits of Ohio. This showed he intended to confer freedom by making Ohio their home. He had told Amy, "when he got her ont of Sonth Carolina she should never return." The act made his words good. For he could not, if he had desired it, liave again reduced her to slavery. I have not undertaken to review many of the cases cited in the elaborate decree of the Chancellor, as in the able argu- ment of the case here. For the case turned upon a very tiar- row point; in which the lights of authority could only help to the general principle, that if the act done was in conse- quence of the intention previously expressed, it was enough for the case. This has been proved to be so on a review of the whole law and facts, and the result is, that the woman Amy, and her children, were free at the death of Elijah Willis, and were capable to becouje the cestui que trusts of the executor. The Chancellor's decree is reversed, and the bill dismissed. JoHNsToxE, J. — I concur in the result. Wardlaw, J., dissenting. So far as the views of the Court were expressed orally in consultation, it is understood lobe the opinion of the majority that testator's taking Amy and other slaves to Ohio, after ex- l)ressiug his intention to emancipate them, constituted eman- cipalion of them. My brethren, I suppose, do not controvert that which was conceded in the argument of appellant's opening counsel, that testator contemplated further acts than he performed, in cor)summalion of his purpose of manumis- sion, and never at any time entertained the opinion or design that the emancipation of these slaves would, or should be complete by the act of landing them in Ohio. In his will, which is his only utterance after Amy and the other slaves 518 APPEALS IN EaUITY. Willis vs. Jollifle. reached Ohio, albeit that utterance is by impHcation of law, he describes Amy and her children as his slaves, and directs his executors to bring them to Ohio, and to emancipate and set them free in said State. About the time the will was writ- ten, in a conversation with Andrew H. Ernst, one of his exe- cutors, Ernst testifies that testator asked him to be one of his executors, and that testator had not then fully determined in his own mind what course to take to accomplish his end. In March or April, 185.5, he said to John H. Howard, "that as he could not do so in this State, he had determined to take them to Ohio, and free them there ; that he had been to Ohio, and had made arrangements to take them to Cincinnati," The reference is unequivocally to his visit to Ohio at the time of the execution of his will, and to the arrangements prescribed therein. Without this, it is manifest that when he speaks of taking them to Ohio, and freeing them there, he contemplates something ulterior to taking them there. The connecting par- ticle " and" necessarily has this force. To the same effect is his declaration to William Cullum, while aboard the Strader, " he was going to Ohio to set them free and school the chil- dren ; he was going to buy them a farm." Of like effect is his declaration to Reascn Woolley, " he was going to carry them to Ohio, to Cincinnati ; he wanted to go and carry them and free them, so they could have the benefit of his property; he woidd come back in three weeks, if he had good luck, and when became back he would carry Gilbert, (brother of Amy,) and free him." Ary, wife of Reason Woolley, is more un- qualified in her testimony than any other witness, and her statement is, that testator told her " his object for taking them off was to carry them where they would be free, and to pro- vide for them." It may be reasonably concluded, as Mr. Jolliffe states in his argument, that she referred to the same conversations concerning which her husband testifies; but, however this may be, she means no more in fair construction of her words, than that testator said his object was to take the slaves to some sovereignty where they could be set free, be APPEALS IN EaUITY. 519 Columbia, May. 18'JO. suffered to reside, and enjoy the prf)vision he intended to make for their maintenance, and it is only by torture of her phrases that she can be misunderstood to denote testator's intention to manumit them by the naked act of carrying them within the jurisdiction of Oliio. It may be deduced from the testimony of this witness, and from the evidence as a whole, that the purpose of testator, in taking these slaves to Ohio, was merely part of a system of measures, to sell his pro|)erty liere, to remove with the jiroceeds to a free-negro State, to emanci|)ale these slaves there, to buy a farm for them, and educate the children. It is unquestionable that he had for years a vague wish and intent to emancipate Amy and her children ; but when he went to Ohio this intent was provi- sional and tentative, to be or not to be executed, as experience there might demonstrate its policy or its folly. From the nature of intent, it is revocable and inoperative until actually executed; the retraction of it and the retention of the right to retract, or locus peui/eiilia?, have the saiue consequences* The subsistence of the intention at the time some act is done, apparently in consummation of it, may be sometimes inferred from |)revious statements of the intention to effect the object; but such previous declarations are always mere evidence of the character of the act, and in any case may be disbelieved, and are never sufficient and satisfactory proof, where the act is equivocal, if the purpose be unlawful and impolitic, and contrary to the social and political duty of the actor. The legislature of this State, for the citizens thereof, enacted, in 1820, that no slave should be emancipated but by Act of the legislature. The beginning of the emancipation supposed in this case was illicit in its origin, certainly so continued so long as the master and slaves had not passed beyond the limits of the State, and the |)resumpii()n, at least in a forum of this State, is against the completeness of emancipation in any foreign jurisdiction, until the fact be demonstrated by evidence. The case of Fri/er i\^. Fri/cr, Rich. Eq. Ca,, 92, illustrates 520 APPEALS IN EaUITY. Willis vs. JollifTe. these views. Marriage, in this State, is a civil contract, needing no writing or other ceremony for its manifestation; indeed, needing nothing bnt the agreement of the parties, in good faith, to constitute the relation. A contract per verba de present i,sv\c\\ as "we marry" or "we are man and wife," is marriage, and a reciprocal conXVACt per verba de futiiro, such as "I promise to marry you,'' copula seguenie, \s also marriage; lb., lio. In the case cited, the couple agreed to marry, and with that purpose went to a magistrate's house to have the ceremony performed, but he being from home, tliey returned saying, falsely, they had been married, were put to bed as man and wife the same night, and cohabited for three years or more, in the course of which they fre- quently declared they had been married ; still, this was pronounced no marriage, principally for the reasons that, at the magistrate's house, the parties looked to a future celebra- tion of nuptials, and did not themselves regard the copula as perfecting the agreement. Chancellor Johnston says, p. 97, "where there was no express stipulation that the copula should perfect the previous executory agreement, yet, if it be evident that the parties understood and intended that act to perfect it, I suppose it must have that effect. But it is of the essence of every contract that t\\e parties shall have a pres- ent contracting intention, at the time of perfecting their con- tract ; they must understand that they are making a contract ; otherwise, i]o contract is made. I do not say that they must have a full understanding of the legal consequences of the contract they are forming. The contract once made, the consequences are matter of legal obligation, and they must abide them. But where such is the penalty, it is but reason- able the parties shall not be held to have made a contract, unless where they had knowledge that they were contracting and intended to contract." Again, at p. 9S, "where it is established that the parties came together unlawfully, their continuing together must be considered unlawful, until they show a subsequent marriage." It will not be disputed that APPEALS IN EaUITY. 521 Cohsmbia, May, 1&60. emancipation is a contract, tor, in its most general sense, the word contract signifies any engagement, obligation or com- pact, and this may be unilateral or inter partes. Broom Com. L., 257; 1 Pow., G. Now, applying the Chancellor's doctrine to this case, it is plain that Willis did not intend, by that act of going ashore at Cincinnati, to emancipate Amy, and did not know that he was thereby perfecting the eman- cipation. It was nrged that this matter was settled by the maxim utile per inutile non vitiatnr. The nsnal ap)ilication of this maxim is to pleading, and it imports that mere snr- pliisage, (where the rednndant matter may be struck ont without materially changing the general sense,) does not vitiate a count or plea. So, in the construction of deeds or other writings, by foice of the maxim, immaterial expressions may be rejected. Granting, however, that the maxim is of general application, and that the converse of it is equally true, namely, that the omission of immaterial words, or acts, intended to be expressed or done, does not impair the effi- cacy of an act already complete; how are we helped to a conclusion by the announcement of a proposition having no operation, except on assumption of the point in dispute? It is the precise issue of the case whether the act of Willis was complete, to be determined by concession in a South Carolina Court, as to property here, by the law of the State. It may be conceded that, in ordinary contracts, not inhibited nor re- stricted by any law of the State, mere ignorance of the law as to the necessary formalities, even if it consist in the belief that something supertluous is demanded by law, will not invalidate a contract actually fulfilling all legal requirements. Thus, a will attested by three witnesses, would be valid, although testator supposed four witnesses were required, and intended to procure a fourth. An illustration of this princi- ple, suggested by counsel, seems to have been very ellectivo with a portion of the Court. Suppose, it was said, a slave should be sold by one citizen of the State to another, and the price was paid, and llie slave was delivered, and the parties 523 APPEALS IN EaUITY. Willis vs. Jolliffe. should igiiorantly believe that a bill of sale was indispensa- ble, and agree to meet the next morning to give and receive such bill of sale, bnt the death of one of them, or some other impediment, prevented the execution of it, would such igno- rance or mistake invalidate a sale already complete ? Cer- tainly not; for, in such case, neither universal law nor local law required a bill of sale; bnt suppose, to make the case put analogous to that in hand, the local law did require a bill of sale, then payment of the price, and delivery of the chattel, would not make a sale, however cimmerian may have been the ignorance of the jiarties. Much learned argument was employed to enforce the uncontested proposition, that by the law of nations, in the absence of local prohibition, a master may manumit his slave by any act or declaration which manifests his purpose to extinguish or throw off his dominion. But a State may regu- late, to any extent, the relation of master and slave, as to its existence and dissolution; fi)r example, might inhibit the removal of a slave from the district in which he was born, or his manumission in any place. In South Carolina we have such local prohibition. The Act of 1820 declares that no slave shall be hereafter emancipated but by Act of the legislature, and the Act of 184 1 declares null and void any gift of a slave, by any mode of conveyance, with a view to emancipation, and any devise or bequest to a slave, wher- ever he may be, or more exactly according to book, without any limitation as to the existence of the slave within the State. There may be some misapprehension or confusion as to the extra territorial vigor of general laws of a State ; but the fulness of occupation of my time does not permit me now to discuss this topic extensively. Briefly and generally, my opinion is, that a State, by its legislation, may control the contracts and acts of its citizens, wherever they may be, so long as they acknowledge their allegiance; although in just construction, general provisions, where there is no express extension, should not be held to include foreign APPEALS IN EaUlTY. 523 Columbia. May, ISGO. acts. According to thn common law of England, and, as English text- writers say, according to universal law, no native snbject or citizen of one sovereign, without the concurrence of such sovereign, can divest himself of his natural, primitive, and intrinsic allegiance, by any act of his own — even by swearing allegiance to another sover- eign. Broom's Leg. Max., 33. Denial of the right of expatri- ation does not include denial of the right to change one's domicil ; but no respectable publicist lias ever maintained that a slave could have domicil, at least a separate domicil from his master's. It is enough for present purposes to adopt the opinion of Judge Story, no extravagant friend of the rights of the separate States of the Union, as expressed in Van Reimsdyck vs. Kane, Gallison, 377: " Every State has, within its own sovereignty, an authority to bind its citizens everywhere, so long as they continue their allegiance. Unless, therefore, it be restrained by constitutional prohibitions, it may act upon the contracts made between its own citizens in everv country, and, consequently, may discharge them by general laws. But such is not the operation of jurisdiction on contracts made by a citizen with a foreigner, in a foreign couiiiry. If, in such case, the legislature, by positive laws, nullify such contracts, it is certain they cannot be enforced within its own tribunals, but elsewhere they remain with the original validity, which they had by the lex loci contractus. But if a statute be general, without a direct applicati«)n to foreign contracts, the rule approved by Casare^is, seems proper to be adopted, that its construction shall not be extended to such contracts. Ratio est (piia statutum int di- git semper disponere de contractihnsfactis intra et tion extra terrilorium suumy Now, certainly, Willis, at his death, was a citizen of South Carolina, and Amy no foreigner, and as the State, having nullified for its citizens the right of a master to enjancipate a slave, her tribunals must enforce the inhibition as to property within her limits. It n)ay be that, in our condition as a Confederate State, we can send no force 524 APPEALS IN EQUITY. Willis vs. Jolliffe. to Ohio to capture Amy, nor if Willis were living, and abided beyond the limits of the State, conld we send any force to bring him witliin the jurisdiction ; but wfien the person or the subject, a representative of Willis or his property, becomes amenable to our jurisdiction, we must enforce South Carolina law and policy. It would hardly be contended that a citizen of this State could give an estate to a slave in Georgia. If the law of Ohio, a State so oblivious of the comity due to her confederates, could control this controversy, the result of this litigation would still be donbtfnl. It is true that her Constitution excludes involuntary servitude, except for crime, without any saving as to travellers, sojourners, or fngitive slaves. But in some of her statutes, as to slaves, conscien- tious professions are made. Thus it may be mentioned, as a matter more curious than relevant, in the preamble of a stat- ute relating to fugitives from labor or service from other States, passed in 1839, the second section of the fonrth arti- cle of the Federal Constitution is incorporated, and it is set forth: whereas, it is the duty of those who reap the largest measure of benefits conferred by the Constitution, to recog- nize to tiieir full extent the obligations which that instrnment imposes; and whereas, it is the deliberate conviction of this General Assembly that the Constitution can only be sus- tained, as it was framed, by a spirit of just compromise, therefore it is enacted, among other things, that all otiicers proceeding under the Act, shall recognize, without proof, the existence of slavery in the States of the Utiion in which it exists. Stat, of Ohio, 595, 599. By an Act passed in 1804, it is enacted that after Jnne I, then next, no black or mulatto person shall he permitted to settle or reside in Ohio, unless he or she shall first produce a fair certificate from some Court within the United States, of his or her actual freedom, and that such persons there residing shall register themselves, &c. Stat. Ohio, 592. And by an Act in 1807, lb., 593, no negro or mulatto shall be permitted to emigrate into and settle witliin the State without giving bond, &c. No special con- APPEALS IN EQUITY. 525 Columbia, May, lb60. struction of those statutes will be attempted, but it may be pertinently asked, how could Amy, forbidden to emigrate to Ohio and settle ther(% acquire domicil and freedom by unlaw- fully going tiiither? We may understatid from the provi- sions of these statutes, how Willis, under advice, supposed he must do something towards the emancipation ot Amy after he reached Ohio, and why the executor executed the deeds of emancipation. It is plain that some of the views thus presented hurriedly, are contrary to the opinions announced in Frazier vs. Fra- zier. The proprieties of my position prevent me from the full expression of my aversion to the doctrines of that case; but I may say, respectfully, that it cannot be regarded as a case of high authority. It overruled the case of Byniiyn vs. Bos- tick, 4 DeS., 266, which, for many years, had prevailed as the law of the State. It was decided by two Judges, very emi- nent men, entitled to the esteem and regard of all our people, and always receiving my own, against two Judges, one of whom is the father of Equity in South Carolina, and the other a Judge unequalled witli us in genius, juridical learn- ing, and extent of reputation as a jurist. It was followed in the same year by the disorganization of the Court which pro- nounced it, and, as many believe, served, to some extent, to produce this disorganization. Its prominent result was expli- citly annulled, as a general consequence in similar cases, by the Act of 1S41. It has never been directly approved in any subsequent judgment which is reported. We have been referred to the cases of Fhiley vs. Hunter, 2 Strob., 214, and Gordon vs. Blackman, 2 Strob., 45, 1 Rich., 64, as compurga- tors of its doctrines. In the former of these, Chancellor Jolinston said, in the circuit decree: I am bound by Fra- zier vs. Frazier, however much I doubt its correctness, and in the appeal decree, it is said that the object of tlie Act of 1841 was to defeat every effort to evade the Act of 1S20. In the latter case, the Chancellor on circuit said : Frazier vs. Frazier covers the whole ground. I am hedged in on all 526 APPEALS IN EaUITY. Willis vs. JolliflTe. sides, and must submit here, that is, on circuit, and clearly implying dissatisfaction; and the Court of Appeals men- tioned the doctrine of the case as a historical fact, and with- out approval, saying the Court decided in Frazier vs. Frazier, it would not interfere to prevent the execution of such a triist, while there was no law to forbid it; and then proceeded to give retrospective effect to the Act of 1841. In this very case, on the issue of probate, 10 Rich., 186, Judge Withers, organ of the Court, puts the matter adjudged in Frazier vs. Frazier, conditionally, "if it be law," &c. On the whole, in reference to Willis, I must adopt the language of one of the characters of Shakspeare, and his legal acquirements have been elaborately vindicated by the Lord Chancellor of Great Britain, lately Chief Justice of the King's Bench : " His act did not o'ertake his bad intent. And must be buried but as an intent That perished by the way; thoughts are no subjects, Intents but merely thoughts." My brethren seem more inclined to adopt the extravagance of the Irish orator, which revolts most men of sober mind and correct taste, and to declare as the law of South Caro- lina : "The first moment a slave touches the sacred soil of Britain (or Ohio) the altar and the god sink together in the dust; his soul walks abroad in her own majesty; his body swells beyond the measure of his chains that burst from around him; and he stands redeemed, regenerated, and dis- enthralled by the irresistible genius of universal emancipa- tion." Decree reversed. APPEALS IN EaUITY. 537 Columbia, May, 1S60. Thomas Wilson vs. William S. McJunkin, and others. JVills and Testaments — Limitation of Estates. The testator devised real and personal estate to his executors in trust, for the sole and separate use of his daughter N.. " for and during the tf rm of her natural life, and at her death to he equally divided amonjrst her chiliiren in fee simple." N. had eight children living at the death of the testator, one of whom died in the liletinie of N., leaving a hushand, but no issue, surviving her: — JMrl^ that the eight children took vested interests, and that the representative of the one who died in the lifetime o( N. was entitled to her share. BEFORE DARGAN, CII., AT UNION, JUNE, 1S58. The circuit decree, which states the whole case, is as fol- lows : DarCxAN, Ch. William Sartor, by his last will and testa- ment, devised and bequeathed certain real and personal estates, described in the plaintiff's bill, to his executors, in trust for the sole and separate use of his daughter, Nancy McJunkin, wife of Joseph ISIcJunkin, for and during the term of her natural life, and, at her death, to be equally divided amongst her children in fee simple. The property thus given consisted of a tract of land, whereon the ."^aid Joseph McJunkin lived at the date of the will, and two negroes, Joe and Dinah, and also sundry executions against the Slid Joseph McJunkin, atid various choses in action, which the testator held against him, which he directed to be collected or to be appropriated in the purchase of negroes from McJunkin, to be held in the same irnsi.s. The negroes were accf)rdingly j)urchased with the fund thus designated ; Nancy McJunkin was permilted by the trustees to possess and enjoy the real and [)ersonal estate during her life, aecord- ing to the scheme of the trtist. Nancy McJunkin died 15ih 528 APPEALS IN EaUlTY. Wilson vs. MeJuiikiii. of January, A. D. 1856, leaving surviving her, children as follows, viz: Emeline Wilson, wife of William Wilson, Frances Davis, wife of P. A. Davis, Amanda Fant, wife of David A. Fant, Sarah J. Thomas, wife of Thomas, William S. McJimkin, Robert D. McJunkin, and Harriet McJunkin, who has since intermarried with William Jeter. At the death of the testator, Nancy McJunkin, the tenant for life, had another child, Mary McJunkin, who, A. D. 1840, intermarried with the plaintiff, Thomas Wilson, and who gave birth to a child who died in the life of the mother (almost immediately on its birth.) The said Mary McJnnkin, afterwards Wilson, predeceased her mother the tenant for life, Nancy McJunkin. She died in 1S45. Joseph McJunkin, tiie father, survived Mary — he died A. D. 1855. At the death of the tenant for life, the estate to be divided among the remaindermen, her children, consisted of the tract of land aforesaid, and thirty-seven negroes, which negroes were valued at |25,008 25. Oil the 22d February, 1S56, William S. McJunkin, Robert D. McJunkin, P. A. Davis and wife, Sarah J. Thomas, who has since intermarried with John Fant, David J. Fant and wife, Harriet McJnnkin, who has since intermarried with William Jeter, and William Wilson, made a partition of the negroes among themselves. On the 2Sth April, 1856, a bill was filed for the purpose of effecting a division among the same parties of the real estate, and also to confirm the informal division of the negroes, made on the 22d February, 1856. The land was ordered to be sold for division, and a decree was rendered confirming the said informal division of the negroes. A sale of the land was made in November, 1856, and confirmed at June term, 1857. The plaintiff, Thomas Wilson, was not a party to the pri- vate partition among the parties, nor was he a party to the proceedings by which that partition was confirmed, and by which the land was sold for partition. He claims that his APPEALS IN EQUITY. 529 Columbia, May, IStiO. wife, Mary, took a vested interest, by way of remainder, in the estate of which Nancy Mc.Tunkin was tenant for life, which was transn)issible to her representatives, and that he, as her husband and distributee, was entitled to the ono-lialf part of the share to which she wonhl have been entitled if she had been HvMng at the period of parlilion. This claim of the plainlitF is resisted by the defendants on two grounds; the first of which is, that Mary, the wife of the plaintiff, took no vested estate or interest under the will of her grand-father, William Sartor. Tlie question thus raised for the decision of the Court I had thought so well settled as not to admit of controversy or serious doubt; so plain is it, in fact, tliat it does not, so far as I am informed, seem to have been raised in any reported decision in South Carolina. But when we turn to the English autliorities, we find the prin- ciple so well settled as to account for the question not having been raised in our Courts. The defendants contend that the remainder to the children of Nancy McJunkin, after her decease, was contingent, because it was not certain that they would be living at that period, while, in the meantime, other children might have been born to participate with the ante Jiati, to the diminu- tion of their respective shares. It will be remembered that Mary, the plaintiff's deceased wife, was born at the death of the testator, and there was no child of Nancy McJunkin born alter the date of the will. The gift is to Nancy McJunkin during her life, and at her death to be equally divided among her children in fee simple. Fearne, 1 vol. p. 9, classifies contingent remainders into four kinds. His fonrlh class of contingent remainders he defines "where a remain- der is limited to a person not ascertained, or not in being at the time when such limitation is made." In this instance Mary McJunkin was in being, and was ascertained at the time when the limitation was made. The facts satisfy the requisiiinn of this rule to its fullest extent. The t:»ct that children subsequently born might come iii' 35 mo APPEALS IN EaUlTY. Wilson vs. MeJuiikin. and participate, does not, cannot affect the right of children 171 esse at the creation of the limitation to take an esla/e, but merely disturbs the rights as to the quantity which they would be entitled to take. The quantity of their interest only, and not their estate, is contingent. In this case the question relates to a child who was in existence at the crea- tion of the remainder. But it is equally well settled that where an estate is given to one for life, and after his death to his children ; that children born after the creation of the limitation will come in equally with those born before, and that the estates of those born subsequently become vested interests eo instanti upon their birth. This, it must in can- dor be admitted, does not conform literally with Mr. Fearne's definition, that a remainder is contingent when limited to a person not ascertained or not in being at the time when such limitation is made. But it is not inconsistent with the rationale of any rule upon the subject, and it is productive of no evil consequences to hold, that in such a case the children in esse shall take vested estates for themselves, and for those who may afterwards be born and come within the description of those who may be entitled to take. As soon as the estate is created, it vests (the whole of it) in the then existing remaindermen, and as soon as another child is born his equal and undivided share vests in him as in the others previously born: so that there is never at any time any por- tion of the estate not vested or contingent as to an existing proprietor. The Courts are said to have ^^ateanitig" in favor of construing estates to be vested, rather than contin- gent — the meaning of which is, that tlie policy of the law which is always supposed to be based upon the best interest of society, favors the vesting of estates. Though contingent estates must necessarily exist, and are essential to the wants of society and civilization, it is always better, so far as is practicable and consistent with these demands of society, that every estate should have an existing and ascertained APPEALS IN EQUITY. WI Columbia, May, 15360. propriett)r. Hence, the law favors that construction which holds estates to be vested. In the particular class of cases which I am considering, there is another and a special reason why the estates of even the after-born children should vest upon their birth. In Doe vs. Pcrryti, 3 T. R., 484,495, Buller, J., holds the following language: The Courts of Law "have said that the estate shall vest on the birth of a child, and without waiting for the death of the parents; which rule is not attended with any inconvenience to tlie children, because where the estate is limited to a nuuiber of children, it shall vest in the first, and afterwards open for the benefit of those who shall be born at a subsequent period. But if this were held not to vest till the death of the parent, this inconvenience would fi>llow: that it would not go to grand-children. For, if a child were born who died in the lifetime of their parents, leaving issue, such grand-children could not take; which could not be supposed to be the intention of tlie devisor." By the other Judges who sat in the case, Ashhurst, J., and the Chief Justice (Lord Kenyon), this principle was assumed to be well settled at that time. Since that time, (A. D. 1789,) the principle that the shares of the after-born remainderiuen shall vest at their births, respectively, has been frequently recognized, and, so far as I know, has never been departed from or questioned. In 4 Kent Com., 197, it is laid down in the following language: " When a remainder is limited to the use of several persons who do not become capable at the same time, as a devise to A for life remainder to his children, the children living at the death of the testator lake vested reu)ainders, subject to be disturbed by after-born children. The remainder vests in the persons first becoming capable, and the estate o|)ens and becomes divested in quantity by the birth of SMbseipient children, who are let in to take vested proportions of the estate." This lucid abstract of the learned commentator is amply supported by his numerous authorities. 5:i2 APPEALS IN EaUITY. Wilson vx. McJunkin. The defendants further contend that the plaintiff, if ever he was entitled to any part of the estate, has waived and released the same. They do not pretend that he has actually and formally done this, but that the circumstances and facts raise the implication. I will mention the facts wl)ich they think amount to a waiver or a release on the part of the plaintiff. They say he was aware of the proceedings in this Court for a confirma- tion of the private division, and for a sale of the land and division of the proceeds. They offered no proof of notice of this fact, but infer it from the circumstances, that he at the time was a resident of Columbia or Lexington, and that the sale of the land was advertised in the Uniouville Jour- nal. These are all the facts on which they ground their presumption, that the plaintiff had notice of the judicial proceedings. If he had had express notice, I do not see how that could have affected his rights, except so far, perhaps, as to have estopped him from questioning the title of the pur- chaser of the land. If he had stood by and seen the land sold to another, without interposing an objectiorj, the pur- chaser might have complained. But, suffering the title of the purchaser to stand unimpeach(?d, what should prevent him from setting up a claim to his proper share of the pro- ceeds of the sale of the land ? Tbe defendants also adduced in evidence a letter of the plaintiff to his brother, William Wilson, to show a surrender of his interest. The letter is a private and coiifidential com- munication to his brother. The strongest expressions in the letter, bearing on this point, are those in which he says he had heard of the division of the effects, '■'■I do think^^'' he says, " I should be entitled to the household effects which Mary (his wife) had when she died. As for the bed and fur- niture, she made them with her own hands; and as for the other furniture, her mother made it and gave it to her. I do not wish them to use myself, nor would I have it. I want your children to have it, &c." He further says: "I have APPEALS IN EaUlTY. 5:W Columbia. May, 18(10. been advised to commence suit for an e(]nal share as one of ilie legatees; I do not intend to do so. If 1 had every- tliins, and conld settle it on yonr children, withont its coming into my hands, I wonid do so. I am hard rnn, and very far from being independent, thongh I do not and never did wish to live on n)y dear wife's property, thongh I believe it wonId have been her wish for me to liave what was hers; thongh in my present situation I do not desire it, only in the way I have stated. Please send me a copy of the will and keep this a secret, as yon will be benefitted if anything comes." Farther on, he says : " As regards D. Fant, (who had mar- ried one of the parties entitled,) I do not want him to have one cent which shonld have been poor Mary's. He was the man who refnscd to iielp her at his own tal)le, after being invited by her sister. He is nnworthy to be called man. My l)lood boils whenever I think of it now; to think he, a brute, shonld exult on what should \ia.vo, been hers." This letter the defendants rely on as a release from the plaintiff to the defendants, and D. Fant among them. It is evidently written in ignorance of the plaintiff''s rights, in a spirit of discontent of what lie believes would be the inevit- able result, and manifests anything but a disposition to con- cede anything which he believed to be his, and which the law would give him. This is what the defendants call a release ! If he had said to the defendatits in so many words, that lie would release to them all his interest and share, it would not have bound him. It would have been without consid- eraiion, and wantitig in an essential form. The plaintilf was and is entitled to the one-half part of the share of his wife in the said estate held by Nancy McJnnkin for life, with remainder to her children in fee. Noihintr has happened which can have the effect of divesting him of his rights. The children of Mrs. McJnnkin were as follows: 1, Emeline, wife of William Wilson ; 2, F^rancis; 3, Amanda; 4, Sarah ; 5, Harriet; 6, W. S. McJnnkin; 7, Robert I). 534 APPEALS IN EQUITY. Wilson v-i. McJiinkin. McJiinkin ; and 8, Mary Wilson, deceased, the plaintiff's wife. These were the remaindermen with vested estates in common, being eight in number. The share of the plaintiff's deceased wife was then one-eighth of the whole. The plain- tiff, as her hushand and distributee, is entitled to the one-half part of her estate. The other half is distributable between her father, now deceased, and her brothers and sisters. The plaintift^'s share is a sixteenth of the whole estate. Jt is so ordered and decreed. I do not know whether the proceeds of the sale of the land have been collected and paid over. If they have not, it is ordered and decreed that the commis- sioner do pay to the plaintiff the one-sixteenth part of the net proceeds of the sale of the said land, and of the inter- est that has accrued thereon. If the proceeds of the sale of the land have been collected and paid over to the other remaindermen, it is ordered and decreed that the commis- sioner state an account, with each of the other remainder- men, for tlie purpose of ascertaining how much each party must contribute to the plaintiff' to make his share equal, and that each party pay to the plaintiff his or her proportionate share, and the interest thereon, from the time he received it, to make the plaintiff's share equal. It is further ordered and decreed, that a writ of partition do issue for the purpose of re-dividing the personal estate, so held by Nancy McJunkin for life, with remainder to her children. In such division, it is ordered that the commis- sioners assign and allot to the plaintiff, Thomas Wilson, one- sixteenth part of the whole, and that as to the rest of the said personal estate, and the other remaindermen, tliey, the com- missioners, conform as near as may be practicable with the former division. It is further ordered and decreed, that the commissioner in equity state an account of profits of the negroes, &c., which have been in possession of the defendants, and that the plaintiff do receive the one-sixteenth part of the said profits from the time that the said defendants have been in posses- APPEALS IN EaUITY. 635 Columbia, May, 1800. sion of the said personal estate, or in the enjoyment of the profits thereof. It is further ordered and decreed, that each party, plaintid and defendant, pay an equal part of the costs of these pro- ceedings. The defendants appealed on the grounds : 1. Because his Honor erred, it is respectfully submitted, in holding that Mary Wilson, wife of Thomas Wilson, took a vested interest under the will of Thomas Sartor, transmissible to her representatives, 2. Because his Honor erred in holding that Thomas Wil- son is entitled to any portion of the estate distributable among the children of Nancy McJunkiu. 3. Because, if plaintiff was entitled to any portion of said estate, he has released the same, or, at least, his acts and dec- larations raise that implication. 4. Because the decree is in other respects erroneous. ,/Jr//iur, (or appellants, cited : Myers vs. Myers, 2 McC. Ch., 257 ; Cole vs. Crayon, 2 Hill, Ch., 311 ; Connor vs. Johnson, 2 Hill Ch., 41 ; Campbell vs. Wii^i^ins, Rice, Eq.. 10 ; Swinlon vs. Le^are, 2 McC. Ch., 440 ; Stewart vs. Sheffield, 1 3 East, .'527 ; Lomax vs. Glover, 1 Rich. Eq., 141; 1 Strob. Eq,, 383; Mathefon vs. Hall, 3 Swans., 339. Gadberry, contra. Per Ciiriain. We concur in Chancellor Dargan's decree, and for the reasons contained in it, it is allirmed. 0'Ne.\LL, C. J., AND JoH.VSTO.VE AND WaHDLAW, J.I,, COU- ciirriijg. Decree ajjirmed. 53G APPEALS IN EQUITY. Miles vs. Wise. FuANKLiN A. Miles vs. Fixklea G. Wise, Adm'r, and others. Jurisdicfiofi — Injtinctioii — Equitable Estate. W here one has acquired a good equitable tille to slaves through the distributees — there being no creditors — of an intestate, the former owner of the slaves, upon whose estate no administration had then been granted, equity will restrain one who afterwards takes out letters of administration upon the estate of the intes- ate, from prosecuting an action of trover for the conversion of the slaves, against such equitable owner. BEFORE DUNKIN, CH., AT MARION, FEBRUARY, ISfiO. Franklin A. Miles filed his bill on the 13th day of Febru- ary, 1860, stating, among other things, that on the 3d day of February, 1849, he purchased from Joseph Bird, Hugh G. Bird, John Blackman, Jr., and wife Ann, Mary Owens, Wilson Herrin and wife Maria, a negro woman named Hannah and her child Dick — that (hey represented them- selves as tlie rightful owners of said slaves, under the will of their mother, Elizabeth Bird; that until some time in the year 1S58, he retained the undisputed possession of said negioes; that in 1857 the defendant, Finklea G. Wise, obtained letters of administration upon the estate of Alafair Bird, who departed this life intestate, unmarried, without issue, and free from debt, about the year 1841 or '42 ; that said Wise, ad- ministrator, shortly after commenced an action of trover in the Conn of Common Pleas for Marion district, against complainant, for the conversion of said slaves, and the other children of Hannah, born since the purchase by complainant, wliich action is pending and pressed for trial ; that he has learned upon inquiry that the slave Hannah was the property of Alafair Bird, she having acquired it under the will of her father, Arthur Bird, who died in 1835 ; that Alafair Bird was APPEALS IN EaUITY. 5:57 Colunil>ia, May, 1&60. unhealthy and partially idiotic, and her hrothers and sisters made an arrangement by which she was to he snpported, living with her mother, Elizabeth Bird ; that with this view, Joseph 15ird, Ilngh G. Bird, Anna Bird, and Mary Ann Bird conveyed all their interest in remainder in two other slaves bequeathed to tlie said Alafair Bird, hy the will of her father, to Edmund Herrin and Wilson Herriu, who had married sis- ters of said Alafair, in consideration of their contributing a certain sum for the sufjport of Alafair, which sum was to be paid to Elizabeth Bird, the mother ; and to Elizabeth Bird, the mother, the same parties conveyed the slave Hannah and her increase, after the death of Alafair. The bill then charged that Elizabeth Bird, the mother, Hugh G. Bird, a brother, and Mary Ann and Charlotte, sis- ters, were the only heirs and distributees of Alafair Bird ; that the other children of Arthur Bird and Elizabeth, to wit, Joseph, Maria, Peter, (the father of Ansy, wife of Fiid possession of the complainant, and to multiply suits. The hill prayed primarily for an injunctioti, restraining the action of trover. 5:i8 APPEALS IN EQUITY. Miles V.I. VVisie. The motion for an injunction was made at Marion, Mon- day, February 20, 1860. On the same day the defendant, Wise, filed his answer, admitting the purchase, by the complainant, of the slaves Hannah and Dick, from the [lersons in that behalf in the bill named, but denying all knowledge of the consideration paid, or of any representations made by the vendors at the time; admitting, further, the apparent title acquired by said ven- dors, under the will of Elizabeth Bird, and the long continued adverse possession of tlie complainant; admitting, furtiier, the grant of administration to the defendant upon the estate of Alafair Bird, made on the 23d Novetnber, 1857 ; the death of said Alafair, about the time stated in the bill, unmar- ried and without issue, but not, so far as known to defendant, free from debt; and the commencenient and pendency of the action of trover against the complainant. The answer further admitted the bequests to the intestate, by her father, Arthur Bird, of the absolute estate in the negroes Hannah and Dick; the partial idiocy of Alafair Bird, and the arrangement sub- stantially stated in the bill, as made l)y the brothers and sis- ters of the intestate, disposing of certain property belonging to her, and including the negroes Hannah and Dick, but denies that this arrangement was made with her consent, and charges the motive inducing such arrangement to have been self-inter- est on the part of the parties thereto. The answer denied the unlawful cohabitation, before actual marriage, of Arthur Bird and Elizabeth his wife, or the illegitimacy of any of their children, and claimed that Ansy Wise, (wife of the defendant,) and Peter Bird, her brother, (representing their fatlier, Peter ]3ird, a brother of Alafair,) were lawful heirs and distributees of Alafair. Ansy Wise was stated to have been twenty-five years of age, and Peter Bird twenty-two, at the date of the grant of administration. The answer submitted, that the title to the slaves in contro- versy being in the defendant, as administrator, the Court would, if it entertained jurisdiction, decree a specific delivery APPEALS IN EQUITY. 5:i0 Columbia, May, lb<30. to Ilim of the said slaves, but submitted, further, that, as the matters and things stated and coiDphiined of were all deter- minable at law, the complainant was not entitled to relief in the Court of E(|uily. His Honor made the following order, to wit: Upon hearing the bill and aliidavits, and the answer of Finklea G. Wise, the defendant, it is, on motion of Harllee & Graham, complainant's solicitors, ordered, that the defend- ant, Finklea G. Wise, administrator of Alafair Bird, be enjoined from further prosecuting his action of trover against the plaintiff, at law, for tlie recovery of the slaves Hannah and her children, mentioned in the pleadings, until the fur- ther order of this Court, and that a writ of injunction do issue accordingly. The defendant, Finklea G. Wise, administrator, appealed on the ground : That the Court of Equity has no jurisdiction in the premises. Ins^/is, for appellant, cited Brown vs. Dickinson, 10 Rich. Eq., 408. DdVi^an, contra, cited Riley Ch., .33; /In<^hson vs. fVallace, 1 Rich., 1 ; Marsh vs. Nail, Rich. Eq. Cas., 115. The opinion of the Court was delivered by O'Neall, C. J. In this case I concur in the decree of the Chancellor. The single question prpsenfed by the grounds of appeal is, " that the Court of Equity has no jurisdiction in the premises." The Court of Equity has jnrisdirtion to prevent the asser- tion of a legal right, against a plain eqnitable rii^lil. This principle is as old as the Court, and has been asserted and carried out in innumerable cases. Here the party complainant is in possession, under r. pur- chase from the alleged distributees of the deceased, nine years before the administration of the defendant. This in- 540 APPEALS IN EaUlTY. Miles vs. Witie. testate died seventeen years before tlie grant of administra- tion. She was in her lifetime unhealthy and idiotic, and at her death was free from debt, as alleged in the bill. Taking this case, it is plain that the com|ilainant has made ont a case entithng him to the relief of the Court of Equity. The case of Marsh and wife vs. A^ail and others, Rich. Eq. Cas., 115, is a conclusive authority in his favor. But it is supposed that Brown vs. Dickinson, 10 Rich. Eq., 40S, stands in his way. I do not thijik so. In that case the complainant's right depended upon a deed whicli was sup- posed to constitute a separate estate in Mrs. Sessions, his grantor. The bill sought a discovery of that which he did not obtain. That closed the Court of Equity against him ; and the case was properly left for the Law Court. There is no such ditliculty in tliis case. The defendant's answer sets up no debts ; after a lapse of seventeen years, and from the condition of the intestate, the presumption is she owed none. The only contest set up is as to the legitimacy of two of the children of Arthur Bird and Elizabeth, his wife, (sister and brother of tlie intes- tate.) This question cannot be tried in the action at law; it must be tried in the Court of Equity, where the case is brought by the complainant. There can be no propriety, under these circumstances, of allowing the defendant to liti- gate at law, and disturb the complainant's possession. The circuit decree of Chancellor Dunkin is atErmed. Johnstone and Wardlaw, JJ., concurred. Decree affirmed. APPEALS IN EQUITY. 541 Columbia, May. ISnO. Ch.vs. B, Farmer, adm'r, vs. A. M. D. Spell and others, TFiHs and Teatcifncnts — .'idministratloii — Debts — Equitable Conversion. Testator directed " first, that all my jiist debts he paid and discharged ; and, sec- ondly, that the remainder of my property he disposed of as lollows." He then devised all his "lands on the Round O, known as the Ash Hill plantation." to his son, '-to be valued by three disinit-resled persons, and to he received by him at said valuation, as so much of his share of my estate" — directed that his daughter should " receive in negroes, the amount o( the valuation of the land given to my son ;" and, after provulinff tor other children to be born, should there be any, bequeathed the remanider of his per.->onal properly to his wife: — Hi-hl. that there was no equitable conversion of the larids into personalty, and that as between the devisee and legatees the personal estate should be ex- hausted in payment of debts before resort could he hud to the real estate devised. BEFORE DUNKIN, CH., AT COLLETOX, FEnHl'ARV, ISOO. Paul W. Spell, being .soizcd and possessed of a plantation known as liis Ash Hill plantation, and of some slaves and other personal estate, died in March, )857, leaving a last will and testament, as follows : *' In the name of God, Amen. I, Panl W. Spell, of the aforesaid State and district, being of sound mind and mem- ory, and considering the nncerlainiy of this frail and transi- tory life, do therefore make, ordain, publish and declare this to be my last Will and 'resiamenf, viz.: First, that all my just delits be paid and discharged; and, secondly, that (he remaindfr of niy properly be disf)osed o( as follows, viz. : First — I will and beqiu-aih to my son, Eldred Spell, all my lands on the Round 0, kiinwii as the Ash Hill plantation, lo be delivered to him whenever he shall become of age, to be valued by three disinterested persons, and to be received by liim at said valuation, as so much of his share of my estate, 542 APPEALS IN EaUITY. Farmer v.s. Spell. to have and to hold the same forever. Secondly — It is my will that my daughter, Sarah Harriet, shall receive in negroes the amount of the valuation of the land given to my son, Eldred, to be delivered to her when. she arrives at the age of twenty-one, to have and to hold the same forever. Third — Should mv wife, Amanda M. D. Spell, have another child or children by me, then the said child or children to receive in negroes, an amount equal, each, to my daughter, Sarah Har- riet, to receive the same at the age of (wenty-one, to have and to hold the saujc forever. Fourth — It is my will that my wife, Amanda M. D. Spell, should have the remainder of my personal property her natural life, and after her death to be equally divided among my children, share and share alike, the child or children of a deceased child to receive his or her portion so dying. Fifth — It is my will, in case either of my children die without issue of body, that the share of said child revert back to my surviving children. And lastly — I nominate and appoint my brother, Henry McF. Spell, executor to this, my last Will and Testament, and hereby revoking all others by me made, declare this to be my last Will and Testament, executed this, the 20th January, in the year of our Lord one thousand eight Iiundred and fifty-seven." The executor named in the will refused to qualify, and the complainant became administrator with the will annexed. The debts proved to be very considerable, and this bill was filed against the devisee and legatees and some of the creditors for a sale of the estate, and praying that the assets be administered in this Court. The principal question made was, whether as between the devisee and legatees the real and personal estate should contribute equally in payment of the debts or whether the personal estate should be exhausted before resort could be had to the realty. DuNKiN, Ch. The pleadings present the facts upon which the judgment of the Court is sought. By the will of the testator, it was clearly his intention to APPEALS IN EaiJITY. 543 Columbia, May. 1860. place his son and daughter upon an eqnal footing, in the dis- tribution of his estate. To carry this purpose into eti'ect, his Round plantation is directed to be valued by three disin- terested persons, and to be received by his son at that valua- tion, as so much of his share of his (testator's) estate: And the daughter is directed to receive in negroes, the amount of the valuation of the land given to the son. 'V\\c same prin- ciple is applicable, as was declared in Perry vs. Ln^^an^ 5 Rich. Eq., 202. As between these legatees it was an equita- ble conversion by the will itself, of the land into personalty, as much so as if testator had directed the plantation to be sold, in order to ascertain the value, and fix the equality between them. It is suggested in the pleadings, and seemed to be conceded at the hearing, that the entire personalty would be insutlicient to pay the debts of the testator, in which event a sale of the real and personal estate would probably be necessary or expe- dient. But the Court cannot assume the insufliciency with- out a report from commissioner or special referee, to whom an enquiry was directed by the order, 23 February, 18,59. It may be proper to enlarge that order by directing the commis- sioner to report the probable value of the personal estate of the testator, and of what ihe same consists ; and it is accord- ingly so ordered and decreed ; and that he have leave also to report upon the necessity or expediency of a sale of all or any part of the testator's estate. Upon the filing of said report, parties may be at liberty to apply at chambers for such order as may be necessary. Finally, it is ordered and decreed, that the plaintitT, as administrator wiih tiie will annexed, account before the spe- cial referee for his actings in relation to said estate, and that the special referee report thereon at the next sitting of this Court. Eldred Spell, defendant, appealed from so much of the 544 APPEALS IN EaUlTY. Farmer t's. Spell. decree as decided that there was an equitable conversion of the lands devised to him, into personalty : 1. Because the devise to him of the " lands on the Round 0, known as the Ash Hill plantation," was a devise of the land itself as such; and if so, there was no equitable con- version of it into personalty. 2. Because, if it was the intention of testator to place "his son and daughter upon an equal footing in the distribution of his estate," it is equally clear that it was his intention that the "Ash Hill plantation" itself was to go into the possession of, and be enjoyed by, this appellant. Traci/, for appellant. 1. The constructive conversion of property, by the Court of Equity, is eiTected by applying the principle : that which ought to be clone, will be considered as done. 1 Jar man on Wills, 523 ; Fletcher vs. Jishburner, 1 Bro. Ch. Ca., 497. And realty can be converted into personalty, only., where a sale has been directed. 1 Rop. Leg., 503 ; 1 Sanders, U. & T., 300, marg. It is evident, that only where the character of the estate is directed to be altered, and this has not been done, that occa- sion can arise for the application, in this connection, of the principle above mentioned. And, in every case that can be found, of the equitable conversion of realty into personalty, a sale had been ordered, and the proceeds were what was given. In our own cases, Postell vs. Postell, 1 DeS., 173; Mathis vs. Griffin, 8 Rich. Eq., 79; fVilkins vs. Taylor, 8 Rich. Eq., 291 ; North 7's. Valk, Dudley Eq., 212 ; Perry vs. Logan, 5 Rich. Eq., 202. In the English cases, Mallabar vs. Mallabar, Ca. Temp. Talb., 79; Ogle vs. Cook (cited in North vs. Valk); Spink vs. Lewis, 3 Bro. Ch. Ca., 355; Dighy vs. Legard, in note to Cruise vs. Early, 3 P. VVnis., 22 ; Wright vs. fVright, 16 Ves. APPEALS IN EaUITY. 545 Columbia. May, I860. Jr., ISS; Dut'ow vs. Mo/teaux, 1 Ves., Sr., 320 ; Chit ty vs. Parker, 2 Ves., Jr., 271 ; Fletcher vs. Ashburner, 1 Bro. Ch. Ca., 497 ; Law Lib., vol. xl., 546 ; Ackroyd vs. Smithson., I Bro. Ch. Ca., 503; Law Lib., vol. xl., 571 ; Embleyn vs. Free- man (cited in Fletclier vs. Jlshburner) ; Flanas^an vs. Flana- gan, lb. ; Collins vs. fVakeman, 2 Ves., Jr., 683. So in the leading American cases, Craig vs. Leslie, and the dozens of cases, English and American, cited in Law Lib., vol. xl., in discnssing Fletclier vs. „ishburner, and Ackroyd vs. Smithson. So in Gntt vs. Cook, 7 Paige Rep., 521, and in all the other cases that can be fonnd. Thus Mr. Roper's position, that a direction to sell is essen- tial to a conversion, is su|)ported by the fact that no case can be fonnd of the conversion of realty into personalty, in which a sale had not been ordered. And no sale was ordered in this case. 2. Bnt says the learned Chancellor: "The same principle is applicable as was declared in Perry vs. Lngan.^' Apply the rnle laid down in this case, and it will not operate against appellant. The Chancellor, in delivering the opinion of the Court of Appeals, says: " Whenever it is ajiparent, from the words of the will, that the testator meant that his real estate, as such, should not pass into the possession of the objects of his testamentary bounty, but that his real estate should be converted into money, and as money, that it should come to those for whom he designs the benefaction, in equity, it will be regarded as a bequest of personal property. Under such circumstances, it will be treated in all respects as if the conversion had been made by the testator in his lifetime." This, by no means, indicates that the conversion is to be effected otherwise than by a sale. Bnt applying the rule : Did testator, in this case, mean "that his real estate, as such, should not pass into the possession of the object of his testamentary bounty ?" It is the land he gives, ?iot the pro- 86 546 APPEALS IN EaUITY. Farmer vs. Spell. ceeds of it. "I will and bequeath to tny son, Eldred Spell, all my lands on the Round 0, known, &c., to be delivered to him whenever he shall come of age, to be valued by three disinterested persons, and to be received by him at said valu- ation, as so much of his share of my estate, &c." The land is given ; the land is to be delivered ; the land is to be received. What indicates that it is not to be received as land ? It is supposed its being directed to be valued, and to be received " as so much of his (the son's) share of my (testator's) estate." But the valuation was only for the purpose of ascertaining what value in negroes the daughter should receive. And though to be received as so much of testator's estate, it was not to be received as so much money of testator's estate, but as land worth so much money. When land is valued by commissioners in partition, and allotted to an heir, it is not allotted to him as so much money of estate of him through whom he claims, but as land worth so much money. The valuation in partition and in this case are, in principle and effect, identical. Is the land received by the heir personal property? 3. Besides, " Courts of Equity, in genera!, will not inter- fere to change the quality of the property, as the testator has left it, unless there is some clear act, or intention, by which "he has unequivocally fixed upon it throughout a definite character, either as money or as land," " and to establish a conversion, the will must direct it," out and out, "for all pur- poses, not merely those of the devisees." Jarman on Wills, vol. i., 523, note 1, and numerous authorities there cited ; Spence Eq. Ju. Ct. Ch., vol. ii., 256. Even a direction that testator wished the land to be sold, does not necessarily effect a conversion. Cook vs. Dungerfield, 2 Atk., 567. 4. Suppose there was a conversion. It was not "out and out," but:, as circuit decree says, for a specific purpose only, " to ascertain the value and fix the equality between them." Where a conversion is ordered for a specific purpose, and APPEALS IN EaUITY. 547 Columbia, May, 1860. the purpose fails, there is no conversion. Ackroyd vs. Smith- son, in which Sir William Scott changed the mind of Lord Thurlow, and reviewed all the authorities. Fonb. Eq., vol, 2, lis, n. a. It appears from the facts, that there are no negroes left, after paying debts, to give. The specific purpose for the valuation or conversion then has failed, and so the conver- sion fails. Croft vs. Slee, 4 Ves., 64. A conversion, for the sake of convenience, fails, if it should happen that the con- version is not necessary. Spence's Eq. Ju. Ct. Ch., 262, marg. Next of kin cannot call for a conversion, merely that they may take proceeds as personal estate. When the purpose fails, said Lord Eldon, the intention fails, and the Court re- gards testator as not having directed the conversion. Ripley vs. JJ^aterworth, 7 Ves., 435; ///// vs. Cock, 1 Ves. and Reames; Spence Eq. Ju. Ct. Ch,, 234, marg,; Chitty vs. Parker, 2 Ves., 271, marg. 5. Again, the realty "cannot be appropriated towards the payment of the debts," " until all the personalty is exhaust- ed." Because every devise of land, (when this will was made,) or of the value of land, is specific. Forrester vs. Leigh, Am- bler, 173 ; Warley vs. JVarley, Bail. Eq., 409 ; Rop. Leg,, vol, 1, 200, marg. The bequest to the daughter is not specific, TVigfall vs. Wigfall, 3 DeS„47; 1 Rop, Leg., 190; Godard vs. JVagner, 2 Strob, Eq., 1 ; Pc/l vs. Ball, Spear Eq,, S4 ; Davis vs. Cain, I Iredell Eq., 304. Cam, contra. The opinion of the Court was delivered by Wardlaw, J. Courts of Equity, in promotion of right, sometimes consider as done that which should have been done. On this principle, laud directed by a testator to be sold and turned into money, is considered as personalty before an actual sale. Fletcher vs. .ishburner, 1 Br. C. C, 497 ; W. and T, L. C, 546 ; North vs. Valk, Dud, Eq,, 212. Equitable conversion of realty into personalty is effected in strictness only where a sale of the land is ordered, and dis- 518 APPEALS IN EaUlTY. Farmer vs. Spell. position of the proceeds is made; but if the intention to dispose of the subject as personahy can be ascertained from tfie face of the will, it may not be indispensable that a sale should be explicitly directed as a means of conversion. Chancellor Dargan says, with sufficient precision, in Perry vs. Logan., 5 Rich., 202, " whenever it is apparent, from the words of the will that the testator meant that his real estate, in that form, should not pass into the possession of the objects of his testamentary bounty, but should be converted into money, and as money, come to tliose for whom he de- signs the benefaction, this will be considered in equity as a bequest of personalty. Under such circumstances, it will be treated, in all respects, as if the conversion had been made by the testator in his lifetime." So, too, cases might be within the principle of conversion as to some incidents, where no alteration of the form of the estate was contem- plated. Thus, if a testator should give his land to his son, and his slaves to his daughter, and express his intention that the land and slaves should contribute to the payment of his debts, ratably to their respective values, his will would be the law between his two children, and the devisee could claim no exoneration from liability for debts. The same end might be effected by any form of words which would suffi- ciently exhibit testator's intention to put the legatees on terms of complete equality, but no equivocal expression of intention can supersede the rules of law in this matter, and much less can the rules be deflected in operation by the seeming hardship of their result as to a particular legatee. The law of this State as to the relative liability for the debts of a testator of his real and personal estate, is nearly identical with that of England, where a testator there has charged his whole estate with his debts. The statute of Geo. II, c. 7, sec. 4, 2 Stat., 571, abolishes here the distinction between real and personal estates in the payment of debts, so far as the rights of creditors are concerned, but as between at devisee of realty and a legatee of personalty still leaves the APPEALS IN EaUITY. 549 Columbia, May, 1S60. personalty as the primary fund for the payment of debts. It is settled by the elaborate judgment in Hull i^f. Hull, 3 Rich. En., f)5, as to estate of which a testator was seized and pos- sessed at the time of making his will, and as between the objects of his bonnty, that a specific legacy of personalty must be exhansted in payment of debts before resort can be had to land devised, where no different rnle is prescribed in the will. Every devise of land is specific, [Broorn vs. Monck, 10 Ves., 597, JVarley vs. IVarley., Bail,, 397,) and without the aid of this principle the devise in the present instance is unquestionably specific, for it is separated and distinguished from all other lands by the terms of descrij)tion : "All my lands on the Round 0., known as the Ash-hill plantation." On the other hand, the legacy to Sarah Harriet, is not speci- fic, (although she would not be helped if it were otherwise,) being merelv the amount of the value of the land, to be paid in negroes, without precise designation of the sum of nuiney to which she should be entitled, or the number, names, ages or sex of the negroes to be used towards satisfaction of the legacy. Everything about the legacy is indefinite, and undis- tinguished from subjects of like kind. The testator directs, " first, that all my (his) just debts be paid and discharged, and secondly, that the remainder of my (his) property be disposed of as follows;" and then proceeds to make his devise and be^iuests. And it is argued that this charge of his debts on his whole estate serves to manifest his purpose to put his real and personal property in the same category, as a common and equal fund for satisfaction of his liabilities. It is naked conjecture, not founded on any fair construction of the terms and provisions of the will, that the intention of testator would be defeated by enforcing the rule of law as to the prior liability for his debts of his slaves and money. There is no intimation in the will that the tes- tator was ignorant or mistaken as to the legal effect of his dis- positions, nor of his intent or wish that there should be any departure from the usual course in the administration of his 550 APPEALS IN EaUITY. Farmer vs. Spell. assets. Every one is presumed to know the law ; and this testator must be presumed to knowthat if he forbore to make a different direction, as he had a plain right to make or for- bear to make, his personalty must be applied to his debts before his lands could be used for this end. If, in fact, he knew the law, then he designed the consequences of his dis- positions ; and we are not autliorized to conjecture, against the legal presumption of skill, and in the lack of any contrary manifestation Irom the context, that there has been disap- pointment of his purpose. The direction of the testator that his debts be first paid, and that his devise and bequests shall operate on the rest of his estate not consumed in such payment, is merely the super- fluous expression of the inevitable conclusion or implication of the law. It is mere surplusage, not modifying to any ex- tent the injunction of law. It is simply announcing in words the desire of the testator to fulfil his lawful duty to be just before he undertakes to be generous. In our last case on this point, Lloyd vs. Lloyd, 10 Rich., 469, the testator directed " that all his just and lawful debts, and all lawful charges against his estate be fully paid," and then devised and be- queathed " all the rest and residue of his property, real and personal"T— the words in Spell's will are not quite so strong — and it was held that the charge of debts was superfluous, and inoperative to disturb the prior liability of personalty bequeatlied generally, even to real estate acquired after mak- ing the will, and left to descend. Lloyd vs. Lloyd was decided on the authority of Henry vs. Graham, 9 Rich., 100 where the words of the will, in this respect, were, " I direct all my just debts to be paid." The same view was taken in Brown vs. James, 3 Strob., 24, as to the direction that just debts be paid. In that case the doctrine on this point is well put interrogatively. Does there appear, from the whole testa- mentary disposition taken together, an intention on the part of testator, so expressed as to convince a judicial mind, that it was meant not merely to charge the estate secondarily APPEALS IN EaUITY. 551 Columbia, May. ISOO. liablo, but so to charge it as to exempt the estate primarily liable in whole or in part? No such intention to exonerate the personalty can be detected in this will. The land speci- fically devised to the son, and to be delivered to hitn when- ever he should become of age, is directed to be valued ; but that valuation is ordered, without any expression of desire that the land should be changed in character, or that it should be taken subject to any abnormal liability for debts ; and, indeed, valuation is directed merely to ascertain the amount of the bequest to the daughter, without changing its rank. It is very probable that the testator made the mistake, so com- mon with men in debt, of over-estimating the net value of his estate, for we find him giving to possible children legacies equal in value to that of the daughter, and providing that his wife should enjoy for life " the remainder," that is, residue of his personal property; but we cannot be sure, from his words, that if hfe had been premonished fully of the state of his affairs that would exist after his death, and instructed actually, as is always presumed in law, of tlie ordt^r of liability by law of the several portions of his estate for satisfaction of his debts, he would have changed his dispositions m any respect. We are not at liberty to conjecture, on any fanciful notions of equality and equity, that he did not intend to do that which the laws of many countries (thus exhibiting a very common sentiment of mankind) would have required him to do, namely, give superiority to his first-born of the male gender in relation to that kind of estate more immediately connected with duty to the State and the pride and aggrandizemoit of families. Suppose the land had been taken from the sou by title paramount, it wotild hardly be pretended that the son could obtain contribution from his sister,on this notion of intended equality. No sentiment can be more general among men than the desire to provide for the comfortable sustenance of their surviving and bereaved consorts in life; yet we could not conclude, in deference to this sentiment, that because the testator gave an anticipated remainder of personalty to bis 552 APPEALS IN EaUITY. Farmer vs. Spell. wife and left her without other provision, she has a valid claim on the other legatees for contribution from their lega- cies for her maintenance. Her dower is independent of the will, but in the event slie takes nothing by gift of the testa- tor. It would be utterly unsafe, nay, despotic, to determine judicially that a testator intended whatever the Judge may think he ought to intend. Then the fact that this testator, after a charge for debts, bestowed on his legatees the remain- der or residue of his estate, is supposed to demonstrate his intention of equality among them as to burdens and benefits. Similar expressions were adjudged in Lloyd vs. Lloyd, to have no such effect, and correctly so adjudged. The testator here chose to put the implication of law in the form of an express direction ; yet it cannot be inferred logically that he intended anything more than the implication of law. He used the term remainder, because he knew that his testa- mentary gifts could have no operation on his estate, except as to the remainder left after the payment of his debts; but this does not manifest any further independent and discon- nected intention on his part to derange the rank of the things given in paying debts. With all proper respect for the opin- ions of others, it seems to me leaping in the dark to a con- clusion, to affirm that this testator meant his land devised to pay his debts before his personalty was exhausted. The decretal orders of the Chancellor are not appealed from, and seem to be unobjectionable. We adjudge that the doctrine of the circuit decree that the land is liable for the debts of testator before the personalty be exhausted, whether this be founded on the principle of equitable conversion or any provision m the will, cannot be maintained, and must be reversed. And it is ordered that the decree be reformed accordingly. Johnstone, J., concurred. O'Neall, C. J., dissenting. I concur in Chancellor Dun- kin's decree. It is plain to my mind that the testator intended perfect APPEALS IN EQUITY. 553 Columbia, May, 1S60. equality among his children. His will plainly contemplates the payment of his debts out of the whole of his estate, real as well as personal. It directs the payment of all his debts, and provides that "the remainder of my property be disposed of as follows;" the devise and becpiest follow this provision. This, it seems to me, was equivalent to a devise, charging the whole of his estate with the |iaymont of his debts, in the first instance, and then directing that the devise and bequest should have effect. Saddling the del)ts ujion the personal estate first, has the effect to leave the daughter nearly penniless, and to confer Ujion the son a valuable real estate. Such injustice ought never to be allowed unless some rule of law forces it npon the Court. None such exists. I am, therefore, for affirming the Chancellor's decree. Decree reformed. 554 APPEALS IN EQUITY. Pesrues vs. Pegiies. ^. F, Pegues, Executor, vs. C. M. Pegues and others. Wiils and Testaments — Legacy to Deceased Child. The Act of 17S9, § 9, 5 Stat., 107, was intended to provide for the ease of a lapse by the death of a child, after the execution of the will of the father or mother. The Act does not apply where the child was dead when the will was executed. BEFORE DUNKIN. CH., AT MARLBOROUGH, FEBRUARY, 1S60. William Pegues, Sr., died in 1857, leaving of force a last will and testament, made and executed on the 3d May, 1852. By the second clause of his will, he bequeathed as fol- lows, viz: "I give and bequeath to my son, Malachi Pegues, the sum of 1 1,500;" and the twelfth clause was in these words, viz: "All the rest and residue of my estate, not here- inbefore devised and bequeathed, I will and bequeath to all my children, (except my son, Claudius Pegues,) and my grand-son, Joseph Pegues, the son of said Claudius Pegues, to be equally divided amongst them, share and share alike. The share given to my grand-son, Joseph, is given to him, instead of his father, in compliance with his father's request." Malachi Pegues, the son referred to by the testator, in the second clause of his will, was already dead at the time of the execution of the will ; he having died in 1849. The children of Malachi Pegues claimed the pecuniary legacy of $1,500, under the second clause of their grand- father's will, and also the share of the residuum to which their father would have been entitled, had he survived the testator. This claim was resisted on behalf of infant chil- dren of the testator, and the executor filed this bill for instructions. APPEALS liN EaUlTY. 555 Columbia, May, 1860. The single question made by tiie pleadings, and submitted to the Chancellor on circuit, was as to the proper construc- tion of A. A. 1789, sec. 9, (5 Stat., 107,) which is in the fol- lowing words, viz: ''^»d be it further enacted, by the authority afonv^aid, That if any child should die in the lifetime of the futlu^ or mother, leaving issue, any legacy given in the last will of such father or mother shall go to such issue, unless such deceased child was equally portioned with the other children by the father or mother when living." DuxKiN, Ch. By the ancient Act of distributions, A. A. 1712, (2 Stat., 523,) it was provided, among other things, that the surplus of the intestate's estate should be distributed one-third to the widow, and the residue, in eijual portions, among the children, and such persons as legally represent such children, "in case any of the said children be then dead," unless the child has been advanced. In the same manner, it is provided by the A. A. 1791, (5 Stat., 162,) that if the intestate shall leave a widow, and one or more chil- dren, the widow shall take one-third, and the remainder be divided between the children, (if more than one,) the issue of a deceased child taking among them the share of their parent. A like beneficent spirit is ujanifested by the Act of 1789, in securing to (he issue of the child of the testator, the bounty which was intended for (he parent. Any legacy given in the last will of a father or mother to a child, shall go to the issue of such child, if the child should die in the life- time of the parent; the Act is remedial. The object is to secure to the offspring what was given to the ancestors; but whicli gift could not take effect by reason of (he death of the ancestor. All the legislative proceedings look to what is (o be done on the dea(h of the testator or intestate; and all mean what is expressly declared by the Act of 1712, (hat "in case any of the children be then dead," the issue of such de- ceased child shall take, among them, the share of the estate 556 APPEALS IN EaUITY. Pegiies vs. Pegues. to which the parent would have been entitled, if he had sur- vived the testator. The Court is of opinion that the issue of Malachi Pegues, deceased, are entitled to represent their parent, and to take the legacies given to him under the second, and also under the residuary clause of the testator's will, and it is so de- clared. It is ordered and decreed, that it be referred to the com- missioner to take an account of the transactions of the plain- tiff, and that he report thereon, costs to be paid out of the estate of the testator; and parties to he at liberty to apply, at the foot of this decree, for any further order, which may be necessary for carrying the same into effect. The defendants, Catherine E. Pegues and Emma W. Pegues, appealed on the grounds: 1. That the death of Malachi Pegues occurring before the execution of the will, the legacy of $1,500 in the second clause of the said will is not saved to his children by the Act of 1789. 2. The terms of the Act of 1789, sec. 9, do not include the case of a legacy void ab initio. 3. The children of Malachi Pegues have failed to bring themselves within the terms of the Act, by showing that their father was not "equally portioned with the other chil- dren," by his father, "when living." 4. Even if the pecuniary legacy of $1,500 is saved to the ciiildren of Malachi Pegues by the operation of the Act of 1789, the benefits of that Act cannot be extended so as to entitle them to a share in the residuum, under the twelfth clause of their grand-father's will. Inglis, for appellants. Townsend, contra. AI'PEALS IN EaUITY. 557 Coliimt)ia, iMay, 1860. The opinion of the Court was delivered by Johnstone, Ch. I think the construction which has been generally put upon the statute, has been that it was intended to prevent the consequences of lapse arising from the death of the legatee after the execution of the will. The language of the statute, although very loose, seems to bear evidence of such an intention. It contemplates the case of a legacy given : — that is, a provision made for the child of such a character as would be valid if the will should come fortlnvitli into operation. Such a legacy being given, the statute goes on to provide, that if the child (thus provided for) should die, then the \egSLcy given to him shall go to his issue — unless, &c. This language seems to be intended to describe a case (not uncommon), where a legatee s/ioii/d hap- pen to die, after the execution of a will in his favor, by which casualty his personal enjoyment of the intended bounty would be frustrated. I can hardly suppose the legis- lature contemplated the case of a man's giving a legacy to a dead child — or that it intended to remedy the effect of such an absurdity. It may be very well conceived that it intended to make good a legacy which had become void, without going the length of supposing it intended to give effect to one which was void ah initio. There is room for another remark upon the statute. It provides that the legacy to the child shall be made good to the child's issue, " unless sucli deceased child was equally portioned with the other children, by the father or mother" (who made the will) " when living." Advancements are, by law, to be taken into consideration only in cases of intestacy. A testator may make what provision he pleases among his children, — though it result from gifts, previously made by him aliunde the will, that he has dealt unequally by them. The legatee in this casi; would have taken the whole ol his lega- cies, mentioned in the will, had he been alive when the will was made, and had he survived his fattier. When the stat- 558 APPEALS IN EaUITY. Pegiies V.I. Pegues. lite gives his legacies to his children upon condition that he has not been fully advanced; does it not refer to advance- ments tnade after the will; and which may be considered as an eqnitable satisfaction of the legacies it contains ? And if so, does it not follow, that it contemplated the case of the legatee being in esse at the date of the will ? It is ordered, that the decree, so far as it adjudges the lega- cies provided in the second and residuary clauses of the will for Malachi Pegnes, to his children and issue, be set aside and reversed ; and it is decreed, that said issue and children are not entitled to the same or any part thereof. Ordered, that the cause be remanded to the Circuit Court. Wardlaw, J., concurred. O'Neall, C. J,, said — I dissent, and concur in Chancellor Dunkin's decree. Decree reversed. ' ' A. P P I^ N D I X John Fketwell and others?'*. Alfred M. Neal and others.* JVills and Tcslanicnts — Executors — Estate for Life — ,^fi- se?it — Evidence— Judi^meut — Sheriff's Sale — Purchaser for valuable consideration without Notice — Lapse of Time. Where the testator gives an estate for life in a slave, and directs that, after the death of ihe tenant for life, the slave be sold and equal distrilnition of the pro- ceeds made among certain persons, an assent by the executor to the legacy to the tenant for life, does not divest him of the remainder— the estate in remain- der, with power to sell and distribute, remains in the executor. Where the testator gave his plantation and two slaves to his wife for life, and the wife and children remained u|)on the plantation for several years, but it was under the control and management of the executor, who disposed o( the crops and paid the debts with the proceeds, held, that there was not sufficient evidence of an assent to the legacy to the wife. A judgment in Georgia against an executor as executor, to be levied of the goods and chattels of the testator, founded on a debt contracted by the execu- tor after the death of the testator, though irregular according to the course of procedure in this State, will, under the Constitution and Act of Congress, be respected by the Courts of this State, as a valid judgment ; and a sale under it of the goods of the testator will be upheld. A Sh»?rifr's sale o( a negro, luade in Georgia, in 1S30, proved by parol, without production of the execution or the return of sale by the Sherirt". Where there have been several successive sales of slaves subject to an equity, if any one of the purchases was made for valuable consideration and without notice, that, and all the subsequent purchases, will be good. Great lapse of lime, held, strongly to support a defence, not only in supplying lost papers, but also in raising the presumption that no wrong was committed. BEFORE WARDLAW, CH., AT ANDERSON. .TUNE, IS-SS. Tlip facts of this case arc stated in the circuit decree. Wardlaw, Ch. John Frelwell filed the original bill in ♦ This case was decided in the Court of Appeals, at May Term, IS.TO. It was mislaid when the cases of that Term were published or il would have appeared among them. Il is too important to be omitted altogether, and is now in«ertcd as an appendix. 500 APPENDIX. Fretwell iably admissible in evidence under 5(54 APPENDIX. Fretwell vs. Neal. our Act of 1S23, 6 Stat., 209, as the requisite notice had been given. Some doubt, too, was entertained as to the jurisdiction of the Court, even on the indulgent views suggested in Si?ns vs. She/ton, 2 Strob. Eq., 221, for from the number of claimants there could be no other delivery of the slaves than by distri- bution of the proceeds of sale, and the insolvency of the defendant is not alleged. But partition is an extensive field for equity, and as defendant may be considered as entitled to the share of James Fretwell, at least, relief may be afforded in that form, where specific dehvery is sought. Nix vs. Harley, 3 Rich. Eq., 379. As to the plea of purciiaser without notice, I think that defendant has established some of the elements of this plea. He has paid a fair price and received a conveyance from one in possession of the chattels, claiming them absolutely under a sale by the executor as legal owner. It may be that Cullen Fretwell, by merely giving credit on his execution, did not pay his money in that strict sense which is necessary to the integrity of the plea. Williams vs. Hollingswo7'th, 1 Strob. Eq., 103; but that does not injuriously aftect a purchaser from him who did pay money. Where plaintiffs claim by legal title, and seek no discovery from defendant imperiling his title, this plea is inapplicable. Daniel vs. McCo?^d, Rice Eq,, 330; and here it is questionable whether such discovery is sought. But, in my opinion, the title of the jilaintifTs is merely equitable, and although equitable owners may sue in equity, (Bush vs. Bush, 3 Strob. Eq., 131,) this plea is opera- tive when proved to defeat their suits. The remainder in the slaves specifically after the life estate of the widow is not given to the children of testator, and nothing is given to them but shares in the proceeds of sales after the slaves shall be sold as directed. It has not been satisfactorily proved that the executor assented to the legacy of Sarah and deliv- ered her to the life tenant; but assuming that fact for the argument, the legal title of the executor would be suspended d APPENDIX. 505 Coliinibia, May, 1859. only during (he subsistonco of the life estate, and not extin- gnislicd, and at the termination of the interest for life wonld be revived to enabh' him to perform the important trnsl of making sale and tlistribntion. The will here does not ex- pressly charge the cxecntor to make tlie sale, bnt wherever a will directs a sale and fails to nominate the person to make it, the dnty and power devolve on the executor. An execu- tor's assent to a legacy so as to vest title and possession in a life tenant inherently operates for the benefit of the remain- dermen. Finley vs. Hunter, 2 Strob. Eq., 208; bnt it does not change the character of their estate from equitable to legal. Still, the defendant Neal must fail in fliis plea, because he had notice of plaintiffs' claim. I suppose that notice to the defendant is implied by law from the probate and record of the will in the ordinary's office of the State of his domicil and purchase. E//is vs. Woods, 9 Rich. Eq., 19; and the circumstances go far to show notice in fact. Defendant was intimate in the family of testator, and familiar with tlic affairs of the estate before his purchase, and he purchased from one of the sons. On his bill of sale he indorsed an assignment to one Creswell Neal, on January 29, 1832, which is unexplained, and probably was merely colorable. Cotem- poraneously with the institution of the suit, he conceals him- self and eloigns the slaves for a time. Possibly this course was taken from ignorance and timidity, but more naturally it exhibits distrust of his title from information long previ- ously acquired. I suspect, yet I cannot safely conclude, that he had actual notice. This plea is overruled. The effect of the lapse of time as a bar of the plaintiffs' remedy remains to be considered. Defendant has been in adverse possession of the slaves for nearly twenty-five years, without any counter claim, and his vendor had been in pos- session for a ye^r or more previously. The tenant for life, whose immediate interest was disturbed, lived for twenty-two years after dispossession without making complaint, and those claiming, upon the expiration of her interest, forbore 506 APPENDIX. Fretwell vs. Neal. clamor for nearly four years after her death. Under such circumstances, all reasonable presumptions should be made against a tardy claim. It can hardly be contested that the executor of testator's will, sold the slave Sarah to CuUen Fretwell. The sale, in form, was made by his agent, the sheriff, under executions against him. It is said, however, that tlie sale was made for the private debt of executor, and after his assent to the legacy of Sarah. If these particulars be a^umed as true, it may be safely declared, that before his assent to a legacy, an executor has absolute power, at law, to alien the assets of a testator, in satisfaction of his private debt, and that creditors, much less legatees, cannot follow the assets unless there be positive fraud in the creditor, in accepting such disposal; and that in equity an executor cantiot make a valid salo of the assets in payment of his own debt, where the purchaser knows the assets to belong to the estate of testator, for the purchaser is necessarily involved by the transaction itself in participation in a breach of trust; and that in both Courts, after the assent of the executor to a legacy, the title vests in tlie legatee and the control of the executor ceases. So that not even creditors can pursue the property bequeathed, by executions subse- quently obtained against the executors. Wms. on Ex'ors, 673—4 and tlie cases there cited ; Jllexander vs. Williams, 2 Hill, 522 : McMullen vs. Brown, 2 Hill Ch., 459. There is no doubt that Cullen Fretwell knew that Sarah and the other assets sold to him, belonged to the estate of testator; but that the sale was made for the private debt of executor, and after his assent to the legacy, require to be proved, and, in my judgment, neither particular is proved. As to the former, if I were now called upon to adjudge the matter as an open question, I should probably determine that at least to the extent of Cullen's purchase from James of his legacy, and of the amount of James' note signed as executor, without proof further, that the judgments were obtained for the private debts of James ; but the question is not open ; it APPENDIX. 507 Columbia, Mjiy, ISW. has been solemnly considered and adjudged by a competent foreign C )nrt of the domicil of the ])arties, that the debts were those of testator, to be levied from the assets of the estate. This Conn is not now at liberty to controvert this judgment; on the contrary, by the reqnirement of the F'edcral Constitn- tion, is bound to give to it dne faith and credit, iiesides, the judgments are not in conflict with any statute or declared policy of South Carolina; indeed, here, debts in form those of the executor individually, may be declared in the proper forum to be debts entitled to satisfaction from the assets of his tes- tator, upon proper suppletory averments and proof: as tlie Superior Court in Georgia possesses and exercises general jurisdiction, both in law and equity, it must be presutiied, especially when the presumption is corroborated by great lapse of time, that the necessary suppletory proof was olfered. Then I am not satisfied of the executor's assent to the legacy of Sarah. There is no express proof of assent, and assent cannot be implied from the circumstances in evidence. Sarah and all the chattels, none of tliem having been sold at any general sale by executor, remaiiKnl after the death of testator on the plantation where he resided in his lifetime in tlie possession of his surviving family for seven or eight years perhaps, but the executor retained title and control the wfmie time, and actually appropriated the crops up to the year 1829 in payment of the debts of testator and expenses of the ad- ministration. This is the common course of representatives of an estate (where the property is directed to be kept together) until time shall fully develope the exigencies of the decedent's affairs; it is rarely sufficient proof of an executor's assent to a legacy to a member of a common family that maybe in the enjoyJTient of the property. It may be that this estate was much mismanaged, and some of the witnesses express strongly their belief that the exigencies of the estate did not require the alienation of its tangi})le assets, but they stale no fact compelling like conviction oti the part of others. From the great lapse of time, we are bound to presume, 568 APPENDIX. Frelwell vs. Neai. where the contrary is not proved, that Sarah was not deliv- ered to the tenant for hfe for her own use and as trustee of the remaindermen : and if so delivered, that the tenant sur- rendered her interest for life and that with her assent and that of the remaindermen, the property was sold absolutely in satisfaction of the debts of the estate. Riddlehover vs. Kinard, 1 Hill Ch., 378. I conclude that defendant Neal is protected by the statute of limitations and the lapse of time. It is ordered and decreed, that the bill be dismissed. The complainants appealed, and now moved this Court to reverse or modify the decree, on the grounds : 1. Because, it is respectfully submitted, that his Honor erred in decreeing that the title of the complainants to the negro slaves, Sarah and her issue, (the subject-niiUter of this suit,) under the will of William Fretwell, deceased, was an equitable instead of a legal title. 2. Because, it is respectfully submitted, that his Honor erred in decreeing that the proof was not sufficient to satisfy the Court, that the executor of William Fretwell, deceased, had assented to the legacy of the slave Sarah, to the life tenant, Mrs. Ann Fretwell, v/hen it is submitted that the evidence on that point is i^ull and conclusive. 3. Because, it is resi»ectfully submitted, that his Honor erred in decreeing that the judgments obtained by Cullen A. Fretwell vs. James Fretwell, executor of Wm. Fretwell, were conclusive of all matters purporting to have been decided thereby, against these compiainants, when it is submitted that the complainants were neither parties nor privies to the record, nor in any way affected by the said judgments. 4. Because, it is respectfully submitted, that the evidence was sufficient to satisfy the Court that the said judgments were collusive, fraudulent and void, founded altogether upon matters arising after the death of the testator, William Fret- well, and for the personal obligations of the executor. 5. Because, it is respectfully submitted, that there was not APPENDIX. 500 Coliinil)ia, May, ISrjO. sntficieiit proof that the said slavo, Sarah, was ever sold hy the sheriti', under and l)y virtue of executions against the executor of William Fretwell, and for the debts of the said testator. 6. liecause, it is respectfully submitted, that his Honor erred in decreeing that lapse of time and the statute of limi- tations was a bar to the remedy sought by complainants, when the bill was filed within four years after the acciual of the rights of complainants, and when the defendant had con- structive notice of their claim at the time, and before became into |)ossession of the said slaves. 7. Because, it is respectfully submitted, that the decree is, in other respects, contrary to equity and justice. Harrison^ for appellants. Reed, contra. The opinion of the Court was delivered by Johnston, Ch. For my own part, I regard it as of little consequence whether tlie executor did or did uo[ assent to the legacy for life in favor of the widow. If he did assent, his assent could divest him of his title and control beyond the life estate, only in the event that the slaves were be- queathed in remainder. Without sncii ulterior disposition, they reverted to the executor, on the death of the life tenant, for administration, according to the powers conferred on him by the will. In this case, the testator has not given the slaves in remainder, but merely directed that they be sold, and the proceeds divided among his children. This did not give the slaves to the children, Ijut merely imparted to them an equitable interest in the amount f(U- which the executor might sell them, and a right to conifiel him to make such sale. The title remained in the executor, subject to the life estate of the widow. But the Chancellor has concluded, and, as we think, is warranted by the evidence in his judgment, that there was >rO APPENDIX. Fretwell t^s. Neal. no assent; and the consequence is that the slaves remained in the hands of the executor, with a legal title on his part, and were liable to be dealt with by creditors as in common cases. Then as to the judgment obtained in Georgia by Cullen Fretwell. The Constitution of the United States, (article iv, sec. 1, 1 Stat., 178,) provides that "full faith and credit shall be given, in each State, to the public acts, records and judi- cial proceedings of every other State. And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof" Under the power thus conferred, the Congress, by Statute of 1790, (Brev. Dig., 317, 1 Laws of the United States, 115,) enacted, " that the Acts of the Legislatures of the sev- eral States shall be authenticated by having the seal of their respective States affixed thereto. That the records and judi- cial proceedings of the Courts of any State shall be proved, or admitted, in any other Court within the United States, by the attestation of the clerk, and the seal of the Court annexed, if there be a seal, together with a certificate of the Judge, Chief Justice, or presiding Magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every Court within the United States, f/j' they have, \>y law or usage, /?i the Courts of the State from whence the said records are, or shall be taken.''' It is unnecessary to quote the numerous cases in this State in which our Courts have given conclusive credit to the au- thenticated judicial records of other States. The irregulari- ties of such proceedings are no ground for disregarding them. If they have effect as evidence in the State where they took place, though they can have no direct operation here, we are bound to regard them as good judgments; to accept iheiii as evidence, and to make them the basis of such APPENDIX. Columbia, May, ISM. further proceedings as the parties producing them may claim and be entitled to in our Courts. We find before us a judgment, i)roperly authenticated, rendered in Georgia against the executor of Wuj. Fretwell, and expressly made leviable out of the goods and chattels of the testator. Slaves of the testator, of which the legal title was ill the executor, were sold under it. Hut we are re- quired to look into that judgment and declare that it had n^^ etfect in Georgia to render these slaves liable. We cannot do it. We have no evidence to slu;w that by the laws of Georgia the judgment was either void or voidai)le. It is not enough to say that the proceeding may contain irregularities, or that upon the same premises, we should not iiave given such a judgment here. What a Court of Georgia has ad- judged, we are to take as a good Georgia judgment, while that judgment remains unreversed. We su|)pose, in the absence of any proof to the contrary, that were the judgment under consideration produced in evid(!nce in a Georgia Court, that Court would, also, regard it as a valid judgment ; what- ever it might do were it produced on an ajiplication, or pro- ceeding, to reverse it, or set it aside. Were the bill b(?fore us a bill to reverse it, or set it aside, are we competent to do such ati act? But were we competent, the bill seeks no such remedy; and we could not set aside one of our own judg- ments, much less a foreign judgment, collaterally. But, it is objected that the parties seeking remedy in this Court were not parties to the Georgia proceeding, and, there- fore, are not bound by it. They were not parties; but if there was a necessary privity between them and the exec- utor, who was a party, th(>y are concluded by the judgment rendered, while that remains. It would be an alarming doc- trine that a purchaser of estate property, under a subsisting judgment against the executor, which judgment ex|)ressly makes that property liable, has not obtained a good title, simply because the creditor did not make the distriljutecs or legatees parties to his suit, but sued the executor, (not being 572 APPENDIX. Fretwell vx. Neal allowed by the forms of law to sue any other) for his debt. Every day furnishes us with instances in which the executor necessarily represents distributees and legatees in such suits; and if, under such proceedings, a devastavit is committed, the remedy must be against the executor, unless there has been some colhision with the creditor, the purchaser, or some other person ; — in which case, though a bill will lie against all those implicated in the fraud, it must be (as this bill is not) framed for that purpose. The matter cannot be taken up collaterally. But again, it is objected that the proof of the sale by the sheriff was not sufHcient. The objection points to the non- production of the execution, and the return of sale. There vras certainly no proof, from the record, of the sale. But there was ample proof by parol, that the sale was, in fact, made by the sheriff. Mr. Cone, one of the witnesses, says, .that though by the law of Georgia there should be an execu- tion and return of sale, there is, in fact, a general inattention by the officers to this requisition. Under these circumstances, and the fact of sale being made out, it would seem unreason- able that the interests of the purchaser should be sacrificed, by making him responsible for the non-production of the papers required ; over which he never had any control, and which, though they may have been regularly filed, may have been lost in the lapse of years wliich has occurred since the sale was made. The defendant having, according to the foregoing view, obtained the legal title, and without notice of any equity, must be protected in this Court. If Cullen Fretwell had notice, that does not affect this defendant; the well-recog- nized doctrine of equity being, that wherever, in a succession of purchasers, you reach one who is innocent, and purchases in ignorance, the title is thenceforth sanctified. According to the view I have taken, the statute of limita- tions becomes an immaterial question. But it may be material to observe, that the great lapse of time which has APPENDIX. 57:J Columbia, May. 1859. occurred, tends very much to .support the defendant's case. This is true, not only in supplying lost papers, but in raising the presnmi»tion that there was no wrong committed. If the widow saw injustice in the transactions now complained of, it is singular that she should have remained silent through the many years that elapsed between tiiese transactions and her death. We see no suflicient ground for the appeal, and it is or- dered, that the decree be affirmed and the appeal dismissed. DuNKiN AND Wardlaw, CC, coucurrcd. Decree affirmed. 574 APPENDIX. Lee US. Let JiNSKT Lee vs. Charles W. Lee and others. Fraud — Statute of Frauds. B, for the purpose of prosecuting certain trespassers in iiis own name, received from A an absolute conveyance of a tract of land, under a verbal promise to reconvey the land as soon as the purpose for which the deed was taken should be answered, and afterwards fraudulently refused to execute a reconveyance: Held, that B was not protected by the statute of frauds, and he was ordered to execute a reconveyance, according to the terms of his verbal promise. BEFORE DUNKIN, CH., AT SUMTER, JUNE, 1858. This case will be sufficiently understood from the circuit decree, which is as follows: DuNKiN, Ch. The plaintiff is a spinster, about fifty years of age. She is very illiterate, but has about as much sense as other persons in her position. For many years previous to 1S49, and for some years subsequently, she and her brother, the defendant, Charles W. Lee, resided in the same house with tiieir Either and mother. Her father had, by deed, given to the plaintiff a tract of land containing about two hundred and two acres, and which was alleged to con- stitute her whole estate. She worked, and cooked, and washed, botli in her father's lifetime, and while she lived with her brother, the defendant, after her father's death. The land given her by her father was detached, and one John A. Lee, another brother of hers, had trespassed upon it. It became necessary to bring suit against him. On 17th Decem- ber, 1S49, the plaintiff, for the alleged consideration of $100, executed to her brother, the defendant, a conveyance of the premises in fee. Stephen C. Lee, one of the subscribing wit- nesses to the deed, and on whose oath it had been originally proved for record, testified, that " prior to the execution of APPENDIX. 575 Coliiiiibia, November and December, lSr)8. tlic deed, Charles W. Loe, the defendant, told him that he had been up to see Col. Moses, about John A. Lee's trespass- ing upon .linsey's. the plaintitT's, land ; that Col. Moses had told him that he, Charles, could not commence an action without a colorable claim or title to the land ; Charles, or his father, asked witness to write a deed from Jiiisey to him, which he declined. At this time, or soon after, Charles told him that Jinsey was to make the deed to him, and he was to bring the action." This witness further said that at the time of the execution of the deed (whicli was subsequently prepared by another person), "Jinsey (the plaintiff) was in the kitchen, and some one called her into the house, or piazza. She came, and asked what was wanted of her; Charles, or his fatlier, or some one, said they wanted her to sign that deed; she said she could not write her name, but would have to make her mark; Wyatt Nettles wrote her name, slie made her mark. She did not say a word, as he recollects, and then went back to the kitchen." Samuel Tunstall, a deputy sur- veyor residing in the neighborhood of the parties, testified : "That Charles W. Lee (the defendant) came to him to get him to write a deed for him ; witness asked him if he was buying or selling land ; he said no, he wanted a deed for the purpose of sueing his brother, John, for trespassing on Jin- sey's land; witness told him she might have made him a power of attorney, but he said his lawyer told him he must have a dcf^d, and he insisted on witness's writing one; wit- ness asked him what consideration he must slate in it; defendant said he did not know of any; witness told him a deed was not of any account unless there was some amount staled in it; defendant seemed like he was at a loss; witness told him he would put in §100; witness was then writing the deed; defendant said very well. He (defendant) carried the deed off." It is not proposed to recapitulate the evidence, nearly all which is in writinij, atid very carefully reported hy the com- missioner. The agreement and understanding of the partitas, 576 APPENDIX. Lee vs. Lee. proved, as the Court thinks, most ahnndantly, by the testi- mony, was that the deed concocted for tlie purpose of maintain- ing the action against John A. Lee, was to be so used by the defendant in her behalf, and that at the termifiation of the suit, he would, at her request, reconvey the premises. The suit was accordingly instituted by the defendant, in his own name, against John A. Lee, for trespass, &c. How long the suit continued, or at what time it was ended, does not appear from the evidence, but it was finally compromised between the parties. So far as the Court can gather from the evidence, twenty acres of the land was given up to John A. Lee, and each party was to pay his own costs. But in lS54,the plain- tiff agreed to sell the land, or a part of it, to Simon Lee, who had married her sister Ann, and he took possession of the premises, under his bargain with the plaintiff. In the latter part of that year (as proved by the witness, David Lee,) the plaintiff "applied to the defendant for a reconveyance of her land, as he was to do. He told her he would do it — that Tunstall liad written the other deed, and he would go and get him to write another deed back to her — that a few evenings after this, Charles came over to witness's house, and proposed to witness that they sliould buy the land from plaintiff. Next morning they went to her, and Charles asked her if she would sell ilie land. He said, if she would, he (Charles) would buy one half, and witness would buy the other. She (plaintiff) said she would not sell it to turn off her sister Ann, who lived on the place. Charles replied, that Connell Lee stated tiiat Simon Lee, Ann's husband, had said that after he had cut off the tun timber, he was going to leave. Plain- tiff said then, that if Simon was going to leave the place, that if Charles and witness would give her note and security for the price of the land, she would sell it to us. Simon, not being entirely willing to leave, Charles made another propo- sition to her, to wit: that he would give her a deed back for one-half of the land, and he would give her his note and security for the half adjoining him at $2 per acre. She agreed; APPENDIX. 577 Columbia, November and December, 1S58. and by mutual agreement, Tnnstall came and ran out the land into two halves, and made a plat (plat exhibited of the half that was to be conveyed back to the plaintiir.) This (he afterwards said) was the half on which Simon Lee was then living, and tiiat the plaintiff had put him upon it. Tnnstall wrote the deed. Charles kept promising to sign the deed, but never did so, nor did he give the note and security." In June following, 1855, witness, at the request of his sister, went to the defendant to get him to make the deed back to her. He said he would do it. This was before Charles' marriage. (Defendant, Charles W. Lee, in July, 1855, married the daughter of his co-defendant, Wyatt J. Nettles.) In August, the defendant upbraided liim (witness) for telling a pack of news about the transaction, between him and the plaintiff, and said, since I had told about it, he did not intend to make a deed back to her, &.C.," whereupon a quarrel and fight took place. Simon Lee fully confirmed this witness. He said that Charles Lee was aware that he (witness) had bargained with the plaintiff for the land ; that in November, 1S54, the survey was made, and the line run by Tnnstall. After the line was run, he and Charles went to the plaintiff. Charles said he was to make title for half, and that he would pay the plaintilf for his half. The terms were agreed upon, but still witness got no deed. About twelve months afterwards, wit- ness "went to Charles, and told him he wanted a deed, who replied, that he was to have no more to do with it; for he had not paid for it, and she (plaintiff) could keep the land and sell it, and go through with it." Samuel Tnnstall corroborates this, when he says that, in 1854, he ran a dividing line on this land. There were present with him on that evening, Charles W. Lee (defendant), David Lee and Simon Lee; Charles and Simon took part in the survey. Witness's object in that survey, by the direction of Charles and Simon Lee, was to divide the land in half; Charles told him one of the pieces was to be for Simon Lee, and that Simon was to pay for the survey. Witness made a plat of Ijalf for Simon Lee. 38 578 APPENDIX. Lee vs. Lee. When he wrote the deed, he thought the land worth $300. Within the last two or three years, thinks it worth $2 50 or $3 per acre. In April, 1856, one Jesse M. Hill obtained a judgment against the defendant, Charles W. Lee, for $85 and costs. The land adjoined that of the defendant Wyatt J. Nettles, In July, 1856, the execution of Hill was levied on the land as the property of the defendant, Charles W. Lee. At the sale in October, 1856, full notice was given of plaintiff's title. It was bid off by defendant, Wyatt Nettles, as Sheriff Frier- son testifies. But Wyatt J. Nettles, in his answer, says that it was not bid off by him, but by his son and co-defendant, S. J. Nettles, who is a minor, but who acted by his advice — that the land was bid off for $15, and that he furnished his son with the money to comply with the terms of the sale; that notice was given of plaintiff's claim, and he has no doubt that this was the cause of the price at which it was bid off. On 25th March, 1857, this bill was filed. The answer of defendant, Charles W. Lee, insists that the transaction was an absolute sale, and that he paid to the plaintiff the consideration money of $100. The answer is directly disproved, not only by the witnesses, Stephen C. Lee and Samuel Tunstall, testifying as to the circumstances of the preparation and execution of the deed, but by the uniform declarations of the defendant, from the time of receiving the deed until August, 1855. It is contradicted by the situation of the parties. He never was able to pay $100, and the plaintiff was never known to have $5 in her life. The whole current of the testimony satisfies the Court that the answer of the defendant is a bold attempt to sustain a palpable fraud by corrupt perjury. It is painful to arrive at this conclusion, particularly, where the perpetrator and the victim are brother and sister. It would be great injustice to the defendant, to suppose that he originally intended any fraud. He honestly undertook to protect the rights of his illiterate, poor and de- fenceless sister, against the aggressions of a trespasser. He APPENDIX. 579 Columbia, November and December. ISSfri. was in no condition to traffic with her for the property which he had engaged to defend. Nor did he attempt any snch malpractice. When he went to take advice of connsel as to the mode of vindicating his sister's rights against the annoy- ances of John A. Lee, he probably misapprehended his legal adviser. A power of attorney (as Tnnstall told him) would have answered the purpose qnite as well as a "face claim " (as he called it to one witness) or a '' colorable claim " or "color of a claim '' (as he said to the other witness). But still he acted in good faith. He always professed his readiness to reconvey to his principal. As late as November, 1854, he not only bargained with her for one-half the premises, but was actively engaged in assisting the surveyor to run the dividing line between the moiety, which he had agreed to purchase, and the moiety bargained by the plaintiff to Simon Lee, and who was then in possession, having been placed there by her several months previously. Down to June, 1855, he was always ready to reconvey. It was not until after his marriage with the daughter of his co-defendant in July, 1855, that he intimated any intention to claim the land. In Sep- tember, 1855, he raised a conversation about tlie land with the witness, Alexander Kerby ; told him how he came to get the deed from the jjlaintitf, and that he was to make her a deed back for the land, but said that "since she had done him as she had, that he would not make the deed back to her; he should not do it, for she had no note against him." And to David Lee he said in August, 1855, that " he knew that he had not paid a dollar for the land, but that he had a deed, and could hold it, and intended to do it.'' And soon afterwards, to the witness, Joseph Pate, he said that " he had never paid the plaintiff anything for the land, and he would be damned if he ever would, as she had done as she had done and he could hold the land independent of her." In July afterwards, the land was levied on as the only visible proyicrty of defendant, under Hill's fi. /a.— sold as before stated, for 580 APPENDIX. Lee vs. Liee. $15, and ;iw//r/ bona returned for the balance of the execu- tion. At the close of the defendant's answer, he desires that " if necessary to his defence, he may have the benefit of the stat- ute of hmitations." If there had been any truth in his answer, this hypothetical plea would have been wholly unne- cessary. His answer covers the entire matter in controversy. Mr. Justice Story, as well as other writers on [)leadings, states, that pleas of this character are pleas only why the defendant should not answer; and therefore, if he does answer to any- thing, to which he may plead, he overrules his plea, for the plea is only why he should not answer; and if he answers he waves the objection, and of course his plea ; Story PI., § 6SS and note. But this is not a case for the statute of limita- tions. The defendant, as the agent of the plaintiff, had obtained the deed for the purpose of enabling him to conduct his agency, and prosecute her rights. The Court is not informed at what time the possession of the deed ceased to be necessary for that purpose. But the defendant constantly and uniformly admitted the subsistence of the fiduciary rela- tion until the summer or fall of 1855, some eighteen months before the institution of these proceedings. After the sale by the sheriff in October, 1856, the balance due on the execu- tion against Charles W. Lee was paid to the sheriff by the defendant Wyatt J. Nettles, and the execution for that amount was left open against Lee for the benefit of W. J. Nettles. The character of the answer of the defendant Wyatt J. Nettles; the circumstances attending the sale, when, after the notice of the plaintiff's title, Charles W. Lee declared that he had a good deed for the land, which was then knocked off to defendant's son, a minor, and incompetent to contract, but who acted under his father's advice; and land worth from four to five hundred dollars bid on for fifteen dollars; all these satisfy the Court that the defendant Wyatt J. Nettles co-operated with his son-in-law and co-defendant Charles W. Lee, to deprive the plaintiff wrongfully of her property, and APPENDIX. 581 Columbia, November and December, 1858. thai if objeclioii had been made, he ought not to have been examined as a witness in the case. It is ordered and decreed, that the defendant, Charles W. Lee, execute to the plaintilF, by a deed prepared under the direction of the commissioner, a reconveyance of the prem- ises described in the deed of 17th December, 1S49, with the exception of the twenty acres heretofore conveyed by the said Charles W. Lee to John A. Lee. It is further ordered and decreed, that the defendant S. J. Nettles, and all claiming under him, be perpetually enjoined from in anywise usjnsi; or setting up any title to the premises against the plaintiff, under the purchase at sheriff's sale in October, 1S56. It is finally ordered and decreed, that tlie defendants Charles. W. Lee and Wyatt J. Netties, pay the costs of these proceed- ings. The defendants appealed, and moved this Court to reverse the decree on the ground: Because his Honor, having decided that there was no fraud on the part of Charles W, Lee in procuring the deed from the plaintitrs, should have dismissed the bill — the parol trust which the bill enforces being void under the statute of frauds. And failing the above motion, then the defendant Wyatt J. Nettles moved that the decree be modified and the bill dismissed as to him, on the ground: That the evidence upon which his Honor held tliat he had co-operated with Charles W. Lee wrongfully to deprive the plaintiff of her land, by refusing to carry out the parol trust, was, it is respectfully submitted, insufficient to sustain his Honor's conclusion ; and this defendant having fully and fairly answered the bill, as he was called upon by the plain- tiff to do, and having also disclaimed all interest, and no c(ir- rupt, illegal or improper conduct being proved against him, the bill as to him should have been dismissed with costs. Spain, Richardson, for appellants. Moses, contra. 582 APPENDIX. Lee The opinion of the Court was delivered by DuNKiN, Ch. If the oral testimony was at all admissible, the Court is satisfied with the decree. The only plansible objection would be that, as the conveyance was absolute in terms, parol evidence was inadmissible to contradict, vary, or add to its contents. But it appears well settled, on authority, that when a foundation is laid by an allegation of fraud, such evidence may be received. In Russell vs. Southard, 12 How., 139, the precise question was presented. " We have no doubt (say the Court) that extraneous evidence is admis- sible to inform the Court of every material fact known to the parties when the deed and memorandum were executed. This is clear both npon principle and authority. To insist on what was really a mortgage, as a sale, is in equity, a fraud, which cannot be successfully practised, under the shelter of any written papers, however precise and complete they may appear to be." And they cite the language of the same Court in Moms vs. Nixon, I Howard, 126: "The charge against Nixon is substantially a fraudulent attempt to con- vert that into an absolute sale, which was originally meant to be a security for a loan. It is-in this view of the case that the evidence is admitted to ascertain the truth of the trans- action, though the deed be absolute on its face." Many other authorities are cited; and the Court conclude by saying that "' the oral evidence is admissible upon the principles of general equity jurisprudence." In our own Courts the same question was presented in Jirnold vs. Mattison, 3 Rich. Eq., 153. Tlie presiding Chancellor received the evidence, but declined to grant relief. If an instrument, (says he,) absolute on its face, can be converted by jiarol, into a defeasible instrument, except where the omission to reduce the defeas- ance to writing was occasioned by fraud or mistake, the evidence must be very clear and convincing. In that case the Chancellor held, upon the evidence, that the deed was -intended by the parties to be absolute as its terms purported, and that if any fraud existed, it was in reference to third APPENDIX. 58:J Columbia, Novemher and December, 1S58. persons. But if there be frauJ, whether it consist in not executing a defeasance, or in misrepresenting the character of the instrument, or in any other way, it would be a reproach to the administration of justice if the perpetrator of the fraud could shield himself from detection and expos- ure by the abuse of rules instituted to prevent fraud. A bond, deposited as an indemnity, might be enforced as an absolute debt; or, as in this case, a deed taken from an indi- gent, helpless and ignorant woman, for the avowed purpose of vindicating her rights to her freehold, might be perverted into an instrument of despoiling her of those rights. In the language of the Supreme Court, "the oral evidence is admis- sible in such cases upon the principles of general equity jurisprudence," and to prevent the successful practice of such frauds under tlie shelter of any written papers, however pre- cise and formal, ^ The defendant's principal ground of appeal is because his agreement to reconvey the lands was a parol trust, and void under the statute of frauds. But Mcllvaine vs. Masser/, 2 Hill Ch,, 421, (and Kinard vs. Heirs, .3 Rich, Eq,, 423,) estab- lish that the statute cannot be used as an instrument of fraud. It is ordered and decreed, that the appeal be dismissed. Wardlaw, Ch,, concurred. t/lppeal dismissed. INDEX. ACCOUNT. Vide Errciitor.t and Admin istraiors, 1, 2, 3. Joint Tenants, 2. ACCOUNT STATED. Vide Evidence, 3, Partnership, 3. ACT OF DISTRIBUTIONS. f. The Act of 1S51, 12 Slat., SO, amending the Act of 1791, must be read as if it were part and parcel of the Act of 1791, and incorporated in it. O'Neale vs. Dunlap 'lOO ADMINISTRATION. Vide Advancements, 1. 2, 3, A. E3rec7itors and Adviinistrators. Infant. Jurisdiction, 2. Wills and Testaments, 2, 3, 10, 11. ADVANCEMENTS. 1. The provision in the Act of 1791, in relation to advancements, applies as well to gifts made by a mother as to fiifts made by a father. — Rees vs. Rees &6 2. Where a parent, having a son and a grandson, issue of a deceased child, makes a gifl to the son, it will be treated as an advancement in favor of the grandson -*"• 3. Where a parent holds a bond again«l her son, and destroys the bond. intending to discharge the debt, it will be an advancement to the amount of the bond Jf>- 4. Whether property, given by a parent to her son, shall be considered an advancement, is not a question of intention — no matter what the parent intended, if she leaves no will, it will be considered an advancement, if otherwise proper to be so considered •'*• ;jSo index. .0. A father beins the srnnrdian of his children, and having a sum of money of theirs in his liands. invested it in lahd, and the amount not being suf- ficient, paid a bain nee fr mi liis own funds. The title he took to himself, styling himself guardian : Held, under the circumstances, that the bal- ance paid was an advancement, and that the whole of the land belonged to the wards. — O' Neale vs. Dnnlap 405 ANSWER. Vide Evidence, 1, 2. APPEAL FROM ORDINARY. 1. Where proceedings are instituted before the ordinary, against an exec- utor, for account, and a dispute arises between a legatee and his as- signees of the legacy, as to the validity of the assignment, an appeal from the ordinary's decision holding the assignment to be invalid, lies, under the Act of 1839, to the Court of Equity. Estate of Piiison 110 ASSENT. Vide Execiftors and Administrators, 5. COMMON FUND. Vide Trust and Trustees, 3. CONSIDERATION. Vide J2idgment, 1. COPARTNERSHIP. Vide Partnership. CORPORATIONS. Vide Wills and Testaments, 9. COSTS. 1. Solicitors and Commissioners in Equity are not entitled to charge the fees, allowed by the Act of 1827, for '• attending on" and " holding reference," for attending before the commissioners to take, and for taking, under the Act of lb30, the testimony of witnesses to be used at the trial of the cause. Gnignard vs. Ilarley 1 2. Solicitors are entitled to the fee, allowed by the Act of 1S27 "for attend ing on reference," for attending before the commissioner at the taxation of costs, only where the taxation has been referred to the commissioner by an order of Court lb- 3. The fees paid by a solicitor for obtaining a copy of the appeal decree, will be allowed him only where such copy is necessary lb, 4. The solicitor of each parly is entitled to charge for his argument on cir- cuit, and on the appeal lb. INDEX. 5J57 5. For swearing' witnesses examined before tlie commissioner, under the Act ot' 1830^ lie is entitled to charge ; but the charge to which he is enti- tled, is not $1 for each witness, but $1 for all sworn in the case lb. G. Where the t'omniissioner appoints a day for taking the examination of witnesses, inidcr the Ad ol' \.>>'M), and "causes the adverse parly to be notified," tor >ncli notice, actually given, he is entitled to charge as for a .summons lb. 7. For reporting the testimony taken under the Act of 16.30. the coiumis- sioner is not entitled to the charge of $3 allowed by the Act of 1S27, for '• making up and returning report," Ih. S. Where an appeal is taken, the commissioner may charge for a copy of the decree furnished the solicitor of the appellee Ih. CREDITOR'S BILL. 1. A creel aside a liill of sale of a >Iave, exp^es^ed lo have l»een made in consideration of $1. ()((() paid, on the ground that the sale was made in contravention of the Act of ISH against emancipation, and alleging thi.t the money paid was the donor's own money, being the earnings of the slave, and that there was a secret 588 INDEX. trust that the slave should be emancipated: //eW, that the answer of defendant denying the trust, and averring that the money paid was his own money and not the earnings of the slave, was responsive and self- proving; and, the evidence being insufficient to overthrow the answer, the validity of the bill of sale was sustained. Belcher vs. McKelvey 9 2. Defendant contended that an agreement had been repudiated, and to prove it offered his own answer in another cause between the same parties: Held, that if defendant could make proof in this collateral way, still the answer did not prove the fact, as the matter was not distinctly alleged. Martin vs. Campbell 205 3. Bill by a ce-stny qve trust against trustee, for account, dismissed, certain dealings between the parties being held sufficient evidence of a final settlement between them. Maffitt vs. Read 2S5 Vide Fraud. Sheriff's Sale, 1. EXECUTORS AND ADMINISTRATORS. 1. Where the personal representative is entitled to an account of rents and profits accruing before the death of his intestate, he has such an inter- est as entitles him to file a bill to set aside, on the ground of fraud, a conveyance of the land made by the intestate. Kir/Lpatrick vs. Atkin- son 27 2. H was the agent of B, an administrator, to receive the rents of a certain lot. After some years, a son of H claimed the lot as his own, and received the rents for many years, but permitted his father to use them: Held, thai the son was liable to account to B for the rents received by him. Jewell vs. Jewell 296 3. Where an administrator receives, himself or by agent, the rents of real estate of the intestate, though his sureties may not be, he is liable to account to the heirs for the rents thus received Ih. 4. Where the testator gives an estate for life in a slave, and directs that, after the death of the tenant for life, the slave be sold and equal distri- bution of the proceeds made among certain persons, an assent by the executor to the legacy to the tenant for life does not divest him of the remainder — the estate in remainder, with power to sell and distribute, remains in the executor. Fretwell vs. Neal 559 5. Where the testator gave his plantation and two slaves to his wife for life, and the wife and children remained upon the plantation for several years, but it was under the control and management of the executor, who disposed of the crops and paid the debts with the proceeds : Held, that there was not sufficient evidence of an assent to the legacy to the wife lb. 6. A judgment in Georgia against an executor as executor, to be levied of the goods and chattels of the testator, founded on a debt contracted by the executor after the death of the testator, though irregular according to the course of procedure in this State, will, under the Constitution INDEX. 589 and Act of Congress, be respected by the Courts of this State, as a valid judgment; and a sale under it of the goods of tl,e testator will be up- h'^''^ lb. Vide Infant. Parties, A. IVi/ls and Testaments, 2, 3, S, 9. FEES. Vide Costs. FRAUD. 1. Where there are strong circumstances of suspicion against a judgment confessed by a son to his father, the father, on bill liied by creditors impeaching the judgment for want of consideration, should show the consideration by other evidence than his own oath. McCorJLle vs. ^fo7lt- gomenj HI 2. Where a judgment is set aside for fraud and want of consideration, and a reference is ordered for creditors to come in and prove their demands, evidence taken before the conimisisioner on the reference will not be considered by the Court of Appeals on the appeal from the decree Ih. Vide Frauds, Statute of. Mortgage, 3. FRAUDS, STATUTE OF. 1. B, for the purpose of prosecuting certain trespassers in his own name, received from A an absolute conveyance of a tract of land, under a ver- bal promise to reconvey the land as soon as the purpose for which the deed was taken should be answered, and afterwards fraudulently re- fused to execute a reconveyance : Held, that B was not protected liy the statute of frauds, and he was ordered to execute a reconveyance, according to the terms of his verbal promise. Lee vs. Lee T^~{ GUARDIAN AND WARD. Vide Advancetnents, 5. HUSBAND AND WIFE. 1. Where a husband sues his wife, and the bill is taken pro confesno against her, the Court is not bound by her admission, but may treat the case very much as if she were an infant, and hold the husband barred by his laches in applying for relief Kirlwcy vs. Keitli 33 Vide Separate Estate. INFANT. 1. A bill for distribution of the estate of an infant who died when eleven years old, and who has been dead near twenty years, may proceed with- out making an administrator of the infant a parly. Marklcy vs. Single- tary 393 590 INDEX. INJUNCTION. 1. An absent defendant, having an interest under an assignment for the benefit of creditors, may be restrained by injunction from enforcing his judgment by seizure and sale of the assigned estate — the judgment hav- ing been recovered against the assignor after the execution of the assignment. Hoicardvs. Caiuion 23 2. A party who obtains judgment in the United States Court, may be re- strained by the Court of Equity of this State, from enforcing his judgment by levy and sale of property not liable to levy and sale under his execu- tion lb. Vide Jurisdiction, 2. Nuisance, 1. INTEREST. Vide Partnership, 1. INTESTATES' ESTATES. Vide Act of Distrihntiojis. Advancements, 1, 2, 3, 4. ISSUE AT LAW. 1. Where an issue at law is ordered, the verdict of the jury, though approved of by the presiding Judge, is not obligatory on the Chancellor — he may direct a new trial, or even decide the cause in opposition to the verdict. Ktrkpatrick vs. Atkinson 27 2. Upon an appeal from a Circuit Chancellor's decree, refusing to order a new trial at law, it is incumbent on the appellant to show that the Chan- cellor has miscarried; it is not enough for the Court of Appeals to have misgivings as to the result attained by the Chancellor lb. 3. Where incompetent evidence was received on the trial of the issue at law, the Circuit Chancellor is not bound, like a Law Court of Appeals, to grant a new trial on that ground; he may, if he is satisfied with the verdict upon consideration of the competent testimony, refuse to grant a new trial Th. JOINT TENANTS. 1. Where two persons purchased a tract of land as joint tenants, and gave their joint bond for the purchase money, and one of them paid heyond his proportion: Held, that, for the amount paid over his proportion, he was surety, and entitled to set up the bond as a speciality debt against the estate of his co-tenant. Stokes vs. Ilodijes 13.'') 2. Where one joint tenant used and occupied the land for several years alter the death of his co-tenant, and on bill to mar-'^hal the assets of the co-tenant, was allowed his demands as creditor: Held, that he must account for the use of the land. and"deduct from his demands a reason- able amount for the use of such proportion as he occupied over his share lb. INDEX. 691 JUDGMENT. Vide Executors and A(l/>ti)iislrators, G. Fraud. JURISUICTION. 1. A promissory note, drawn payable to the drawer or bearer, is void at law as against the drawer, but in equity the holder may be tntilled to recover. Keith vs. Keith 83 2. Where one has acquired a good equitable title to slaves through the dis- tribulees — there being no creditors — of an intestate, the former owner of the slaves, upon whose estate no administration had then been granted, equity will restrain one who afterwards takes out letters of administra- tion upon the estate of the intestate, from prosecuting an action of trover for the conversion of the slaves, against such equitable owner. Miles vs. Wise 5.3G Vide hijuuction, 1, 2 Nuisance. LAPSE OF TIME. Vide PreKiimptions. Trusts and Trustees, 2. LEVY. Vide Pres7imptio7is, I. LIMITATION OF ESTATES. 1. A conveyed property to a trustee for the use of the grantor for life, and, after his death, "in case he died unniarried and without children," over. A, having married and had a child, filed this bill against the trustee and remaindermen, to have the deed cancelled, contending that the contin- gencies had happened which defeated the limitation over. The Court refused to interfere before the death of A, holding that, in the situation of the parties, it was sufficient that a reasonable doubt, as to the con- struction of the deed, should be entertained. Toumrr vs. Rhodes 25() 2. By marriage settlement, the property of the wife was settled to the joint u.«e of husband and wife during coverture, and if the husband survived, to his use for life, with remainder to "the legal heirs and representa- tives" of the wife. The husband survived, and, upon his death : Held, that the persons entitled to take were the heirs and distributees of the wife, including the husband, at her death. Glover v». Adams 20 J .3. A father gave, by deed, a negro girl, to his daughter C, "for her support, during ber natural life, and at her, the 8aid C.'s death, the snid negro girl, together with her future issue und inciease, shall l)e the property of the issue of the said C.:" Held^ that C. took an estate for lile. with a viilid liihiialion to her issue as purchasers. Marklry vs. Sii/g/efmy '.V.^J 4. The testator devised real and personal estate to his executors in trust, for the sole and separate use of his daughter N.. "for Rnd during the term of her natural life, and at her death to be equally divided amongst her children in fee simple.'' N. had eight children living at the death cif 592 INDEX. the testator, one oT whom died in the lifetime of N., leaving a husband, but no issue, surviving her: Held, ihal the eight children took vested interests, and that the representative of the one who died in the lifetime of N. was entitled to her share. Wihon vs. McJuiikin 527 Vide Wills and Testaments, 1. LIMITATIONS, STATUTE OF. 1. From analogy to the statute of limitations, the Court of Equity generally adopts the period of the statute as a bar to equitable demands. Some- times a shorter period is held to preclude the plaintiff, and where the circumstances of the case make it inequitable for the delendant to insist on the bar of the statute, the Court will not enforce it. Kirlpat- riclc vs. Atkinson 27 2. In June, 1847, J. M. executed two deeds, by which he conveyed his land and negroes to V. A., reserving the use to himself for life. He re- mained in possession until 1S52, when he died intestate. In May, 1856, the plainlifl" administered on his estate, and shortly afterwards filed a bill, to set aside the deeds, on the ground of misrepresentation and fraud, and of the incapacity of the donor. The allegations having been found true, and it not appearing that the capacity of the donor had im- proved, the statute of limitations was held not to bar the plaintiil's bill. Ih. 3. Where a party files a bill to set aside his own deed, on the ground of duress, and more than four years have elapsed since the deed was exe- cuted, if he wishes to avoid the effect of his laches by showing that the duress continued after the deed was executed, he must make the ques- tion in his pleadings and by evidence at the trial. Kirksey vs. Keith... 33 4. Upon demands purely legal, the Court of Equity follows the decisions at law in applying the bar of the statute of limitations ; but where the pecu- liar remedies of the Court are sought, a shorter time than the legal bar may be sutlk-ient to prevent the Court from giving relief lb. LUNACY. 1. Inquisitions of lunacy are usually executed at the residence of the sup- posed lunatic, or in the vicinage ; but that is a matter within the discre- tion of the Judge or Chancellor ordering the commission ; he may order it to be executed in another district. Ex parte Wilson 445 2. The traverse of an inquisition of lunacy should, as a general rule, be tried in the district where the commission was executed; but that, also, seems to be a matter of discretion with the Judge or Chancellor order- ing the traverse lb. MORTGAGE. 1. Where a mortgage has been duly registered, a subsequent purchaser of the land will not be protected by presumptions of payment arising from the lapse of time, where the mortgagor himself is not so protected — he having made payments which rebut the jiresumption. Bryee vs. Bowers and Stork 41 INDEX. 593 2. An nnrecortled mortsragre produced liy one of the mortgngees, after the death of the mortfragor : Ihlii, under the fircnmstances, to be invalid for want of snflicieiil proof of delivery. Stokes vs. Ilodvill not, it seems, grant an injunction to restrain a pub- lic nuisance, unless the right be established by clear and determinate evidence lb. ORDINARY. Vide Appeal from Ordinary. PARENT AND CHILD. Vide Adoiincements. Fraud. Wills and Testaments, Jl. PARTIES. 1. B mortgaged land to A, to secure the payment of a bond, and afterward* conveyed the land to C, who conveyed to D. B, then, assigned his estate for the benefit of his creditors, and died insolvent. On bill filed by A. again!>l C and D, for foreclosure, no demurrer was filed, for lack of proper parties : Held, thai defendants conid not insist, at the hearing, that the personal representative of 13 should be made a party to the bill. Brycf. vs. Bowers and Stork 41 2. That the assignee of B was not a necessary party to the bill /A, 3. Qiirtre, whether to a bill against the party in possession of the mortgaged land, for foreclosure of the tnor'gage, the personal representaliTe of the deceased mortgagor is, in any case, a necessary party /♦ 39 594 INDEX. 4. To a bill, against an administrator, for account of the estate of the intes- tate, received by a deceased agent and attorney of the administrator and heirs, for whose professional services a huge amount was claimed: Held, that a representative of the attorney was a necessary party to the bill. Jewell vs. Jewell 296 Vide Infant. PARTNERSHIP. 1. One partner, who puts in his proportion of the capital, is not entitled to charge interest because the other partner has failed to put in his pro- portion ; the articles of partnership not stii)ulating for the payment of interest. Stokes vs. Hodges 1 35 2. Where two physicians agree to practice in copartnership, and divide the receipts of their practice, each is bound to devote his labor, skill and services, as a physician, to the promotion of the common benelit ; to keep books, and make entries of charges and receipts, and have them always ready for inspection and explanation; and if one should, for a considerable time, when in good health and full practice, neglect to keep any account of his practice, he must, nevertheless, be required to ac- count for what he made, upon such evidence as may be adduced. Schmidt vs. Ltbhi/ 329 3. Where, after the dissolution of a firm, one of the partners took the books to collect the accounts, and he rendered statements showing balances due by him on account of his payments and collections : Held, that such statements did not amount to an account stated, so as to preclude him from demanding an account from the other partner II). PAYMENT. 1. A promissory note, not expressly taken in payment of a bond: Held, not to be payment. Bryce vs. Bowers and Stork 41 Vide Mortgage, 1. Presilmftions, 1, 2. PLEADING. Vide Infant. Limitations, Statute of, 3. Parties. POWER TO SELL. Vide E.ceciitors and Administrators, A. Wills and, Testaments, 8. PRACTICE. 1. Bill filed to subject trust property to demands for work done and improve- ments put on it by the tenant for life: Held, that no decree should have been made, subjecting the property to the claim, without directing an inquiry into the nature of the contract, by whom made, and the degree of his authority; the value of the work to the estate, its cost, and the different Interests held in the estate ; also, as to a proper scheme of pro- viding for paying the demands. Culleton vs. Oarrity 323 Tide Creditor's Bill. Frand. Husband and Wife. Infant. Issue at Law. Limitation vf Estates, 1. Lunacy. Parties. INDEX. 595 PRESUMPTIONS. 1. Levy, under execution, on a house and lot, with oilier circumstances: Held, sufficient, after a lapse of near twenty years, to raise the presump- tion that the judgment \Vas sali>licd. Sessiom vs. Stcveiiso}! 2S'2 2. A sovereign Slate, coming in as a creditor, under a bill lo inarshal assets, stands as other creditors, and is liable to the ordinary presumptions of pnynienl //, 'i. Great lapse of time : Hilil, strongly to support a defence, not only in sup- plying lost papers, but also in raising the presumption that no wrong was committed. Fretiicll vs. Ncal rjSO Vide Mortgnfffi, 1. Trusts and Trustees, 1. 2. PRINCIPAL AND AGENT. L S. being ihe owner of certain shares in the stock of the Stale Rank, which, by the usage of the bank, could be transferred only by entry in the books of the bank, delivered her certificate of stock to her attorney B., with a blank power of attorney, authorizing a sale of the stock. B. borrowed money for his own use from C, and, lo secure the payment, transferred to him the certificate and power of attorney: Iltld, that the transfer to C, who acted bona fide, and without notice ot S.'s title, was valid. Stale Bank vs. Cox ^ Co .344 Vide Parties, 4. Trusts and Trustees, 1. PRINCIPAL AND SURETY. Vide Joint Tenants, 1. PROMISSORY NOTE. Vide Jurtsdirtion, 1. Payment. REHEARING. 1. Circuit decree set aside by ihe Circuit Court, and rehearing ordered on newly discovered oral testimony. Tomlinson vs. Totnlhtsoii ')2 SATISFACTION. Vide Pre.siimj)tioiis, 1. SEP.VRATE ESTATE. 1. A gift lo a married daughter, "(or her support during her natural life," creates a separate estate in the daughter — Semhie. .yar/,ln/ vs. Shi- gl«lject loan equity, it any one of the purchases was made for valuable consideration and without notice, that, and all the subsequent purchases, will be good. Fretwi II vs. Neal SOO Vide Adraiicemeut$, Ti. Frauds, Statute of. Piaetice. Slaves. USURY. 1. Where the obligor ul' a bond, when about to reissue il for the purpose of raising money, rcpre.>ented to the new lender that the bond would be punctually paid at the end of the year: Held, that such representation did not preclude the obligor from setting up the defence of usury. Mar- tin vs. Petit 410 2. Where a bond was originally negotiated at a ustirious. and then taken up and renegotiated at a less usurious interest, to another lemler, ignor- ant of the original usury: Held, that the obligor could not be compelled to pay to the new lender more llinn the amount he received when he first negotiated the bond /6. 598 INDEX. VENDOR'S LIEN. 1. The doctrine that the vendor 1ms an equitable lien for the purchase money of land sold, has never, it seems, prevailed in this State. McCor- kle vs. Montgomery 114 WILLS AND TESTAMENTS. 1. The testator devised and bequeathed his estate, real and personal, to his executors, in trust, lor the sole and separate use of his two daughters, each to take one half for life, u'ith remainder to her issue, and should one die without leaving issue her surviving, then her share to the sur- viving daughter for life with remainder to her issue; ''but in the event that both of my daughters should die without leaving issue surviving, then and in that case," he devised and bequeathed his whole estate, real and personal, after some inconsiderable pecuniary legacies, to his brothers and sisters. The two daughters both died unmarried and with- out issue : Held, that the limitation to the brothers and sisters of the testator was valid. Gillam vs. Caldwell 73 2. The will containing no provision for the payment of debts: HeZ«?, that they were chargeable on the corpus of the estate, and not exclusively on the income to which the daughters, as tenants for life, were entitled Ih. 3. Where a testator gives no direction as to the fund out of which his debts should be paid, they are, as between tenant for life and remaindermen of the estate, chargeable not upon the incon)e, but upon the corpus of the estate as it existed at the death of the testator lb. 4. Testator, being the owner of two large estates, each embracing real and personal property, made disposition of the greater part of one estate in the first part of his will, and in a subsequent part, relating to the " dis- posal "of the other estate, directed his executors to sell *' the whole estate," and then proceeded to dispose of the proceeds of the sale : Held, that the direction to sell related only to the estate mentioned in that part of the will, and did not embrace some portions of the other estate, which the will did not dispose of". American Bible Society vs. Noble 156 Jj. Where a testator owned a large real and personal estate, which he had inherited from a deceased brother, and to which he had added a large tract of land, purchased with the proceeds of the crops of that estate: Held, that his devise "of the estate of my respected and greatly lament- ed brother," embraced as well the estate he had inherited as the land he had purchased lb. 6. A bequest of a negro woman " and her descendants," will include all her issue born before or after the date of the will; so, also, a bequest of a negro woman '• and her children," will include all the children ; but a bequest of a negro woman simply by name, will not include her chil- dren born before the death of the testator Ih. 1. Testator directed a sum of money to be placed at interest in a bank, " whi'ch sum, when thus placed, I do hereby cheerfully give to J. M. And do hereby so settle it, that no person or persons whatever, under INDEX. 599 any circumstances or pretext whntever, can deprive hini of it during his naturnl life. That J. M., himself, shall not he allowed to touch, or use, or squander one cent of the principal, but only to draw and make use of the lawful interest annually, as may seem to him best:" Held, that J. M. look an absolute interest in the money, with right to dispose of it as he pleased Ih. S. Where there is no charge of insolvency or misconduct against an execu- tor, the Court will not deprive him of the privilege, which the will gives him, of selling lands, and direct the sale to be made by the commission- er //). 9. A devise of lands, to be sold by the executors, with directions to distrib- ute the proceeds among certain religious corporations, is a devise of personalty, and is not prohibited by the Act of 1733 (3 Stat., 311), excepting corporations from the objects of the devises of land ///. 10. Testator directed "first, that all my just debts be paid and discharged; and, secondly, that the remainder of my property be disposed of as fol- lows." He then devised all his "lands on the Round O, known as the Ash Hill plantation," to his son, '"to be valued by three disinterested persons, and to be received by him at said valuation, as so much of his share of my estate:" directed that his daughter should "receive in negroes, the amount of the valuation of the land given to my son;" and, after providing for other children to be born, should there be any, bequeathed the remainder of his personal property to his wife : — Held, that there was no equital)le conversion of the lands into personalty, and that as between the devisee and legatees tlie personal estate should be exhausted in payment of debts before resort could be had to the real estate devised. Farmer vs. Spell 01 1 11. The Act of 1789, ? 9, 5 Stat., 107, was intended to provide for the case of a lapse by the death of a child, after the execution of the will o( the father or mother. The Act does not apply where the child was dead when the will was executed. Pegites vs. Pcgues S.')! Vide Executors and Administrators, 4, 5. Limitation oj Estates, 1. Slaves, 2, 3, 4. Testamentary Paper. H «. i,^